Court No. - 58
Case :- WRIT - A No. - 11120 of 2018 Petitioner :- Smt. Padma Respondent :- State Of U.P. And Another Counsel for Petitioner :- Kailash Singh Kushwaha Counsel for Respondent :- C.S.C.,Nisheeth Yadav
Hon'ble Ashwani Kumar Mishra,J.
This petition has been filed seeking following reliefs:-
"(i) Issue a writ order or direction in the nature of mandamus commanding the respondent no. 2 to correct the place of posting of the petitioner mentioned in promotion order dated 3.1.2017 in the light of her application dated 27.3.2017 and 11.4.2018 in primary School Durgakund-I, Nagar Kshetra Bhelupur Zone, Varanasi in place of Primary School Durga Ghat, Dashashwamedh Zone, Varanasi.
(ii) Issue a writ order or direction in the nature of mandamus commanding the respondent no. 2 not to fill up the posts of Headmaster in Primary School, Durgakund-I, Nagar Kshetra Bhelupur Zone, Varanasi in place of Primary School Durga Ghat, Dashashwamedh Zone, Varanasi".
Petitioner was initially appointed as Assistant Teacher in the primary institution and she became entitled to be considered for promotion as she fulfilled the requisite qualification in terms of the provisions of U.P. Basic Education (Teachers) Service Rules, 1981. So far as posting of a teacher is concerned, the procedure is clearly laid down in Rule-8 of the U.P. Basic Education (Teachers) (Posting) Rules, 2008. Rule-8 is quoted below:-
"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 vice-versa 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 inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district 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.]"
According to the petitioner, in terms of the posting Rule, a specific option was liable to be extended to petitioner to indicate her place of preference but the same was not provided to her. Her grievance is that the authorities unilaterally proceeded to pass promotion order, which was not as per the petitioner's preference and, therefore, she has not joined. It is stated that now a vacancy on the post of headmistress has come into being in the institution, where petitioner is presently posted as such, her claim is liable to be considered by the respondents.
A counter affidavit has been filed stating that the petitioner was promoted in accordance with Rules but she has not availed of promotional order. It is stated that by virtue of Rule 22 of the Rules of 1981 as well as Rule-11 (c) and (d) of the Posting Rules, 2008, petitioner has forfeited her right of promotion and her claim cannot be considered now.
In rejoinder Sri K.S. Kushwaha, learned counsel for the petitioner has invited attention of the Court to Annexure-3 of the counter affidavit, as per which, petitioner was called for counselling for the purposes of promotion on 31.12.2016. It is stated that the publication itself was made in the news paper on same day and the option was not extends by the respondents.
Sri Nisheeth Yadav,learned counsel appearing for the respondents points out that the petitioner had infact appeared in the counselling on 31.12.2016 and has not indicated any preference for the purpose of her posting.
The issue which is sought to be raised now by the petitioner need not be entertained. Admittedly, the counselling was conducted for the promotional post on 31.12.2016. In case the petitioner was aggrieved by the fact that offer was not extended to her to indicate her preference, the petitioner could have approached this Court earlier. It appears that the petitioner was not interested in leaving the place where she was working and has not joined on the promoted post. The subsequent order passed in the year 2017 has also been declined by the petitioner. In such circumstances, the provisions contained under Rule-11 (c) and (d) are clearly attracted on the facts of the present case. Petitioner, therefore, has lost any right to be considered for promotion for a period of three years. At this stage, claim of petitioner, therefore, cannot be considered and the writ petition is consigned to records. It is, however, provided that immediately after expiry of three years, whenever the exercise of promotion is undertaken,claim of petitioner shall be considered afresh, in accordance with law.
Order Date :- 28.5.2018 n.u.