# Geetika Katiyar v. State of U.P. & Ors

- **Citation:** (2021) 9 ILRA 102
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-04
- **Case number:** Writ A No. 5498 of 2021
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/geetika-katiyar-v-state-of-u-p-ors-47343
- **Pages:** 4

## Headnote

A. Service Law - GO dated 02.12.2019 -
Transfer - Nature - Transfer cannot be
claimed as a matter of right. (Para 5)
B. Service Law - Transfer - GO dated
02.12.2019 - Clause 15 - Facility of
transfer is provided to the Assistant
Teacher, whose spouse were 'currently
serving' in the forces; facility is not
provided to the employee not in service -
Validity challenged - Held, members of
the Forces are often called upon to
discharge
their
duties
in
tense
and
stressful
environments.
Their
families
continue to go about their daily lives living
in a state of constant uncertainty. Those
families, thus, stand on a completely
distinct footing from others - In any case,
the aim of the policy as noted above
clearly appears to be to provide some
relief and comfort to the families of those
who serve in the Forces - High Court did
not found the restriction of that clause to
those
whose
spouses
are
'currently
serving' either irrational or arbitrary.
(Para 9)
C. Service Law - Estoppels -Binding effect
- Validity of Clause 2(13) of GO dated
02.12.2019 could not be challenged when
application of transfer was made, it could
be
challenged
at
later
stage
-
Permissibility - Held, if the petitioner was
of the view that Clause 2 (13) was invalid,
she should have raised a challenge in that
respect at the very outset and when the
process was initiated - Held further, the
petitioner cannot now turn around and
assail
those
very
conditions
and
restrictions subject to which she had
applied for transfer in the first place.
(Para 4)
Writ petition dismissed. (E-1)
Cases relied on :-

## Text

102 INDIAN LAW REPORTS ALLAHABAD SERIES
(2021)09ILR A102
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 04.08.2021

BEFORE

THE HON'BLE YASHWANT VARMA, .J.

Writ A No. 5498 of 2021

Geetika Katiyar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Seemant Singh

Counsel for the Respondents:
C.S.C., Sri Ram Prakash Shukla, Sri Sanjay
Kumar Singh

A. Service Law - GO dated 02.12.2019 -
Transfer - Nature - Transfer cannot be
claimed as a matter of right. (Para 5)
B. Service Law - Transfer - GO dated
02.12.2019 - Clause 15 - Facility of
transfer is provided to the Assistant
Teacher, whose spouse were 'currently
serving' in the forces; facility is not
provided to the employee not in service -
Validity challenged - Held, members of
the Forces are often called upon to
discharge
their
duties
in
tense
and
stressful
environments.
Their
families
continue to go about their daily lives living
in a state of constant uncertainty. Those
families, thus, stand on a completely
distinct footing from others - In any case,
the aim of the policy as noted above
clearly appears to be to provide some
relief and comfort to the families of those
who serve in the Forces - High Court did
not found the restriction of that clause to
those
whose
spouses
are
'currently
serving' either irrational or arbitrary.
(Para 9)
C. Service Law - Estoppels -Binding effect
- Validity of Clause 2(13) of GO dated
02.12.2019 could not be challenged when
application of transfer was made, it could
be
challenged
at
later
stage
-
Permissibility - Held, if the petitioner was
of the view that Clause 2 (13) was invalid,
she should have raised a challenge in that
respect at the very outset and when the
process was initiated - Held further, the
petitioner cannot now turn around and
assail
those
very
conditions
and
restrictions subject to which she had
applied for transfer in the first place.
(Para 4)
Writ petition dismissed. (E-1)
Cases relied on :-
1. Smt Ruchi Vs St. of U.P.; 2018 (10) ADJ 161

(Delivered by Hon'ble Yashwant Varma, J.)

1. Heard Sri Seemant Singh, learned
counsel for the petitioner, Sri Birendra
Pratap Singh, learned Standing Counsel for
the State respondents and Ms. Archana
Singh, who appeared for the contesting
respondents.

2. This petition has been preferred
seeking the following reliefs:

"(a) Issue a writ, order or
direction in the nature of Certiorari calling
for the records of the case and quashing the
impugned Clause 2(13) of the Government
Order dated 02.12.2019 issued by the
Additional Chief Secretary, Government of
U.P., Lucknow only to an extent that it only
refers to exemption for getting transferred
from the aspirational districts like Bahraich
to District Kannauj insofar as it relates to
the petitioner, whose spouse is serving in
the Indian Army/ Air Force/ Navy/
Paramilitary Forces (CRPF/ CISF/ SSB/
Assam Riffles/ ITBP/ NSG/ BSF) and not
to the petitioner whose husband has served
in the Indian Army and died while being in
9 All. Geetika Katiyar Vs. State of U.P. & Ors.
103
service of the Indian Army and the result of
online
inter-district
transfer
dated
01.01.2021 where the result is shown as not
transferred due to aspirational district
restriction as per Government Order dated
02.12.2019.

(b) Issue a writ, order or direction
in the nature of Mandamus directing the
respondents to consider the inter-district
transfer relating to the petitioner on the post
of Assistant Teacher in a primary school,
from the district Baharaich to her desired
district Kannauj by extending benefit of
Clause 2(13) of the Government Order
dated 02.12.2019 issued by the Additional
Chief Secretary, Government of U.P.,
Lucknow which provides exemption to the
Assistant Teachers whose spouse are
working in the Indian Army/ Air Force/
Navy/ Paramilitary Forces (CRPF/ CISF/
SSB/ Assam Riffles/ ITBP/ NSG/ BSF)."

3. The petitioner is a widow whose
husband served in the Armed Forces. He
unfortunately died while serving in the
Forces. The submission of Sri Singh was
that Clause 2(13) insofar as it restricts
consideration of requests for transfer to
those whose spouses are serving members
of the Armed Forces is arbitrary. As would
be manifest from a reading of reliefs as
framed, the petitioner essentially seeks the
extension of Clause 2 (13) to even those
cases where the spouse of the Assistant
Teacher may have previously been in the
Armed Forces.

4. It becomes pertinent to note that the
petitioner admittedly applied for transfer in
terms of the policy as framed by the
respondents. She raised no challenge to the
clause on grounds aforenoted prior to filing
her application for transfer. If the petitioner
was of the view that Clause 2 (13) was
invalid, she should have raised a challenge
in that respect at the very outset and when
the process was initiated. In the considered
view of the Court the petitioner cannot now
turn
around
and
assail
those
very
conditions and restrictions subject to which
she had applied for transfer in the first
place.

5. As is manifest from a reading of
the Government Order of 2 December
2019, transfer could not be claimed as a
matter of right. The respondents formulated
a policy in terms of which requests for
transfer was to be considered based on
points which were earmarked to cover
varied eventualities. One of those clauses
related to those Assistant Teachers whose
spouse may be currently serving in the
Forces. The petitioner was fully aware of
the extent of the application of Clause 15 of
the Government Order and was placed on
notice that she would not be eligible to be
assigned
marks
merely
because
her
husband had prior to his demise been a
member of the Forces. Yet she chose not to
assail that stipulation at the first available
opportunity. This circumstance weighs
heavily against the petitioner.

6. Turning then to the legal challenge
which is raised, it would be apposite to
notice the legal position as it obtains under
the 1981 Rules and the U.P. Teachers
Posting Rules 2008. In Smt Ruchi Vs.
State of U.P.1 a learned Judge of the Court
enunciated the position as under: -

19. It is settled law that transfer is
not a right. As per Rule 4 of the Rules
1981, the service cadre of the petitioners is
the local area of the respective district.
Their appointing authority is the concerned
District Basic Education Officer. In view of
Rule 21 of the Rules 1981, the Assistant
Teachers of basic schools run by the Board
104 INDIAN LAW REPORTS ALLAHABAD SERIES
cannot be transferred from 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. Rule 8(2)(d) of
the Rules 2008 also does not confer any
right for inter-district transfer. On the
contrary it provides that in normal
circumstances, the applications of interdistrict transfers in respect of male and
female teachers will not be entertained
within five years of their posting. However,
an exception has been provided in respect
of
female
teachers
that
in
special
circumstances their applications for interdistrict transfer would be entertained to the
place of residence of their husband or inlaws' district. Rule 21 read with Rule
8(2)(d) of the Rules 1981 clearly indicates
that teachers have no right for inter-district
transfer.

28. In view of the above
discussion,
the
question
No.
(b)
is
answered as under:

Petitioners do not have any right
for transfer or a right for consideration of
their application for transfer. Applications
for inter-district transfer may be entertained
by the competent authority only if such
applications for inter-district transfer are
within the four corners of the provisions of
the Rule 21 of the Rules, 1981 read with
Rule 8(2)(d) of the Rules, 2008 and the
guidelines framed by the Board for
transfer."

7. The aforesaid position stands
reiterated in Clauses 9, 10 and 11 of the
Government Order of 2 December 2019. The
Court then proceeds to consider whether the
challenge
to
Clause
2(13)
is
legally
sustainable.

8. As is manifest from a reading of
Clause 15 of the Government Order, the
facility of transfer was provided to those
Assistant Teachers whose spouses were
"currently serving" in the Forces. Clause 15
reads thus:-

"(15) ऐसे अध्यानपकाएिं/अध्यापक
नजनके पनत/पिी (spouse) भारतीय सेना/वायु
सेना/नौ सेना अथवा अधा सैननक बलोिं यथा,
CRPF/CISF/SSB/ASSAM
RIFLES/ITBP/NSG/BSF, में कायारत हैं और
इस सबि में सक्षम प्रानधकारी द्वारा प्रमाण पत्र
ननगात नकया गया है, उन्हें उनके इन्तच्छत
जनपद/इन्तच्छत ग्राम पिंचायत में स्थानािररत
नकया जायेगा। प्रनतबि यह है नक इस प्रावधान
का लाभ मात्रा एक बार ही अनुमन्य होगा."

9. The reason and the underlying
logic for restricting the application of
Clause 15 to those whose spouses were
"currently serving" is clearly obvious and
discernible. The respondents essentially
wanted to provide a ground for Assistant
Teachers whose spouses were serving in
the Forces to seek transfer on a preferential
basis in order to consider their posting
closer to their spouses or the family of their
spouses. The provision so made clearly
appeals to logic and good sense bearing in
mind the unique situation in which such
families are placed. The Court cannot
possibly shut its eyes to the anxious and
trying conditions in which such families
carry on with their lives separated for long
periods with the spouse on many occasions
posted in remote, harsh and unfriendly
locations. Regard must also be had to the
fact that the members of the Forces are
often called upon to discharge their duties
in tense and stressful environments. Their
families continue to go about their daily
lives living in a state of constant
9 All. Suman Vs. State of U.P. & Ors.
105
uncertainty. Those families, thus, stand on
a completely distinct footing from others.
In any case, the aim of the policy as noted
above clearly appears to be to provide some
relief and comfort to the families of those
who serve in the Forces. The restriction of
that clause to those whose spouses are
"currently serving" thus cannot be said to
be either irrational or arbitrary.

10. The Court also bears in mind that
the policy makes adequate provision for a
situation where one of the parent is
physically challenged as well as in respect
of families which are headed by a single
parent thus clearly providing adequate
avenues for the petitioner and other
similarly situate teachers to have asserted
their right to seek consideration. What the
Court seeks to underline is that the policy
as promulgated does provide for situations
where
teachers
are
single
parents
irrespective of whether their spouses are
serving, retired or erstwhile members of the
Forces. The policy similarly introduces
sufficient provisions for situations where
both parents are serving under the State. It
is thus manifest that the policy does not
operate arbitrarily or irrationally.

11. A challenge to a policy measure,
it becomes relevant to note, must be
evaluated bearing in mind the need for a
certain degree of discretion and leeway
being recognised to vest in the executive. A
stipulation made therein would not merit
interference unless it appears to be
manifestly unjust or patently arbitrary.
Courts while exercising their power of
judicial review cannot take over the mantle
of framing policy. That must necessarily be
left to the executive. Courts are obliged to
step in where there is either a failure on the
part of the executive to discharge their
constitutional functions and obligations or
where it is found that a measure adopted by
the State causes grave injustice or operates
harshly from a constitutional standpoint.
The challenge in the instant case fails to
meet that well recognised threshold.

12. The writ petition consequently
fails and shall stand dismissed.
----------
(2021)09ILR A105
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 03.08.2021

BEFORE

THE HON'BLE YASHWANT VARMA, J.

Writ A No. 8312 of 2021

Suman ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vishal Shukla, Sri R.P. Mishra, Sri Arvind
Kumar Tripathi

Counsel for the Respondents:
C.S.C., Sri Akhilesh Chandra Srivastava

A. Constitution of India - Article 341 and
342 - OBC List and Scheduled Caste list -
Nature and its extent - List of backward
classes is maintained by States of the
Union individually. It is not akin to lists of
Scheduled Castes or Tribes which are
notified
by
a
Presidential
Order
promulgated in terms of the provisions
made in Articles 341 and 342 of the
Constitution. (Para 8)
B. Service law - Constitution of India -
Article 16 - Reservation - Marriage in
another State - OBC certificate issued by
the State, where birth took place - It's
non-acceptance by the State, where the
woman married - Validity - Held, benefits
of reservation cannot be obtained by
virtue of marriage - Caste as is well