1. Heard Shri Ashok Khare, learned Senior Advocate assisted by Siddharth Khare, Navin Kumar Sharma and Seemant Singh for the petitioners and Shri B.B. Pandey, learned Chief Standing Counsel alongwith Smt. Archana Singh, learned Additional Chief Standing Counsel, Shri Sanjay Kumar Singh, learned Additional Chief Standing Counsel for the State respondents as well as Bhola Nath Yadav, Mohd. Shere Ali, Arun Kumar and P.D. Tripathi, learned counsel appearing for the concerned District Basic Education Officers.
2. The petitioners are working as Assistant Teachers in Primary Institutions run and managed by the Board of Basic Education, U.P.. In pursuance of the Government policy of the State Government, the transfer of the Assistant Teachers were initiated and in pursuance thereof, the petitioners moved their online applications. They were transferred on their request on the basis of disclosures made in their online application forms regarding their cadre. Subsequently, it transpired that such disclosure was incorrect and therefore, their transfer has been set aside. Aggrieved by such action and the consequential relieving and direction to join their earlier place of posting, the petitioners are before this Court.
3. Since these writ petitions involve similar questions of law and fact, as such they have been heard together and are being disposed of by this common judgment. Writ Petition of Ekta Tyagi being Writ A No.6418 of 2021 shall be treated as the leading case.
4. Brief background of the aforesaid matters is that the Board of Basic Education, U.P. at Prayagraj (in short, the Board) is a statutory body constituted under the provisions of U.P. Basic Education Act, 1972 (the Act 1972). It has established a large number of Junior Basic Schools/Senior Basic Schools in all the districts across the State of Uttar Pradesh. The appointment of teachers and conditions of services are governed by the U.P. Basic Education (Teachers) Service Rules, 1981 (in brevity, Rules 1981). The appointing authority under the Rules of 1981 is Basic Shiksha Adhikari of the concerned district. The Assistant Teachers working in Primary/Upper Primary Schools are given the facilities of inter-district transfer from time to time. "Local Area" and "Rural Local Area" have been defined in sub-clauses (i) and (k) of Rule 2 of Rules, 1981, while "Urban Local Area" is defined in Rule 2 (r) in the following manner:-
"(i) "Local Area" means the area over which a Panchayat exercises jurisdiction;
(k) "Rural Local Area" means the area over which a local body exercises jurisdiction;
(r) "Urban Local Area" means the area over which a Nagar Nigam, Nagar Panchayat, Town Area Committee, or Notified Area Committee exercises jurisdiction."
5. Similarly, under Section 4 of the Rules, 1981 "Strength of Service" has been defined. The procedure of inter-district transfer of teachers has also been provided in Rule 21 of the Rules, 1981, which reads as under:-
"21. Procedure of 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."
6. A policy decision for inter-district transfer for the academic session 2019-2020 was taken by the State Government vide notification dated 02.12.2019. For the purpose of inter-district transfer under Rule 21 of the Rules, 1981, following provisions were made:-
"किसी अध्यापक का स्थानान्तरण ग्रामीण स्थानीय क्षेत्र से स्थानीय क्षेत्र मे या इसके विपरीत या किसी एक नगर स्थानीय क्षेत्र मे उसी जिले के किसी अन्य नगर स्थानीय क्षेत्र मे एक जिले के स्थानीय क्षेत्र से किसी अन्य जिले के स्थानीय क्षेत्र को सिवाग अध्यापक के अनुरोध पर या उसकी सहमति से और दोनो ही दषा मे परिषद के अनुमोदन के नही किया जायेगा।"
7. Thereafter, the State Government had issued a Memorandum dated 22.1.2020, wherein for the purpose of verification of online applications for inter-district transfer of teachers in the academic year 2019-20, directives were issued. Relevant point no.11 is extracted as below:-
"राज्य सरकार द्वारा अन्तर्जनपदीय स्थानान्तरण के सम्बन्ध मे दावों/वरियता हेतु उपलब्ध कराये गये सभी प्रमाण-पत्रों/अभिलेखों का सत्यापन सम्बन्धित निर्गत किये जाने वाले प्राधिकारी एवं संस्थान से कराया जायेगा। किसी भी प्रकार से कोई भी अभिलेख फर्जी/कूटरचित पाया जाता है तो सम्बन्धित कार्मिक को सेवा से बर्खास्त करते हुए उसके विरूद्ध एवं फर्जी व कूटरचित अभिलेख निर्गत करने वाले अधिकारी के विरूद्ध सुसंगत धाराओं मे प्राथमिकी दर्ज कराकर कठोर कार्यवाही की जायेगी।"
8. Similarly, point no.14, which is also relevant, is reproduced hereinafter:-
"यह पूर्ण रूप से सुनिष्चित कर लें कि किसी ग्रामीण क्षेत्र में कार्यरत अध्यापक द्वारा नगर क्षेत्र के अध्यापक द्वारा ग्रामीण क्षेत्र हेतु ऑनलाइन आवेदन पत्र को सत्यापित न किया जाय"
9. In the leading Writ A No.6418 of 2021 the petitioner, Ekta Tyagi was initially appointed as Assistant Teacher at Primary School Kewalpur Khurd, Tehsil Sadar, District Maharajganj on 19.5.2019. Thereafter, she was transferred to Primary School Baikunthpur, Tehsil Sadar, District Maharajganj on 12.12.2019 and since thereafter she has been continuously working there. It is claimed that the petitioner, who had been working in "Rural Area", applied online for transfer in response of the said Government order by wrongly mentioning that she has been working in "Urban Area". Admittedly, the said application was processed by the concerned District Basic Education Officer. As a result whereof, the N.I.C. through developed software, made the inter-district transfer of the applicants as per their options and taking into consideration the quality point.
10. Consequently, the District Basic Education Officer, Saharanpur, considering the aforesaid Memorandum dated 29.1.2021, relieved the petitioner to join as Assistant Teacher in Primary School Baikunthpur, District Saharanpur. After scrutiny the respondents found with certain discrepancies in the record, wherein the applicant had made wrong disclosures in the online applications mentioning, therein, as "Urban Area" instead of "Rural Area" and only on the basis of such information, her application was processed for inter-district transfer. Consequently, the State Government issued the Government order dated 07.4.2021 and Circular dated 08.4.2021 to the Secretary of the Board. In pursuance thereof, the petitioner was relieved vide impugned order dated 04.5.2021 to join her respective original district and adequate information was also given to the higher officials.
11. In the connected writ petitions, the petitioners are also working as Assistant Teachers in different Primary Schools. The State Government had issued a Government order dated 2.12.2019 notifying its transfer policy for inter-district transfer of teachers during the academic session 2019-20. The petitioners also applied online for their transfer in pursuance of the aforesaid Government order dated 02.12.2019 and ultimately, they were transferred on their requests on the basis of disclosures made in their online application forms regarding their cadre. They have also submitted their joining at the transferred place on different dates before the concerned District Basic Education Officers. Thereafter, the State Government has issued another Government order dated 11.2.2021, wherein certain clarification for inter-district transfer has been issued. In pursuance thereof, the impugned orders have been passed, whereby the petitioners have been relieved and they have been directed to join at their original place of posting.
12. Shri Ashok Khare, learned Senior Advocate appearing for the petitioner has submitted that the transfer of the petitioner has been cancelled, taking reference of the Government order issued on 7.4.2021. The case of the petitioner is covered under the Government order dated 11.2.2021 and not by the Government order dated 7.4.2021 as she has not concealed the material fact in her application forms to take benefit of the quality point marks. He submitted that the orders impugned are unsustainable under the facts and circumstances as at no point of time the petitioner made any deliberate concealment of material fact. Even though, at the time of filling up her application for inter-district transfer, her institution was situated in urban area. In support of his submission, he has placed reliance on the relevant record of the leading writ petition to substantiate his argument that the institution in question is situated within the municipal limit of the Nagar Palika Parishad and accordingly, the petitioner was also paid house rent allowance applicable to the urban area. He has also placed reliance on the website Prernaup.in/State Dashboard report, wherein, the institution in question is shown to be situated in the urban area. Since the petitioner has not submitted any incorrect information, in such situation she cannot be relieved from the transferred place. Even assuming, that the claim set up by the petitioner is unsustainable, then as per provisions contained under Rule 21 of the Rules, 1981, she may be adjusted in rural area schools situated in the transferred district. Therefore, the entire action of the respondents is arbitrary and contrary to the Government orders issued from time to time and the order impugned is liable to be set aside.
13. Per contra, learned counsel for the respondents vehemently opposed the writ petitions and reiterated statutory rule and relevant Government order. She submitted that since the transfer orders were made on the basis of false disclosure/declaration made by the applicants, therefore, the respondents had every right to rectify the discrepancy, which was surfaced subsequently and accordingly, relevant Government orders were also issued. Moreover, the applications were invited for inter-district transfer with an object to reprieve the applicants and redress their grievances so that they may join their family. The respondents had rightly cancelled the transfer orders in the light of the aforesaid Government orders. The orders impugned are just, valid and do not suffer from any infirmity and illegality. She further submitted that each and every aspect of the matter has been considered by the coordinate Bench in Writ A No.6136 of 2021 (Rina Upadhyay and 13 others vs. State of UP and 3 others) decided on 05.7.2021 and negated the claim set up by the petitioners. Admittedly, till date said judgment and order has not been challenged in appeal and for all practical purpose, the same has attained finality and as such, the writ petitions are liable to be dismissed.
14. The Court has occasion to peruse the record and also pleading set up by the parties and found that the State Government vide Government order dated 02.12.2019 had formulated Scheme for transfer of the Assistant Teachers as per Rules of 1981 and consequently, online applications for inter-district transfer of teachers of Primary/Upper Primary Schools were invited. In the said online applications, all the incumbents were required to specify/disclose their cadre i.e. rural local area cadre or urban local area cadre. It is claimed that at the time of filling up online application the petitioners were placed in the institutions, which were situated in territorial jurisdiction of the urban area. Even though such situation would not help as their cadre remained to be rural area cadre. The object of the Government order dated 02.12.2019 was to accord reprieve to the Assistant Teachers to avail an opportunity for inter-district transfers but the said invitation was not for the purpose of change of cadre. Once the petitioners were admittedly given an option as urban area cadre even though they were remained in rural cadre, moreover, nothing has been brought on record to substantiate their claim that at any point of time as per the Board's permission their cadre were changed. Therefore, it cannot be presumed that in absence of change of cadre, it was permissible to them to make an endorsement in the application that they all belong to urban local area cadre.
15. In absence of any material on this score, the Court is of the considered opinion that merely mentioning as urban area in absence of any formal order for change of a cadre the same was impermissible and only on the basis of furnishing wrong information their applications were processed in the said cadre i.e. urban area cadre, under the transfer policy for Session 2019-20, and the said discrepancy was later on clarified by the subsequent Government order.
16. So far as other issues, which are pressed before this Court, are concerned, the same has already been answered by this Court in Rina Upadhyay's case (supra). The relevant portion of the judgment is reproduced hereinafter:-
"It is admitted that all the petitioners belong to rural local area cadre and have been transferred to a different cadre i.e. urban local area cadre. This change of cadre by way of transfer was impermissible by virtue of Rule 21 of the Rules of 1981. The scheme for transfer contemplated transfer in two phases. In the first phase transfer was permissible within the cadre from one district to another. Petitioners also applied for transfer in the first phase. Petitioners transfer to different cadre was thus contrary to the scheme. The transfer otherwise was obtained on the basis of a false disclosure about the correct cadre held by the petitioners. The transfer from one cadre to another was permissible in the second phase by virtue of Clause 2(24) which is yet to commence.
The appointment letters issued to the petitioners are on record. It is admitted that all the petitioners have been appointed in the rural local area cadre. The argument that petitioners disclosed their cadre as urban local area cadre since they were receiving house rent allowance of urban area is wholly misconceived. Residence of a teacher or payment of house rent allowance for urban area has no relevance for determining the cadre of a teacher. It is otherwise possible for a teacher of rural local area cadre to be residing in urban area or a teacher in urban local area cadre to be residing in rural area or receiving house rent allowance of the place where he lives. These are wholly irrelevant consideration for determining the cadre of a teacher. Similarly, the cadre of a teacher would not be altered if the area wherein the institution situates is later declared to be urban area in place of rural area.
Cadre of a teacher carries significant importance in service jurisprudence inasmuch as seniority and other conditions of service are determined on its basis. It is by a conscious decision of the competent authority in accordance with the relevant service rules that the cadre of an employee/ teacher can be changed and not otherwise.
It appears that transfers in large numbers were allowed without verifying the correct cadre of the teacher concerned and the anomaly was ascertained much later. A Government Order consequently came to be issued on 11.02.2021 proposing to rectify the anomalies caused in the matter of transfer. Clause 2 of this Government Order deals with the exigency arising in the present bunch of petitions. It is clearly provided that the District Basic Education Officer shall certify the cadre of the teachers concerned and on the basis of such verification transfers would be allowed within the cadre from one district to another. It is in accordance with this Government Order that respective cadre of teachers was certified by the District Basic Education Officer concerned and those teachers whose transfer was allowed contrary to Rule 21 of the Rules of 1981 and the Government Order dated 02.12.2019 have been relieved from their transferred place for joining at their original place of posting.
It is apparent that petitioners have been transferred from one district to another treating their transfer to be within the cadre although their transfer was made from one cadre to another. This was since in teeth of the rules and the applicable policy therefore, no exception can be taken if petitioners have been sent back to their place of original posting in their cadre. The petitioners are themselves to blame for it inasmuch as they were clearly aware of their cadre but they falsely projected a different cadre for seeking inter-district transfer. Cancellation of transfers, secured on the basis of incorrect disclosures made in the application forms would, therefore, require no interference in exercise of writ jurisdiction. Challenge laid to the impugned action in the present bunch of petitions fail and the writ petitions are dismissed.
Dismissal of these petitions, however, will not preclude the authorities from considering petitioners' claim for transfer as and when the second phase of transfer policy commences as per Rule 21 of the Rules of 1981 read with Government Order and petitioners' application for transfer will not be ignored only because they made incorrect disclosures earlier. Petitioners' claim for transfer within the cadre would also be examined as per their merits and in accordance with law. The applicable Government Order in that regard shall be adhered to.
There shall however be no order as to costs."
17. Therefore, taking into consideration of the aforementioned facts and circumstances, this Court is not inclined to take a different view in the matter and I am in respectful agreement with the view expressed by this Court in Rina Upadhyay's case (supra).
18. For the aforesaid reasons, all the writ petitions are dismissed.
Order Date :- 27.8.2021 RKP