विकलांग को ट्रांसफर करने , रिलीव के बाद ज्वाइन कराने में हो रही दिक्क्तों और उसके बाद रिप्रेसेंटेशन पर कॉम्पिटेंट अथॉरिटी के फैसला न लेने पर कोर्ट ने आदेश दिया की 4 हफ्ते में निर्णय लिया जाए और प्रमोशन को भी देखा जाए

विकलांग को ट्रांसफर करने , रिलीव के बाद ज्वाइन कराने में हो रही दिक्क्तों और उसके बाद रिप्रेसेंटेशन पर कॉम्पिटेंट अथॉरिटी के फैसला न लेने पर कोर्ट ने आदेश दिया की 4 हफ्ते में निर्णय लिया जाए और प्रमोशन को भी देखा जाए

HIGH COURT OF JUDICATURE AT ALLAHABAD

?Court No. - 21

Case :- SPECIAL APPEAL No. - 300 of 2017

Appellant :- Parwati Singh
Respondent :- State Of U.P. And 4 Others
Counsel for Appellant :- Siddharth Khare,Shri Ashok Khare
Counsel for Respondent :- C.S.C.,Grijesh Tiwari,Jay Ram Pandey

Hon'ble V.K. Shukla,J.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Ashok Khare, Senior Advocate assisted by Shri Siddharth Khare; Shri Sanjay Kumar Singh, learned Standing Counsel; Shri Jai Ram Pandey, Advocate representing third and fourth respondents and Shri Girijesh Tiwari, Advocate representing fifth respondent.
Parwati Singh w/o Ram Ashrey Singh is before this Court assailing the order dated 17.04.2017 passed by learned Single Judge in Writ A No.15757/2017 (Parwati Singh vs. State of U.P. and others) wherein the learned Single Judge has disposed of the Writ Petition with following observations:-
"Heard learned counsel for the petitioner and Shri Grijesh Tiwari, learned counsel for the respondent No.5 and Shri Jay Ram Pandey, learned counsel for the respondents No.2, 3 and 4 as well as learned Standing Counsel for the respondent No.1.
The petitioner is a Primary School Teacher of an Institution run by the Basic Education Board. By order dated 04.01.2017, she has been transferred from Purva Madhyamik Vidhyalaya Raipuria, Block-Narayanpur, District-Mirzapur to Purva Madhyamik Vidhyalaya Jamuhar, Block-Rajgarh, District-Mirzapur. Both are within the same district.
It is not disputed that the petitioner's post is a transferable post. Only grievance of the petitioner is that she is a handicapped person and therefore, she cannot be transferred.
The transfer that has been made is within the same district, that is, from one development area to another development area. The transfer is an incidence of service. As such, I am reluctant to interfere in the same. However, it is always open for the petitioner to approach the higher authorities in case she has any grievance.
With the aforesaid observation, the writ petition is disposed of."
Shri Ashok Khare, Senior Advocate precisely submits that while disposing of the aforementioned Writ Petition, the Learned Single Judge has not considered the most relevant aspect of the matter whereas the petitioner-appellant is physically handicapped candidate and her rights are moreover protected under the Transfer Policy of the State Government that has been holding the field and the transfer order which was impugned before the Learned Single Judge has been passed at the instance of Smt. Punita Singh-fifth respondent and while considering the representation of Smt. Punita Singh at no point of time the rightful claim of petitioner-appellant has been considered and the entire action of the Authorities is just to accommodate Smt. Punita Singh and as such, this Court should come for rescue and reprieve of the petitioner-appellant.
Per Contra Shri Sanjay Kumar Singh, learned Standing Counsel as well as Shri Girijesh Tiwari, learned counsel for respondents have vehemently opposed prayer that has been so made by petitioner-appellant and submits that scope of judicial interference in the transfer matters is very limited and as such, no interference is required in the matter and the Learned Single Judge has rightly proceeded to non-suit the claim of petitioner-appellant and even leave was also accorded to the petitioner-appellant to agitate before the Higher Authorities and as such no interference is required in the matter.
Shri Girijesh Tiwari, Advocate has informed us that promotion of petitioner itself has been cancelled on 02.01.2016
We have proceeded to examine the record in question and what we find that fifth respondent Punita Singh had assailed the initial transfer order dated 07.10.2016 passed in Writ A No.56442 of 2016 (Punita Singh vs. State of U.P. and others) and the Learned Single Judge, in his turn, has proceeded to pass order dated 29.11.2016 setting aside the order dated 07.10.2016 and remitted the matter back to the Competent Authority to decide her claim by reasoned and speaking order considering the fact that Punita Singh has already been relieved from her present posting and before coming into existence the Government Order dated 30.08.2016. The order dated 29.11.2016 passed by learned Single Judge is reproduced hereunder:-
"Heard Sri Grijesh Tiwari, learned counsel for the petitioner and Sri J.P. Pandey, learned counsel for the respondent no. 2 to 4.
Contention is that the petitioner was initially transferred from Jamuhar to Sikandarpur on 29.06.2016 after getting approval of the Board. Subsequently, he was transferred from Sikandarpur to Chunar. Learned counsel for the petitioner submits that in pursuance of the said transfer order, the petitioner has been relieved on 07.10.2016 vide relieving order dated 07.02.2016, copy of which has been annexed as Annexure-4 to the writ petition. Thereafter, the transfer of the petitioner was cancelled vide impugned order dated 07.10.2016. Reliance has been placed on the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981 clause 21 of which reads as follows:
"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."
Learned counsel for the petitioner submits that even though the petitioner has been relieved from the place of her original posting and at present she has nowhere to go. It has been further contended that the post at Raipuria, Chunar is still vacant and thus the petitioner can be easily absorbed on that post as she has already been released from her parent department.
Having heard learned counsel for the parties and looking to the controversy in issue, the writ petition is being disposed of finally with a direction that the claim of the petitioner for being appointed as Head Mistress in pursuance of initial order, which has been approved by the Board be considered by the authority concerned. Accordingly, it is directed that in case petitioner files a fresh representation before the respondent no. 3 raising all her grievances within a period of one month from today along with a certified copy of this order, the same shall be heard and disposed of by respondent no. 2 by means of a reasoned and speaking order after giving opportunity of hearing to the petitioner preferably within a period of three months thereafter.
In view of aforesaid, the impugned order dated 07.10.2016 is quashed and the matter is remitted back for being reconsideration by respondent no. 3 who will passed a reasoned and speaking order considering the fact that the petitioner has already been relieved from her present posting and before coming into existence of the Government Order dated 30.08.2016.
With the aforesaid direction, the writ petition is disposed off finally."
In the garb of the order dated 29.11.2016, the District Basic Education Officer, Mirzapur has proceeded to pass order dated 04.01.2017, which was impugned in the Writ Petition, transferring and accommodating Smt. Punita Singh from Primary School Jamuhar to Primary School Raipuria and vice-versa petitioner-appellant has been transferred to Primary School Jamuhar whereas she was already working as Head Master at Primary Schools Raipuria.
We have proceeded to peruse the impugned order dated 04.01.2017 and what we find that while disposing of the Writ A No.56442 of 2016 (Punita Singh vs. State of U.P. and others), the Learned Single Judge has clearly proceeded to set aside the earlier order dated 07.10.2016 and the matter was remitted to the Competent Authority for reconsideration and it has also been directed to him to pass a reasoned and speaking order considering the entire facts of the matter. The order dated 04.10.2016 passed by District Basic Education Officer, Mirzapur nowhere provides as to why petitioner-appellant has been transferred to Primary School Jamuhar from Primary Schools Raipuria except the fact that there has been the order of this Court dated 29.11.2016 asking the Competent Authority to reconsider the matter of Punita Singh and pass reasoned and speaking order. Thus, it is clearly reflected that there is no consideration by the Competent Authority in passing the order impugned in the Writ Petition and the claim of petitioner-appellant has not been considered in its correct perspective and as such, we are of the considered opinion that the order dated 04.01.2017 passed in compliance of the order dated 29.11.2016 is unsustainable. Accordingly, the same is set aside and the present Special Appeal is allowed asking the Basic Education Officer, Mirzapur to reconsider the claim of petitioner-appellant and pass reasoned and speaking order considering the entire facts of the case, and at the said point of time District Basic Education Officer should satisfy himself as to whether promotion in question is still subsisting or not, as before us it has been informed that promotion order itself has been cancelled by the order of Principal, DIET, Mirzaur dated 02.01.2016, preferably within a period of four weeks from the date of production of certified copy of this order, but certainly after providing opportunity of hearing to the parties concerned.
Order Date :- 24.5.2017

A. Pandey

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