# Dinesh Singh v. State of U.P. & Ors

- **Citation:** (2023) 1 ILRA 1249
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-01-12
- **Case number:** Writ-A No. 9410 of 2022
- **Bench:** Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/dinesh-singh-v-state-of-u-p-ors-49582
- **Pages:** 11

## Headnote

A. Service Law - Seniority - Transfer - U.P.
Basic Education (Teachers) Services (20th
Amendment) Rules, 2017 - U.P. Basic
Education (Teachers) Service Rules, 1981
- Rule 21, 22 - Transfer from one place to
other is generally a condition of service
and the employee has no choice in the
matter. Transfer is necessary in public
interest and to maintain efficiency. No
government servant or employee of public
undertaking has legal right for being
posted at any particular place. According to
Rule 4 there shall be separate cadres of service
for each local area as defined in Rule 2(1)(i) of
Rules, 1981, meaning thereby, strength of the
cadre is district wise. (Para 26)

There can be no inter district transfer except as
provided u/Rule 21. Rule 21 provides two
conditions, namely, "except on the request" or
"with the consent of the teacher himself". Rule
22(1)
provides
for
counting
of
the
seniority of the Assistant Teacher from the
date of his appointment in the substantive
capacity. Rule 22(2) provides the seniority of
the Assistant Teacher on transfer shall place him
at the bottom of the list of teachers of the
corresponding class or category pertaining to
the local area to which he has been transferred.
(Para 28)

In the present case, none of the petitioners
have asked for their transfer rather they have
approached the Court against the arbitrary
action of the Board. Hence, in the opinion of the
Court the case of the petitioners shall be
governed by Sub-Rule (1) of Rule 22 and
not by Sub-Rule (2) of Rule 22 of Rules, 1981.
(Para 29)

B. Relinquishing the claim of seniority in
case of fresh district allocation - The
contention of the Respondent Board that once
the
petitioners
have
given
an
affidavit
relinquishing their seniority in fresh district
allocation and accepted all the conditions with
open eyes and as such now the petitioner
cannot claim the seniority from back date,
cannot be accepted. (Para 30)

It is settled that once the appellants
want to retain the benefit of transfer to
the districts of their choice, they cannot
be permitted to take the benefit and rid
themselves of the disadvantage that is
coupled with it. If appellants want to
continue in the district of their choice after
securing a transfer, to which they are
otherwise not entitled as of right, they cannot
claim restoration of their status or pay in the
cadre to which they originally belonged. This
would
verily
violate
the
firmly
established principle that a party cannot
be permitted to approbate and reprobate.
(Para 32)

In
the
present
case,
the
facts
are
different. The petitioners have approached this
Court against arbitrary action of the Officers of
the Board and in these circumstances the
undertaking given by the petitioners would not
have binding effect and Court finds that the
affidavits were given under compulsion to
secure joining and not in anxiety to secure
transfer to the districts of their choice.
(Para 33)

Writ petition allowed. (E-4)

Precedent followed:
1250 INDIAN LAW REPORTS ALLAHABAD SERIES

## Text

1 All. Dinesh Singh Vs. State of U.P. & Ors.
1249
However, there shall be no order as to
costs.
----------
(2023) 1 ILRA 1249
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.01.2023

BEFORE

THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 9410 of 2022
alongwith other connected cases

Dinesh Singh ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri O.P. S. Rathore, SrI Prabhakar Awasthi

Counsel for the Respondents:
C.S.C., Archana Singh

A. Service Law - Seniority - Transfer - U.P.
Basic Education (Teachers) Services (20th
Amendment) Rules, 2017 - U.P. Basic
Education (Teachers) Service Rules, 1981
- Rule 21, 22 - Transfer from one place to
other is generally a condition of service
and the employee has no choice in the
matter. Transfer is necessary in public
interest and to maintain efficiency. No
government servant or employee of public
undertaking has legal right for being
posted at any particular place. According to
Rule 4 there shall be separate cadres of service
for each local area as defined in Rule 2(1)(i) of
Rules, 1981, meaning thereby, strength of the
cadre is district wise. (Para 26)

There can be no inter district transfer except as
provided u/Rule 21. Rule 21 provides two
conditions, namely, "except on the request" or
"with the consent of the teacher himself". Rule
22(1)
provides
for
counting
of
the
seniority of the Assistant Teacher from the
date of his appointment in the substantive
capacity. Rule 22(2) provides the seniority of
the Assistant Teacher on transfer shall place him
at the bottom of the list of teachers of the
corresponding class or category pertaining to
the local area to which he has been transferred.
(Para 28)

In the present case, none of the petitioners
have asked for their transfer rather they have
approached the Court against the arbitrary
action of the Board. Hence, in the opinion of the
Court the case of the petitioners shall be
governed by Sub-Rule (1) of Rule 22 and
not by Sub-Rule (2) of Rule 22 of Rules, 1981.
(Para 29)

B. Relinquishing the claim of seniority in
case of fresh district allocation - The
contention of the Respondent Board that once
the
petitioners
have
given
an
affidavit
relinquishing their seniority in fresh district
allocation and accepted all the conditions with
open eyes and as such now the petitioner
cannot claim the seniority from back date,
cannot be accepted. (Para 30)

It is settled that once the appellants
want to retain the benefit of transfer to
the districts of their choice, they cannot
be permitted to take the benefit and rid
themselves of the disadvantage that is
coupled with it. If appellants want to
continue in the district of their choice after
securing a transfer, to which they are
otherwise not entitled as of right, they cannot
claim restoration of their status or pay in the
cadre to which they originally belonged. This
would
verily
violate
the
firmly
established principle that a party cannot
be permitted to approbate and reprobate.
(Para 32)

In
the
present
case,
the
facts
are
different. The petitioners have approached this
Court against arbitrary action of the Officers of
the Board and in these circumstances the
undertaking given by the petitioners would not
have binding effect and Court finds that the
affidavits were given under compulsion to
secure joining and not in anxiety to secure
transfer to the districts of their choice.
(Para 33)

Writ petition allowed. (E-4)

Precedent followed:
1250 INDIAN LAW REPORTS ALLAHABAD SERIES
1. St. of Punj. Vs Dhanjit Singh Sandhu, (2014)
15 SCC 144 (Para 23)

2. Shikha Singh & ors. Vs St. of U.P. & ors., WritA No. 19737 of 2018 (Para 7)

3. Amit Shekhar Bhardwaj Vs St. of U.P. & ors.,
Special Appeal No. 274 of 2020 (Para 8)

4. Board of Basic Education Vs Shikha Singh &
ors., Special Appeal (Defective) No. 865 of 2020
(Para 11)

Precedent distinguished:

Vipin Kumar & ors. Vs St. of U.P. & ors., Special
Appeal No. 296 of 2019 (Para 30)

Present
petition
assails
order
dated
25.06.2022, passed by the Secretary,
Board of Basic Education, U.P., Allahabad,
whereby the petitioner has been asked to
submit an affidavit declaring therein that
he will not claim for his seniority of
service in future. A further prayer in the
nature of mandamus commanding the
respondent to ensure the joining in the
newly allotted district Meerut with his
seniority from 17.09.2018.

(Delivered by Hon'ble Ashutosh
Srivastava, J.)

1. These bunch of writ petitions involve
common questions of law and fact and are thus
being decided by a common order.. The facts of
Writ (A) No.9410 of 2022 (Dinesh Singh Vs.
State of U.P. & others) is being considered for
deciding the controversy involved.

2. Heard Sri Ashok Khare, learned Senior
Counsel assisted by Sri O. P. S. Rathore,
learned counsel for the petitioner, learned
Standing Counsel for the State Respondents
and Smt. Archana Singh, learned counsel for
the Respondent No.2.

3. The challenge in this writ petition
is to an order dated 25.06.2022 passed by
the Secretary, Board of Basic Education,
U.P., Allahabad, whereby the petitioner has
been asked to submit an affidavit declaring
therein that he will not claim for his
seniority of service in future. A further
prayer
in
the
nature
of
mandamus
commanding the respondent to ensure the
joining of the petitioner in the newly
allotted district Meerut with his seniority
from 17.09.2018 i.e. first date of joining as
Assistant Teacher in district Aligarh has
also been claimed.

4. The fact in brief leading to the
filing of the instant writ petition are that the
petitioner was selected as an Assistant
Teacher, Primary School against the 68500
vacant
posts
in
pursuance
to
the
advertisement published by the State
Government vide Government Order dated
09.01.2018. The vacancies were advertised
district-wise. The selection of the Assistant
Teacher was to be made on the basis of
Quality Point comprised of 60% of
weightage
on
Assistant
Teacher
Recruitment Examination, 10% on High
School, 10% on Intermediate, 10% on
Graduation
and
10%
on
training
qualification. An additional weightage of
2.5 marks per completed teaching year upto
a maximum 25 marks, whichever is less
was made applicable to Shiksha Mitras as
per
U.P. Basic
Education
(Teachers)
Services (20th Amendment) Rules, 2017.
The petitioner obtained 90 marks in the
ATRE-2018 and as per the existing formula
secured 67.61 quality point marks.

5. The Secretary, Board of Basic
Education issued an advertisement on
19.08.2018 inviting online applications
from
the
selected
candidates
for
appointment
and
also
sought
the
preferences of districts from the candidates.
The petitioner as per his quality point
1 All. Dinesh Singh Vs. State of U.P. & Ors.
1251
marks was allotted district Aligarh and he
appeared before the selection committee in
his allotted district. The petitioner was
issued an appointment letter on 05.09.2018
by the District Basic Education Officer,
Aligarh and he joined at the allotted
institution i.e. Primary School, Nagla
Kurawali, Development Block Gangiri,
District Aligarh. Though the ARTE-2018
was conducted for 68,500 vacancies the
Board of Basic Education vide Notification
dated 19.8.2018 reduced the vacancies
from 68500 to 41556. On account of the
reduced vacancies almost 6127 candidates
who had cleared the ARTE-2018 were
denied selection at first place. The
unselected candidates agitated the matter
and the Board issued 2nd list of 6127
selected candidates and allotted them
districts of their choice without considering
their respective merits.

6. The writ petitioner through
belonged to reserved (OBC) category but
was selected against unreserved vacancy
because of his higher merit and as such, is
to be treated as MRC (Meritorious
Reserved Category) candidate.

7. The arbitrary action of the Board of
Basic Education in proceeding to allot the
districts to the selected candidates as per
their choice without considering their
respective merits was assailed by the
petitioner in Writ-A No.26132 of 2018
(Naveen Kumar and 52 others versus State
of U.P and others) which was decided
along with the writ petitions filed by
similarly circumstanced candidates leading
amongst them being Writ-A No. 19737 of
2018 (Shikha Singh & 48 others versus
State of U.P. and others). The leading writ
petition of Shikha Singh (supra) was
disposed of vide judgment and order dated
29.8.2019 in the following terms:-

"58. In view of the law laid down by
the Apex Court, the allotment of district
made by the respondents cannot be
sustained in so far as it relates to MRC
candidates and to that extent, it is quashed.

59. The respondent no. 3 is directed to
carry on process of allotment of district to
MRC candidates only, treating them to be
reserved category candidates only for the
purposes of allotment of district of their
preference. It is further directed that the
MRC candidates who alleged that they
have not been allotted district of their
preference despite being MRC candidates,
may file their applications before the
respondent no. 3 within a period of 3
months from today and the respondent no. 3
is directed to consider and pass necessary
order, as per law stated hereinabove within
next 3 months.

60.
The
order
passed
by
the
respondent no.3 shall be given effect from
next academic session, i.e., 2020-21, so
that the teaching of students is not suffered.

61. With the aforesaid directions the
writ petition is disposed off. "

8. The judgment and order dated
29.08.2019 was assailed in Special Appeals
before the Division Bench of this Court
leading amongst them, being Special
appeal No.274 of 2020 (Amit Shekhar
Bhardwaj versus State of U.P. and others).
The Division Bench disposed of the Special
Appeals by passing the following order on
14.09.2021:-

"26. We have given a thoughtful
consideration to the argument advanced
from both the sides and looking to the facts
that examination was conducted in the year
2018, and, placement/posting being given
in the said year and candidates having
joined at their respective place of posting in
2018 itself, with the consensus arrived at
1252 INDIAN LAW REPORTS ALLAHABAD SERIES
between the counsels of both the sides as
well as consent of the Board, we are
proposing to pass the following order :

I.
The
candidates
already
selected/posted
and
working
in
the
respective district of any category, shall not
be disturbed.

II. The judgment in favour of the
Meritorious Reserved Caste Candidates is
not interfered. The petitioners-appellants
belonging to Reserved Caste category
would submit an application before the
Board for change of posting pursuant to the
judgment of the learned Single Judge
within a period of two months of this
judgment. The Board would thereupon
process the case and post them as per their
choice within two months. This direction
would not be applicable in general but
limited to the petitioners-appellants whose
writ petitions were allowed by the learned
Single Judge.

III. The appellants and Intervenors
belonging to Open General category shall
give option of three districts for their
posting which would be considered by the
Board within two months. They would be
posted in any of the district of their choice
subject to availability of the vacancy in the
district concerned.

27. The directions given hereinabove
are with the consent of the parties thus, it
would not be treated to be precedence. If
fresh litigation comes, it would not be
driven by this judgment.

28. With the aforesaid, the judgment of
the learned Single Judge dated 29.08.2019
is modified and the special appeals are
disposed of. "

9. In compliance of the decision dated
14.09.2021 of the Division Bench rendered
in Special Appeal No.274 of 2020 the
Board issued notice dated 01.04.2022
inviting the online application and the
petitioner submitted his online application
form on 03.04.2022. The Board thereafter
on
10.05.2022
issued
the
District
Allocation
list
of
2908
candidates/
Assistant Teachers in which the name of
the petitioner finds place at Sr. No.198
against the District Meerut. Thereafter, the
Board has issued the impugned order
requiring the petitioner to submit the
affidavit.

10. Learned counsel for the petitioner
contends that the allocation of the District
pursuant to the direction of the Division
Bench of this Court cannot be treated to be
a case of transfer under the Rules so as to
entail the requirement of filing of an
affidavit. The provisions of Rule 21 and
Rule 22 of the Rules cannot be said to be
attracted in the case at hand.

11. The writ petition has been resisted
by the respondent No. 2 by filing counter
affidavit. Smt. Archana Singh, learned
counsel representing the respondent No. 2
contends that in the Special Appeal
(Defective) No.865 of 2020 (Board of
Basic Education versus Shikha Singh and
others) there is no direction of the Court to
recon the seniority of the candidates from
the back date, rather there is a direction not
to disturb the candidate who have already
joined which order had been passed with
the consent of the parties. Besides the
petitioner has himself given an undertaking
prior to his joining on the post of Assistant
Teacher that he shall not raise any claim for
seniority from the back date. In the wake of
the above, it is submitted that there is no
merit in the writ petition and it is liable to
be dismissed.

12. On the basis of the pleadings the
question for consideration in the bunch of
the writ petitions is that:-
1 All. Dinesh Singh Vs. State of U.P. & Ors.
1253

(1) Whether the District allocation
under the directions issued by the Court
would fall within the ambit of transfer
under Rule 21 of the U. P. Basic Education
(Teachers)
Service
Rules,
1981
and
resultantly
their
seniority
would
be
governed by Rule 22 of the aforesaid
Rules?

(2) Whether the "undertaking" given
in the form of an affidavit relinquishing the
claim of seniority in case of fresh district
allocation pursuant to the direction issued
by this Court would have binding effect?

13. The factual matrix in brief is that
the petitioners have knocked the doors of
the Court assailing the order/circular dated
25.06.2022 issued by the secretary, Basic
Shiksha Parishad, Prayagraj, pursuant to
directions issued by the Division Bench of
this Court in Special Appeal No. 274 of
2020 (Amit Shekhar Bhardwaj Vs. State
of UP and 2 others).

14. The petitioners herein are the
selected candidates of Assistant Teacher
Recruitment
Examination-2018
(herein
after referred to as "ATRE-2018.")

15. After being selected in ATRE2018, the petitioners were allotted different
districts
through
counselling.
Being
aggrieved by the discrimination in the
district
allocation
the
candidates
approached this Hon'ble Court by means of
Writ-A No.19737 of 2018 (Shiksha Singh
and 48 others Vs. State of UP and others)
along with other connected matters. The
writ petition (supra) came to be decided by
this Court vide judgement and order dated
29.08.2019. The operative portion is quoted
below:-

57. The allocation of district and
appointment and joining of the teachers in
their
respective
districts
had
been
completed in academic year 2018-19. The
said posting and allocation of district being
contrary to law and in violation of Articles
14 and 16(1) of the Constitution of India,
cannot be sustained.

58. In view of the law laid down by the
Apex Court, the allotment of district made
by the respondents cannot be sustained in
so far as it relates to MRC candidates and
to that extent, it is quashed.

59. The respondent no. 3 is directed to
carry on process of allotment of district to
MRC candidates only, treating them to be
reserved category candidates only for the
purposes of allotment of district of their
preference. It is further directed that the
MRC candidates who alleged that they
have not been allotted district of their
preference despite being MRC candidates,
may file their applications before the
respondent no. 3 within a period of 3
months from today and the respondent no. 3
is directed to consider and pass necessary
order, as per law stated hereinabove within
next 3 months.

60.
The
order
passed
by
the
respondent no.3 shall be given effect from
next academic session, i.e., 2020-21, so
that the teaching of students is not suffered.

16. The judgement and order dated
29.08.2019 passed by the writ court was
subjected to challenge in Special Appeal
No.274 of 2020 (Amit Shekar Bhardwaj)
(Supra). The judgement and order dated
29.08.2019 passed by the the writ court was
modified vide judgement and order dated
14.09.2021. The operative portion is quoted
below.

26. We have given a thoughtful
consideration to the argument advanced
from both the sides and looking to the facts
that examination was conducted in the year
1254 INDIAN LAW REPORTS ALLAHABAD SERIES
2018, and, placement/posting being given
in the said year and candidates having
joined at their respective place of posting in
2018 itself, with the consensus arrived at
between the counsels of both the sides as
well as consent of the Board, we are
proposing to pass the following order :

I.
The
candidates
already
selected/posted and working in the respective
district of any category, shall not be
disturbed.

II. The judgment in favour of the
Meritorious Reserved Caste Candidates is
not interfered. The petitioners-appellants
belonging to Reserved Caste category would
submit an application before the Board for
change of posting pursuant to the judgment of
the learned Single Judge within a period of
two months of this judgment. The Board
would thereupon process the case and post
them as per their choice within two months.
This direction would not be applicable in
general but limited to the petitionersappellants whose writ petitions were allowed
by the learned Single Judge.

III. The appellants and Intervenors
belonging to Open General category shall
give option of three districts for their posting
which would be considered by the Board
within two months. They would be posted in
any of the district of their choice subject to
availability of the vacancy in the district
concerned.

27. The directions given hereinabove are
with the consent of the parties thus, it would
not be treated to be precedence. If fresh
litigation comes, it would not be driven by
this judgment.

28. With the aforesaid, the judgment of
the learned Single Judge dated 29.08.2019 is
modified and the special appeals are
disposed of.

17. Pursuant to the directions
contained in the judgement and order dated
14.09.2021 passed in case Amit Shekar
Bhardwaj (Supra) the respondents issued
the notice/instructions dated 01.04.2022 for
online application for allocation of districts.

18.

In
response
to
the
notice/instructions dated 01.04.2022, the
writ petitioners submitted their online
application forms for district allocation.
Thereafter, the Board proceeded vide
publication dated 10.05.2022 to publish
district allocation list in respect of 2908
candidates. Further on 25.06.2022 the
Secretary, UP Basic Education Board
proceeded to issue circular to all the
District Basic Education Officers alleging
inter-alia that the seniority of the teacher
who has been transferred from one local
area to another in accordance with the
provisions of Rule 21 shall be placed at the
bottom of the list of teachers of the
corresponding class or category pertaining
to the local area to which he has been
transferred, such a person shall not be
entitled to any compensation and calling
upon them to obtain an affidavit from the
respective Assistant Teacher, who is the
beneficiary of the district allocation and
wants to relieved to join his place of
posting to the effect that he/she would not
claim seniority at his new place of posting.

19. The circular dated 25.06.2022
issued by the Secretary, U. P. Basic Shiksha
Parishad, Respondent No.2, has been
impugned in the present bunch of writ
petitions.

20. In this backdrop, the learned
Senior Counsel contended that the district
allocation exercise was undertaken by the
Respondent
Board
pursuant
to
the
directions contained in the judgement and
order dated 14.09.2021 passed in case of
Amit Shekhar bhardwaj (Supra) thus the
1 All. Dinesh Singh Vs. State of U.P. & Ors.
1255
Board
cannot
impose
irrational
and
arbitrary conditions that the petitioners
would lose their seniority at the new place
of joining.

21. Learned Senior Counsel further
contended that the Court found the
allotment of district to the teachers selected
in ATRE-2018 as de-hors the Rules
applicable and directed for fresh allocation
of districts and then he contended that this
is not the case of inter district transfer and
provisions contained in Rule 21 and 22 of
the
U.P.
Basic
Education
(Teachers)
Service Rules, 1981 are not applicable in
the present case. The learned Senior
Counsel further contended that this is a
case of posting and not transfer and thus
the petitioners are entitled for seniority in
the new district from the first date of their
joining in their respective districts. The
Learned Senior counsel contended that the
rider contained in the order impugned dated
25.06.2022 compelling the petitioners to
submit an undertaking in the form of an
affidavit relinquishing the seniority in the
new place of posting is arbitrary and needs
to be quashed.

22. Per contra, Smt. Archana Singh,
learned counsel for the Respondent Board
submitted that in Special Appeal No.865 of
2020 (Board of Basic Education Vs.
Shiksha Singh and Others), the Board
took the grounds that the order passed by
the writ court would affect the seniority, but
the Division Bench of this Court proceeded
to dispose of the Special Appeal on consent
directing the board not to disturb the
candidates who have already joined.

23.

The
learned
counsel
for
Respondent Board further contended that
petitioners
themselves
accepted
the
condition and have given an "Undertaking"
prior to their joining on the post of
Assistant Teacher that they shall not claim
seniority from the back date and thus the
petitioners are restrained from claiming the
seniority from back date. To buttress her
submission the learned counsel has relied
upon the judgement and order dated
11.03.2022 passed by this Court in Special
Appeal No.296 of 2019 and on the case of
State of Punjab Vs. Dhanjit Singh Sandhu
reported in (2014) 15 SCC 144.

24. Having heard the counsels and
having perused the record, this Court finds
that the Board was subjected to undertake
the fresh exercise of district allocations in
respect of the writ petitions subject matter
of Special Appeal No.274 of 2020 Amit
Shekhar Bhardwaj (Supra) and connected
matters after observing that

21. Learned Single Judge while
arriving at a finding that Board failed to
take into consideration that MRC being
higher in merit were not given district of
their choice in the reserved category,
extended benefit, but overlooked to extend
benefit to the candidates of the Open
General Category, who were also entitled
for the same treatment. Once it is not
disputed
that
the
original
notified
vacancies of 68,500 being reduced to
41,556 after declaration of result, no
question arose for allotting districts to
candidates of higher merit strictly as per
available seats in the first round of
counselling and then by releasing the rest
of the 26000 and odd seats giving choice to
the candidates of second counselling to
avail benefit and get district of their choice.

22. Where in a recruitment drive State
proceeds to appoint teachers on such mass
scale, it is expected from authority like
Uttar Pradesh Board of Basic Education to
be fair and transparent while making
1256 INDIAN LAW REPORTS ALLAHABAD SERIES
appointments. It is painful to note the way
officers of the Board had conducted the
recruitment drive, who were entrusted with
responsibility of appointment of Assistant
Teacher throughout the State of U.P. to
have come up by providing/placing the
candidates selected at their place of
preference as far as possible. Though, only
less than three-fourth candidates had
qualified against the notified vacancies, the
Board even then could not appoint the
meritorious candidates at their place of
choice.

23. The argument of Sri Ojha that
there was no occasion for varying the
district-wise vacancies and also increasing
vacancies
of
certain
districts
disproportionately
has
force.
Once
vacancies were notified and was not
subsequently varied by any Government
Order, no occasion arose to disturb the
arrangement made for which recruitment
was going to take place.

24. The candidates of Open General
Category cannot be denied the benefits
which has already been extended to MRC
as well as the candidates who were allotted
the first choice of their preference, who
appeared in the second counselling on the
strength that the candidates had already
joined at the place of posting and the rules
does not permit for transfer.

25. This Court has not only to
balance the equity with MRC but also with
the candidates having higher merit of the
Open General Category, as by denying
them their due injustice would be done with
them which will legalize the arbitrary
action of the officers of the Board.

26. We have given a thoughtful
consideration to the argument advanced
from both the sides and looking to the
facts that examination was conducted in
the year 2018, and, placement/posting
being given in the said year and
candidates
having
joined
at
their
respective place of posting in 2018 itself,
with the consensus arrived at between the
counsels of both the sides as well as
consent of the Board, we are proposing to
pass the following order :

I.
The
candidates
already
selected/posted
and
working
in
the
respective district of any category, shall not
be disturbed.

II. The judgment in favour of the
Meritorious Reserved Caste Candidates is
not interfered. The petitioners-appellants
belonging to Reserved Caste category
would submit an application before the
Board for change of posting pursuant to the
judgment of the learned Single Judge
within a period of two months of this
judgment. The Board would thereupon
process the case and post them as per their
choice within two months. This direction
would not be applicable in general but
limited to the petitioners-appellants whose
writ petitions were allowed by the learned
Single Judge.

III. The appellants and Intervenors
belonging to Open General category shall
give option of three districts for their
posting which would be considered by the
Board within two months. They would be
posted in any of the district of their choice
subject to availability of the vacancy in the
district concerned.

27. The directions given hereinabove
are with the consent of the parties thus, it
would not be treated to be precedence. If
fresh litigation comes, it would not be
driven by this judgment.

25. This Court finds that it would be
treated as appointment under Rule 19 and
20 of the Rules 1981 and it is not a case of
transfer as contended by the counsel for the
Respondent Board. Rule 21 of Rules 1981
are quoted here under:-
1 All. Dinesh Singh Vs. State of U.P. & Ors.
1257

[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.]

26. Transfer from one place to other is
generally a condition of service and the
employee has no choice in the matter.
Transfer is necessary in public interest and
to maintain efficiency. No government
servant or employee of public undertaking
has legal right for being posted at any
particular place. According to Rule 4 there
shall be separate cadres of service for each
local area as defined in Rule 2(1) (i) of
Rules, 1981, meaning thereby, strength of
the cadre is district wise.

27. There can be no inter district
transfer except as provided under Rule 21.
Rule 21 provides two conditions, namely,
"except on the request" or with the consent
of the teacher himself". Rule 22 provides
for seniority and is quoted here under:-

"[22. Seniority.- (1) The seniority of a
teacher in a cadre shall be determined by
the date of his appointment in a substantive
capacity :

Provided that, if two or more persons
are appointed on the same date their
seniority shall be determined in which their
names appear in the list referred to in Rule
17 or 17-A or 18, as the case may be.

Note. - A candidate selected by direct
recruitment may lose his seniority, if he
fails to join without valid reasons when a
vacancy is offered to him whether the
reasons in any particular case are valid or
not shall be decided by the appointing
authority.]

(2) The seniority of a teacher who has
been transferred from one local area to
another in accordance with the provisions
of Rule 21 shall be placed at the bottom of
the list of teachers of the corresponding
class or category pertaining to the local
area to which he has been transferred, as
on the date of orders for transfer are
passed, such a persons shall not be entitled
to any compensation."

28. Sub-Rule (1) of Rule 22 provides
for counting of the seniority of the
Assistant Teacher from the date of his
appointment in the substantive capacity.
Sub-Rule (2) of Rule 22 provides the
seniority of the Assistant Teacher on
transfer shall places him at the bottom of
the list of teachers of the corresponding
class or category pertaining to the local
area to which he has been transferred.

29. In the present case, none of the
petitioners have asked for their transfer
rather they have approached the Court
against the arbitrary action of the Board.
Hence, in the opinion of the Court the case
of the petitioners shall be governed by SubRule (1) of Rule 22 and not by Sub-Rule
(2) of Rule 22 of Rules, 1981. The first
question is answered accordingly.

30. Now coming back to the next
question
regarding
the
giving
of
undertaking in the form of affidavit
relinquishing the claim of seniority in case
of fresh district allocation. On the perusal
of the records this Court is not impressed
by the contentions of the counsel of the
Respondent Board that once the petitioners
have given an affidavit relinquishing their
seniority in fresh district allocation and
accepted all the conditions with open eyes
1258 INDIAN LAW REPORTS ALLAHABAD SERIES
and as such now the petitioner cannot claim
the
seniority
from
back
date.
The
judgement relied upon by the counsel of the
Respondent Board is not coming to their
aid for the reason that the facts involved in
the Special Appeal No.296 of 2019 (Vipin
Kumar and others Vs. State of UP. and
others) are entirely different.

31. In Vipin Kumar's Case (Supra),
the appellants awaited the benefit of the
transfer policy introduced by the State
Government, permitting transfer of teachers
to the district of their choice. The
Government
Order
under
which
the
appellants applied for transfer, was in a
nature of a concession, to enable the
teachers to go to a local area or district of
their choice in accordance with Rule 21 of
the Rules, 1981. One of the conditions of
the transfer policy provided that in the case
of inter district transfer of teachers which is
not a matter of right under rule 21 of the
Rules, 1981, made on the request of the
teacher, the transfer would be allowed,
depending on the availability of the
vacancies in the district of choice, meaning
thereby, that if no post of that grade was
available, the transfer could not be
permitted. The common feature of the case
was that the request of transfer made by the
appellants therein could not be considered,
because no vacancy existed on the post of
Headmaster of a Primary Pathshala or
Assistant Teachers, Senior Basic School in
the district of choice to which the
appellants applied for transfer. In their
anxiety to secure a transfer to a district of
their choice, the appellants made an
application, seeking reversion from their
substantive post of Assistant Teacher,
Primary Pathshala from their promotional
posts in their parent cadres where they were
working in different districts in the
specified local area.

32. Thereafter, after being transferred
and having joined at the transferred place
the appellants challenged the undertaking
on which the Court observed that the
appellants cannot approbate and reprobate
and the appellants who had secured benefit
under the transfer policy, voluntarily giving
up rights, cannot turn around and regain
what they had given up. The Court
observed as under :

16. In the circumstances, once the
appellants want to retain the benefit of
transfer that they have secured in terms of
the Government Order dated 23.06.2016 to
the districts of their choice, they cannot be
permitted to take the benefit and rid
themselves of the disadvantage that is
coupled with it. The appellants cannot have
the cake and eat it too. As the rights of the
appellants stand, since they want to
continue in the district of their choice after
securing a transfer under the transfer
policy carried in the Government Order
dated 23.06.2016, to which they are
otherwise not entitled as of right, they
cannot claim restoration of their status or
pay in the cadre to which they originally
belonged. To permit the appellants to do so,
would verily violate the firmly established
principle that a party cannot be permitted
to approbate and reprobate. This principle
has been applied by the learned Single
Judge in the judgment impugned in the
leading appeal, particularly, relying on the
decision of the Supreme Court in State of
Punjab and others vs. Dhanjit Singh
Sandhu, (2014) 15 SCC 144; and in our
opinion, rightly so.

33. In the present case, the petitioners
have
approached
this
Court
against
arbitrary action of the Officers of the Board
and in these circumstances the undertaking
given by the petitioners would not have
1 All. Devendra Pal Singh & Ors. Vs. State of U.P. & Ors.
1259
binding effect and Court finds that the
affidavits were given under compulsion to
secure joining and not in anxiety to secure
transfer to the districts of their choice. The
second question is answered accordingly.

34. The writ petition is allowed. The
order dated 25.06.2022 passed by the
Respondent No.2, is hereby quashed. The
respondents are directed to prepare the
seniority list according to Sub-Rule (1) of
Rule 22 of Rules, 1981 determining the
seniority from the date of joining of the
petitioners.

35. No order as to costs.
----------
(2023) 1 ILRA 1259
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 22.12.2022

BEFORE

THE HON'BLE PANKAJ BHATIA, J.

Writ-A No. 4533 of 2022

Devendra Pal Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Shivendu Ojha, Sri Akhilesh Kumar Singh, Sri
Sneh Pandey, Sr. Advocate

Counsel for the Respondents:
C.S.C., Sri Ashish Mishra, Sri Namit Srivastava,
Mrs. Parul Srivastava, Sri Parvez Alam

A.
Service
Law
-
Promotion
-
Interpretation of Rule 8 - Allahabad High
Court Officer and Staff (Conditions of
Service and Conduct) Rules,1976: Rule
2(m), 3(iv), 8; The Allahabad High Court
Officer and Staff (Conditions of Service
and Conduct) (Amendment) Rules, 2021;
U.P.
Secondary
Education
Services
Selection Board Rules, 1998.
Points for determination that arises is as to
what qualification should be possessed by
the
candidates
eligible
for
being
considered for promotion in terms of Rule
8 of the Rules 1976 and what would be the
cut-off date fixed for consideration. (Para 23)

To interpret Rule 8, which provides for the
necessary qualification to be possessed for
being considered for promotion, Rule 8 (ii)
clearly stipulates that the persons eligible for
being promoted should have completed five
years continuous satisfactory service as on 1st
July of the year of recruitment and should also
possess the minimum educational qualification
of Intermediate alongwith CCC certificate/
Diploma/Degree in Computer Science from
recognized Institute established by law in India.
The use of the word 'and' as used, on its
plain interpretation would clearly mean
that the candidate should have completed
five
years
of
continuous
satisfactory
service 'and' should possess the minimum
educational qualification. (Para 26)

The Rule has to be interpreted on its
plain and grammatical reading unless it
leads to inference. One of the basic
principles of interpretation of statutes is to
construe them according to plain, literal and
grammatical meaning of the words. If that is
contrary to, or inconsistent with, any express
intention or declared purpose of the Statute,
or
if
it
would
involve
any
absurdity,
repugnancy or inconsistency, the grammatical
sense must then be modified, extended or
abridged, so far as to avoid such an
inconvenience, but no further. The onus of
showing that the words do not mean what
they say lies heavily on the party who alleges
it. He must advance something which clearly
shows that the grammatical construction
would be repugnant to the intention of the
Act or lead to some manifest absurdity. (Para
21)

B. The next question for determination is as to
whether
the
possession
of
minimum
educational qualification as prescribed in
Rule 8 (2) should be on the date of year of
recruitment i.e. 1st July or the same can
be date when the advertisement is issued.
(Para 15, 28)