व्यवस्था करने का आदेश, देखें
HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 18
Case :- WRIT - A No. - 2868 of 2018
Petitioner :- Bibha Singh Kushwaha and others
Respondent :- State Of U.P
Counsel for Petitioner :- Mr Arvind Kumar Singh
Counsel for Respondent :- C.S.C.
Hon'ble Mahesh Chandra Tripathi,J.
Heard Shri Indra Raj Singh, learned counsel for the petitioners; Shri Vivek Rai, learned Additional Chief Standing Counsel for the State respondents; Shri Sunil Kumar Singh, Advocate as well as Shri A.K. Yadav, learned counsel for second and third respondents.
Bibha Singh Kushwaha and 21 other similarly situated Assistant Teachers are before this Court assailing the validity of order impugned dated 13.06.2017 and 20.09.2017 passed by Secretary Basic Education, U.P. at Lucknow as well as order dated 12.01.2018 issued by U.P. Basic Education Board, Allahabad through its Secretary on the ground that the same are violative of Rule 8(2)(d) of The Uttar Pradesh Basic Education (Teachers Posting) Rules, 2008 (in brevity the 'Rules 2008'). Further prayer has been made to command the second respondent to consider the transfer of the petitioners on the post of Assistant Teachers in Junior Basic Schools in their respective districts against the existing vacancies within stipulated period.
Shri Indra Raj Singh, learned counsel for the petitioners has apprised to the Court that in the present matter Bibha Singh Kushwaha, who has been arrayed as first respondent, has been before this Court by preferring Writ Petition no.30808/2017 (Bibha Singh Kushwaha vs. U.P. Basic Education, Board, Allahabad and others) wherein she, being as Assistant Teacher claimed transfer from Kushinagar to Ballia, where her husband is posted as Assistant Teacher. It has also been apprised that at the relevant point of time, petitioners have set up their claim on the basis of provisions contained under Rule 8(2)(d) of the Rules 2008, which deals with transfer and posting of the Teachers working in Junior Basic School and Senior Basic School run by the Board. It has also been submitted that while dealing with the aforesaid case, the Court has taken cognizance regarding online application in terms of the Government Order dated 03.05.2017 and placed reliance on the judgement passed by Full Bench of this Court in the case of R.B. Dixit vs. Union of India and others 2005 (1) UPLBEC 83 and has also considered the order dated 30.07.2010 passed in Sarita Gupta vs. State of U.P. and others, Writ A no.7096 of 2010 and as such, this Court has proceeded to dispose of the Writ petition with following observations:-
"This issue has been considered by this Court in the case of Sarita Gupta v. State of U.P. & Others, Writ-A No. 7096 of 2010, decided on 30.7.2010. The Court had occasion to deal with the similar arguments and at that time a Government order was issued imposing certain restrictions on transfer. The Court has expressed its view in the following terms:
"The ban is general in nature. However, the provision of transfer for the purposes of placing husband and wife in the same district is a special provision which will normally prevail upon general temporary restriction on transfer.
Accordingly, writ petition is allowed. Impugned order is set aside. Secretary, U.P. Basic Shiksha Parishad, Allahabad is directed to decide the matter ignoring the ban order dated 6.6.2009. The decision shall be taken positively within three weeks from today."
It is trite that in most of the services of the Central Government and the State Governments, there is provision in their transfer policy that an endeavour should be made that husband and wife may be posted at the same place. In view of the said principle, under the Rules 2008 the provision of the couple posting has been incorporated.
The intention of rule making authority is very clear and it needs no elaboration. Relevant it would be to mention that in transfer policy of State Government for Government employees there is provision only for husband and wife but in Rule 8(d) of the Rules, 2008 the in-laws of the female teachers have also been included. Hence, in my view, in spite of the Government Order dated 3.5.2017 a female teacher's application for her transfer on the ground of couple posting or in-laws can be entertained notwithstanding some of the contrary provisions of the said Government order.
For the above-mentioned reasons, there is no legal bar in considering the representation of the petitioner in terms of Rule 8(d) of the Rules, 2008.
Accordingly, a direction is issued upon the first respondent to consider the representation of the petitioner in the light of the observations made herein-above and pass appropriate order expeditiously, preferably within six weeks from the date of communication of this order.
The writ petition is, accordingly, disposed of.
No order as to costs."
In this backdrop, Shri Indra Raj Singh, learned counsel for the petitioners submits the impugned Government Order dated 13.06.2017 and 20.09.2017 as well as modified order dated 12.09.2017 and consequential advertisement are in teeth of aforesaid Rule 8(2)(d) of Rules 2008 as well as the dictum in the Full Bench judgement of this Court in R.B. Dixit (supra) and earlier order dated 19.07.2017 passed in Bibha Singh (supra). He further apprised to the Court that the advertisement issued on 12.01.2018 whereby the second respondent has proceeded to fill up 25% of existing vacancies of respective districts by way of transfer from the aforesaid candidates, who have completed five years regular satisfactory service. Even though their case fall under Rule 8(2)(d) of the Rules 2008 but on account of non completion of five years regular satisfactory service, petitioners are unable to move such an application online. It has also been apprised that by the subsequent order, the respondents, reason best known to them, had also proceeded to discriminate their rightful claim with other working female teachers, whose husbands are posted in Paramilitary Forces, B.S.F., C.R.P.F., I.T.B.P., C.I.S.F., S.S.B., N.D.R.F., Army, Air Force and Navy as relaxation has been extended in their favour by impugned order dated 13.03.2017. The same is also discriminatory and hit by Articles 14 and 16 of the Constitution of India. He further apprised to the Court that in most arbitrary manner, they have already fixed date i.e. 29.01.2018 whereby all the applications are to be invited online whereas the petitioners as well as other similarly situated Assistant Teachers, who claim their right under Rule 8(2)(d) of the Rules 2008, are not permitted to move such an application online and for all practical purpose, direction for deciding their representation would in-fact be futile exercise and as such, this Court should come to the rescue and reprieve of the petitioner.
Shri A.K. Yadav on the basis of instructions apprises the Court that at present the claim set up by Bibha Singh Kushwaha has not been turned down and as per letter dated 17.1.2018 issued by the Deputy Secretary (Basic), this much is clear that the claim for inter-district transfer would definitely be looked into in terms of Rule 8 (2) (d) of the Rules of 2008. On the basis of letter dated 23.01.2018 sent by Secretary, Basic Education Board, Allahabad addressed to the Joint Secretary, Basic Education, Education Anubhag-5, Lucknow, he submits that as per Government Order dated 23.06.2017 and 20.09.2017, the NIC has developed the software and accordingly applications are invited. The said applications can be filled up from 16.01.2018 to 29.01.2018 and on the basis of software security audit, the said process is on and as such in between there is no scope to interfere in the software but relaxation regarding service period can be accorded in the same and in this regard, request has already been made to the Secretary, U.P. Basic Education Board, Allahabad.
In the aforesaid circumstance, this Court is of the considered opinion that the Joint Secretary, Basic Education, Education Anubhag-5, Lucknow shall pass an appropriate order on the letter dated 23.01.2018 sent by Secretary Basic Education Board, Allahabad forthwith for enabling the candidates to fill up online applications.
Once the assurance has been given on the basis of aforementioned letter, then the Court hopes and trusts that the department would come with better suggestions on the next date fixed in the matter. For necessary instructions, let the copy may be given to learned Additional Chief Standing Counsel free of cost within 48 hours.
Put up this matter on 06.02.2018 in Additional Cause List.
Order Date :- 23.1.2018
A. Pandey
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