Disposed

Pradip Kumar v. State of U.P. and 3 Others

Allahabad HC12 May 2023WRIA/5891/2023

Case brief

AI extract

What is this about?

The Court held that a male Assistant Teacher can be transferred before completing five years under exceptional circumstances. It directed the authority to consider the petitioner's inter-district transfer request based on his spouse's posting and existing judicial directions, without rejecting the application due to alleged lack of policy.

What did the court decide?

The respondent No. 2 was directed to consider the petitioner's request for inter-district transfer from District Chitrakoot to District Jalaun within three months, considering the spouse's posting and

Pradip Kumar Vs State of U.P. and 3 Others — Pension and Retirement Benefits | Allahabad HC (2023)

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Neutral Citation No. - 2023:AHC:103594

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Court No. - 36

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Case :- WRIT - A No. - 5891 of 2023

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Petitioner :- Pradip Kumar Respondent :- State Of U.P. And 3 Others Counsel for Petitioner :- Ajay Sengar Counsel for Respondent :- C.S.C.,Rajesh Khare, Archana Singh

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Hon'ble Ashutosh Srivastava,J.

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Heard Shri Ajay Sengar, learned counsel for the petitioner, Shri Rajesh Khare, learned counsel appearing for the respondents No. 4, Smt. Archana Singh, learned counsel for respondent No. 3 as also learned Standing Counsel appearing for the State-respondent.

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The present writ petition has been filed for issuance of a writ of mandamus directing the respondent to consider the petitioner's representation dated 28.1.2023 made by the petitioner for transferring him on the post of Assistant Teacher from District Chitrakoot to District Jalaun.

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Learned counsel for the petitioner submits that the wife of the petitioner is working as Assistant Teacher in Poorv Madhyamik Vidyalaya, Itahiya, Vikas Khand Jalaun, District Jalaun. Petitioner is working for the last more than 7 years at Chitrakoot whereas his parents and wife are residing at district Jalaun. Petitioner's parents are very old and suffering from cardinal disease.

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Learned counsel for the petitioner submits that petitioner has moved an application 28.1.2023 before respondent No. 2, Director of Education (Basic), Nishat Ganj, U.P., Lucknow, but nothing has been done in the matter.

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It is further contended by learned counsel for the petitioners that the inter district transfer are governed by Rule 8 of the U.P. Basic Education (Teachers) (Posting) Rules, 2008 framed under Section 19 (1) of the U.P. Basic Education Act, 1972. The respondents for the academic Sessions 2019-20 evolved a Transfer Policy for inter district transfers by issuing Government Order dated 2.12.2019. The said Government Order dated 02.12.2019 came to be challenged in a bunch of writ petitions leading amongst them being Writ Petition No.878 of 2020 ( Divya Goswami and others Vs. State of U.P. & others ) decided on 03.11.2020 wherein clauses

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2(2)(A), (B) of the Government Order was held to be contrary and in conflict with the statutory rules contained under the posting Rules, 2008 and Clause 16 to be contradictory to the Clause 15 of the Government Order and also defeating the very objective sought to be achieved under the posting Rules, 2008 in the light of the objective set forth under the Right to Free Education for all Act, 2009 and Clause 15 of the Government Order was observed to be read down for female candidates as they may be specially circumstanced. The writ petition was disposed of with certain directions to be kept in mind before finalizing the list of teachers seeking inter district transfer. The directions were:-

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"(I) No inter district transfer shall be done in the mid of the academic session.

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(II) Transfer application should be entertained strictly in the light of the provisions as contained in Rule 8(2)(a) (b) and (d) of the Posting Rules, 2008.

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(III) Once a teacher has successfully exercised the option for inter district transfer, no second opportunity shall be afforded to any teacher of any category except in case of female teacher who has already availed benefit of inter district transfer on the ground of parents dependency, prior to her marriage. However, in case if the marriage has taken place then she will have only one opportunity to exercise option for inter district transfer either on the ground of parents dependency or spouse residence/ in-laws residence.

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(IV) In case of grave medical emergency for any incurable or serious disease that may as of necessity, require immediate medical help and sustained medical treatment, either personally or for the spouse, a second time opportunity to apply for inter district transfer should be afforded to such a teacher even if he/she had exercised such option for inter district transfer for any other reason in the past.

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(V) Application of differently abled person should have very sympathetic consideration looking to physical disability but they should also have only one time opportunity to exercise option for inter district transfer. In case of female teachers, such exception would apply, as referable to rule 8(2) (d) of Posting Rules, 2008.

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(VI) In case of female teacher's right to seek transfer, relaxation given under Rule 8(2)(d) shall be read with rule 8(2) (b) and relaxation shall, therefore, be subject to rule 8(2) (b).

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(VII) Save as observed and directed herein above (Direction Nos.III, IV and V), no second opportunity to exercise option for inter district transfer be made available to any candidate of any category whatsoever.

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(VIII) The exercise of inter-district transfer since is exception to the general rule of appointment and posting, every application for transfer has to be addressed to by the competent authority keeping in mind the objectives set forth under the Act, 2009 and Posting Rules, 2008 as amended in the year 2010 and must be acceded to citing a special circumstance specific to the case considered."

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The pending applications for inter district transfer before the State Government pursuant to the Government Order date

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02.12.2019 were directed to abide by the directions/observations made in the judgment. The decision dated 03.11.2020 rendered in the case of Divya Goswami (Supra) was modified vide order dated 03.12.2020 and the direction No.1 in the judgment dated 03.11.2020 was directed not to be pressed into the service in cases of medical emergency.

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It is next contended that the question whether a male Assistant Teacher appointed in a Primary School run by Basic Shiksha Parishad could be transferred from one district to another even before completing five years term is no longer res-integra and stands decided by a decision dated 30.05.2018 of a Coordinate Bench rendered in Writ (A) No.4950 of 2018 ( Anuraddha Kumar Tripathi Vs. State of U.P. & 5 others ) wherein the Court held that transfer of a male Assistant Teacher from one district to another, in a basic school, can ordinarily be made only after completion of five years initial posting in backward area in accordance with Rule 8(2)(d) of the Rules of 2008 as well as the policy framed for the purpose. However, in extra ordinary or exceptional circumstances an application for transfer can be considered by the Basic Shiksha Parishad even before expiry of such term. The question whether in a given case extra ordinary circumstances exist or not has to be examined by the Basic Shiksha Parishad.

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Learned counsels for the respondents submit that no policy has been framed by the Government as yet in this regard. He further submits that the respondent No. 2, Director of Education (Basic), Nishat Ganj, U.P., Lucknow, is the transferring authority, because it is an Inter-District Transfer.

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I have heard learned counsels for the parties and perused the record.

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This Court finds that it is no longer res-integra that a male Assistant Teacher appointed in a Primary School run by Basic Shiksha Parishad could be transferred from one district to another even before completing five years term and stands concluded by the decision of the Coordinate Bench in Writ (A) No.4950 of 2018 (Anuradha Kumar Tripathi Vs. State of U.P. & 5 others) . The said decision has been approved in Special Appeal Defective No.70 of 2019 (Arif Ali Vs. U.P. Basic Education Board & 3 others) . In such view of the matter, the claim of the writ petitioner cannot be rejected on the ground that he has not completed five years term.

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In view of the aforesaid, let the respondent No. 2, Director of

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Education (Basic), Nishat Ganj, U.P., Lucknow, consider the request of the petitioner for transfer from District Chitrakoot to District Jalaun within a period of three months from the date of filing of certified copy of this order, keeping in view of the decision rendered in case of Divya Goswami & Anuraddha Kumar Tripathi (Supra) and on the ground of spouse posting of. The application shall not be rejected on the ground that there is no policy framed in this regard for the reasons already mentioned herein above and the petitioner has not submitted online application for his transfer.

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With the aforesaid observations, the writ petition stands disposed of .

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Order Date :- 12.5.2023 Ravi Prakash

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Digitally signed by :- RAVI PRAKASH High Court of Judicature at Allahabad

Pradip Kumar v. State of U.P. and 3 Others

Case brief

What is this about?

What did the court decide?

Pradip Kumar v. State of U.P. and 3 Others

Case brief

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What did the court decide?

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