Court No. - 58
Case :- WRIT - A No. - 4950 of 2018 Petitioner :- Anuruddha Kumar Tripathi Respondent :- State Of U.P. And 5 Others Counsel for Petitioner :- Dev Kant Trigunait,Lakshmi Kant Trigunait Counsel for Respondent :- C.S.C.,Ashok Kumar,Bhanu Pratap Singh
Hon'ble Ashwani Kumar Mishra,J.
1. 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 05 year term, is the short question that arises for consideration in this matter?
2. Petitioner has been appointed as an Assistant Teacher in Prathmik Vidyalaya Mahuadhav, Block Pasgawan, District Lakhimpur Kheri on 14th November, 2015 by the District Basic Education Officer, Lakhimpur Kheri. He has joined and is working ever since then. Petitioner is seeking his transfer to Banda on account of various personal hardships as well as medical exigencies. Banda, otherwise, is petitioner's home district where his mother, wife and two minor sons aged about 06 and 02 years are residing. Petitioner alleges that he is suffering from Kidney Infection and is also suffering from high blood pressure for which he is being treated by the Doctors at Kanpur. Submission is that petitioner has completed more than 02 years working at the station and his claim for transfer is liable to be considered as per the applicable rules. Prayer is made to command the Secretary of U.P. Basic Shiksha Parishad to entertain petitioner's application for transfer and to pass needful orders as per law.
3. Service conditions of petitioner are governed by the Uttar Pradesh Basic Education (Teachers) Service Rules, 1981 (hereinafter referred to as 'Rules of 1981). Rule 21 of the Rules of 1981 provides procedure for transfer. Rule 21 of the Rules of 1981 is reproduced hereinafter:-
“21. Procedure for transfer There shall be no transfer of any teacher from the rural local area to an urban local area or vice versa or from one urban local area to another of the same district or from local area of one district to that of another district except on the request of or with the consent of the teacher himself and in either case approval of the Board shall be necessary.”
4. The State Government, by exercising its powers under sub-section (1) of Section 19 of the U.P. Basic Education Act, 1972 has also framed rules for posting of Assistant Teachers in Basic Schools titled as “The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008. Rule 8 regulates posting of teachers and is reproduced hereinafter:-
“8. Posting. (1)(a) Three options for schools shall be asked from the handicapped candidates in order of their merit and after receiving such options the handicapped candidates shall be posted on the basis of options given by them and the vacancies.
(b) Based on the order of their merit, female teachers would be required to submit under their signature option of three schools each from the general and backward block and accordingly, posting would be given in one of these schools.
(c) The posting of male teachers shall be made in accordance with the order of candidates, in the roster prepared under Rule 7.
(2)(a) The newly appointed male teachers shall initially be posted compulsorily in backward areas for a period of at least five years.
(b) Newly appointed female teachers shall also be compulsorily posted in backward areas for a period of at least two years.
(c) Mutual transfers within the district from general block of backward block and viceversa would be permitted with the condition that the teacher on mutual transfer to a backward block shall have to serve in that block compulsorily for five years. Mutual transfers would be permitted only in case of those teachers who have more than remaining five year's service.
(d) In normal circumstances the applications for interdistrict transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for interdistrict transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district.
(e) If by virtue of posting of newly appointed or promoted teachers the primary and upper primary schools of backward blocks get saturated i.e., no post of teacher is vacant in these schools, then handicapped and female teachers on their choice can be adjusted against the vacant posts of general blocks from these saturated blocks.
(f) Mutual transfers of male/female teachers from one backward block to another can be considered.
(3) Teachers transferred from one district to another will be given posting as per the provisions of these rules.”
5. To regulate inter-district transfer of Assistant Teachers of primary institution run by the U.P. Basic Shiksha Parishad, a transfer policy has been formulated and issued vide Government Order dated 13th June, 2017. Clauses 3, 4 (1), 4(3), 4(7), 4(8) and 7 are reproduced hereinafter:-
“3& ,sls fu;fer f'k{kd tks vius rSukrh@dk;Zjr tuin esa vkosnu ds o"kZ esa 31 ekpZ rd U;wure 5 o"kZ dh larks"ktud lsok iw.kZ dj pqds gks rFkk blls iwoZ muds }kjk vUrtZuinh; LFkkukUrj.k dk ykHk u fy;k x;k gks ,oa muds fo:) iwoZ esa lafLFkr fdlh foHkkxh; dk;Zokgh esa mUgsa nf.Mr u fd;k x;k gksA 4¼1½& vUrtZuinh; LFkkukUrj.k izfdz;k tuin Lrjh; lek;kstu ,oa vUr% tuinh; ¼intra district transfer½ ds i'pkr izkjEHk dh tk;sxhA vUrtZuinh; LFkkukUrj.k izfdz;k izkjEHk djus gsrq loZizFke izns'k ds lHkh tuinksa ls csfld f'k{kk vf/kdkfj;ksa }kjk fnukad 25-7-2017 rd fjfDr;ksa dk fooj.k ifj"kn eq[;ky; dks miyC/k djk;k tk;sxkA mDr fjfDr;ksa esa rno"kZ ds 31 ekpZ rd ds inksUufr] lsokfuo`fRr] u;s in l`tu vFkok vkdfLed e`R;q@ R;kxi= vkfn ds QyLo:i gksus okys fjfDr;ksa dks lfEefyr fd;k tk;sxkA 4¼3½& mijksDr fjfDr;ksa esa ls 25 izfr'kr dh lhek rd gh vUrtZuinh; LFkkukUrj.k dh dk;Zokgh dh tk;sxhA 4¼7½& vkWuykbu vkosnu i= esa vafdr fooj.k@ rF;ksa ls lacaf/kr izekf.kr vfHkys[k vkosnu i= ds lkFk viyksM fd;s tk;sxsaA mnkgj.k ds fy, fodykaxrk@ vlk/; jksx ds vk/kkj ij fd;s x;s vkosnu i= ds lkFk eq[; fpfdRlk vf/kdkjh dk bl vk'k; dk izek.k&i= viyksM fd;k tkuk vko';d gksxkA mRrj izns'k esa vlk/; jksx ds fu%'kqYd mipkj gsrq fu;ekoyh 2013 esa of.kZr vlk/; jksx ;Fkk& dSalj] g`n; jksx] yhoj] fdMuh ekus tk;saxsA 4¼8½& vUrtZuinh; LFkkukUrj.k gsrq vgZ ik;s x;s vkWuykbu vkosnu i=ksa esa ls ojh;rk ds vk/kkj ij LFkkukUrj.k fd;s tk;saxsA ojh;rk fu/kkZj.k gsrq xq.koRrk vadksa dk fu/kkZj.k fuEuor gksxk& d& fodykaxrk ¼lsok esa vkus ls iwoZ vFkok i'pkr½ & 05 vad [k&vlk/;@xEHkhj chekjh ¼ek= Lo;a] ifr@iRuh vFkok cPps ek=½&05 vad x& efgyk& 05 vad ?k& lsok ds izR;sd iw.kZ o"kZ ds fy,s 01 vad ¼vf/kdre 35 vad½ mi;qZDr ds lUnHkZ esa ;fn fdUgha nks O;fDr;ksa ds dqy xq.koRrk vad leku gksus ij rFkk dsoy ,d gh O;fDr dk LFkkukUrj.k gks ldrk gS rks ,slh fLFkfr esa muesa ls vf/kd vk;q okys v/;kid dks ojh;rk nh tk;sxhA 7& LFkkukUrj.k gsrq vkosnu dsoy vkuykbu Lohdkj fd;s tk;saxsA eSuqvy ;k vU; fdlh fof/k ¼;Fkk&jftLVMZ] LihMiksLV] dksfj;j] nLrh vkfn½ ls fd;k x;k vkosnu&i= Lohdkj ugha fd;s tk;saxsA vkosnu&i= fu/kkZfjr izfdz;kuqlkj =qfVjfgr Hkjus dh ftEesnkjh lacaf/kr v/;kid dh gksxhA =qfViw.kZ@ viw.kZ vkosnu i= ij fopkj ugha fd;k tk;sxkA vkosnu dh vfUre frfFk ds mijkUr dksbZ Hkh la'kks/ku xzkg~; ugha gksxkA vku&ykbu vkosnuksaijkUr Hkjs gq, vkosnu i= dk fiazV vkmV lEcfU/kr v/;kid }kjk ftyk csfld f'k{kk vf/kdkjh dk;kZy; dks nks izfr;ksa esa miyC/k djk;k tk;sxk] ftldh izkfIr jlhn ftyk csfld f'k{kk vf/kdkjh dk;kZy; }kjk v/;kid dks nh tk;sxhA”
6. Learned counsel for the petitioner submits that in Clause 4(7) & (8) of the policy, there is a clear stipulation that persons suffering from incurable disease can apply for inter-district transfer, which has to be considered in conjunction with Rule 21 of the Rules of 1981. Such right of consideration, however, is denied on account of Clause 3 of the policy statement, which restricts application for transfer to be made only by an Assistant Teacher, who has completed 05 years service by 31st of March of the concerned year. Petitioner's application is not being entertained, online, only because he has not yet completed 05 years service. It is also argued that in case of female teachers, the restriction of 05 years service for transfer has been relaxed, and the petitioner stands discriminated. Submission is that petitioner is suffering extreme hardship due to his pressing problems including his illness and that action of the respondents in not entertaining his application for transfer is arbitrary.
7. While entertaining the writ petition, following orders were passed on 24.4.2018:-
“This bunch of petitions pertains to Assistant Teachers of Basic Schools, working in different districts, who are seeking transfer both within district and also beyond the district. The service conditions of the petitioners are governed by Rules of 1981. Rule 21 provides for transfer. In exercise of powers under Section 19 of the U.P. Basic Education Act, Rules have also been framed in the year 2008, known as 'U.P. Basic Education Teachers (Posting) Rules, 2008. Rule8 (2)(d) of the rules of 2008 also contain provision relating to transfer.
It is not in issue that the Assistant Teachers, who are regulated by the Rules of 1981, are members of a district cadre and their transfer ordinarily is not a part of service conditions, except Rule21 of 1981 Rules as well as Rule8 (2)(d) of the rules of 2008. It further appears from the perusal of Rule8 (2)(d) of the rules of 2008 that there is a distinction drawn between male teachers and female teachers, and also the reasons for which transfer would be made permissible.
Since the consideration is warranted in respect of large number of Assistant Teachers on their plea of transfer, it would be appropriate to call upon the principal secretary of State to specify, in exact terms, as to what is the policy for transfer in respect of both male and female teachers.
Considering that large number of petitions are being filed every day, which have been connected, it would be appropriate that the required affidavit is filed at the earliest so that the issue is settled.
Sri P.K. Pandey, learned Addl.Chief Standing Counsel comes up with a prayer to adjourn the matter by two weeks, within which time the required affidavit shall be filed.
List on 8.5.2018.”
8. In response to the aforesaid order, an affidavit has been filed by the Secretary of the department concerned, stating that Basic Shiksha Parishad was constituted under Section 3 of the U.P. Basic Education Act, 1972 which is the body responsible for running of basic institutions in the State of U.P. It is stated that teachers engaged in such institutions are members of a District Level Cadre and ordinarily are to remain posted within their cadre i.e. within the district concerned. Rule 21 of the Rules of 1981 has been explained as permitting transfer from one local area to another, on the request of teacher, or on his consent with the approval of the Basic Shiksha Parishad. Rule 8 of the Rules of 2008 has been relied upon to contend that at the time of appointment of Assistant Teachers in primary school, a selected candidate is given an option to choose the district of his choice. Assistant Teachers of the basic schools, therefore, are allocated District Level Cadre after taking into consideration their preference, and therefore, transfer is not ordinarily contemplated under the rules. It is also stated that transfer has to be effected in such a way that respective strength of teachers required in different local areas is not adversely effected. As per the stand in the counter affidavit, male teachers are to serve specified rural area for 05 years, and only thereafter their application for transfer can be considered. It is also submitted that exception carved out for female teachers is based upon intelligible differentia, which has reasonable nexus with the object sought to be achieved, and as such no discrimination can be alleged by petitioner. It is also stated that in exceptional circumstances a request for transfer can be considered even before expiry of 05 years. The circumstances however must be exceptional so as to justify departure from the normal course. Para 14 of the affidavit filed by the Secretary is reproduced hereinafter:-
“14. That in the light of this fact it is evident that the female teachers have been given preference over and above the male teachers by amending rules mainly 8(2)(d). However in view of what has been stated in reference to the order dated 24.04.2018 it is respectfully submitted that if any one who is not falling under any category as explained herein above but his or her circumstances are such that he has to request for his transfer from one district to the other district it is always open for him to approach the competent authority i.e. Basic Shiksha Parishad and in that event he has full right to approach the competent authority for his adjustment posting or his transfer but such special situation may not be treated as a part of the policy and such special situation may also not lead to creation of impasse for implementation of the equitable transfer policy.”
9. I have heard Sri L.K. Trigunait, learned counsel for the petitioner and Sri P.K. Pandey, learned Additional Chief Standing Counsel for the State, as well as learned counsels appearing for the District Basic Education Officers, and have perused the materials brought on record.
10. Before proceeding to deal with the respective submissions, it would be appropriate to refer to a Division Bench judgment of this Court in Kamini Singh Vs. State of U.P. and others, Writ-C No.8532 of 2018, decided on 13th March, 2018, wherein the vires of sub-clause (d) of sub- rule (2) of Rule 8 of the Rules of 2008 had been challenged, on the ground that classification of female teachers in the matter of their transfer is discriminatory and offend Article 14 of the Constitution of India. The Division Bench took note of Rule 8 of the Rules of 2008, insofar as it provides for a male teacher to be initially posted compulsorily in backward areas for a period of 05 years, while a female teacher has to serve in backward areas for a period of 02 years only. Rules 14 to 19 of the Rules of 1981 have been analyzed by the Division Bench to hold that post of Assistant Teacher is a district cadre post. Following observations of the Division Bench in that regard are reproduced:-
“From a simple reading of the aforesaid Rules, it is apparent that the post of assistant teacher is a district cadre post and the appointing authority is the District Basic Education Officer. Upon selection, posting of a teacher is to be made as per the provisions of Rules 2008. In other words inter district transfer is an exception to the general rule pertaining to placement and posting of teachers in blocks within the district is compulsory.”
(emphasis supplied) After noticing various judgments of the Apex Court on the issue, the Division Bench has observed as under:-
“The authorities relied upon by the learned counsel for the petitioner is of no assistance. The main part of Rule 8(2)(d) does not discriminate on gender, any teacher can seek transfer outside the district after five years of service, which is applicable to both male and female teachers uniformly, exception has been carved out by the impugned rule in respect of married female teacher to seek transfer after marriage. The rule requiring compulsory posting is to achieve the purpose and policy of providing teachers in schools located in remote areas of the district which ultimately serves the interest of the students and, in particular, teacher less schools. The functioning of schools would come to stand still if request of frequent transfer outside district is entertained, hence, the rules compulsorily requires posting of a teacher for five years before applying for interdistrict transfer. The rule uniformly applies to male/female teachers, except married female teacher. The choice of district upon marriage gets altered, therefore, the married female teacher is permitted by the impugned rule to seek interdistrict transfer in the changed circumstances due to her marital status.
When a law is challenged as denying equal protection; the question for determination by the Court is not whether it has resulted in inequality, but whether there is some difference which bears a just and reasonable relation to the object of legislation. Mere differentiation or inequality of treatment or inequality of burden does not perse amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable or arbitrary; that is it does not rest on any rational basis having regard to the object which the rule making authority has in view. When, therefore, a law is challenged as offending against the guarantee in Article 14, the first duty of the Court is to examine the purpose and policy of the Act/Rule, to be ascertained from an examination of its title, preamble and provisions and then to discover whether the classification made by the law has a reasonable relation to the object which the legislature/rule making authority seeks to obtain. (Vide: Suraj Mall v. Biswanath7, Kedar Nath Bajoria v. State of West Bengal8, P.B. Roy vs Union of India9,) For the reasons stated herein above, the challenge raised to the vires of subclause (d) of subrule (2) of Rule 8 of Rules 2008 fails. The writ petition being devoid of merit is, accordingly, dismissed.”
11. In Shaukeen Ahmad and others Vs. State of U.P. and others, reported in 2018 (4) ADJ 745, incidentally decided on the same day by the Lucknow Bench of this Court took a similar view in the matter. Article 15(3) of the Constitution of India has been relied upon to hold that special provisions relating to female teachers would not offend Articles 14 and 16 of the Constitution of India. Para 12 of the judgment is reproduced hereinafter:-
“12. After considering the aforesaid judgments rendered by the Hon'ble Supreme Court what we find is that Rule 8(2)(d) of the 2008 Rules, in fact, is a special dispensation for female teachers and the same cannot be held to be violative of either Article 14 or Article 16 of the Constitution of India because the classification is reasonable and has a nexus with the object sought to be achieved i.e. of entertaining the requests of female teachers for interdistrict transfers within five years of their posting either to the place of residence of their husband or inlaw's district. Consequently, keeping this in view, Rule 8(2)(d) of the 2008 Rules cannot be said to be ultra vires.”
12. In the context of what has been observed by the two Division Benches, there can be no doubt that classification of female teachers under Rule 8(2)(d) and their entitlement to be considered for transfer, as per rules, would be valid and the argument questioning it must fail.
13. Rule 8(2)(d) of the Rules of 2008 clearly postulates entertainment of an application for transfer from one district to another by a male teacher ordinarily after he has completed 05 years working in the cadre. The expression 'in normal circumstances', used in Rule 8(2)(d) would mean that there is no prohibition in entertaining of application for transfer, by a male teacher, even before expiry of five year posting in exceptional circumstances. The Rules of 2008, therefore, cannot be construed as laying down a blanket ban in entertaining an application for transfer before expiry of five year term. The Secretary of the department concerned has clearly taken a stand before this Court in para 14 of her affidavit that in justifiable circumstances an application for transfer can be made even before 05 year term. Clause 3 of the Government Order dated 13.6.2017, specifying transfer policy would therefore have to be read in conjunction with Rule 8 (2)(d) of the Posting Rules, 2008. Since the policy dated 13.6.2017 regulates transfer as per Rule 8(2)(d), which provides for transfer in normal circumstances as such the period of 05 year posting has been specified. Clause 3 therefore would not restrict making of an application for transfer in exceptional circumstances even before expiry of 05 year term. Even if an online application is not entertained, a male teacher would be well within his rights to make a request in that regard to the Basic Shiksha Parishad, substantiating the exceptional circumstances warranting transfer even before completion of 05 year term. The stand of State is also in keeping with the interpretation of this Court.
14. It would, however, be appropriate to clarify again that an Assistant Male Teacher is a member of District Level Cadre and his transfer beyond the district is an exception and not the rule. Consideration of adequate representation of Assistant Teacher in an area to ensure providing of quality education to children aged 08 to 14 would be of paramount concern. Application for transfer before expiry of 05 year term by a male Assistant Teacher cannot be as a matter of routine. Considerations like personal hardship or illness alone may not justify entertainment of application for transfer before expiry of 05 year term. The teacher must demonstrate exceptional or extraordinary circumstances before the Parishad for such application to be considered.
15. The power under Rule 21 to consider case of transfer is also subject to grant of approval by the Board. The Government Order dated 13th June, 2017 lays down the guiding principle for consideration of transfer of Assistant Teachers and ordinarily would be the guiding principle for grant of approval by the Board in terms of Rule 21 also.
16. Moreover, the contention advanced on behalf of the petitioner that inter-district transfers are to be considered only after transfers within the district are finalized, cannot be accepted. It has been brought on record before this Court that Government Order dated 13th June, 2017 relating to intra district transfer had been challenged in Writ Petition No.30538 of 2017 and an interim order had been granted by this Court on 31st July, 2017 on account of which all further proceedings had been stayed. The stipulation in Clause 4(1) that proceedings of inter-district transfer would be conducted only after conclusion of intra district transfer has therefore lost relevance, particularly as this Court had restrained the State from proceeding any further in the matter. Writ petition No.30538 of 2017 has been disposed of on 21.5.2018 permitting the State to come out with its new transfer policy. Petitioner, therefore, cannot complain of violation of Clause 4(1) of the policy either.
17. It would be appropriate to observe that the Assistant Teacher appointed in the basic institution is a member of District Level Cadre, which is allotted to him/her, after considering the preference of teacher concerned. Being a member of District Level Cadre, an Assistant Teacher is required to remain posted within the cadre and transfer beyond the cadre (outside the district) is ordinarily not conceived under the rules. Such transfer can be considered in normal circumstances only in accordance with the rules. Rule 8(2)(d) read with Clause 3 of the transfer policy clearly provides that such a request for transfer would ordinarily not be entertained at the instance of a male teacher before completing 05 years service.
18. The question as to whether there exists exceptional circumstances in a specific case, which may justify transfer of a teacher from one district to another, even before the five year posting has to be examined by the Basic Shiksha Parishad, at the first instance.
19. In light of the aforesaid discussions, it is 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 05 year 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 extraordinary 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 extraordinary circumstances exists or not has to be examined by the Basic Shiksha Parishad.
20. In such circumstances, this writ petition stands disposed of permitting the petitioner to represent in the matter before the Secretary, Basic Shiksha Parishad, U.P. Allahabad, by way of a representation together with certified copy of this order, within two weeks from today. Petitioner shall be at liberty to annex all material in support of his plea that there exists exceptional circumstances justifying his transfer from Lakhimpur Kheri to Banda even before completion of his 05 year term. The Secretary of the Basic Shiksha Parishad, U.P. Allahabad shall examine as to whether the ground on which petitioner is seeking his transfer would fall within the exceptional circumstances or not? A specific order, in that regard, shall be passed within a further period of three months, thereafter. No order as to costs.
Order Date :- 30.5.2018 Anil (Ashwani Kumar Mishra, J.)