# Naveen Kumar Srivastava & Ors v. State of U.P. & Ors

- **Citation:** (2025) 1 ILRA 736
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-01-16
- **Case number:** Special Appeal No. 969 of 2024
- **Bench:** Vivek Kumar Birla, Dr. Yogendra Kumar Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/naveen-kumar-srivastava-ors-v-state-of-u-p-ors-53076
- **Pages:** 12

## Headnote

Civil Law- The Allahabad High Court Rules,
1952-Chapter VIII Rule V---Intra Court
Appeal--- In the memorandum of petition or
appeal, several points may be taken but at the
time of arguments only some of those points
may be pressed. In such a situation the court
concerned would deal only with the points which
are argued and there would be a presumption
that the party concerned gave up the challenges
based on the other points. There is general
presumption in law that a Judge deals with all
the points which have been argued before
him, and in case the party seeks to contend
that he had pressed certain points which have
not been considered, it would be open to him
to file an application before the same learned
Judge which delivered the judgment, and
seek an order of review. It would ordinarily be
not open to the party concerned to argue a
point in appeal, which even if taken in the
petition before the court below, was neither
argued nor pressed before the court of first
instance---Even if the grounds which are now
sought to be urged on behalf of the appellants
are taken into consideration the controversy
involved in the present case is fully covered in
terms of the judgment dated 28.02.2024 passed
in Special Appeal Defective No.159 of 2024
(Shradha Yadav Vs St. of UP through Secretary,
Department of Basic Shiksha). (Para 15, 16 & 23)

Petition dismissed. (E-15)

List of Cases cited:

## Text

736 INDIAN LAW REPORTS ALLAHABAD SERIES
filed on behalf of any other person in
respect of a different order. The counsel in
fact owes a professional duty to his client
not to disclose the facts of his case to any
other person. Therefore, the allegation of
concealment of fact is misconceived and it
has been leveled in a reckless and
irresponsible manner.

19. Although the appellant has
alleged that the registry has passed the Writ
Petition in a cursory manner, the appellant
has not alleged violation of the provisions of
any specific Rule in filing the Writ Petition.
There is no specific allegation of violation of
any Rule by the officers/officials of the
registry also. The Hon'ble Judge has been
blamed for accepting the request for taking
up the Writ Petition on urgent basis, whereas
it is the normal practice prevalent in this
Court that in matters regarding which the
Court is satisfied that the same warrants
an urgent hearing, the Court grants
request for urgent hearing. The appellant
has recklessly leveled misconceived,
vague and unsubstantiated allegations
against
the
petitioners,
the
learned
Counsel for the petitioners, the officers
and officials of the Registry of this Court
as well as the Hon'ble Judge who has
passed the order, which are wholly
unwarranted
and
unacceptable.
We
strongly deprecate the conduct of the
appellant in leveling such allegations.

20. The learned Counsel for the
appellant is under a professional obligation
to draft and file the appeal carefully and we
deprecate the conduct of the learned
Counsel for the appellant in putting in such
baseless allegations while drafting the
Special Appeal.

21. In view of the forgoing
discussion, we are of the considered view
that filing of the present Special Appeal
by making reckless and irresponsible
allegations,
without
ascertaining
its
maintainability within the scope of
provisions contained in Chapter VIII Rule
5 of the Allahabad High Court Rules
amounts to a gross abuse of the process
of law taxing upon the valuable time of
the Court. Therefore the Special Appeal
is dismissed with a cost of Rs.25,000/-
which shall be deposited by the appellant
with the Registry of this Court within a
period of 30 days from today, failing
which the Senior Registrar shall initiate
proceedings for recovery of the amount
by sending a recovery certificate to the
Collector concerned, who shall recover
the amount as arrears of land revenue and
shall remit the same to this Court within a
period of three months from the date of
issuance of the recovery certificate. The
Senior Registrar of this Court is directed
to transmit the amount of cost to
Children's
Home
(Girls),
Lucknow,
which is being run and maintained under
the Department of Women and Child
Development, Government of U.P.
----------
(2025) 1 ILRA 736
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 16.01.2025

BEFORE

THE HON'BLE VIVEK KUMAR BIRLA, J.
THE HON'BLE DR. YOGENDRA KUMAR
SRIVASTAVA, J.

Special Appeal No. 969 of 2024

Naveen Kumar Srivastava & Ors.
 ...Appellants
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Appellants:
Siddharth Khare, Sr. Adv.
1 All. Naveen Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
737
Counsel for the Respondents:
Archana Singh, C.S.C.

Civil Law- The Allahabad High Court Rules,
1952-Chapter VIII Rule V---Intra Court
Appeal--- In the memorandum of petition or
appeal, several points may be taken but at the
time of arguments only some of those points
may be pressed. In such a situation the court
concerned would deal only with the points which
are argued and there would be a presumption
that the party concerned gave up the challenges
based on the other points. There is general
presumption in law that a Judge deals with all
the points which have been argued before
him, and in case the party seeks to contend
that he had pressed certain points which have
not been considered, it would be open to him
to file an application before the same learned
Judge which delivered the judgment, and
seek an order of review. It would ordinarily be
not open to the party concerned to argue a
point in appeal, which even if taken in the
petition before the court below, was neither
argued nor pressed before the court of first
instance---Even if the grounds which are now
sought to be urged on behalf of the appellants
are taken into consideration the controversy
involved in the present case is fully covered in
terms of the judgment dated 28.02.2024 passed
in Special Appeal Defective No.159 of 2024
(Shradha Yadav Vs St. of UP through Secretary,
Department of Basic Shiksha). (Para 15, 16 & 23)

Petition dismissed. (E-15)

List of Cases cited:

1. Mohd. Akram Ansari Vs Chief Election Officer
& ors. (2008) 2 SCC 95

2. Union of India & ors. Vs N.V. Phaneendran
(1995) 6 SCC 45

3. WritA No.15163 of 2023 Shraddha Yadav &
ors. Vs St. of U.P. & ors.

4. Special Appeal No.61 of 2024 Smt. Radha Vs
St. of U.P. & ors.

5. Special Appeal Defective No.159 of 2024
Shradha Yadav Vs St. of U.P. through Secretary,
Department of Basic Shiksha
6. Special leave to Appeal (C) No(s). 10912 of
2024 Radha Vs St. of U.P. & ors.

(Delivered by Hon'ble Dr. Yogendra
Kumar Srivastava, J.)

1. Heard Shri Ashok Khare,
learned Senior Counsel assisted by Shri
Siddharth Khare, learned counsel appearing
for the Appellants, Ms. Archana Singh,
learned counsel who has put in appearance
on behalf of Respondent Nos. 3 and 4 as
well as Sri Tej Bhanu Pandey, learned
Standing Counsel for the State-Respondent
Nos. 1 and 2 .

2. The instant appeal is listed
alongwith Special Appeal No.998 of 2024
(Manoj Kumar and another Vs. State of UP
and others); however, since the appeals
have been argued independently, the same
are being decided by separate orders.

3. The present intra-court appeal is
directed against the judgment and order
dated 05.01.2024, passed by a learned
Single Judge, in Writ-A No.20779 of 2023
[Naveen Kamal Srivastava And 2 Others
Vs. State Of U.P. and Others], praying for
modification of the judgment and order and
to allow the writ petition in toto with a
further prayer for a direction that the
petitioner-appellants would be entitled to
avail all benefits flowing from sanction
orders dated 26.06.2023 sanctioning their
transfers.

4. The records of the case before
us indicates that the writ petition had been
filed praying for quashing of notices dated
23.09.2023 issued by the District Basic
Education
Officer,
Jhansi,
and
the
subsequent
orders
dated
29.11.2023
directing relieving of all the petitionersappellants
from
District
Jhansi
with
738 INDIAN LAW REPORTS ALLAHABAD SERIES
direction to report back to the original
district Chitrakoot. The petitioners had also
sought quashing of the Circular Letter
dated 28.06.2023 issued by the Secretary,
Board of Basic Education, U.P. Prayagraj,
and a further direction to the respondents
not to interfere in their functioning as
teachers in District Jhansi and to pay their
regular salary including arrears from July
2023.

5. The writ petition was finally
disposed
of
with
certain
observations/directions in terms of an order
dated
05.01.2024,
which
is
being
reproduced below:

"Order on Amendment
Application No. 02 of 2023.
Heard Shri Ashok Khare,
learned senior counsel assisted by
Shri
Siddharth
Khare,
learned
counsel for petitioner and Ms.
Archana Singh, learned counsel for
respondent nos. 3 and 4.
The amendment application
is allowed.
Order on Writ Petition.
Learned
senior
counsel
fairly submits that on the issue of
clause 5 of a circular issued by the
Secretary Basic Shiksha Parishad in
pursuance of the transfer policy
2023-2024, this Court has reserved
a judgement.
Learned
senior
counsel
further submits that in peculiar
circumstances of the present case
that in pursuance of transfer orders
passed
by
the
respondents,
petitioners were relieved from
district Chitrakoot, and submitted
their joining before the Basic
Shiksha
Adhikari,
Jhansi,
respectively
on
03.07.2023,
07.07.2023 and later on they were
allotted their respective institutions
and they have joined their also on
14.09.2023,
15.09.2023
respectively.
Learned
senior
counsel
further submits that subsequently
by the independent impugned order
dated
29.11.2023
petitioners'
transfer order was set aside which
was brought on record by way of
an amendment application and
challenged, and they were directed
to report to their original district
Chitrakoot.
Learned
senior
counsel
submits that at mid session of the
present educational year, impugned
orders will adversely affect studies
of students and prayed that it may
be set aside and at least kept in
abeyance
till
end
of
present
academic session so that they may
file a fresh application for their
interstate transfer if situation so
warrant.
Ms. Archana Singh, learned
counsel
for
respondents
has
opposed
the
aforesaid
prayer,
however, she has not disputed that
normally no transfer is allowed in
mid session.

In
the
aforesaid
circumstances, without going into
the merits of the case in regard to
the effect of clause 5 of a circular
issued by the Board, I find merit in
argument of learned senior counsel
for the petitioners that it would be
adverse to the interest of students to
allow petitioners to relieve from
their transferred place in mid
session in this regard reliance
placed of clause 18 of the transfer
1 All. Naveen Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
739
policy dated 02.06.2023 is also
taken note of.
Therefore, the impugned
orders dated 29.11.2023 are kept in
abeyance
till
end
of
present
educational
session
and
the
petitioners will be at liberty to file a
fresh application in terms of
prevailing transfer policy for next
academic session if so advice.
This
writ
petition
is
disposed
of
with
aforesaid
observation/directions."

6. The principal ground which is
sought to be taken in support of the appeal
is that by submitting that the orders passed
by the District Basic Education Officer, in
terms of which the petitioners were
relieved for rejoining their original place of
posting at District Chitrakoot, having been
challenged by amending the writ petition,
there existed no justification for the
aforesaid controversy not to be adjudicated
on merits by the learned Single Judge while
deciding the writ petition. The orders
passed by the District Basic Education
Officer relieving the petitioners are being
sought to be challenged by asserting that
the said orders are based upon a Circular
dated 28.06.2023 issued by the Secretary,
Board of Education, and therefore there
was no justification for passing the said
orders on the basis of conditions which
were not part of the order passed by the
State Government.

7. Learned counsel appearing for
the State respondents and also the counsel
appearing for the Board of Education have
pointed out that Clause 5 of the Circular
dated 28.06.2023 issued by the Secretary,
U.P. Basic Education Board which forms
the basis of the orders which were
impugned in the writ petition, were subject
matter of challenge in a batch of writ
petitions, leading being Writ - A No. -
15163 of 2023 [Shraddha Yadav and 6
Others Vs. State of U.P. and 10 Others],
which had been heard at length, and the
Court had reserved its judgment.

8. It is pointed out that before the
writ court, the learned Senior Counsel after
making a fair submission in this regard had
submitted that in the mid-session of the
current academic session the impugned
orders would adversely affect the studies of
the students and accordingly made a prayer
that the impugned orders by means of
which the petitioners' transfer orders had
been set aside, and they were directed to
join their original place of posting, be set
aside or at least be kept in abeyance till the
end of the current academic session.

9. In the aforesaid circumstances,
the learned Single Judge without going into
the merits of the case in regard to the effect
of Clause-5 of the Circular issued by the
Basic Education Board held that there was
merit in the argument of the petitioners and
it would be adverse to the interest of the
students to allow the petitioners' transfer
from their present place of posting in the
mid session. In this regard, Clause-18 of
the transfer policy dated 02.06.2023 was
also taken note of. Accordingly, the writ
petition was disposed of with a direction
that the impugned orders dated 29.11.2023
be kept in abeyance till the end of the
current
academic
session
and
the
petitioners were set at liberty to file fresh
applications in terms of the prevailing
transfer policy for the next academic
session, if so advised.

10. Counsel for the appellant has
sought to advert to certain grounds taken in
the memo of appeal to contend that the
740 INDIAN LAW REPORTS ALLAHABAD SERIES
transfer policy of the teachers for the year
2023-2024 was determined as per the
Government Order dated 02.06.2023, and
the orders dated 29.11.2023 issued by the
District Basic Education Officer, Jhansi,
which were based on a Circular Letter
dated
28.06.2023,
cannot
be
legally
supported. It was sought to be argued that
there was no justification for passing of the
orders impugned on the basis of conditions
which were not part of the Government
Order dated 02.06.2023.

11. Counsel appearing for the State
respondents as also the counsel for the
respondent Nos. 3 and 4 have controverted
the aforesaid submissions by pointing out
that the aforesaid grounds which are sought
to be canvassed on behalf of the appellants
were neither raised nor pressed before the
learned Single Judge and as such the
appellants cannot support the appeal by
raising the said grounds at this stage.

12. It is pointed out that a bare
reading of the order under appeal would
indicate that the learned counsel appearing
for the petitioners before the writ court had
fairly submitted that on the issue of validity
of Clause-5 of the circular issued by the
Secretary, Basic Shiksha Parishad, the
Court had already reserved its judgment. It
was in the said backdrop that the counsel
appearing before the learned Single Judge
had made a submission that the impugned
orders dated 29.11.2023, in terms of which
the transfer orders of the petitioners had
been cancelled would adversely affect the
studies of the students, and a prayer was
made that the said orders may be set aside
or at least kept in abeyance till the end of
the
current
academic
session.
It
is
submitted that the grounds which are now
sought to be urged in the present appeal,
have been duly examined in the batch of
writ petitions, leading petition being Writ -
A No. - 15163 of 2023 [Shraddha Yadav
And 6 Others Vs. State of U.P. And 10
Others], which were subsequently decided
in terms of the judgment dated 09.01.2024,
and similar contentions which were raised
were repelled.

13. The question as to whether the
points allegedly raised but not dealt with in
the judgment impugned can be pressed in
support of an appeal thereagainst, was
adverted to in the decision of Mohd.
Akram Ansari Vs. Chief Election Officer
and others1, and it was held that there is a
presumption in law that a Judge deals with
all the points which have been pressed
before him and that a party who has
grievance must approach the same court
which passed the judgment and to urge that
other points were pressed but not dealt
with. The relevant observations made in the
judgment, in this regard, are as follows:-

"14. In this connection we
would like to say that there is a
presumption in law that a Judge
deals with all the points which have
been pressed before him. It often
happens that in a petition or appeal
several points are taken in the
memorandum of the petition or
appeal, but at the time of arguments
only some of these points are
pressed. Naturally a Judge will deal
only with the points which are
pressed
before
him
in
the
arguments and it will be presumed
that the appellant gave up the other
points, otherwise he would have
dealt with them also. If a point is
not mentioned in the judgment of a
Court, the presumption is that that
point was never pressed before the
learned Judge and it was given up.
1 All. Naveen Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
741
However, that is a rebuttable
presumption. In case the petitioner
contends that he had pressed that
point also (which has not been dealt
with in the impugned judgment), it
is open to him to file an application
before the same learned Judge (or
Bench)
which
delivered
the
impugned judgment, and if he
satisfies the Judge (or Bench) that
the other points were in fact
pressed, but were not dealt with in
the impugned judgment, it is open
to the concerned Court to pass
appropriate orders, including an
order of review. However, it is not
ordinarily open to the party to file
an appeal and seek to argue a point
which even if taken in the petition
or memorandum filed before the
Court below, has not been dealt
with in the judgment of the Court
below. The party who has this
grievance must approach the same
Court which passed the judgment,
and urge that the other points were
pressed but not dealt with.
15. Since no other point
except the point of office of profit
has
been
dealt
with
in
the
impugned judgment of the High
Court, the presumption is that no
other point was pressed before the
High Court, even though the point
may have been contained in the
election petition. Hence we do not
allow these points to be raised
here."

14. Taking similar view in a case
where several points were raised in the
application but arguments were confined to,
and therefore decision was given by the
Tribunal on only one point, the Supreme
Court in the case of Union of India and
others Vs. N.V. Phaneendran2, held that
the appellants were not entitled to seek
opportunity
to
agitate
the
remaining
questions before the Tribunal. It was
observed as follows:-

"4. It is next contended that
though several contentions have
been raised on merits, the Tribunal
had only dealt with on this issue
and, therefore, an opportunity may
be given to the respondent to
agitate those questions by remitting
the matter to the Tribunal. We find
it difficult to accept this contention.
It is true that though several points
appear to have been raised, but
before
the Tribunal
the
only
contention
argued
for
the
respondent was as extracted in
paragraph 4 of the order of the
Tribunal. It says:
"The only point that was
urged before us by the learned
counsel appearing for the applicant
is that the Divisional Railway
Manager not being the appointing
authority is not competent to
impose a punishment of removal
from service on the applicant who
is a Travelling Ticker Examiner in
the pay scale of Rs.425-640."
Since the controversy was
only limited to this point before the
Tribunal, we do not find any
justification to remit the matter."

15. In the present case, the grounds
which are sought to be urged in support of
the appeal, may have been stated in the writ
petition, but the judgment impugned does
not indicate that any such ground was
pressed. It is not the case of the appellants
that the aforesaid grounds which are now
sought to be taken in the appeal were
742 INDIAN LAW REPORTS ALLAHABAD SERIES
argued before the learned Single Judge and
the
same
have
not
been
accorded
consideration.

16. It is commonly observed that
in the memorandum of petition or appeal,
several points may be taken but at the time
of arguments only some of those points
may be pressed. In such a situation the
court concerned would deal only with the
points which are argued and there would be
a presumption that the party concerned
gave up the challenges based on the other
points. There is general presumption in law
that a Judge deals with all the points which
have been argued before him, and in case
the party seeks to contend that he had
pressed certain points which have not been
considered, it would be open to him to file
an application before the same learned
Judge which delivered the judgment, and
seek an order of review. It would ordinarily
be not open to the party concerned to argue
a point in appeal, which even if taken in the
petition before the court below, was neither
argued nor pressed before the court of first
instance.

17. In an intra Court appeal, the
appellate court would not normally reassess
the material and seek to reach a conclusion
different from the one reached by the court
of first instance, if the one reached by that
court was reasonably possible on the
material available. This would be more so
in a case where the grounds which are
sought to be urged were never pressed
before the court of first instance.

18. The judgment of the learned
Single Judge clearly records that the
learned
counsel
appearing
for
the
petitioners had submitted that Clause-5 of
the circular dated 28.06.2023 issued by the
Secretary, U.P. Basic Education Board,
which forms basis of the orders which were
impugned in the writ petition, was subject
matter of challenge in a batch of writ
petitions, wherein the Court had reserved
its judgment. It was in the said background
that the learned counsel submitted before
the writ Court that in the midst of the
current academic session, the impugned
orders would adversely affect the studies of
the students and accordingly prayed that
the same may be set side or at least kept in
abeyance till the end of the academic
session. Finding merit in the aforesaid
argument that it would be adverse to the
interest of the students to allow the
petitioners to be relieved from their
transferred place in the mid-session, the
learned Single Judge disposed of the writ
petition with a direction that the impugned
order dated 29.11.2023 be kept in abeyance
till the end of the current academic session.
The judgment under appeal does not
indicate that any other ground was urged
before the learned Single Judge, and
therefore we are of the view that it would
not be open to the appellants to press any
other ground which had not been argued
before the learned Single Judge.

19. Even otherwise, the grounds
which are now sought to be urged in
support of the present appeal have been
duly considered in the batch of writ
petitions with leading petition being WritA No.15163 of 2023 (Shraddha Yadav
and others Vs. State of UP and others)
which were decided in terms of judgment
dated 09.01.2024 and similar contentions
which had been raised, were repelled. The
observations made in the judgment in the
case of Shraddha Yadav (supra), in this
regard, are as follows:-

"१३.
य दचक कत थगण
की
सेव यें
'दनयम वली १९८१' के प्र वध नो के अधीन है। दजसके
1 All. Naveen Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
743
दनयम २१ मे 'स्थ न न्तरण' क प्र वध न है जो
स म न्यतः स्थ न न्तरण की अनुमदत नही िेत है और
स्थ न न्तरण, यदि होत है तो वो, पररिि के अनुमोिन
के दबन नही हो सकत है।
१४. पूवथ में उल्लेदखत दनणथयों से यह भी
दनदवथव दित है दक स्थ न न्तरण नीदत म त्र एक
प्रश सदनक नीदत है, दजसकी पृष्ठभूदम में कोई वैध दनक
प्र वध न नहीं है। दकसी भी कमथच री को अपनी पसांि के
स्थ न पर स्थ न न्तरण क ि व करने क कोई मौदलक
य दनदहत अदधक र प्र प्त नही होत है।
१५. दशक्षकों व दशदक्षक ओां के विथ
२०२३-२०२४ की अन्तजथनपिीय एवां प रस्पररक
स्थ न न्तरण नीदत को उिर प्रिेश श सन के श सन िेश
दिन ँक ०२, जून, २०२३ द्व र दनध थररत की गई। इसके
खण्ड १६, १७ व १८ पूवथ में उल्लेदखत दकये ज चुके
हैं, के अनुस र पररिि को इस स्थ न न्तरण नीदत के '
तकनीकी चरण एवां प्रदक्रय के दनध थरण क ि दयत्व
सौप गय और उसी क्रम में, और स्थ न न्तरण नीदत के
क्रम में अग्रतर क यथव ही हेतु सदचव, उ.प्र. बेदसक
दशक्ष पररिि ने पररपत्र दिन ांक १६.०६.२०२३ व
२८.०६.२०२३ को दनगथत दकय , दजसके अनुस र
ऑनल इन आवेिन के सत्य पन व परीक्षण की प्रदक्रय
को दनध थररत दकय । इन पररपत्रों के म ध्यम से एकल
अदभभ वक, दिव्य ांगत , अस ध्य य गांभीर रोग,
सरक री सेव क ल भ, दनलम्बन की दस्थदत आदि के
दविय में प्र वध न बन ये गये। इसी क्रम में पररपत्र
दिन ांक २८.०६.२०२३ द्व र अन्तजथनपिीय स्थ न न्तरण
प्रदक्रय के अन्तगथत स्थ न न्तररत दशक्षक एवां दशदक्षक
(१६,१६४ दशक्षक एवां दशदक्षक ) को क यथमुक्त दकये
ज नें की क यथव ही की, दवस्तृत प्रदक्रय को भी दनध थररत
दकय । इसी पररपत्र के खण्ड (५) को दनरस्त करने की
प्र थथन य दचक कत थगण ने की है। उक्त खण्ड पुनः दनम्न
उल्लेदखत दकय ज रह हैः-
"५. प्रोन्नदत पि पर क यथरत दशक्षक एवां
दशदक्षक के स्थ न न्तररत जनपि में बैच की पिोन्नदत
विथ/मौदलक दनयुदक्त दतदथ के आध र पर क यथमुक्त करने
की क यथव ही की ज येगी।"
१६. स्थ न न्तरण नीदत के खण्ड १६, १७
व १८ के अन्तवथस्तु से स्पष्ट है, जो पररिि के उक्त
पररपत्रों को, जो उक्त नीदत के ' तकनीकी चरण व
प्रदक्रय के दनध थरण', इसकी समय स ररणी व क यथमुक्त
कर ने के सम्बन्ध में है, दनगथत करने के दलए स्पष्ट रूप
से पररिि के सदचव को अदधकृत करते है। अतः उक्त
पररपत्रों को दनगथत करने क अदधक र सदचव, उ.प्र.
बेदसक दशक्ष पररिि को पूणथ रूप से थ । अतः पररपत्र
वैध दनक है व दवदधक रूप से सांध रणीय भी है। यह
पररपत्र स्थ न न्तरण नीदत के क्रम में उसके क यथव हन के
दलए है, न दक उसकी प्रकृदत के दवरोध में दनगथत दकये
गये है। स्पष्टत व सांिभथ के दलए स्थ न न्तरण नीदत के
खण्ड १६, १७ व १८ पुनः दनम्न उल्लेदखत दकये ज
रहे हैः-
"(१६) अन्तजथनपिीय एवां प रस्पररक
स्थ न न्तरण के दलए दनगथत श सन िेश के अनुस र
उ०प्र० बेदसक दशक्ष पररिि द्व र अन्तजथनपिीय एवां
प रस्पररक स्थ न न्तरण के तकनीकी चरण एवां प्रदक्रय
क दनध थरण दकय ज येग तथ श सन िेश के क्रम में
अग्रतर क यथव ही की ज येगी।
(१७) अन्तजथनपिीय स्थ न न्तरण हेतु
समय-स ररणी सदचव, बेदसक दशक्ष पररिि द्व र अपने
स्तर से पृथक से दनगथत की ज येगी।
(१८) अन्तजथनपिीय एवां प रस्पररक
स्थ न न्तरण के उपर न्त दशक्षक/दशदक्षक को क यथमुक्त
करने तथ क यथभ र ग्रहण करने की क यथव ही मध्य
शैदक्षक सत्र में नहीं की ज येगी। दशक्षक/दशदक्षक को
क यथमुक्त करने तथ क यथभ र ग्रहण करने की क यथव ही
अवक श के िौर न ही की ज येगी।"
१७. अब न्य य लय को यह दनध थररत
करन है दक पररपत्र दिन ँक २८.०६.२०२३ के खण्ड
(५) में उल्लेदखत 'स्थ न न्तररत जनपि में बैच की
पिोन्नदत विथ/मौदलक दनयुदक्त दतदथ के आध र पर'
क यथमुक्त करने की क यथव ही क कोई न्य योदचत क रण
है अथव नही। यह ां यह ध्य न रखन होग दक
य दचक कत थगण के सांबांध में अांतजथनपिीय स्थ न न्तरण
क आिेश प ररत हो गय थ परन्तु उपरोक्त खण्ड (५)
के क रण उनको क यथमुक्त नहीं दकय गय है।
१८. उपरोक्त वदणथत खण्ड (५) के
अन्तःवस्तु के म त्र पररशीलन से स्पष्टत प्रतीत नही
होती है परन्तु पररिि के द्व र ि यर प्रदतउिर पत्र व
उसके दवद्व न अदधवक्त के कथन से स्पष्टत प्रतीत होती
है, दक अगर य दचक कत थगण जो पिोन्नदत पि पर है
स्थ न न्तररत जनपि, जह ां उनके बैंच के दशक्षकों की
744 INDIAN LAW REPORTS ALLAHABAD SERIES
पिोन्नदत नही हुयी है, क यथभ र ग्रहण कर य ज त है तो
वो अपने सांवगथ मे दनम्नतम वररष्ठत पर रहें। दिर भी वो
उनके बैंच में क यथरत दशक्षक/दशदक्षक दजनको पिोन्नदत
नहीं की गई है, से वररष्ठ हो ज येंगे और उनके पिोन्नदत
होने के ब ि भी य दचक कत थगण ही वररष्ठ रहेंगे। दजससे
असमांजसत की दस्थदत उत्पन्न हो ज येगी, च हे
वररष्ठत सूची मूल जनपि के स्तर पर ही क्यो न हो। यह
दस्थदत सहकमी को स थ क यथ करने के दलए प्रदतकूल
होगी। उपरोक्त वदणथत क रण एक नीदतयुक्त क रण है जो
उपरोक्त खण्ड (५) को वैध दनकत प्रि न करत है।
अगर पररिि उक्त खण्ड (५) के अऩ्तःवस्तु में और
स्पष्टत ल प ते तो अच्छ होत । अदग्रम स्थ न न्तरण
नीदत में स्पष्टत क ध्य न रखन च दहये।
१९. म ० उच्चतम न्य य लय के एक नवीन
दनणथय जो िेवेश शम थ प्रदत भ रत सांघ व अन्यः २०२३
एस.सी.सी. ऑनल इन एस.सी. ९८५, के प्रकरण में
प ररत दकय गय है, में पुनः यह प्रदतप दित दकय दकः-
" ७३. हम रे मदस्तष्क में दनदश्चत रूप से
कोई सांिेह नही है, दक स ध रणतः र ज्य के नीदतगत
दनणथयों में सांवैध दनक न्य य लयों द्व र उसके पुनः
दनरीक्षण अदधक रो के अांतगथत हस्त क्षेप नहीं दकय ज
सकत है। इसी के स थ अगर नीदतगत दनणथय स्वयां में ही
दवदध के दवरूद्ध और वो मनम न व तकथहीन हो तो
पुनःदनरीक्षण के अदधक र क उपयोग करन ही
च दहये।"
२०. म ० उच्चतम न्य य लय द्व र एक
अन्य प्रकरण सत्यिेव ब गुर प्रदत र जस्थ न श सन व
अन्य (२०२२)५ एस.सी.सी. ३२४, के प्रकरण मे पूवथ
मे
प ररत
कृष्णन्न
कक्कन थ
प्रदत
केरल
र ज्यः(१९९७)९ एस.सी.सी. ४९५ व शेर दसांह प्रदत
भ रत सांघः (१९९५)६ एस.सी.सी. ५१५ के दनणथयों
क सांिभथ लेते हुए यह दनणीत दकय दकः-

"१५. यह अदतस म न्य है दक न्य य लय
नीदतगत म मलो में हस्तक्षेप करने में मन्ि रहेंगे, जब तक
दक नीदत स्पष्ट रूप से पक्षप ती और मनम नी न स्थ दपत
हो ज ये। यह न्य य लय र ज्य की नीदतगत दनणथय में
हस्तक्षेप नही करेग , जब र ज्य यह इांदगत कर सके दक
नीदत के क य थवहन में युदक्तयुक्त अांतर है और वो
युदक्तयुक्त अांतर, उसके उद्देश्य की प्र दप्त से सांबांध रखत
है।"
२१. जैस ऊपर दवश्लेिण दकय गय है दक
खण्ड (५) के अन्तःवस्तु क आध र न्य योदचत एवां
न्य य सांगत है, जो एक युदक्तयुक्त अन्तर है, दजसक
सांबांध उद्देश्य की प्र दप्त के दलये है दक अगर
य दचक कत थ गणो को स्थ न न्तररत जनपि, जह ां उनके
बैच के सह दशक्षको की पिोन्नदत नहीं हुई है,
स्थ न न्तररत कर दिय ज ये तो वह ां अव्यवस्थ हो
ज येगी और सहकमी को स थ क म करने मे असहजत
होगी। अतः इसको दनरस्त करने की प्र थथन अस्वीक र
की ज ती है। और यह य दचक बलहीन होने के क रण
दनरस्त की ज ती है।"

20. It has been brought to our
notice that several writ petitions seeking
similar reliefs were dismissed, and against
one of such orders, Special Appeal No.61
of 2024 [Smt. Radha Vs. State of U.P.
And 4 Others], was filed, and the same
was dismissed by a co-ordinate Bench, by
means of an order dated 16.02.2024. The
aforesaid order is being reproduced below:

"1. Following orders were
passed on 06.02.2024:-
"1.
Appellant
was
transferred in terms of the Inter
District
Transfer
Policy
from
Mirzapur to Lucknow. She was
however not allowed joining on the
ground
that
though
she
was
promoted to the post of Head
Mistress at Mirzapur but persons
senior to the appellant were still
working as Assistant Teacher at
Lucknow. The cadre of Assistant
Teacher is otherwise a district level
cadre. The authorities accordingly
have refused to allow joining to the
appellant at Lucknow and have
also cancelled her transfer.
2. A representation was
made by the appellant stating that
she is willing to give up her claim
of promotion and she would accept
1 All. Naveen Kumar Srivastava & Ors. Vs. State of U.P. & Ors.
745
her transfer to Lucknow on the post
of Assistant Teacher in a primary
institution. It is submitted that this
aspect of the matter has not been
bestowed any consideration and
therefore, the order of the authority
rejecting petitioner's representation
is unsustainable.
3.
Learned
counsel
representing the respondents seeks
a week's time to obtain instructions
in the matter.
4. Put up on 16.02.2024, as
fresh."
2. Ms. Archana Singh,
appearing for the Basic Shiksha
Board, states that in the past also
such claims have been put forward
by
the
teachers,
who
gave
preference to their posting at the
place of their liking by giving up
their previous promotion on the
post of Headmistress. Such claims
were rejected by the Board. It is
also submitted that during the
academic session it would not be in
the academic interest to consider
any personal for transfer. It is also
urged that the claim of the
appellant, if allowed, may result in
large number of other persons
coming up with similar pursuits,
which would adversely affect the
functioning of these institutions.
Learned counsel then states that as
and when posts are available on
the
post
of
Headmistress
at
Lucknow and the claim of seniority
would not be breached, the claim of
appellant
for
promotion
be
accorded consideration in terms of
the policy.
3. We find substance in the
objection
of
the
respondents,
inasmuch as transfer cannot be
insisted upon by a teacher as a
matter of right. Consideration
regarding smooth functioning of the
educational institutions would be of
paramount
importance.
It
is
otherwise not disputed that persons
senior to the appellant since are
continuing at Lucknow as Assistant
Teacher, her claim of transfer as
Headmistress
would
create
unnecessary heart burn. Giving up
claim of promotion also creates
complications as very often such
claims
are
revived.
It
may
otherwise lead to more similar
claims being raised by other
teachers. It is otherwise undisputed
that
the
cadre
of
teacher/headmistress
under
the
Rules is a district cadre post and
transfer, outside the district, can
only be allowed in terms of the
policy.
4. In that view of the
matter, we find no good ground to
interfere
in
the
matter
and,
consequently, the present appeal is
consigned to records. It goes
without saying that as and when
fresh transfer policy is floated by
the department, it shall be open to
the appellant to apply and her
claim
would
be
examined
in
accordance with the policy."

21. It has been further pointed out
that subsequently one of the petitioners in
the leading writ petition in the batch of writ
petitions decided in terms of the judgment
under appeal, preferred a special appeal,
being Special Appeal Defective No.159 of
2024 [Shradha Yadav Vs. State of U.P.
through Secretary, Department of Basic
Shiksha], which too was dismissed by
means of an order dated 28.02.2024,
746 INDIAN LAW REPORTS ALLAHABAD SERIES
following the order passed in the appeal of
Smt. Radha (supra). The aforesaid order
dated 28.02.2024 passed in the special
appeal is as follows:

"(Ref: Civil Misc. Delay
Condonation Application)
1. Heard.
2. Delay in filing the
present appeal is explained to the
satisfaction of the Court. Delay is,
accordingly, condoned. Office is
directed to allot a regular number
to the present appeal.
3.
Application
stands
allowed.
Ref: Appeal
4. Heard learned counsel
for the petitioner and learned
counsel for the respondents
5. It is pointed out that
similar controversy, as is raised in
this petition, has been adjudicated
by this Court in Special Appeal
No.61 of 2024 (Smt. Radha vs.
State of U.P. and others) vide
following
order
passed
on
16.2.2024:-
"1. Following orders were
passed on 06.02.2024:-

"1.
Appellant
was
transferred in terms of the Inter
District
Transfer
Policy
from
Mirzapur to Lucknow. She was
however not allowed joining on the
ground
that
though
she
was
promoted to the post of Head
Mistress at Mirzapur but persons
senior to the appellant were still
working as Assistant Teacher at
Lucknow. The cadre of Assistant
Teacher is otherwise a district level
cadre. The authorities accordingly
have refused to allow joining to the
appellant at Lucknow and have
also cancelled her transfer.
2. A representation was
made by the appellant stating that
she is willing to give up her claim
of promotion and she would accept
her transfer to Lucknow on the post
of Assistant Teacher in a primary
institution. It is submitted that this
aspect of the matter has not been
bestowed any consideration and
therefore, the order of the authority
rejecting petitioner's representation
is unsustainable.
3.
Learned
counsel
representing the respondents seeks
a week's time to obtain instructions
in the matter.
4. Put up on 16.02.2024, as
fresh."
2. Ms. Archana Singh,
appearing for the Basic Shiksha
Board, states that in the past also
such claims have been put forward
by
the
teachers,
who
gave
preference to their posting at the
place of their liking by giving up
their previous promotion on the
post of Headmistress. Such claims
were rejected by the Board. It is
also submitted that during the
academic session it would not be in
the academic interest to consider
any personal for transfer. It is also
urged that the claim of the
appellant, if allowed, may result in
large number of other persons
coming up with similar pursuits,
which would adversely affect the
functioning of these institutions.
Learned counsel then states that as
and when posts are available on
the
post
of
Headmistress
at
Lucknow and the claim of seniority
would not be breached, the claim of
1 All. Anand Kumar Vs. State of U.P. & Ors.
747
appellant for promotion be
accorded consideration in terms of
the policy.
3. We find substance in the
objection
of
the
respondents,
inasmuch as transfer cannot be
insisted upon by a teacher as a
matter of right. Consideration
regarding smooth functioning of the
educational institutions would be of
paramount
importance.
It
is
otherwise not disputed that persons
senior to the appellant since are
continuing at Lucknow as Assistant
Teacher, her claim of transfer as
Headmistress
would
create
unnecessary heart burn. Giving up
claim of promotion also creates
complications as very often such
claims
are
revived.
It
may
otherwise lead to more similar
claims being raised by other
teachers. It is otherwise undisputed
that
the
cadre
of
teacher/headmistress
under
the
Rules is a district cadre post and
transfer, outside the district, can
only be allowed in terms of the
policy.
4. In that view of the
matter, we find no good ground to
interfere
in
the
matter
and,
consequently, the present appeal is
consigned to records. It goes
without saying that as and when
fresh transfer policy is floated by
the department, it shall be open to
the appellant to apply and her
claim
would
be
examined
in
accordance with the policy."

6. For the reasons recorded
in the order dated 16.2.2024 and
the controversy being identical, this
writ petition is also disposed of on
same terms."

22. Against the judgment in the
Special Appeal in the case of Smt. Radha
(supra), a special leave petition being
Special Leave to Appeal (C) No(s). 10912
of 2024 [Radha Vs. State of U.P. &
Others]
was
preferred,
which
stood
dismissed by an order dated 13.05.2024.

23. Accordingly, even if the
grounds which are now sought to be urged
on behalf of the appellants are taken into
consideration the controversy involved in
the present case is fully covered in terms of
the judgment dated 28.02.2024 passed in
Special Appeal Defective No.159 of 2024
(Shradha Yadav Vs. State of UP through
Secretary, Department of Basic Shiksha).

24. We are not inclined to take a
different view in the matter.

25. The special appeal, therefore,
stands dismissed.
----------
(2025) 1 ILRA 747
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 24.01.2025

BEFORE

THE HON'BLE J.J. MUNIR, J.

Writ A No. 4769 of 2022

Anand Kumar ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Rajesh Yadav, Ruchi Mishra

Counsel for the Respondents:
C.S.C., Jagannath Maurya