Dismissed

Dr. Uday Raj Singh and 16 Others v. State of U.P. and 2 Others

Allahabad HC19 Nov 2022WRIA/16010/2021

Case brief

AI extract

What is this about?

This writ petition challenged a government order rejecting transfers of teaching staff. The High Court held that while service rules grant a right to seek transfer, they do not guarantee a specific post. Upon the enactment of the Reservation Act, posts were identified for specific categories. Transfers to posts not belonging to the petitioners' category lawfully failed, and the order was upheld.

What did the court decide?

The writ petition was dismissed; petitioners remain entitled to fresh applications if suitable posts become available in their category.

Dr. Uday Raj Singh and 16 Others Vs State… — Pension and Retirement Benefits | Allahabad HC (2022)

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Court No. - 36

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Case :- WRIT - A No. - 16010 of 2021 Petitioner :- Dr. Uday Raj Singh And 16 Others Respondent :- State Of U.P. And 2 Others Counsel for Petitioner :- Kunwar Bhaskar Parihar,Alok Mishra,Atul Kumar Kushwaha,Sr. Advocate Counsel for Respondent :- C.S.C.

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Hon'ble Saumitra Dayal Singh,J.

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Heard Sri Alok Mishra learned counsel for the petitioner and Sri Sanjay Kumar Tiwari learned Standing Counsel for the State respondents.

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Challenge has been raised to the Government Order dated 19.3.2021 whereby it has been provided, transfers sought under U.P. Aided Colleges Transfer of Teachers Rules, 2005 (hereinafter referred to as the 'Rules') would be permissible on vacant post in the same category to which the applicant seeking transfer belongs. Further, direction has been sought to give effect to the recommendation made by the Director Higher Education, Prayagraj dated 14.10.2020 recommending transfer of petitioners to various non-aided undergraduate and post graduate colleges in the State of U.P.

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Briefly, it may be noted, the petitioners were all initially appointed as Assistant Professor at various undergraduate and post graduate degree colleges pursuant to recruitment process undertaken by the U.P. Higher Education Services Commission constituted under the U.P. Higher Education Service Commission Act, 1980 (hereinafter referred to as the 'Act'). Under the rules read with Section 32 of the

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Act, a right has been created to the teachers governed by those rules to seek once in a lifetime to be transferred to another institution. Relevant to our purpose, rule 4 of the Rules reads as below:

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"4. Conditions of transfer.-(1) Teachers appointed on regular basis and holding lien as permanent teachers shall be entitled to transfer after 10 years of service only once in the whole service period.

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(2) The transferred teacher shall become the employee of the college to which he has been transferred and his service conditions shall be governed by the statutes of the University concerned.

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(3) The protection of salary of the teacher shall be admissible but the service rules of the new employer shall be applicable to such teacher.

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(4) The transferred teacher, shall be the junior most teacher of his cadre working on the date of his joining in the college concerned.

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(5) The teachers shall be transferred against such posts for which salary is paid from the salary payment account. The management of the college before giving its consent to any teacher shall ensure that no enquiry or any proceeding is pending against the teacher concerned and the post to which he has been considered to be appointed by transfer shall not be advertised by the Uttar Pradesh Higher Education Services Commission.

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(6) The transfer application for single/mutual transfers from one college to the other shall be submitted to the Director, Higher Education through the Management legally constituted and approved by the University along with the written consent of both the two Managements. The Director, Higher Education shall submit this recommendation to the Government within one month from the date of receipt of the application. The Government shall take decision either on the basis of recommendation of the Director or on its own.

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(7) No Travel Allowance shall be admissible to the teachers against such transfers.

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(8) The Manager of the former institution shall send its Service Book, Character Rolls Leave Account, G.P.F., Group Insurance Account and last pay certificate countersigned by the District Inspector of Schools/ Regional Higher Education Officer, as the case may be, to the Regional Higher Education Officer of the Region concerned and to the Director, Higher Education."

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It is also not disputed that the above rule 4(1) was amended vide notification dated 01.5.2008. The qualifying service of ten years specified in rule 4(1) of the Rules was amended and reduced to five years. Upon amendment to the law, it is undisputed that the petitioners became eligible to seek transfer under rule 4(1) of the Rules. They applied for such transfer. The Director Higher Education recommended the case of the petitioners and others. In all 41 recommendations were made by the Director Higher Education to the Government vide communication dated 14.10.2020. It is also not disputed, 24 such recommendations were acted upon and those teachers transferred to the institutions of their choice/recommendation of the Director. However, petitioners' claim were kept pending. They approached this Court by means of Writ-A No. 9635 of 2021, Dr. Uday Raj Singh and 24 Others Vs. State of U.P. and 3 Others. That writ petition was disposed of vide order dated 18.8.2021. Relevant observation made in that order is as below:-

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“Once the Director of Higher Education has already made recommendation vide his letter dated 14.12.2020 then in such situation this Court is of the considered opinion that the State Government may scrutinize each and every claim set up by the petitioners as per existing Rules and take a final call in the matter strictly in accordance with law within a period of two weeks from the date of receipt of a copy of the order.”

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In compliance of that direction, the State Government has proceeded to reject the claim of the petitioners. It has relied on the Government Order dated 19.3.2021. Relevant clause 7 of that Government Order reads as below:

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“ 7- अशासकीयसहायतापापमहािवदालयोकेिलएआरकणकीवयवसथा सुिनिशचतबनायेरखनेहेतुएकअशासकीयसहायतापापमहािवदालयसे दूसरेमहािवदालयमेएकलसथानांतरणहेतुशासनकीअिधसूचनािदनांक 03 माचर , 2005 एवं 15 फरवरी , 2006 कीवयवसथाकेतहतएकल सथानांतरणकीिसथितमेअधयापकिजसशेणीकाहोगा , उसकासथानांतरण उसीशेणीकेअंतगरतिरकपदोपरिकयाजाएगा।

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तदनुसारउतरपदेशशैकिणकसंसथान ( शैकिणकसंवगरमेआरकण ) अिधिनयनपखयािपतिकयागयाहै , िजसकीपितसंलगकरपेिषतकीजारही है।”

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In such facts, learned counsel for the petitioners would submit, the Government Order cannot prevail over the statutory rules. Since the petitioners have a perfect right to avail transfer, the Government Order could not have been relied upon to defeat that statutory right vested in the petitioners. Second, it has been submitted, the transfer sought was initiated on 19.8.2019. It was forwarded by the Director, Higher Education on 14.10.2020. Therefore, the Government Order dated 19.3.2021 would not apply to the case of the petitioners. In absence of any enabling law, that Government Order would apply prospectively to claims that may arise after its issuance. Third, it has been submitted Uttar Pradesh Educational Institution (Reservation in Teachers Cadre) Act 2021 (hereinafter referred to as the 'Reservation Act') does not allow or provide for the reservation as created.

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Writ petition has been vehemently opposed by the learned Standing Counsel. He would submit, there is no conflict between the Rules and the Government Order dated 19.3.2021. No right to occupy any post on which the transfer was sought on 19.3.2021 ever vested in the petitioners. Second, the Reservation Act applies with full force.

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Having heard learned counsel for parties and having perused the record, while in first blush, the submission advanced by learned counsel for the petitioners as to conflict between the Government Order and the Rules may appear attractive, however, on deeper scrutiny it appears only imaginative. It is true, as a principle of law a statutory rule would prevail and be always applied notwithstanding a contrary Government Order, at the same time before that principle may be applied to the facts of the present case, a clear conflict must be shown to exist between the scheme of the Rules and the impugned Government Order. As noticed above, Rule 4 of the Rules only provides for a right to seek one transfer during the entire service term of a teacher. While it creates certain restrictions on such transfers by way of providing for minimum eligibility of five years' service as also effect of being placed junior most in the cadre of the teachers at the transferred institution, the Rule is clearly silent as to the post on which such transfer may be sought. In short, the Rule does not enable a teacher to seek transfer on any vacant post in any degree college irrespective of whether such post at the other institution was reserved for any particular category or not. In fact, the Rule is silent as to applicability of law of reservation.

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On the other hand, upon enforcement of the Reservation Act, it became an obligation on the State authorities to identify the posts that had to be reserved for particular categories such as SC,OBC etc. at various educational institutions. Once that law was to be applied, the State appears to have undertaken that exercise and identified posts at various educational institutions for the purposes of reservation.

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In the first place, the exercise carried out by the State Government identifying the posts to be reserved for particular categories is not in conflict with the Rules. It is an independent exercise carried out by the

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State Government enabled by the law enacted by the State legislature in the shape of the Reservation Act to identify posts that may be reserved at each educational institution for particular categories. The cojoint reading of the Rules and the Reservation Act provide-by virtue of the Reservation Act, transfers may be sought by persons belonging to particular categories against posts lying vacant in that category only. In absence of any restraint placed in the Rules to such stipulation, there is absolutely no conflict between the Rules and the Government Order. Second, yet more importantly, insofar as that Government Order is consistent and true to the provisions of the Reservation Act, the independent challenge raised to that Government Order being contrary to Rules has no legs to stand.

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Third, learned Standing Counsel is correct in his contention that no rights had been created or vested in the petitioners by virtue of initiation of the transfers on 19.8.2019 or by virtue of recommendation made by the Director on 14.10.2020. Since the statutory law and the Government Order dated 19.3.2021 enabled by that statutory law, intervened, the identification of posts for the purpose of giving effect to that law cannot be faulted. Once, the posts to which the petitioners are seeking transfer came to be recognised and notified as posts reserved for categories other than that to which the individual petitioners belong, they lost their right to be considered for transfer to such post.

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Seen in that light, there is no discrimination practiced by the State in not allowing the petitioners' transfer while allowing transfer of 24 other teachers. There is no case set up that any of the 24 teachers transferred were transferred to posts that were not available to the category to which they belonged, there is no error seen or established in the exercise carried out by the State respondents.

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Last, Reservation Act does provides for identification of posts for the purpose of giving effect to the law of reservation. In absence of any conflict shown to exist between the Reservation Act and the Government Order dated 19.3.2021, that gives effect to that law, the challenge raised to the Government Order must fail.

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In view of the above, writ petition lacks merit and is accordingly dismissed . No order as to costs.

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It is further provided, in view of the above, petitioners would remain entitled to make fresh application in accordance with law if and when posts become available to them. The fact that their earlier application had been rejected would not be read against them, at that stage.

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Order Date :- 19.11.2022 Faraz

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Digitally signed by FARAZ AHMAD Date: 2022.11.19 17:57:14 IST Reason: Location: High Court of Judicature at Allahabad

Dr. Uday Raj Singh and 16 Others v. State of U.P. and 2 Others

Case brief

What is this about?

What did the court decide?

Dr. Uday Raj Singh and 16 Others v. State of U.P. and 2 Others

Case brief

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What did the court decide?

What the court decided

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