JUDGMENT A.P. Sahi, J.
1. The petitioners in these writ petitions are challenging the validity of the impugned order dated 15.7.2005 primarily on the ground that the same is in violation of Rule 21 of the Uttar Pradesh Basic Education Teachers Services Rule, 1981 read with Sections 2(e) and (f) and Section 9 -A of the Basic Education Act, 1972 and it is contended that the transfers orders have been given effect to without their consent as they have been transferred from " Nagar Chhetra" to " Gramin Chhetra" i.e. from the local urban area as defined under the provisions referred to herein above, to a rural area. It is urged on their behalf that the transfer orders being in complete violation of the aforesaid provisions, are liable to be set aside.
2. There is no dispute about the status of the petitioners, who are 14 in numbers in all the eight writ petitions and are employed as Asstt. teachers governed by the provisions of Uttar Pradesh Basic Education Teachers Services Rule, 1981. There is also no dispute about the fact that all these petitioners were appointees in a rural area i.e. Gramin Chhetra cadre. There is also no dispute.that these teachers are functioning in such Institutions, which were earlier in point of time within the rural area as defined under the aforesaid provisions.
3. The Institution in which all these teachers are functioning no falls within the geographical limits of Jhansi Municipal Corporation, which is a local urban area, as a result of the notification dated 7.2.2002 published by the State Government expanding the limits of the Jhansi Municipal corporation. The petitioners contend that since the Institution in which they are functioning is within the limit of Jhansi Municipal Corporation by virtue of the aforesaid notification, therefore, they are teachers in an area which is a local urban area and as such according to the provisions of Rule 21, they could not have been transferred from an urban area to rural area by the impugned order either without their requests or by their consent.
4. A counter affidavit has been filed on behalf of of the U.P. Basic Shiksha Parishad in the leading case i.e. writ petition No. 56557 of 2005 and a supplementary affidavit has also been brought on record and it is contended on behalf of the respondents that the petitioners are not entitled to raise this plea as they continued to retain the status of a teacher of rural area and as such, neither any consent was required, nor have any of the petitioners been asked to give their option for being transferred as it was not required under the Rules. Reliance has also been placed on the decision of a Division Bench of this court reported in 1993 (2) UPLBEC 1120, Smt. Asha Kumari Mishra v. Zila Basic Shiksha Adhikari, Kanpur and Ors. and another decision of learned Single Judge of this court, reproted in 1998 (2) UPLBEC, 1474, Smt. Manorma Painuli v. Distt. Basic Shiksha Parishad and Ors.s. Reliance has also been placed on the guidelines issued on 5.5.2003, 9.6.2004, 24.7.2004, followed by 17.3.2005 for the proposition, that the Basic Shiksha Parishad has passed the transfer orders in consonance with the aforesaid guidelines and as such the same does not deserve any interference. It is further contended, that by virtue of the extension of the limit of the Municipal Corporation, so as to bring within its geographical limit, the Institution, where the petitioners are functioning, would not automatically confer status of a teacher of urban area on the petitioners and they continued to be teachers of the rural area. This, the respondents contend, is because of the fact, that at the time of appointment, teachers are required to give their option for appointment and which is also contained in the advertisement against which these teachers have applied and have been appointed. It is for this reason that the embargo of transfer has been incorporated in Rule 21 and which stands further explained with the rule of the seniority contained in the II Explanation of Rule 22.The Respondents further urged that the petitioners have absolutely no right to challenge the order of transfer as transfer is an exigency of service and that even otherwise, Section 13 of the U.P. Basic Education Act, gives wide powers to the State Government to issue directions by way of Government Orders in the matters of transfer as well and such directions are binding on the petitioners as they do not come in conflict with any of the Rule relied upon by the petitioners. To support this contention, the respondents have relied on the decision of the learned Single Judge in the case of Smt. Manorama Painuli (supra).
5. I have heard Sri Vivek Shandilya and Sri R.K.Nigam, learned counsel for the petitioners, learned standing counsel Sri K.R.Singh and Sri R.B.Pradhan for the State and Sri P.D.Tripattji and Sri B.G.Singh for the respondents Uttar Pradesh Basic Shiksha Parishad and Basic Shiksha Adhikari respectively.
6. The first six writ petitions, challenge the order of transfer dated 15.7.2005, which is a common order of transfer issued by the Distt. Basic Education Officer, Jhansi. The last two writ petitions also challenge in addition the order dated 15.9.2005, which are orders passed by the same officer, rejecting the representations of the petitioners therein, in compliance of the previous directions issued by this Court. However, the essence of challenge in all writ petitions remains the same.
7. The first question, which has to be dealt with is with regard to the status of the petitioners as a teacher of the rural area or of the urban area in the facts and circumstances given herein above.
8. The petitioners have not disputed the fact that as on the date of notification dated 7.2.2002 they were functioning as teachers of the rulral area. The respondents contend that in the past whenever such a situation has arisen, appropriate Government Orders have been issued for adjustment of such teachers. Reference has been made to the Government Order dated 27.7.2000, wherein it has been stated that such Institutions, which have been included within the geographical limits of an urban area by virtue of extension of limits of Municipal Corporation upto 20.5.2000, the teachers of such Institutions should be required to give their option for either retaining then in the rural area or opting for the urban area. This exercise also appears to be necessary in order to give effect to the provisions of seniority under Rule 22, II Explanation, which requires that once a teacher opts to go from one local area to another local area, he shall be placed in seniority belo the last teacher of that local area to which he has been transferred. The affect is that such a teacher loses his previous seniority if any. It is in order to protect the seniority of teachers and to give effect to the aforesaid Rule, that the aforesaid system has been devised and incorporated in Rule 21 and Rule 22. The respondents stated that no such Government order has been issued prescribing the time limit within which such an option be called for from teachers like the petitioners in the present case.
9. A perusal of the aforesaid Government Order and the provisions, referred to herein above indicate that as and when such a situation arises, option should be invited from the teachers of such Institution as to whether they intend to retain their status as a teacher in the rural area or they would opt for another local urban area. The respondents in their affidavits indicate that no such option has been invited as yet as no such Government Order as issued previously has been issued as yet. It is urged that as and when such a Government Order is received, an option will be called from the petitioners and they shall be suitably transferred.
10. In the aforesaid back drop, it is evident that since the petitioners have not been able to exercise their option as yet, they cannot actually presume themselves to be teachers of an Institution of an urban area falling within the limits of the Jhansi Municipal Corporation. Unless and until the option is exercised, the petitioners continue to retain their status as an Asstt. teacher in an Institutions of the rural area in which they were continuing as on the date of the issuance of the notification dated 7.2.2002. The Institutions did come within the geographical limits of Jhansi Municipal Corporation, but that would not automatically change the status of the petitioners unless and until the options are exercised. This, in the opinion of the court, would be the correct interpretation of the Riiles, applicable to the controversy in the facts and circumstances that have arisen in this case.
11. The next question is the power of the respondents to transfer the petitioners. This question is no longer res integra inasmuch as the decisions relied upon by the respondents and referred to herein above clearly Rule in favour of the respondents. Applying the ratio of the said decision, it can be safely concluded, that there is no embargo on the power of transfer, except in the contingency referred to in Rule 21. The Apex Court in the case of State of U.P. v. Gobardhan Lal , has held that the orders of transfer should.be interfered with unless there is a violation of some statutory Rule or in cases of proved malice. Mere violation of guidelines issued by the Government, cannot be made a ground to interfere in the exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India.
12. Having answered the aforesaid questions, what is to be seen is that the State Government has not acted upon immediately to remedy the situation. The notification dated 7.2.2002 whereby the limits of the city of Jhansi Municipal Corporation were extended, was issued almost 3½ years ago. Instead of taking prompt action in the matter, as was done on the previous occasions by the Government Order dated 27.2.2000, the State Government has not issued any direction to the Uttar Pradesh Basic Shiksha Parishad. At least, this is the position on record of this case. The learned counsel for the Basic Shiksha Parishad, however, has stated that such action is likely to be taken and the exercise completed shortly and the situation, therefore, is likely to be remedied very soon and as such, in the opinion of the court, the respondent No. 1 Secretary, Ministry Basic Education Government of Uttar Pradesh Luckno should take immediate steps for appropriate action in the matter.
13. Accordingly, the said respondent is hereby directed to issue necessary instructions to the Secretary, Basic Shiksha Parishad within 15 days from today. Learned standing counsel shall immediately despatch a copy of this judgment to the said respondent for necessary compliance. The Basic Shiksha Parishad shall issue necessary instructions within 15 days thereafter to the concerned Distt. Basic Education Officer, to ask the petitioners to exercise their option in accordance with Rules. Their case shall be considered individually and appropriate orders shall be passed by the Distt. Basic Education Officer within 15 days of the receipt of the directions from the Secretary U.P. Basic Shiksha Parishad. The aforesaid exercise shall be completed within six weeks as indicated herein above.
14. The impugned order of transfers only in so far as the petitioners are concerned, shall remain in abeyance till the orders are passed by the Distt. Basic Education Officer as directed herein above.
15. The learned standing counsel shall ask the State Government, if possible, to endeavour to issue an appropriate Government Order laying down stable guidelines in this respect to be implemented as and when required in a situation like the present case.
With the aforesaid directions, all the writ petitions stand disposed of.