# Kul Bhushan Mishra & Anr v. State of U.P. & Ors

- **Citation:** (2023) 7 ILRA 1339
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-06-16
- **Case number:** Writ-A No. 10209 of 2023
- **Bench:** Ashwani Kumar Mishra, Ashutosh Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/kul-bhushan-mishra-anr-v-state-of-u-p-ors-50378
- **Pages:** 12

## Headnote

Government Order dated 02.06.2023 and the
consequential circular dated 08.06.2023 issued
by the Secretary, Board of Basic Education.
They sought inter-district transfers without the
condition of a minimum service period (five
years for male teachers, two years for female
teachers) and inclusion of mutual transfers in
the online transfer process. The writ petition
was disposed of, rejecting the challenge to the
Government Order and circular. The court
protected the petitioners' right to apply for
mutual transfers once the online portal is
opened, while upholding the minimum service
requirements as a legitimate policy to ensure
educational stability

Precedents cited:

## Text

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7 All. Kul Bhushan Mishra & Anr. Vs. State of U.P. & Ors.
1339
1976 and subject to Rule 6 of the said
Rules has been pleased to direct the
Registrar General of the Court to be the
appointing authority in respect of all
matters of appointment, promotion, etc. to
Class II (Non-Gazetted), Class-III and
Class-IV posts referred to in Rule 4 to
15(G) of the aforesaid rules.

73. Thus, the Registrar General
exercises the power which has been
delegated to him by Hon'ble The Chief
Justice in the exercise of power under
Article 229 (2) of the Constitution of India
read with Rule 2(n) of Rules, 1976.

74. In the instant case, the specific case of
the respondents in the counter affidavit is
that resolution passed by the Recruitment
Committee regarding the rejection of the
candidature of the petitioner was seen by
Hon'ble The Chief Justice on 30.09.2022,
and in such view of the fact, the decision to
cancel the candidature of the petitioner
shall be deemed to have been taken by
Hon'ble The Chief Justice, therefore, the
aforesaid submission also lacks merit and is
rejected.

75. Thus, for the reasons given above,
the writ petition lacks merit and is
accordingly, dismissed with no order as to
costs.
----------
(2023) 7 ILRA 1339
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.06.2023

BEFORE

THE HON'BLE ASHWANI KUMAR MISHRA, J.
THE HON'BLE ASHUTOSH SRIVASTAVA, J.

Writ-A No. 10209 of 2023

Kul Bhushan Mishra & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Sri Satyendra Chandra Tripathi

Counsel for the Respondents:
C.S.C., Sri Bipin Bihari Pandey

The petitioners, Assistant Teachers in primary
institutions under the District Basic Education
Board, challenged Clause 1 and Clause 15 of the
Government Order dated 02.06.2023 and the
consequential circular dated 08.06.2023 issued
by the Secretary, Board of Basic Education.
They sought inter-district transfers without the
condition of a minimum service period (five
years for male teachers, two years for female
teachers) and inclusion of mutual transfers in
the online transfer process. The writ petition
was disposed of, rejecting the challenge to the
Government Order and circular. The court
protected the petitioners' right to apply for
mutual transfers once the online portal is
opened, while upholding the minimum service
requirements as a legitimate policy to ensure
educational stability

Precedents cited:

1. Anuruddha Kumar Tripathi Vs St. of U.P.
(Writ Petition No. 4950 of 2018)

2. Kamini Singh Vs St. of U.P. (Writ Petition No.
8532 of 2018):

3. S.K. Nausad Rahaman Vs U.O.I. [AIR 2022
SC 1494]:

4. St. of Assam Vs Ranga Muhammad [AIR 1967
SC 903]

5. Bank of India Vs Jagjit Singh Mehta [(1992) 1
SCC 306]

6. U.O.I. Vs S.L. Abbas [(1993) 4 SCC 357]

(Delivered by Hon'ble Ashwani Kumar
Mishra, J.
&
Hon'ble Ashutosh Srivastava, J.)
1340 INDIAN LAW REPORTS ALLAHABAD SERIES

1. Petitioners in the present writ are
Assistant Teacher working in Primary
Institution run by the District Basic
Education Board. Petitioner No. 1 was
appointed by District Basic Education
Officer, Kaushambi on 10.3.2019 and is
posted
in
Block
Nevada,
District
Kaushambi. Petitioner No. 2 is appointed
as Assistant Teacher in Block Dhanupur,
District Prayagraj. Petitioner No. 1 claims
to be a resident of District Prayagraj; where
petitioner no. 2 is a resident of District
Fatehpur. Both the petitioners are desirous
of seeking inter-district transfer. They have
approached this Court challenging Clause 1
and 15 of the Government Order dated
2.6.2023 as well as the consequential
circular issued by the Secretary, Board of
Basic Education, dated 8.6.2023. A further
prayer
is
made
to
command
the
respondents to entertain their application
for inter-district transfer without imposing
condition of five years service in the
concerned district and to grant approval to
their transfer in accordance with Rule 21 of
the U.P. Basic Education (Teachers)
Service Rules, 1981 (hereinafter referred to
as 'the Rules of

2. It is not in dispute service
conditions of both the petitioners are
regulated by the Rules of 1981. Rule 21
provides for transfer, which is extracted
hereinafter:-

"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."

3. In addition to the Rules of 1981,
the respondents have made U.P. Basic
Education (Teachers)(Posting) Rules, 2008
(hereinafter referred to as 'the Rules of
2008'), exercising the powers contained in
Section 19(1) of the U.P. Basic Education
Act, 1972 (hereinafter referred to as 'the
Act of 1972'). Rule 8 of the Rules of 2008
is relevant and is reproduced hereinafter:-

"8. Posting. - (1)(a) Three options
for schools shall be asked from the
handicapped candidates in order of their
merit and after receiving such options the
handicapped candidates shall be posted on
the basis of options given by them and the
vacancies.

(b) Based on the order of their
merit, female teachers would be required to
submit under their signature option of three
schools
each
from
the
general
and
backward block and accordingly, posting
would be given in one of these schools.

(c) The posting of male teachers
shall be made in accordance with the order
of candidates, in the roster prepared under
Rule 7.

(2)(a) The newly appointed male
teachers
shall
initially
be
posted
compulsorily in backward areas for a
period of at least five years.

(b)
Newly
appointed
female
teachers shall also be compulsorily posted
in backward areas for a period of at least
two years.

(c) Mutual transfers within the
district from general block of backward
block and vice-versa would be permitted
with the condition that the teacher on
mutual transfer to a backward block shall
7 All. Kul Bhushan Mishra & Anr. Vs. State of U.P. & Ors.
1341
have to serve in that block compulsorily for
five years. Mutual transfers would be
permitted only in case of those teachers
who have more than remaining five year's
service.

(d) In normal circumstances the
applications for inter-district transfers in
respect of male and female teachers will
not be entertained within five years of their
posting. But under special circumstances,
applications for inter-district transfers in
respect of female teachers would be
entertained to the place of residence of their
husband or in law's district.

(e) If by virtue of posting of
newly appointed or promoted teachers the
primary and upper primary schools of
backward blocks get saturated i.e., no post
of teacher is vacant in these schools, then
handicapped and female teachers on their
choice can be adjusted against the vacant
posts of general blocks from these saturated
blocks.

(f)
Mutual
transfers
of
male/female teachers from one backward
block to another can be considered.

(3) Teachers transferred from one
district to another will be given posting as
per the provisions of these rules."

4. Clause 1 and 15 of the Government
Order dated 2.6.2023, challenged in this
petition, are reproduced hereinafter:-

"(1) - िनपद में जनयजमत सेवाजवजि जशजक्षका के
जलए 02 वषट एवं जशक्षक के जलए 05 वषट होना अजनवायट होगा।
सेवाजवजि की गणना कायटरत िनपद के जदनांक से की िायेगी।

(15) - शैजक्षक सत्र 2023 - 24 के जलए
अन्तिटनपदीय एवं पारस्पररक स्थानान्तरण की समस्त प्रजिया
शासनादेश के िम में राष्ट्ट्रीय सूचना जवज्ञान केन्र लिनऊ से जवचार
जवमशट के उपरान्त समस साररणी के अनुसार ऑनलाइन जकया
िायेगा। ऑफलाइन आवेदन पत्र पर जकसी भी दशा में जवचार नही
जकया िायेगा। "

5. Circular dated 8.6.2023 is also
challenged on the ground that the Board
has invited applications for inter-district
transfer of Assistant Teachers, but while
doing so, the transfers by way of mutual
consent have been excluded. It is urged that
once applications are being entertained by
the Board for transfer of teachers, there is
no justification for the authorities not to
include teachers who are seeking mutual
transfer.

6. Grievance of petitioners are
essentially two fold. The first part of their
grievance is that while inviting applications
for transfer of Assistant Teachers, there is
no rationale to exclude teachers seeking
transfers on mutual consent. Secondly, it is
urged that the restriction of five years
service by a male teacher before applying
for transfer is arbitrary and discriminatory.
It is also urged that Rules of 2008 do not
regulate transfer of teachers and as no such
restriction is contained in Rule 21 of the
Rules of 1981, as such, the restriction
imposed
of
five
years
service
is
unwarranted and arbitrary.

7. Petitioners rely upon the National
Education Policy, 2020 to submit that the
policy contemplates decent and pleasent
conditions of service at schools and,
therefore, request for mutual transfers be
considered liberally, without imposing any
restriction of minimum length of service in
the district concerned. Reliance has also
been placed upon the judgment of the
Supreme Court in S.K. Nausad Rahaman
and others Vs. Union of India and others,
AIR 2022 SC 1494 and the Supreme Court
in State of Assam Vs. Ranga Muhammad,
1342 INDIAN LAW REPORTS ALLAHABAD SERIES
AIR 1967 SC 903 to submit that Rules of
2008 will have no applicability in the
matter of transfer.

8. Ms. Archana Singh, appearing for
the Basic Education Board also places
reliance upon the judgment of the Supreme
Court in S.K. Nausad Rahaman (supra),
particularly paragraphs 25 to 29 thereof, in
order to submit that petitioners cannot
claim entitlement to transfer as a matter of
right. She further submits that the online
portal for transfer has so far not been
extended to mutual transfer on account of
certain technical glitch and that the process
would be initiated shortly. She further
submits that as and when petitioners apply
for such transfer their cases shall be
considered as per the policy.

9. We have heard Sri Satyendra
Chandra Tripathi for the petitioners, Ms.
Archana Singh for District Basic Education
Board and learned Standing Counsel for the
State.

10. Admittedly both the petitioners
are
Assistant
Teacher.
Their
service
conditions including transfer is governed
by the Rules of 1981. Rule 21, extracted
above, provides for the procedure for
transfer of teacher from rural local area to
urban local area or vice-versa or from one
local area to another of the same district or
local area of one district to that of another
district except on the request of, or with the
consent of, teacher himself and in either
case approval of the Board shall be
necessary. Methodology to be followed for
transfer of Assistant Teacher appears to
have been formulated by the Board, which
is consistent with Para 5.3 of the National
Education
Policy
2020
specifically
providing that transfers of teachers will be
conducted through online computerized
system that ensures transparency. Clause
5.3 of the Policy is reproduced hereinafter:-

"5.3. The harmful practice of
excessive teacher transfers will be halted,
so that students have continuity in their role
models and educational environments.
Transfers will occur in very special
circumstances, as suitably laid down in a
structured
manner
by
State/UT
governments. Furthermore, transfers will
be
conducted
through
an
online
computerized
system
that
ensures
transparency."

11. So far as the petitioners grievance
with regard to mutual transfer not being
allowed is concerned, we find from the
perusal of the Government Order dated
2.6.2023 that it lays down the policy for
inter-district transfer of teachers working in
the institutions run by the Basic Education
Board
as
also
for
mutual
transfer.
Petitioners grievance is that the Board
while inviting applications on the online
portal has restricted the applications only
for inter-district transfer and has kept aside
applications for mutual transfer.

12. On behalf of the respondents it is
admitted that as of now applications are
invited only for inter-district transfers. A
categorical statement, however, is made
that the process is not initiated for mutual
transfer since there are some technical
glitch and that the process will be initiated
shortly. The statement made by Ms.
Archana
Singh,
therefore,
adequately
protects the petitioners so far as their
grievance on the first count is concerned.

13. It is the second part of the
argument relating to requirement of five
year working for making application for
transfer which requires consideration. Rule
7 All. Kul Bhushan Mishra & Anr. Vs. State of U.P. & Ors.
1343
21 has already been reproduced above
which provides the procedure for transfer.

14. Part II of the Rules of 1981
specifies the cadre and strength of Assistant
Teacher. Rule 4(1) contemplates separate
cadre of service under the Rules of 1981
for each local area. Sub-rule (2) stipulates
that cadre of teaching staff shall be
determined by Board, from time to time,
with the previous approval of the State
Government. Two kinds of local area are
contemplated in the Rules of 1981, namely
'rural local area' and 'urban local area'.
This distinction was primarily drawn as
initial jurisdiction over rural local area was
exercised by Zila Panchayat while for
urban local area it was either the Nagar
Nigam, Nagar Panchayat, Town Area or
notified
area,
which
exercised
its
jurisdiction.
Authority
exercising
its
jurisdiction over such cadre has undergone
a change but the two seperate cadre subsists
in the district. Rule 21 permits transfer
from the rural area to an urban local area or
vice-versa or from urban local area to
another of the same district or from local
area of one district to that of another
district to be made only on the request or
with the consent of teacher himself and in
either case approval of the Board is
necessary. It is, therefore, apparent that
transfer of a teacher from one cadre to
another would be permissible either on his
consent or on the request of the teacher. In
both the exigencies, however, approval of
the Board is necessary. Transfer from one
cadre
to
another
otherwise
is
not
contemplated.

15. Rules of 1981 do not lay down the
criteria for grant of approval by the Board to
the request of transfer. In order to ensure that
transfers are made in a fair and uniform
manner, it is always open for the competent
authority to lay down the criteria for grant of
approval to such transfers. The criteria for
transfer apparently has been formulated by
the State vide Government Order dated
2.6.2023 for the Academic Session 2023-24.
Petitioners are aggrieved by Clause 1 and 15
of the Government Order. Clause 1 states that
female teacher must complete two years
while male teacher must complete five years
before her/his transfer would be considered.
Clause 15 of the Government Order, under
challenge, specifies that the transfer process
would be undertaken in consultation with
NIC in an online format. In no circumstance
an offline application would be considered.

16. So far as the resort to the online
process
for
effecting
the
transfer
is
concerned, we find that the direction in that
regard is in conformity with Clause 5.3 of the
National Education Policy, 2020 which
requires transfers to be conducted through an
online computerized system that ensures
transparency. Even otherwise, we do not find
any error in the Government Order dated
2.6.2023; whereby the process is to be
undertaken
in
consultation
with
NIC
Lucknow on the basis of an online process.
The process undertaken online, prima facie,
eliminates the possibility of any pick and
choose and is expected to be transparent. The
process undertaken online otherwise does not
contravene any provision of statute nor goes
contrary to any constitutional scheme. We,
therefore, find no error in Clause 15 of the
Government Order dated 2.6.2023 requiring
the process to be undertaken online and
thereby
decline
the
entertainment
of
application in the offline format. The
challenge laid to Clause 15 of the
Government Order with regard to Transfer
Policy, therefore, fails.

17. So far as Clause 1 of the
Government Order dated 2.6.2023 is
1344 INDIAN LAW REPORTS ALLAHABAD SERIES
concerned, it requires that before applying
for transfer under Rule 21, a female teacher
must complete two years service in the
district while for male teacher such period
is specified as five years. The decision to
insist upon minimum term of two years for
female teachers and five years for male
teachers has been subject matter of
consideration by this Court in different writ
petitions. So far as the decision in respect
of a male Assistant Teacher appointed in a
Primary School run by Basic Education
Board is concerned, this Court in Writ
Petition No. 4950 of 2018 (Anuruddha
Kumar Tripathi Vs. State of U.P. and 5
others) observed as under in para 19:-

"19. In light of the aforesaid
discussions, it is held that transfer of a male
assistant teacher from one district to
another, in a basic school, can ordinarily be
made only after completion of 05 year
initial
posting
in
backward
area
in
accordance with Rule 8(2)(d) of the Rules
of 2008 as well as the policy framed for the
purpose. However, in extraordinary or
exceptional circumstances an application
for transfer can be considered by the Basic
Shiksha Parishad even before expiry of
such term. The question whether in a given
case extraordinary circumstances exists or
not has to be examined by the Basic
Shiksha Parishad."

The above observation appears to
have been made relying upon the language
used in Rule 8(2)(d) of the Rules of 2008,
which contains the expression 'In normal
circumstances'
and
therefore
clearly
excludes exceptional circumstances, to be
determined by the Board.

18. Reliance is also placed upon the
judgment of this Court in Kamini Singh Vs.
State of U.P. and others, Writ Petition No.
8532 of 2018, wherein vires of sub-rule (d)
of sub-rule (2) of Rule 8 of the Rules of
2008 had been challenged on the ground
that classification of teachers based on their
gender is impermissible. The Division
Bench repelled the contention in following
terms:-

"From a simple reading of the
aforesaid Rules, it is apparent that the post
of assistant teacher is a district cadre post
and the appointing authority is the District
Basic Education Officer. Upon selection,
posting of a teacher is to be made as per the
provisions of Rules 2008. In other words
inter-district transfer is an exception to the
general rule pertaining to placement and
posting of teachers in blocks within the
district is compulsory."

After noticing various judgments
of the Apex Court on the issue, the
Division Bench observed further as under:-

"The authorities relied upon by
the learned counsel for the petitioner is of
no assistance. The main part of Rule
8(2)(d) does not discriminate on gender,
any teacher can seek transfer outside the
district after five years of service, which is
applicable to both male and female teachers
uniformly, exception has been carved out
by the impugned rule in respect of married
female teacher to seek transfer after
marriage. The rule requiring compulsory
posting is to achieve the purpose and policy
of providing teachers in schools located in
remote
areas
of
the
district
which
ultimately serves the interest of the students
and, in particular, teacher less schools. The
functioning of schools would come to stand
still if request of frequent transfer outside
district is entertained, hence, the rules
compulsorily requires posting of a teacher
for five years before applying for inter-
7 All. Kul Bhushan Mishra & Anr. Vs. State of U.P. & Ors.
1345
district transfer. The rule uniformly applies
to male/female teachers, except married
female teacher. The choice of district upon
marriage gets altered, therefore, the married
female
teacher
is
permitted
by
the
impugned rule to seek inter-district transfer
in the changed circumstances due to her
marital status.

When a law is challenged as
denying equal protection; the question for
determination by the Court is not whether it
has resulted in inequality, but whether there
is some difference which bears a just and
reasonable relation to the object of
legislation.
Mere
differentiation
or
inequality of treatment or inequality of
burden
does
not
perse
amount
to
discrimination within the inhibition of the equal
protection clause. To attract the operation of the
clause it is necessary to show that the selection or
differentiation is unreasonable or arbitrary; that is
it does not rest on any rational basis having
regard to the object which the rule making
authority has in view. When, therefore, a law is
challenged as offending against the guarantee in
Article 14, the first duty of the Court is to
examine the purpose and policy of the Act/Rule,
to be ascertained from an examination of its title,
preamble and provisions and then to discover
whether the classification made by the law has a
reasonable relation to the object which the
legislature/rule making authority seeks to obtain.
(Vide: Suraj Mall v. Biswanath7, Kedar Nath
Bajoria v. State of West Bengal8, P.B. Roy vs-
Union of India9,)

For the reasons stated herein
above, the challenge raised to the vires of
sub-clause (d) of sub-rule (2) of Rule 8 of
Rules 2008 fails. The writ petition being
devoid of merit is, accordingly, dismissed."

19. The argument advanced on behalf
of the petitioners that Rules of 2008 would
not be applicable in the matter of transfer
does not impress us. Petitioner's argument,
in this regard, is essentially based on the
observation made by the Supreme Court in
Para 9 of the judgment in State of Assam
(supra), which is reproduced hereinafter:-

"9. In its ordinary dictionary
meaning the word 'to post' may denote
either (a) to station some one at a place, or
(b) to assign someone to a post, i.e., a
position or a job, especially one to which a
person is appointed. See Webster's New
World Dictionary (1962). The dispute in
this case has arisen because the State
Government applies the first of the two
meanings and the High Court the second.
In Art. 233 the word 'posting' clearly bears
the second meaning. This word occurs in
association with the words 'appointment'
and 'promotion' and takes its colour from
them. These words indicate the stage when
a person first gets a position or job and
'posting'
by
association
means
the
assignment of an appointee or promotee to
a position in the cadre of District Judges.
That a special meaning may be given to a
word because of the collocation of words in
which it figures, is a well-recognised canon
of
construction.
Maxwell
("On
Interpretation of Statutes", 11th Edn., p.
321 and the following pages) gives
numerous examples of the application of
this principle, from which one may be
given here. The words 'places of public
resort' assume a very different meaning
when coupled with 'roads and streets' from
that which the same words would have if
they were coupled with 'houses'. In the
same way the word 'posting' cannot be
understood in the sense of 'transfer' when
the idea of appointment and promotion is
involved in the combination. In fact this
meaning is quite out of place because
'transfer' operates at a stage beyond
1346 INDIAN LAW REPORTS ALLAHABAD SERIES
appointment and promotion. If 'posting'
was intended to mean 'transfer' the
draftsman would have hardly chosen to
place
it
between
"appointment"
and
"promotion" and could have easily used the
word 'transfer' itself. It follows, therefore,
that under Art. 233, the Governor is only
concerned with the appointment, promotion
and posting to the cadre of District Judges
but not with the transfer of District Judges
already appointed or promoted and posted
to the cadre. The latter is obviously a
matter of control of District Judges which
is vested in the High Court. This meaning
of the word 'posting' is made all the more
clear when one reads the provisions of
Arts. 234 and 235. By the first of these
articles the question of appointment is
considered separately but by the second of
these articles posting and promotion of
persons belonging to the judicial service of
the State and holding any post inferior to
the post of a District Judge is also vested in
the High Court. The word 'post' used twice
in the article clearly means the position or
job and not the station or place and 'posting'
must obviously mean the assignment to a
position or job and not placing in-charge of
a station or Court. The association of words
in Art. 235 is much clearer but as the word
'posting' in the earlier article deals with the
same subject-matter, it was most certainly
used in the same sense and this conclusion
is thus quite apparent."

20. The above observation came to be
made in the context of power of transfer to
be exercised over district judges in a State.
The Supreme Court found that the authority
to make transfers was with the High Court
and that the State Government was not the
competent authority to exercise such
power. Highest weight was directed to be
given to the opinion of the High Court.
Discussion was thus drawn between the
expression 'posting' and 'transfer'. The
factual scenario in the present case is,
however,
quite
distinct.
The
service
conditions of the petitioners are governed
by the Rules of 1981. However, specific
Rules of 2008 have been framed in the
context of posting of teachers in different
local area. Rules of 2008 contemplate list
of schools to be prepared for posting of
teachers in different institutions. Rule 8
stipulates the manner to be followed for
posting of teachers in different institutions.
It provides that inter-district transfer would
be allowed in normal circumstances to the
newly
appointed
teachers
only
after
completing two years service in case of
female teachers and five years service in
case of male teachers. Rules of 2008 also
provides for the posting of newly promoted
teachers. Though the Rules of 2008 are
christened as posting rules, but it intents to
effectively deal not only with initial posting
of teachers but also specifies that such
teachers posted in the institution would be
entitled to transfer, including mutual
transfer, after initial service in the block for
five years. Rule 8(1)(d) is specific in that
regard. Vires of Rule 8(1)(d) has already
been upheld by this Court.

21. Rule 8(1)(d) neither violates any
provision of the Act of 1972, nor goes
contrary to the Rules of 1981. The posting
rules of 2008 in fact lays down the criteria
for posting of teachers in different
institutions and while doing so, restricts the
eligibility for seeking transfer in normal
circumstances as two years for female
teachers and five years for male teachers.
The condition requiring the male teacher to
work for five years and female teacher for
two years is essentially a matter of policy
and unless it is shown to be violative of any
Act, Rule or Regulation, we would not be
7 All. Kul Bhushan Mishra & Anr. Vs. State of U.P. & Ors.
1347
justified in interfering with such policy as it
is otherwise not shown to be arbitrary.

22. Assistant Teachers in Basic
Education
Institutions
run
by
Basic
Education Board teach students both in
rural local area and urban local area. These
teachers are appointed on the basis of a
competitive process of recruitment and
their posting is also made considering their
merit as well as the option exercised by
them regarding their place of posting. The
roster is also followed for such purposes.

23. The allocation of particular cadre
and place of posting to a teacher is thus on
the basis of his merit and the option
exercised. There is a specific purpose of
not entertaining applications for transfer for
few years as the teachers are expected to
initially work in the specific cadre allocated
to them or else the teachers from the very
day of their appointment would start
maneuvering their transfer to their desired
place. The teachers otherwise have an
important task to perform and the anxiety
on their part must be to impart proper
teaching to the students. By restricting their
eligibility to seek transfer in normal
circumstances
for
few
years
the
State/Board
apparently
intents
to
discourage teachers from hankering for
their desired posting soon after their
appointment. The requirement for the
teachers to serve cadre for a few years
before they are allowed to seek transfer
thus cannot be said to be arbitrary nor the
policy can be questioned on any valid
ground.

24. Transfer in the cadre is ordinarily
not contemplated for an Assistant Teacher.
The transfer from one cadre to another is
conditional in terms of Rule 21 and
requires approval of the Board. Transfer,
therefore, is not stipulated to be claimed as
a matter of right in these institutions. The
State/Board would thus be justified in
laying down a uniform criteria/process for
entertaining applications for transfer.

25. In view of our discussions held
above, we find no illegality or infirmity in
the
policy of
the State
to
restrict
entertainment of application for transfer in
normal circumstances, unless the teacher
has completed specified length of service in
the cadre. Even otherwise, this Court has
already
clarified
that
in
exceptional
circumstance minimum period can be
waived provided the Board is satisfied with
regard
to
existence
of
exceptional
circumstance for transfer. Old age of grandparents, etc., which is the cause pleaded for
transfer, would not constitute exceptional
circumstance
for
transfer.
These
considerations otherwise are required to be
examined by the Board at the first instance.

26. We are not inclined to discard the
applicability of Rules of 2008 merely on
the nomenclature of it as posting rules as
we have already held that the requirement,
in normal circumstances, of minimum
length of service before seeking transfer
does not contravene any provisions of the
Rules of 1981 or any provision or Act.
Mere nomenclature of Rules as being
posting rules is otherwise not decisive.

27. We may gainfully refer to the
judgment of the Supreme Court in S.K.
Nausad (supra), wherein the Supreme
Court has observed as under in paragraphs
25 to 29:-

"25.
Second,
executive
instructions and administrative directions
concerning transfers and postings do not
confer an indefeasible right to claim a
1348 INDIAN LAW REPORTS ALLAHABAD SERIES
transfer or posting. Individual convenience
of persons who are employed in the service
is subject to the overarching needs of the
administration.

26. Third, policies which stipulate
that the posting of spouses should be
preferably, and to the extent practicable, at
the same station are subject to the
requirement of the administration. In this
context, J.S. Verma, J. (as the learned Chief
Justice then was) speaking for a threeJudge Bench of this Court in Bank of
India v. Jagjit
Singh
Mehta [Bank
of
India v. Jagjit Singh Mehta, (1992) 1 SCC
306 : 1992 SCC (L&S) 268] held : (SCC
pp. 308-09, para 5)

"5. There can be no doubt that
ordinarily and as far as practicable the
husband and wife who are both employed
should be posted at the same station even if
their
employers
be
different.
The
desirability of such a course is obvious.
However, this does not mean that their
place of posting should invariably be one of
their choice, even though their preference
may be taken into account while making
the decision in accordance with the
administrative needs. In the case of allIndia Services, the hardship resulting from
the two being posted at different stations
may be unavoidable at times particularly
when they belong to different services and
one of them cannot be transferred to the
place of the other's posting. While choosing
the career and a particular service, the
couple have to bear in mind this factor and
be prepared to face such a hardship if the
administrative needs and transfer policy do
not permit the posting of both at one place
without sacrifice of the requirements of the
administration
and
needs
of
other
employees. In such a case the couple have
to make their choice at the threshold
between career prospects and family life.
After giving preference to the career
prospects by accepting such a promotion or
any appointment in an all-India Service
with the incident of transfer to any place in
India, subordinating the need of the couple
living together at one station, they cannot
as of right claim to be relieved of the
ordinary incidents of all-India Service and
avoid transfer to a different place on the
ground that the spouses thereby would be
posted at different places. ... No doubt the
guidelines require the two spouses to be
posted at one place as far as practicable, but
that does not enable any spouse to claim
such a posting as of right if the
departmental authorities do not consider it
feasible. The only thing required is that the
departmental authorities should consider
this aspect along with the exigencies of
administration and enable the two spouses
to live together at one station if it is
possible without any detriment to the
administrative needs and the claim of other
employees."

27. The above principle was cited
with approval in Union of India v. S.L.
Abbas [Union
of
India v. S.L.
Abbas,
(1993) 4 SCC 357 : 1994 SCC (L&S) 230]
wherein the Court held that transfer is an
incident of service : (SCC p. 359, para 7)

"7. Who should be transferred
where, is a matter for the appropriate
authority to decide. Unless the order of
transfer is vitiated by mala fides or is made
in violation of any statutory provisions, the
court cannot interfere with it. While
ordering the transfer, there is no doubt, the
authority must keep in mind the guidelines
issued by the Government on the subject.
Similarly
if
a
person
makes
any
representation with respect to his transfer,
the appropriate authority must consider the
7 All. Kul Bhushan Mishra & Anr. Vs. State of U.P. & Ors.
1349
same having regard to the exigencies of
administration. The guidelines say that as
far as possible, husband and wife must be
posted at the same place. The said
guideline however does not confer upon the
government employee a legally enforceable
right."

28. Fourth, norms applicable to
the recruitment and conditions of service of
officers belonging to the civil services can
be stipulated in:

(i)
A
law
enacted
by
the
competent legislature;

(ii) Rules made under the proviso
to Article 309 of the Constitution; and

(iii) Executive instructions issued
under Article 73 of the Constitution, in the
case of civil services under the Union and
Article 162, in the case of civil services
under the States.

29.Fifth, where there is a conflict
between executive instructions and Rules
framed under Article 309, the rules must
prevail. In the event of a conflict between
the Rules framed under Article 309 and a
law made by the appropriate legislature, the
law prevails. Where the rules are skeletal or
in a situation when there is a gap in the
rules,
executive
instructions
can
supplement what is stated in the rules.
[Union
of
Indiav. Somasundaram
Viswanath, (1989) 1 SCC 175, para 6 :
1989 SCC (L&S) 150]"

28. Paragraphs 43, 51, 52 and 53 of
the judgment in S.K. Nausad Rahaman
(supra), relied upon by the petitioners,
recognize the principle that in exercise of
judicial review the Court cannot direct the
executive to frame a particular policy. Yet,
the legitimacy of a policy can be assessed
on
the
touchstone of
constitutional
parameters. The constitutional values are
also taken into consideration while
designing its policy. In the facts of the
case we do not find the policy to be either
violating the constitutional parameters or
infringing
the
constitutional
values.
Petitioners, therefore, cannot draw any
substance from the observation contained
in paragraphs 43, 51, 52, 53 of the
judgment in S.K. Nausad Rahaman
(supra).

29. In view of the deliberations and
discussion held above, we dispose off the
writ petition on following terms:-

(i) Challenge laid to Clause 1 and
15 of the Government Order dated 2.6.2023
as well as challenge to Circular dated
8.6.2023 fails and are rejected.

(ii) In light of the statement made
by the Board that online applications for
inter-district transfer would be entertained
shortly, and claim of eligible Assistant
Teachers would be dealt with, it is provided
that the Board shall open the online portal
for mutual transfer, at the earliest possible,
preferably within six weeks and claim of
eligible teachers shall be dealt with, as per
law.

(iii) Condition contained in the
policy requiring, in normal circumstances,
minimum length of service of five years in
the cadre for male teacher and two years
service for female teachers before seeking
transfer is upheld. Challenge to such policy
fails, accordingly.

(iv) Parties to bear their own
costs.
----------
1350 INDIAN LAW REPORTS ALLAHABAD SERIES
(2023) 7 ILRA 1350
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 14.07.2023

BEFORE

THE HON'BLE IRSHAD ALI, J

Writ A No. 2000264 of 2000

Dr. S.C. Asthana ...Petitioner
Versus
State of U.P. & Anr. ...Respondents

Counsel for the Petitioner:
S.K.
Kalia,
Chinmay
Mishra,
Gaurav
Mehrotra, S.E. Chitambar, Shikha Sinha

Counsel for the Respondents:
C.S.C.

Service Law - Foreign Assignment -
Unauthorized Absence - Disciplinary
Proceedings
-
Censure
Entry
-
Promotion Denied - Regularization of
Service - Quashing of Punishment
The petitioner, a Medical Officer in the
Provincial
Medical
and
Health
Services
(PMHS), went on a foreign assignment to
Nigeria
after
obtaining
a
no-objection
certificate
and
earned
leave.
The
St.
Government later regularized the period of
foreign
assignment
(16.04.1981
to
09.01.1985) and directed him to deposit
GPF, insurance, and pension contributions,
which he complied with. Despite this,
disciplinary
proceedings
were
initiated
against
him
for
alleged
unauthorized
absence, resulting in the award of a censure
entry and stoppage of one increment. The
petitioner was also denied promotion and
leave benefits. Held, once the foreign
assignment was regularized by the St.
Government, initiation of disciplinary action
and awarding of censure entry was arbitrary
and illegal. No finding of willful absence was
recorded, and thus, the absence could not
be treated as misconduct. The disciplinary
authority failed to adhere to principles of
natural justice and the U.P. Government
Servant (Discipline and Appeal) Rules, 1999.
Consequently, the impugned orders dated
25.04.1996 (censure and punishment) and
09.12.1998
(rejection
of
leave)
were
quashed. The petitioner was held entitled to
consequential service benefits.

Writ Petition Allowed.

List of Cases cited:

1. Dinesh Kumar Verma Vs St. of U.P. & ors.

2. U.O.I. & anr.Vs S.C. Parashar Citation: (2006)
3 SCC 167

3. Krushnakant B. Parmar Vs U.O.I. & anr.
(2012) 3 SCC 178

(Delivered by Hon'ble Irshad Ali, J.)

1. Heard Sri Gaurav Mehrtora,
learned counsel for the petitioner and
learned
Additional
C.S.C.
for
the
respondent - State.

2. By means of present writ petition,
the petitioner has prayed for issuance of a
writ, order or direction in the nature of
mandamus commanding the respondents to
release the senior scale of Rs.3000-4500/-
to the petitioner with effect from 1984, time
scale of Rs.3700-5000/- w.e.f. 1990 after
completing 16 years of service with a
further prayer to release all promotions of
the petitioner upto the post of Joint Director
with effect from his juniors have been
promoted.