Writ petition filed by a handicapped Assistant Teacher was dismissed against the rejection of his intra-district transfer application. The court held that the transfer was barred due to lack of requisite service years and noted the petition did not involve a medical emergency exception.
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Court No. - 2
Case :- WRIT - A No. - 2110 of 2021
Petitioner :- Naved Ahmed Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ashwani Kumar Yadav Counsel for Respondent :- C.S.C.,Prem Prakash Yadav
Hon'ble Suneet Kumar,J.
Recall application filed on behalf of the third respondent, is taken on record.
Pursuant to order dated 21.9.2021, respondents are present in the Court.
Petitioner, a handicapped Assistant Teacher, by the instant petition is assailing the rejection of his intra-district transfer pursuant to advertisement dated 20.12.2019, issued by the third respondent, Secretary, U.P. Basic Shiksha Parishad, Prayagraj. It is urged that reliance has been placed by the learned counsel for the petitioner on paragraph 2(1)(B) of Government Order dated 2 December 2019, to urge that since petitioner had put in 3 years of service under the handicapped quota, he was entitled to intra-district transfer. Case of the petitioner was rejected by the Parishad on the plea that he had not put in service as mandated under the Rules under the U.P. Basic Education ( Teachers ) Service Rules , 1981 . It is further urged that para-2(1)(B) of the Government Order has been declared void by this Court in a decision rendered in Divya Goswami and others v. State of U.P. and others , 2020 (11) ADJ Relevant portion of the order reads thus:
"59. In view of the above clauses 2(1)(A),(B), 16 (partially) and 17 of the Government Order dated 2.12.2019 are held void being contrary to and in conflict with rule 2 (a) (b) and 2 (d) of the Posting Rules, 2008. However, condition of one time exercise of option for transfer as contained in clause 16 is upheld and clause 16 would be void save for the above condition. The Government, therefore, needed to bring in comprehensive transfer policy in tune with and in consonance with the Posting Rules, 2008 and the Act of 1972 read with Right to Free Education Act, 2009."
The judgment came to be clarified/modified, wherein, embargo of five years was held not be an impediment to consider the cases of Assistant Teachers for transfer being effected in cases of medical emergencies which would be an exception to the general rules of transfer, as far as, mid of the academic sessions is concerned. Accordingly, judgment and order dated 3.11.2020 stood modified. Pursuant thereof, case of the petitioner came to be rejected by the third respondent as he had not putin five years of service. This fact is not disputed by the learned counsel for the petitioner. It is not a case of medical/exceptional exigency.
In backdrop of the decision rendered by this Court in Divya Goswami (supra), on specific query, learned counsel for the petitioner is unable to show any illegality, infirmity or perversity in the impugned order.
In view thereof, writ petition is dismissed.
Presence of the officers is exempted.
Order Date :- 4.10.2021 Mukesh Kr.
3 issues framed by the court
Whether the petitioner's rejection of intra-district transfer is sustainable given the holdings in the Divya Goswami judgment and relevant service rules.
Whether the petitioner is entitled to transfer under the handicapped quota having served less than the mandated period.
Whether an embargo of five years on transfers acts as an absolute bar to transfer.
Colour shows how this judgement treated each authority
Divya Goswami and others v. State of U.P. and othersReferred¶7
Divya Goswami and others v. State of U.P. and others, 2020 (11) ADJ
3 provisions across 3 enactments
Naved Ahmed
State Of U.P.
Suneet Kumar
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
