# Preeti & Anr v. State of U.P. & Ors

- **Citation:** (2022) 6 ILRA 39
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-06-12
- **Case number:** Writ-A No. 10680 of 2021
- **Bench:** Saral Srivastava
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/preeti-anr-v-state-of-u-p-ors-48774
- **Pages:** 10

## Headnote

A. Service Law - Denial of mutual interdistrict transfer - U.P. Basic Education
(Teachers) (Posting), Rules, 2008 - Rule 8,
8(2)(d) - There was no fault of the
petitioners in not submitting application
for mutual transfer online as the fault is
attributed to the respondents in not giving
any further time to permit the eligible
teachers to submit online application who
could not submit the same in view of Para
2(1)(a) of the GO dated 02.12.2019 limiting
the applicability of the GO to the male teachers
who have completed three years of service on
the date of issuance of GO. In such view of the
fact, the first ground on which the claim of
petitioners is denied, is not sustainable in law.
(Para 24 to 26)

The facts as emerges in the present petition are
that the petitioner nos. 1 & 2 have been
appointed
on 01.11.2018 and 08.02.2018
respectively. Under the GO dated 02.12.2019 on
account of limitation imposed u/Para 2(1)(a),
the petitioner no. 2 having not completed three
years of service could not submit his transfer
application online inasmuch as the eligibility was
to be computed u/Clause 17 of the said GO on
the date of the GO permitting submission of
applications. Once the condition enumerated in
Para 2(1)(a) of the GO dated 02.12.2019 was
excluded in case of mutual transfer by virtue of
GO dated 16.02.2021, the petitioners became
eligible to submit application for grant of mutual
transfer. On being eligible for mutual transfer,
the petitioners submitted application for mutual
transfer. The authorities did not consider their
application for mutual transfer which gave rise
to the petitioners for filing present petition.
(Para 23)

It is obvious that to extend the benefit of GO
dated 16.02.2021 to eligible teachers, the State
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Government should have permitted some time
to the teachers to submit online application who
could not submit application for mutual transfer
because of rider imposed u/para 2(1) (a) of the
GO dated 02.12.2019.

B.
U.P.
Basic
Education
(Teachers)
(Posting), Rules, 2008: Rule 8 - U/Rule
8(2)(d) of the Rules, 2008, the power to
consider inter-district transfer is conferred
upon the authorities in exceptional and
extraordinary circumstances. (Para 29 to
31)

Inter-district transfer and mutual interdistrict transfer in the middle of the
session are to be dealt differently - It is
also relevant to mention that if no midsession transfer is permissible that will
make the power to consider transfer
under
Rule
8(2)(d)
of
Rules,
2008
redundant inasmuch as, if a teacher applies for
inter-district transfer on the first day of session,
it is obvious that consideration of his/her interdistrict transfer would fall in the middle of
Session even if the authorities take the
minimum of 24 hours time to consider such
application. Therefore, to achieve the object of
conferring
power
on
authorities

## Text

6 All. Preeti & Anr. Vs. State of U.P. & Ors.
39
into service, verification of which was not
possible as the original records got weeded
out and destroyed with the passage of time.
While it may be true that furnishing a
forged document would not justify the
appointment obtained on the said basis but
for that appropriate time would be a
reasonable one when proper verification of
such a document could be done. Again the
question is that at whose instance enquiry is
set up, is equally important. It is the duty of
those who are responsible for making
selection and appointment to verify all the
credentials of a candidate before giving
appointment but once after due verification
entry is given, then it should be only an
exceptional circumstance to annul the
appointment. A third party complaint
should normally not be entrained as of
compulsion. Establishment must safeguard
its
employees'
interest
first
while
embarking upon an enquiry at the instance
of a third partly complaint which may often
be made with ulterior and illmotives.

19. In view of aforesaid, the order
dated 17.04.2018 passed by respondent no.
4 awarding the petitioner punishment of
dismissal from service and the order dated
12.06.2019 passed by respondent no. 3
rejecting the appeal are hereby quashed.
The writ petition succeeds and is allowed.
The petitioner is held entitled to all
consequential benefits.
----------
(2022)06ILR A39
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 30.03.2022

BEFORE

THE HON'BLE SARAL SRIVASTAVA, J.

Writ-A No. 10680 of 2021

Preeti & Anr. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Shantanu Khare, Sri Ashok Khare (Sr. Adv.),
Sri Siddharth Khare

Counsel for the Respondents:
C.S.C., Sri Ajay Kumar Sharma, Sri Manish Dev,
Ms. Dolly Dwivedi, Ms. Archana Singh

A. Service Law - Denial of mutual interdistrict transfer - U.P. Basic Education
(Teachers) (Posting), Rules, 2008 - Rule 8,
8(2)(d) - There was no fault of the
petitioners in not submitting application
for mutual transfer online as the fault is
attributed to the respondents in not giving
any further time to permit the eligible
teachers to submit online application who
could not submit the same in view of Para
2(1)(a) of the GO dated 02.12.2019 limiting
the applicability of the GO to the male teachers
who have completed three years of service on
the date of issuance of GO. In such view of the
fact, the first ground on which the claim of
petitioners is denied, is not sustainable in law.
(Para 24 to 26)

The facts as emerges in the present petition are
that the petitioner nos. 1 & 2 have been
appointed
on 01.11.2018 and 08.02.2018
respectively. Under the GO dated 02.12.2019 on
account of limitation imposed u/Para 2(1)(a),
the petitioner no. 2 having not completed three
years of service could not submit his transfer
application online inasmuch as the eligibility was
to be computed u/Clause 17 of the said GO on
the date of the GO permitting submission of
applications. Once the condition enumerated in
Para 2(1)(a) of the GO dated 02.12.2019 was
excluded in case of mutual transfer by virtue of
GO dated 16.02.2021, the petitioners became
eligible to submit application for grant of mutual
transfer. On being eligible for mutual transfer,
the petitioners submitted application for mutual
transfer. The authorities did not consider their
application for mutual transfer which gave rise
to the petitioners for filing present petition.
(Para 23)

It is obvious that to extend the benefit of GO
dated 16.02.2021 to eligible teachers, the State
40 INDIAN LAW REPORTS ALLAHABAD SERIES
Government should have permitted some time
to the teachers to submit online application who
could not submit application for mutual transfer
because of rider imposed u/para 2(1) (a) of the
GO dated 02.12.2019.

B.
U.P.
Basic
Education
(Teachers)
(Posting), Rules, 2008: Rule 8 - U/Rule
8(2)(d) of the Rules, 2008, the power to
consider inter-district transfer is conferred
upon the authorities in exceptional and
extraordinary circumstances. (Para 29 to
31)

Inter-district transfer and mutual interdistrict transfer in the middle of the
session are to be dealt differently - It is
also relevant to mention that if no midsession transfer is permissible that will
make the power to consider transfer
under
Rule
8(2)(d)
of
Rules,
2008
redundant inasmuch as, if a teacher applies for
inter-district transfer on the first day of session,
it is obvious that consideration of his/her interdistrict transfer would fall in the middle of
Session even if the authorities take the
minimum of 24 hours time to consider such
application. Therefore, to achieve the object of
conferring
power
on
authorities
for
consideration of transfer in exceptional and
extraordinary circumstances, a teacher may
submit application to the competent authority
for transfer in extraordinary contingency even in
middle of the session and the same may be
considered
by
the
competent
authority
expeditiously. In the event, if the competent
authority conclude that it is a fit case for
exercise of power u/Rule 8(2)(d) of Rules, 2008,
he may pass an order of transfer, but the
transfer would become effective in case of
inter-district transfer not being a mutual
transfer from the first day of the new
session so that teacher may join at
transferred school on first day of session,
so that studies of students may not suffer
for want of teacher. (Para 33)

C. Divya Goswami (infra)(distinguished) -
In the case of mutual transfer, the
teachers who are seeking mutual transfer
replaces one teacher by another and as
such on mutual transfer, the teachers are
available to impart education in both the
schools and hence, the studies of the
students will not suffer. It is pertinent to
note that reading of Paragraph No. 64(1) in the
case of Divya Goswami (infra) does not hint that
it has put any rider for consideration of mutual
inter-district transfer. It only says that no interdistrict transfer is permissible during the mid of
the academic year with an object that the
studies of the students in the school should not
suffer. (Para 27, 32)

D. The denial of the mutual transfer on the
ground that the petitioners secured less
marks than the cut-off marks has no
nexus with the object sought to be
achieved while considering the application
of mutual transfer. The mutual inter-district
transfer are exceptions and perhaps for that
reason, stipulation of minimum length of service
in Para 2(1)(a) of the GO dated 02.12.2019 has
been waived in the case of mutual transfer.
(Para 34)

E.
Writ
Jurisdiction
u/Article
226
-
Mandamus should not be issued by the Court,
where the power is vested with the authorities
to exercise such discretion in accordance with
Rules, but in the instant case the counter
affidavit has been filed stating therein the
grounds,
on
which
the
transfer
applications of the petitioners for mutual
transfer were not considered, which are
found to be unsustainable in law. Thus, it is
not found to be a fit case to be relegated to the
competent authority to decide the matter
afresh. (Para 36)

Writ petition allowed. (E-4)

Precedent followed:

1. Anuruddha Kumar Tripathi Vs St. of U.P. &
ors., Writ-A No. 4950 of 2018, decided on
30.05.2018 (Para 29)

2. Tej Pratap Singh Vs St. of U.P. & ors., Writ-A
No. 3967 of 2021 (Para 30)

Precedent distinguished:

1. Divya Goswami Vs St. of U.P., Writ Petition
No. 878 of 2020, decided on 03.11.2020 (Para
12, 27)
6 All. Preeti & Anr. Vs. State of U.P. & Ors.
41
(Delivered by Hon'ble Saral Srivastava, J.)

1. Heard Sri Ashok Khare, learned
Senior Counsel assisted by Sri Siddharth
Khare, learned counsel for the petitioners,
learned Standing Counsel for respondent
no.1 to 3, Ms. Dolly Dwivedi, Advocate
holding brief of Ms. Archana Singh,
learned counsel for respondent nos.4 & 5
and Sri Manish Dev, Advocate holding
brief of Sri Ajay Kumar Sharma, learned
counsel for respondent no.6.

2. The petitioners by means of the
present writ petition have prayed for the
following reliefs:-

"(i). A writ, order or direction of a
suitable nature commanding the respondent
no.4 to forthwith sanction mutual inter
district transfer of the two petitioners on
the basis of their applications dated
03.03.2021 and 05.03.2021 within a period
to be specified by this Hon'ble Court.

(ii). A writ, order or direction of a
suitable nature commanding the respondent
to permit the petitioner no.1 to function as
an Assistant Teacher in Junior Basic
School of District Gautam Budh Nagar and
to permit the petitioner no.2 to function as
an Assistant Teacher in a Junior Basic
School of District Saharanpur and to pay
them their regular monthly salary against
such respective post."

3. The brief facts of the case are that
petitioners were selected and appointed as
Assistant Teacher in pursuance to the
recruitment undertaken by the respondentBoard in the year 2017-18 for recruiting
69,000 Assistant Teachers. The petitioner
no.1 was appointed on 01.11.2018 and
posted at Prathmik Vidyalaya, Tapri Kalan,
Development Block Balia Kheri, District
Saharanpur while the petitioner no.2 was
appointed on 08.02.2018 and posted at
Prathmik
Vidyalaya
Nagla
Bhatona,
Development Block Jewar, District Gautam
Budh Nagar.

4. The husband of the petitioner no.1
namely, Anil Kumar Mittal, is an employee
of Delhi Judicial Academy falling under the
control of Delhi High Court. On such
account, the petitioner no.1 desired to be
posted in District Gautam Budh Nagar
which is adjacent to Delhi. The petitioner
no.2 is a resident of District Saharanpur
and desired to be posted at Saharanpur.

5. The State Government issued a
Government
Order
dated
02.12.2019
inviting
applications
for
inter-district
transfer to be submitted on or before
20.01.2020. Paragraph 2(1)(a) of the
Government
Order
dated
02.12.2019
provides that male teachers who had
completed three years minimum service as
regular teacher and female teachers, who
had completed minimum period of one year
of satisfactory service, were eligible to
apply for inter-district transfer.

6. According to para 17 of the
aforesaid Government Order, the eligibility
was to be computed on the date the
Government Order was issued.

7. The further case of the petitioners
is that on account of limitation contained in
paragraph 2(1)(a) of the Government Order
dated 02.12.2019 with regard to the
minimum length of service, the petitioners
even though desirous of mutual transfer,
could not submit application for mutual
transfer pursuant to the Government Order
dated 02.12.2019.

8 It appears that subsequently,
Government Order dated 16.02.2021 was
42 INDIAN LAW REPORTS ALLAHABAD SERIES
issued whereby, clause 2(1)(a) of the
Government Order dated 02.12.2019 was
clarified by which it waived the stipulation
of
minimum
length
of
service
in
Government Order dated 02.12.2019 for
mutual transfers. As the petitioners did not
fulfill the minimum length of service as
prescribed in Clause 2(1)(a) of the
Government
Order
dated
02.12.2019,
therefore, they did not submit online
application for grant of mutual transfer.

9. It is stated that despite the
clarification of clause 2(1)(a) of the
Government Order dated 02.12.2019 by
Government Order dated 16.02.2021, no
time was granted to the teachers like
petitioners to submit online application for
consideration of mutual transfer as these
teachers
could
not
submit
online
application due to stipulation of minimum
length of service for being eligible to apply
for inter district transfer.

10. Thereafter, the petitioner no.1
filed application on 03.03.2021 seeking
inter-district mutual transfer with the
petitioner
no.2
before
the
Director
General/School Education & State Project
Director and also to the Secretary, Board of
Basic Education. The petitioner no.2 on
05.03.2021
filed
inter-district
transfer
application seeking mutual transfer with
petitioner
no.1
before
the
Director
General/School Education & Secretary,
Board of Basic Education. It is further
stated that the petitioner no.1 is to look
after a one year old girl child born on
13.01.2020.

11. When no action was taken on the
application of petitioners for mutual
transfer, the petitioners have approached
this Court by filing the present writ petition
praying for the aforesaid reliefs.

12. In the counter affidavit filed by
the respondent nos.4 & 5, it is stated that a
Writ Petition No.878 of 2020 (Divya
Goswami Vs. State of U.P.) was filed and
in
compliance
of
the
order
dated
03.11.2020 and 03.12.2020 passed by this
Court, Government Order No.148/68-52021-15(149)/2010 dated 05.02.2021 and
Government
Order
No.191/68-5-202015/2010 dated 16.10.2021 were issued. In
pursuance to the said Government Orders, a
software was developed by N.I.C. for the
purpose of inter-district transfer of board's
teachers for the year 2019-20 and the entire
proceeding of inter-district transfer had
been completed on 17.02.2021.

13. It is further stated that after the
last date for inter-district transfer, no interdistrict transfer has been done. It is further
stated that at present no policy is in
existence regarding inter-district transfer or
mutual transfer. It is further stated that for
want
of
online
application
by
the
petitioners, their claim for inter-district
transfer could not be considered.

14.
 The
further
case
of
the
respondents is that as the marks obtained
by the petitioners for transfer was less than
the cut off marks prescribed for interdistrict transfer, therefore, they could not be
transferred to the District opted by them. It
is further stated that as the petitioners did
not apply online inter-district transfer,
therefore, their application could not be
considered. The further case of the
respondents is that in view of paragraph
64(1) of the judgement of this Court in the
case of (Divya Goswami) (supra), no interdistrict transfer is permissible during the
mid of the academic session.

15. A rejoinder affidavit has been
filed by the petitioners stating therein that
6 All. Preeti & Anr. Vs. State of U.P. & Ors.
43
they stood precluded from applying for the
mutual transfer on account of the limitation
contained in clause 2(1)(a) under which a
male teacher could not have applied for
transfer before three years. This condition
was deleted by Government Order dated
16.02.2021,
but
the
benefit
of
this
Government Order was limited to those
who had already submitted applications.

16. It is further pleaded that the
transfer contemplated under Government
Order dated 02.12.2019 is based upon the
allocation of marks contained in para 8 of
the Government Order. Such allocation of
marks become irrelevant in case of mutual
transfer. It is further stated that restriction
against mid academic session transfer
would be inapplicable to a case of mutual
transfer as the purpose of such restriction is
to maintain the continuity of studies. In the
case of mutual transfer, one teacher gets
replaced by the another and vice-versa
which necessarily does not affect the
teaching work. It is further stated that in
case the petitioners are made to wail till the
beginning of next academic session, then in
such a case if petitioners file such
application on the first day of the academic
session-2022-23 and its processing takes 24
hours time, such application would be
again in the middle of the academic session
2022-23.

17. It is further stated that in
pursuance to the Government Order dated
02.12.2019 the transfer was finalized in the
month of January, 2021 in the mid-session.

18.

Learned
counsel
for
the
petitioners has contended that the three
grounds as stated in the counter affidavit on
which, the petitioners' application have not
been considered, are not sustainable in law.
He submits that the first ground that the
petitioners
did
not
apply
online
in
pursuance to the Government Order dated
02.12.2019 is misconceived inasmuch as
had
the
Government
Order
dated
02.12.2019
been
specific
and
clear
excluding
mutual
transfer
from
the
condition no.2(1) (a) of the Government
Order dated 02.12.2019, the petitioners
would have applied. He further submits that
on account of the bar created by the
Government Order dated 02.12.2019 that a
male teacher who has not completed three
years of regular service cannot avail
transfer precluded the petitioners from
applying for the inter-district transfer.
Accordingly, he submits that since the
Government Order dated 16.02.2021 by
which stipulation of minimum length of
service provided in para 2(1)(a) of the
Government Order dated 02.12.2019 for
inter district transfer was waived in case of
the mutual inter-district transfer, therefore,
the respondents ought to have permitted
some time to the eligible teachers desirous
of inter-district mutual transfer to apply,
and as such, aforesaid ground of denial of
inter-district transfer is misconceived as the
petitioners could not apply for the reasons
beyond their control.

19. He further submits that the second
ground in view of para 64(1) of the
judgement of this Court in Divya Goswami
(supra) that no transfer in mid of the
academic session is permissible is also not
sustainable for the reason that in mutual
transfer, the studies of the students do not
suffer as one teacher is replaced by another
teacher which is not a case in inter-district
transfer in respect of individual teacher. He
submits that the transfer with respect to
session 2020-21 was finalized in mid
session between October, 2021 to January,
2022. He further submits that in case the
petitioners submit application on the first
44 INDIAN LAW REPORTS ALLAHABAD SERIES
day of session, the consideration of their
application would fall in the mid of
sessions
inasmuch
as
even
if
such
consideration takes minimum time of 24
hours, the same would fall in the mid of the
academic session. Thus, the submission is
that the second ground for not considering
the transfer of petitioners is also not
sustainable.

20. He further submits that in the case
of mutual transfer, the marking system is
totally irrelevant for the reason that here the
two teachers agree for mutual transfer
whereas in the case of individual transfer,
the marking system plays an important role
in regulating the transfer so as to avoid
arbitrariness in granting individual transfer.

21. Per contra, learned counsel for the
respondents has submitted that under the
Government Orders, those teachers who had
submitted application, were eligible for
consideration of their transfer applications.
Since the petitioners did not apply for their
mutual transfer online, therefore, their claim
for transfer could not be considered. She
further submitted that this Court in paragraph
64 (1) of the judgement of Divya Goswami
(supra) has prohibited the mid session
transfer with an object that the studies of the
students in the school should not suffer and as
this Court has put a restriction upon the mid
session transfer and that being the law of the
land, the petitioners are not entitled to mid
session transfer, therefore, the relief as
claimed by the petitioners is misconceived.
Lastly, she has contended that as the
petitioners have secured less marks than the
cut off marks provided for the district in
which the petitioners want transfer, therefore,
they could not be considered for transfer.

22. I have heard the rival submissions
of the parties and perused the record.

23. The facts as emerges in the
present petition are that the petitioner nos.1
& 2 have been appointed on 01.11.2018
and 08.02.2018 respectively. Under the
Government Order dated 02.12.2019 on
account of limitation imposed under para
2(1)(a) of the said Government Order, the
petitioner no.2 having not completed three
years of service could not submit his
transfer application online inasmuch as the
eligibility was to be computed under
Clause 17 of the said Government Order on
the
date
of
the
Government
Order
permitting submission of applications.
Once
the
condition
enumerated
in
paragraph 2(1)(a) of the Government Order
dated 02.12.2019 was excluded in case of
mutual transfer by virtue of Government
Order dated 16.02.2021, the petitioners
became eligible to submit application for
grant of mutual transfer. On being eligible
for
mutual
transfer,
the
petitioners
submitted application for mutual transfer.
The authorities did not consider their
application for mutual transfer which gave
rise to the petitioners for filing present
petition seeking the relief, extracted above.

24. Now, so far as the ground taken
by the respondents in the counter affidavit
that the petitioners did not submit online
application for consideration of their
transfer therefore their application were not
considered, is misconceived in the facts of
the present case inasmuch as the petitioner
no.2 in view of para 2(1)(a) of the
Government Order dated 02.12.2019 was
not
eligible
for
submitting
online
application for transfer. Since the petitioner
no.2
did
not
fulfill
the
condition
enumerated in Government Order dated
02.12.2019 regulating the inter-district
transfer, there was no occasion for the
petitioner no.2 to submit online application.
The petitioners could become eligible to
6 All. Preeti & Anr. Vs. State of U.P. & Ors.
45
submit transfer application only after the
Government
Order
dated
16.02.2021
excluded mutual transfer from the ambit of
paragraph 2(1)(a) of the Government Order
dated 02.12.2019.

25. As soon as the petitioners became
eligible to submit application in view of
Government Order dated 16.02.2021, both
the petitioners submitted application for
grant of mutual transfer. It is obvious that
non submission of application of transfer
by petitioner no.2 was beyond his control
in view of limitation imposed under para
2(1)(a) of the Government Order dated
02.12.2019. Once the Government Order
dated 16.02.2021 excluded the applicability
of the condition imposed under para 2(1)(a)
of the Government Order dated 02.12.2019
by the Government Order dated 16.02.2021
in the case of mutual transfer, it is obvious
that to extend the benefit of Government
Order dated 16.02.2021 to eligible teachers,
the
State
Government
should
have
permitted some time to the teachers to
submit online application who could not
submit application for mutual transfer
because of rider imposed under para 2(1)(a)
of the Government Order dated 02.12.2019.

26. Thus, it is evident that there was
no fault of the petitioners in not
submitting application for mutual transfer
online as the fault is attributed to the
respondents in not giving any further time
to permit the eligible teachers to submit
online application who could not submit
the same in view of para 2(1)(a) of the
Government Order dated 02.12.2019
limiting
the
applicability
of
the
Government Order to the male teachers
who have completed three years of
service on the date of issuance of
Government Order. In such view of the
fact, the first ground on which the claim
of petitioners is denied, is not sustainable
in law.

27. So far as the second ground for
denial of claim of petitioners based on
para 64(1) of the judgement in the case of
Divya Goswami (supra), is concerned,
this Court finds that the rider imposed by
the judgement of Divya Goswami (supra)
in para 64(1) is not applicable in the facts
of the present case. The reason being that
the object of not permitting mid session
transfer by this Court in Divya Goswami
case was that the studies of the students
should not suffer. In the case of mutual
transfer, the teachers who are seeking
mutual transfer replaces one teacher by
another and as such on mutual transfer,
the teachers are available to impart
education in both the schools and hence,
the studies of the students will not suffer.

28. It is pertinent to note that the
State Government has power under Rule
8 of U.P. Basic Education (Teachers)
(Posting),
Rules,
2008
(hereinafter
referred to as 'Rules, 2008') to regulate
posting of teachers. Rule 8 of the said
rule is reproduced herein below:-

"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
46 INDIAN LAW REPORTS ALLAHABAD SERIES
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
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 interdistrict 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."

29. Under Rule 8 (2) (d) of the Rules,
2008, the power to consider inter-district
transfer is conferred upon the authorities in
exceptional circumstances. This Court has
held that even in the case of male teachers,
the rider imposed of five years can be
relaxed in extra ordinary or exceptional
circumstances and the application for
transfer can be considered. In this respect
Para-19 & 20 of the judgement of this
Court in case of Anuruddha Kumar
Tripathi Vs. State of U.P. and Others
passed in Writ-A No.4950 of 2018 is
reproduced here-in below:-

"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.

20. In such circumstances, this writ
petition stands disposed of permitting the
petitioner to represent in the matter before
the Secretary, Basic Shiksha Parishad, U.P.
Allahabad, by way of a representation
together with certified copy of this order,
within two weeks from today. Petitioner
shall be at liberty to annex all material in
support of his plea that there exists
exceptional circumstances justifying his
transfer from Lakhimpur Kheri to Banda
even before completion of his 05 year term.
The Secretary of the Basic Shiksha
Parishad, U.P. Allahabad shall examine as
6 All. Preeti & Anr. Vs. State of U.P. & Ors.
47
to whether the ground on which petitioner
is seeking his transfer would fall within the
exceptional circumstances or not? A
specific order, in that regard, shall be
passed within a further period of three
months, thereafter. No order as to costs."

30. Similar view has been reiterated
by this Court in Writ-A No.3967 of 2021
(Tej Pratap Singh Yadav Vs. State of U.P.
and 3 Others). Relevant extract of the said
judgement is reproduced here-in-below:-

"This Court in Writ Petition No. 7096
of 2010 (Sarita Gupta Vs. State of U.P. and
others) has considered the provisions of
Uttar Pradesh Basic Education ( Teachers)
(Posting) Rules, 2008 to observe that the
provisions of transfer for the purposes of
husband and wife in the same district is a
special provision which will prevail upon
the general restrictions of transfer. Since
the petitioner and his wife both are
teachers in the educational institution run
by the Basic Shiksha Parishad, it would be
open for the authority concerned to post
both husband and wife at one place.

The fact that the husband and wife are
posted at different places would be a
relevant circumstance and may require
waiver of five year term for seeking
transfer.

Petitioner is presently working at
Sitapur and is seeking his transfer to
Etawah where his wife is working. There is
no consideration of petitioner's claim on
merits. Even otherwise it is pointed out that
the petitioner by now has completed 5
years. In such circumstances, it would be
appropriate to direct the Secretary Basic
Shiksha Parishad to reconsider petitioner's
claim for inter district transfer, keeping in
view the aforesaid facts and observations
made above, afresh within a period of two
months from the date of presentation of
copy of this order. The order impugned in
the writ petition dated 29.9.2020 shall
remain subject to the fresh order to be
passed by the Secretary concerned."

31. Thus, from the aforesaid two
judgements, it is evident that the power
under Rule 8 (2) (d) of the Rules, 2008
have been conferred upon the authorities to
exercise the same in exceptional and
extraordinary
circumstances
and
an
application for transfer can be considered
by the authorities

32. It is also pertinent to note that
reading of Paragraph No. 64(1) in the case
of Divya Goswami (supra) does not hint
that it has put any rider for consideration of
mutual inter-district transfer. In such view
of the fact, second ground is also
misconceived.

33. It is also relevant to mention that
if no mid-session transfer is permissible
that will make the power to consider
transfer under Rule 8(2)(d) of Rules, 2008
redundant inasmuch as, if a teacher applies
for inter-district transfer on the first day of
session, it is obvious that consideration of
his/her inter-district transfer would fall in
the middle of Session even if the authorities
take the minimum of 24 hours time to
consider such application. Therefore, to
achieve the object of conferring power on
authorities for consideration of transfer in
exceptional
and
extraordinary
circumstances, this Court believes that in
such a case, a teacher may submit
application to the competent authority for
transfer in extraordinary contingency even
in middle of the session and the same may
be considered by the competent authority
expeditiously. In the event, if the competent
authority conclude that it is a fit case for
exercise of power under Rule 8(2)(d) of
48 INDIAN LAW REPORTS ALLAHABAD SERIES
Rules, 2008, he may pass an order of
transfer, but the transfer would become
effective in case of inter district transfer not
being a mutual transfer from the first day of
the new session so that teacher may join at
transferred school on first day of session,
so that studies of students may not suffer
for want of teacher.

34. Now, so far as the third ground that
the petitioners have obtained less marks than
the cut-off marks for transfer to their choice
district is concerned, the said contention is
also misconceived for the reason that the
mutual inter-district transfer are exceptions
and perhaps for that reason, stipulation of
minimum length of service in para 2(1)(a) of
the Government Order dated 02.12.2019 has
been waived in the case of mutual transfer,
therefore, the denial of the mutual transfer on
the ground that the petitioners secured less
marks than the cut-off marks has no nexus
with the object sought to be achieved while
considering the application of mutual transfer.

35. In such view of the fact, this Court
finds that the denial of mutual inter-district
transfer to the petitioners are illegal and
arbitrary.

36. It is pertinent to note that this Court
is conscious of the fact that the Court should
not issue mandamus where the power is
vested with the authorities to exercise such
discretion in accordance with Rules, but in
the instant case the counter affidavit has been
filed stating therein the grounds on which the
transfer application of the petitioners for
mutual transfer were not considered which
are not found to be not sustainable in law by
this Court for the reasons stated above. Thus
in such view of fact, this Court does not find
it to be a fit case to relegate the matter to the
competent authority to decide the matter
afresh.

37. In such view of the fact, this Court
issues a writ of Mandamus to the authority
concerned to pass a mutual transfer order
transferring the petitioner no.1 from Junior
Basic School, Tapri Kalan, Saharanpur
(U.P.) to Junior Basic School of District
Gautam Buddh Nagar and petitioner no.2
from Junior Basic School of District
Gautam Buddh Nagar to Junior Basic
School, Tapri Kalan, Saharanpur (U.P.)
within a period of three weeks from the
date production of a certified copy of this
order.

38. Accordingly, the writ petition
stands allowed with no order as to cost.
----------
(2022)06ILR A48
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 12.05.2022

BEFORE

THE HON'BLE SIDDHARTH VARMA, J.

Writ A No. 17252 of 2021

Sandeep Kumar Yadav ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Vipin Kumar Singh

Counsel for the Respondents:
C.S.C.

A.
Service
Law
-
Regularisation
-
Compassionate
Appointment
-
U.P.
Collection Peons' Service Rules, 2004; U.P.
Recruitment
of
Dependents
of
Government Servants Dying in Harness
Rules, 1974: Rule 2(a) - Mere inaction on
the part of the State will not deny the
benefit of right which accrued on account
of the Regularization rules. The advantage
which the petitioner would have got, had the
petitioner's father been regularized before his