# Puja Kumari Singh & Ors v. State of U.P. & Ors

- **Citation:** (2023) 12 ILRA 788
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2023-12-08
- **Case number:** Writ-A No. 4726 of 2023
- **Bench:** Om Prakash Shukla
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/puja-kumari-singh-ors-v-state-of-u-p-ors-49532
- **Pages:** 24

## Headnote

Civil Law - Constitution of India,1950 -
Articles 12, 14, 226, 309 - U.P. Basic
Education (Teachers) Services Rules, 1981
-
Rule
21
-
U.P.
Basic
Education
(Teachers) (Posting) Rules, 2008 - Rule 8
- Right of Persons with Disabilities Rules,
2017 - Rule 5(2) - Inter-District Transfer -
Government Service - Weightage System -
Judicial Review - Public Sector Undertakings -
Differently Abled Teachers
The petitioners, Assistant Teachers in Junior
Basic Schools under the U.P. Basic Education
Board,
challenged
Clause
12(4)
of
the
Government Order dated 02.06.2023, Clause
10(4) of the Board's order dated 08.06.2023,
Clause 8 of the clarification order dated
16.06.2023,
and
the
transfer
list
dated
26.06.2023, seeking inclusion of their spouses'
employment in public sector banks, public sector
undertakings (e.g., LIC, NHPC, BSNL), nongovernment aided schools, and other statutory
corporations as "Government Service" to avail
10 quality point marks for inter-district transfers
under the U.P. Basic Education (Teachers)
Services Rules, 1981, and U.P. Basic Education
(Teachers) (Posting) Rules, 2008. Additional
challenges included non-allocation of weightage
for serious ailments, differently abled status,
and
gender-based
weightage
for
female
teachers, alleging violations of Article 14 and
Rule 5(2) of the Right of Persons with
Disabilities Rules, 2017. Held: (1) The writ
petitions were disposed of without finding
illegality
in
the
St.'s
policy
restricting
"Government Service" to employees governed
by the proviso to Article 309 of the Constitution,
as clarified in Clause 8 of the order dated
16.06.2023. (2) The court upheld the Board's
interpretation, as it is the author of the policy,
and employees of public sector undertakings,
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
789
nationalized banks, and non-government aided
institutions do not qualify as government
servants, per Roshan Lal Tandon Vs U.O.I.and
A.K. Bindal Vs U.O.I.. (3) The classification of
government employees is reasonable, having a
nexus with administrative needs, and does not
violate Article 14. (4) Transfer is not a vested
right, and the Board's approval is mandatory
under Rule 21 of the 1981 Rules, as supported
by SK Nausad Rahaman Vs U.O.I.and Bank of
India Vs Jagjit Singh Mehta. (5) Challenges to
the transfer list were rejected, as it was
implemented for the 2023-24 academic session,
and
mid-session
transfers
would
disrupt
students, per Kul Bhushan Mishra Vs St. of U.P..
(6) For differently abled petitioners and those
claiming
serious
ailments,
matters
were
remanded
to
the
Board
for
sympathetic
consideration per Divya Goswami Vs St. of U.P.
and Net Ram Yadav Vs St. of Rajasthan,
requiring individual representations. (7) The
court declined to interfere with the policy under
Article 226, as it does not confer enforceable
rights, per St. of U.P. Vs Gobardhan Lal and
Rajendra Singh Vs St. of U.P..

Case Law cited:

## Text

_Characters 0–39,921 of 74,456. This is a partial read: ask again with offset=39921 for what follows._

788 INDIAN LAW REPORTS ALLAHABAD SERIES
same was not proved. Moreover, once a
registered mortgage-deed had already been
executed without redeeming the same,
Ayodhya Prasad Singh or his legal heirs
could not transfer his property to a third
party who could claim right. Thus, for all
the aforesaid reasons, this Court finds that
the reasoning of the two Courts while
dealing with the issue of limitation is not in
consonance
with
law nor
the
legal
provisions have been considered and is perse bad and erroneous on the face of the
record.

38. This Court is satisfied that the
judgment and decree passed by the two
Courts suffer from substantial error as
neither the provisions of law have been
considered and the findings returned are
based on improper reception of evidence,
ignoring the provisions of law, hence, the
judgment and decree passed in Civil
Appeal No.233/1984 dated 02.02.1988 is
set aside so also the judgment and decree
dated 18.07.1984 passed by the 7th
Additional Munsif, Faizabad in Regular
Suit No.355/1981 is also set aside.
Consequently, the suit filed by the original
plaintiff Shiv Kumar Mishra bearing
No.355/1981
shall
stands
dismissed
consequences to follow. Accordingly, this
appeal
is
allowed.
In
facts
and
circumstances, there shall be no order as to
costs. The record of the trial Court shall be
returned forthwith.
----------
(2023) 12 ILRA 788
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 08.12.2023

BEFORE

THE HON'BLE OM PRAKASH SHUKLA, J.

Writ-A No. 4726 of 2023
alongwith other connected cases

Puja Kumari Singh & Ors. ...Petitioners
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioners:
Shreesh Kumar Mishra Atal, Sharad Pathak

Counsel for the Respondents:
C.S.C., Ran Vijay Singh

Civil Law - Constitution of India,1950 -
Articles 12, 14, 226, 309 - U.P. Basic
Education (Teachers) Services Rules, 1981
-
Rule
21
-
U.P.
Basic
Education
(Teachers) (Posting) Rules, 2008 - Rule 8
- Right of Persons with Disabilities Rules,
2017 - Rule 5(2) - Inter-District Transfer -
Government Service - Weightage System -
Judicial Review - Public Sector Undertakings -
Differently Abled Teachers
The petitioners, Assistant Teachers in Junior
Basic Schools under the U.P. Basic Education
Board,
challenged
Clause
12(4)
of
the
Government Order dated 02.06.2023, Clause
10(4) of the Board's order dated 08.06.2023,
Clause 8 of the clarification order dated
16.06.2023,
and
the
transfer
list
dated
26.06.2023, seeking inclusion of their spouses'
employment in public sector banks, public sector
undertakings (e.g., LIC, NHPC, BSNL), nongovernment aided schools, and other statutory
corporations as "Government Service" to avail
10 quality point marks for inter-district transfers
under the U.P. Basic Education (Teachers)
Services Rules, 1981, and U.P. Basic Education
(Teachers) (Posting) Rules, 2008. Additional
challenges included non-allocation of weightage
for serious ailments, differently abled status,
and
gender-based
weightage
for
female
teachers, alleging violations of Article 14 and
Rule 5(2) of the Right of Persons with
Disabilities Rules, 2017. Held: (1) The writ
petitions were disposed of without finding
illegality
in
the
St.'s
policy
restricting
"Government Service" to employees governed
by the proviso to Article 309 of the Constitution,
as clarified in Clause 8 of the order dated
16.06.2023. (2) The court upheld the Board's
interpretation, as it is the author of the policy,
and employees of public sector undertakings,
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
789
nationalized banks, and non-government aided
institutions do not qualify as government
servants, per Roshan Lal Tandon Vs U.O.I.and
A.K. Bindal Vs U.O.I.. (3) The classification of
government employees is reasonable, having a
nexus with administrative needs, and does not
violate Article 14. (4) Transfer is not a vested
right, and the Board's approval is mandatory
under Rule 21 of the 1981 Rules, as supported
by SK Nausad Rahaman Vs U.O.I.and Bank of
India Vs Jagjit Singh Mehta. (5) Challenges to
the transfer list were rejected, as it was
implemented for the 2023-24 academic session,
and
mid-session
transfers
would
disrupt
students, per Kul Bhushan Mishra Vs St. of U.P..
(6) For differently abled petitioners and those
claiming
serious
ailments,
matters
were
remanded
to
the
Board
for
sympathetic
consideration per Divya Goswami Vs St. of U.P.
and Net Ram Yadav Vs St. of Rajasthan,
requiring individual representations. (7) The
court declined to interfere with the policy under
Article 226, as it does not confer enforceable
rights, per St. of U.P. Vs Gobardhan Lal and
Rajendra Singh Vs St. of U.P..

Case Law cited:

1. SK Nausad Rahaman & ors. Vs U.O.I.& ors.,
2022 SCC OnLine SC 297

2. Bank of India Vs Jagjit Singh Mehta, (1992) 1
SCC 306

3. U.O.I. Vs S.L. Abbas, (1993) 4 SCC 357

4. Roshan Lal Tandon Vs U.O.I., AIR 1967 SC
1889

5. Officers & Supervisors of I.D.P.L. Vs Chairman
& M.D. I.D.P.L., AIR 2003 SC 2870

6. A.K. Bindal Vs U.O.I., (2003) 5 SCC 163

7. Pyare Lal Sharma Vs Managing Director,
(1989) 3 SCC 448

8. St. of U.P. & ors. Vs Gobardhan Lal, (2004) 11
SCC 402

9. Rajendra Singh Vs St. of U.P., (2009) 15 SCC
178

10. Shilpi Bose Vs St. of Bihar, (1991) Supp (2)
SCC 659

11. Kul Bhushan Mishra & anr. Vs St. of U.P. &
ors., Writ-A No. 10209 of 2023, decided on
16.06.2023 (All. HC, Lucknow Bench)

(Delivered by Hon'ble Om Prakash Shukla, J.)

Table of Contents
Page No.
A. Prelude
9
B. Prevailing Rules and
Policy
11
C. Factual Matrix
16
D.
Contention
of
the
parties
22
E. Discussion & finding
24
F. Conclusion
48

(1) Heard Shri Sharad Pathak, learned
Counsel for the petitioner in leading
petition, Shri Asit Chaturvedi, learned
Senior Counsel assisted by Shri Ashwini
Kumar, Shri Vivek Mishra, Shri Shrikant
Mishra, Shri Vijay Dixit along with Shri
Devam Shukla, Shri Ravi Shanker Tewari,
Shri
Prashant
Kumar
Singh,
learned
Counsel for the petitioners in connected
writ petitions, Shri Ran Vijay Singh,
learned Counsel representing the Board,
Ms. Deepshikha, learned Chief Standing
Counsel assisted by Shri D.P. Mishra,
learned Additional Chief Standing Counsel
for the State-respondents.

A. Prelude

(2) The common facts of these bunch
of writ petitions lie in a narrow compass.
The petitioners apparently claim to have
been selected and posted as Assistant
Teacher in Junior Basic Schools in various
790 INDIAN LAW REPORTS ALLAHABAD SERIES
districts of the State of Uttar Pradesh as per
the selection process prescribed under the
U.P Basic Education (Teachers) Services
Rules, 1981 (hereinafter referred to as
"Rules, 1981"). This Court may not be
detained any further by incorporating
unnecessary
facts
related
to
the
place/district,
where
these
Assistant
Teachers are posted. Suffice to say that
each of the petitioners in these bunch of
writ petitions are desirous of seeking interdistrict transfer in view of policy decision
taken by the State vide Government order
dated 02.06.2023, wherein Clause 12 (4)
permits additional 10 quality points for all
those teachers, whose spouse are in
Government services.

(3) Subsequently, the Board of Basic
Education
vide
another
order
dated
16.06.2023, clarified the scope of the term
"Government Service" used in Clause
12(4) of the Government Order dated
02.06.2023, by explaining that as per
Clause 8 of the order dated 16.06.2023,
only those employees, who are governed by
proviso to Article 309 of the Constitution
of India, shall be considered to be a part of
Government Service to avail the quality
point marks as per Clause 12 (4) of the
Government Order dated 02.06.2023.

(4) Besides the common ground for
challenge as mentioned in these petitions, it
is also seen that basically the petitioners are
seeking relief from this Court in the nature
of declaration that the employment status
of their respective spouse(s) held in
different organisation like public sector
banks,
public
sector
enterprises
like
LIC/NHPC
etc.
and
other
statutory
Corporations as well as Assistant Teachers
under Madhyamik Siksha Parishad, as
"Government
service",
so
that
these
petitioners can avail and/or be entitled to
the additional quality point marks of "10"
as mentioned in Clause 12(4) of the
Government Order dated 02.06.2023 or
Clause
10(4)
of
the
Order
dated
08.06.2023.

(5) Additionally, Writs (No. 4920 of
2023, 5947 of 2023 etc.) have also been
filed claiming weightage of '10' marks for
serious disease and few writs (No. 4727 of
2023, No. 5090 of 2023 etc.) have been
filed on the ground that in the Government
Order dated 02.06.2023, provisions of the
Right of Persons with Disabilities Rules,
2017 (hereinafter referred to as "Rules,
2017") with emphasis on Rule 5(2) (a) and
(b) of Chapter II of the Rules, 2017 were
not followed. Yet, Writ (No. 5906 of 2023
etc.) has been filed on the ground that the
petitioners had been wrongly reverted to
her district after transfer as she had taken
'10' marks for serious ailments wrongly.
Further, some writ (No. 4722 of 2023 etc.)
has been filed challenging Clause-1 of
Order dated 16.06.2023 as weightage of
'10' marks for spouse working in same
district would not be awarded to them as
provided under Clause 12 (4) of the
Government Order dated 02.06.2023.

B. Prevailing Rules and Policy

(6) It is not in dispute that service
conditions of these petitioners are regulated
by the Rules, 1981. Rule 21 of Rules, 1981
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
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
791
consent of the teacher himself and in either
case approval of the Board shall be
necessary."

(7) In addition to the Rules, 1981, the
respondents
have
made
U.P.
Basic
Education (Teachers) (Posting) Rules, 2008
(hereinafter referred to as "the Rules,
2008"), by exercising the powers contained
in Section 19(1) of the U.P. Basic
Education Act, 1972 (hereinafter referred
to as "the Act of 1972"). Although, the
Rules, 2008 have been named as the
'posting Rules', however, they also relate
to transfer to certain extent in the sense that
posting and transfer have cognate meaning.
Rule 8 of the Rules, 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
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 years'
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."

(8) Having traced the rules applicable
for transfer of Assistant Teachers, it would
be pertinent to mention herein that the State
Government
vide
its
Order
dated
02.06.2023 initiated the process of interdistrict as well as mutual transfer of the
teachers working in these schools under the
Board of Basic Education by inviting online
transfer
applications.
Apparently,
Clause 12 of the Government Order dated
792 INDIAN LAW REPORTS ALLAHABAD SERIES
02.06.2023 is the centrifugal discussion in
this bunch of matters.

(9) Clause 12 of the Government
Order dated 02.06.2023 provides for a
weightage system for the preparation of
priority list to implement inter-district
transfer, whereby quality point marks were
to be awarded to these Assistant Teachers
on fulfilment of certain conditions/criteria
as mentioned in the said Clause. The
conditions as well as the quality point
marks
awarded
for
calculating
the
weightage were as follows :-

S.
No.
Condition/ Criteria
Maximu
m Points
1.
One quality point for each
completed year of service
10
2.
Differently Abled Teacher
(Self, Husband or Wife,
Unmarried Son/ Daughter)
10
3.
Teacher Suffering from
Incurable
or
critical
Disease (Self, Husband or
Wife,
Unmarried
Son
Daughter)
20
4.
Teacher whose spouse is
working
in government
service
(Central
Government/ Indian Navy/
Central
Para
Military
Forces/ UP Government
and
Board
of
Basic
Education,
U.P.)
in
a
regular manner.
10
5.
Single Parents
10
6.
Female Teacher
10
7.
National
award-winning
teacher
05
8.
State
award-winning 03
teacher

(10) Further, vide an order dated
08.06.2023, the Board of Basic Education,
Prayagraj issued directions to the District
Basic
Education
Officers
of
various
districts to implement the weightage system
in furtherance of the aforesaid Government
Order dated 02.06.2023, wherein the said
order repeated the aforesaid quality point
marks vide Clause 10 and also provided for
the following time table according to which
the transfer process was to be completed :-

S.
No.
Event
 Date
1.
Timeline to make
application
for
transfer on the portal
developed
by
National informatics
Centre
09.06.2023 to
14.06.2023
2.
Procedure
for
Verification
of
documents
submitted
by
teachers and locking
of data
10.06.2023 to
18.06.2023
3.
Transfer to be made
by
National
Informatics Centre
19.06.2023 to
22.06.2023
4.
Relieving
the
teacher
after
conclusion
of
transfer
27.06.2023
onwards

(11)

Apparently,
all
the
writ
petitioners had filled the application form
as per the time limit prescribed in the
aforesaid order, giving their preference and
also claiming weightage of quality point
marks for fulfilling the criteria/conditions
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
793
as
provided
in
Clause
12
of
the
Governemnt
Ordre
dated
02.06.2023.
Subsequently,
the
Board
of
Basic
Education
vide
another
order
dated
16.06.2023, clarified the scope of the term
"Government service" used in Clause 12(4)
of the Government Order dated 02.06.2023,
by explaining as per Clause 8 of the order
dated 16.06.2023 that only those employees
who are governed by proviso to Article 309
of the Constitution of India shall be
considered to be a part of Government
Service to avail the quality point marks as
per Clause 12 (4) of the Government Order
dated 02.06.2023.

(12) Subsequently, it seems that the
transfer list was published by the Board of
Basic
Education
on
26.06.2023
and
although the weightage as per the quality
point marks were not mentioned in the said
list, but petitioners, based on their own
enquiry, were informed that they were not
given the benefit of weightage of spouse
being in Government Service in a regular
manner. Thus, these petitioners have
challenged and sought quashing of (i)
Clause 12(4) of the Government Order
dated 02.06.2023, (ii) Clause 10 (4) of the
order dated 08.06.2023, (iii) Clause 8 of the
order dated 16.06.2023 and (iv) transfer list
dated 26.06.2023.

C. Factual Matrix

(13) The employment status held by
the spouse of the different petitioner(s) in
the present bunch of writ petitions can be
depicted in the following tabular form :-

S.
No.
Writ
No(s).
Employment Status of the
spouse
in
different
Organization, which has been
prayed to be declared/held to
be
"Government
Service"
within the meaning of clause
12(4)
of
G.O
dated
02.06.2023.
1.
Writ-
A No.
4726
of
2023
Petitioners'
spouse
are
working in non-government
aided schools.
2.
Writ-
A No.
4722
of
2023
1. The petitioner nos. 1 and 2
are the husband and wife and
are
working
as
Assistant
Teacher at Primary School
Dhansari,
block
Jarwal,
district Bahraich and Primary
School Jamapur, block Jarwal,
District Bahraich, respectively

2. The petitioner nos. 3 and 4
are the husband and wife and
are
working
as
Assistant
Teacher at Primary School
bharkeda, District pilibhit and
in
Primary
School,
sandavikas, maroori, district
Pilibhit, respectively.

3. The petitioner nos. 5 and 6
are the husband and wife and
are
working
as
Assistant
Teacher at Senviliyan School,
Alakthan,
Maroori
District
Pilibhit
and
in
Primary
School,
Semar
Gotira,
lalorikhonda, District Pilibhit,
respectively.

4. The petitioner nos. 7 and 8
are the husband and wife and
are
working
as
Assistant
Teacher at High Secondary
Bholi School, Block- Jarwal
District
Bahraich
and
in
794 INDIAN LAW REPORTS ALLAHABAD SERIES
Primary School Jolahanpurwa,
Block
Jarwal,
District
Bahraich, respectively.

5. The petitioner nos. 9 and 10
are the husband and wife and
are
working
as
Assistant
Teacher at Primary School,
Khalepurwa, District Bahraich
and
in
Higher
Secondary
School Dhodhayal, District
Bahraich, respectively.

6. The petitioner nos. 11 and
12 are the husband and wife
and are working as Assistant
Teacher at Primary School,
Harno Unara, Block Jarwal,
District
Bahraich
and
in
Pandey
Purwa,
Hujurpur
School,
District
Bahraich,
respectively.
3.
Writ-
A No.
4727
of
2023
Petitioner No. 1 to 118, are the
differently abled and working
as Assistant Teachers.
4.
Writ-
A No.
4739
of
2023
7.
Petitioner is aggrieved by the
allocation of 10 marks to
female
teachers
and
not
allocated such marks to male
teachers, has challenged the
Government
Order
dated
2.06.2013 so far as it relates to
para 12 (6) and the para-10(6)
of the guidelines issued by the
Secretary Board of Basic
Education,
Prayagraj
dated
08.06.2023.
5.
Writ-
A No.
4844
of
1. Spouse of petitioner No.1's
is working as Branch Manager
in Baroda U.P. Bank at
Raibarelilly.
2023
2. Spouse of Petitioner No.2 is
working
as
Dy.
Branch
Manager at Union Bank of
India, Unnao.

6.
Writ-
A No.
4860
of
2023
1. Spouse of Petitioner No. 2
was working as SWO Clerk in
Central Bank of India.

2. Spouse of Petitioner No.1, 3
to
79
are
working
in
Nationalised
Bank,
a
Government of India.
7.
Writ-
A No.
4916
of
2023
Spouse of Petitioner No.1 is
working as a Head Master at
the
Adarsh
Junior
High
School, under the jurisdiction
of the U.P. Basic Education
Board.

8.
Writ-
A No.
4920
of
2023
Spouse of Petitioner No.1's is
working as a Mukhya Sevika
in the Bal Vikas Pariyojna
Office Payagpur at Bahraich.
9.
Writ-
A No.
4950
of
2023
1. Spouse of Petitioner No.1,
2,
and
9
are
Assistant
Teachers as per the U.P.
Secondary Education Services
Selection Board Act 1982.

2. Spouse of Petitioner No.3 is
an
employee
of
Pashchimanchal Vidyut Vitran
Nigam Limited.

3. Spouse of Petitioner No.4
and 6 are employees of Delhi
Metro Rail Corporation Ltd.

4. Spouse of Petitioner No.5 is
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
795
an
employee
of
Bharat
Electronics Ltd.

5. Spouse of Petitioner No.7 is
the Emplyee of Municipal
Corporation of Delhi.

6. Spouse of Petitioner No.8 is
emplyee of BSNL.
10. Writ-
A No.
4951
of
2023
Spouse of Petitioner No.1 and
2 is emloyees of the Bharat
Heavy Electricals Limited.
11. Writ-
A No.
4961
of
2023
Spouse of Petitioner No.1 is
an
employee
of
Indian
Railway
in
Central
Government.
12. Writ-
A No.
4962
of
2023
1. Spouse of Petitioner No.1 is
an
executive
engineer
in
Madhyanchal Vidyut Vitran
Nigam Ltd.

2. Spouse of Petitioner No.2 is
working in Aryavart Bank.

3. Spouse of Petitioner No. 3
and 4 are Employees of the
Lucknow
Municipal
Corporation.
13. Writ-
A No.
4963
of
2023
1. Spouse of Petitioner No.1 is
employee in The Indian Bank
Which is a nationalized public
Sector Bank at Lucknow.

2. Spouse of Petitioner No.2 is
employee
of
BSNL
at
Raebareli which is a Public
sector Company.

3. Spouse of Petitioner No.3 is
regular employee of the State
Bank of India at Raebareli.

4. Spouse of Petitioner No.4 is
employee of the Bank Of
Baroda at Raebareli.
14. Writ-
A No.
4965
of
2023
1. Spouse of Petitioner No.1 is
working in District Court
Shravasti as a stenographer-
Grade1.

2. Spouse of Petitioner No.2 is
employee of Bank of India.

3. Spouse of Petitioner No.3 is
emloyee of PNB.

4. Spouse of Petitioner No.4 is
a Teachr in Seth Gangaram
Jayswal Inter College.
15. Writ-
A No.
4970
of
2023
Spouse of Petitioner No.1 is
an employee of Madhyanchal
Vidyut Vitran Nigam Ltd.
Office
of
Superintending
Engineer
Electricity
Distribution Board.
16. Writ-
A No.
4986
of
2023
(i) Spouse of Petitioner No.1
is an employee of LIC of
India.

(ii) Spouse of Petitioner No.2
is an employee of NHPC.

(iii) Spouse of Petitioner No.3
is an employee of Indian Oil
Corporation of India.
17. Writ-
A No.
4998
of
2023
Spouse of Petitioner is a
regular employee of State
Bank of India.
18. Writ- 1. Spouse of Petitioner No.1 is
796 INDIAN LAW REPORTS ALLAHABAD SERIES
A No.
5035
of
2023
employee
in
Sugarcane
Development Board, Pilibhit.

2. Spouse of Petitioner No.2 is
working in NTEP as the
Senior Treatment Supervisor.
19. Writ-
A No.
5039
of
2023
Spouse of Petitioner is a
regular employee of Union
Bank of India.
20. Writ-
A No.
5078
of
2023
Spouse of Petitioner is a
regular employee of Bharat
Sanchar Nagar Ltd..
21. Writ-
A No.
5080
of
2023
Spouse of Petitioner is a
regular employee of Bharat
Sanchar Nagar Ltd..
22. Writ-
A No.
5090
of
2023
Petitioner No. 1 to 9, are the
differently abled and working
as Assistant Teachers.
23. Writ-
A No.
5092
of
2023
1. Spouse of Petitioner No.1 is
an employee of LIC.

2. Spouse of Petitioner No.1 is
an employee of Dakshinanchal
Vidyut Vitran Nigam Ltd.
24. Writ-
A No.
5200
of
2023
Spouse of Petitioner is an
employee
of
Indian
Oil
Corporation.
25. Writ-
A No.
5201
of
Spouse of Petitioner is an
employee of PNB.
2023
26. Writ-
A No.
5208
of
2023
Spouse of Petitioner is an
employee of NHPC.
27 Writ-
A No.
5209
of
2023
Spouse of Petitioner No.1 and
2 are Teachers in school under
madhyamik shiksha parishad.
28. Writ-
A No.
5248
of
2023
1. Spouse of Petitioner No.3 is
working as assistant teacher in
firoj gandhi inter mediate
college in Bijnor.

2. Spouse of Petitioner No.1,
6, 15, 16, and 17 is working in
aided junior high schools of
different districts of State.

3. Spouse of Petitioner no. 1
to 29 is working as assistant
teachers.
29. Writ-
A No.
5295
of
2023
1. Spouse of Petitioner No.1 is
working in Economics and
statics Department.

2. Spouse of Petitioner No.2 is
working
in
Education
Department.

3. Spouse of Petitioner No.3 is
working
in
Education
Department.

4. Spouse of Petitioner No.4 is
working in Delhi fire services.

5. Spouse of Petitioner No.5 is
working
in
Education
Department.
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
797

6. Spouse of Petitioner No.6 is
working
in
State
Tax
Department.

7. Spouse of Petitioner No.7 is
working in Forest Department.

8. Spouse of Petitioner No.8 is
working
in
Education
Department.

9. Spouse of Petitioner No.9 is
working
in
Education
Department.
30. Writ-
A No.
5321
of
2023
1. Spouse of Petitioner No. 1
to
4
are
working
under
National Capital Territory of
Delhi.

2. Spouse of Petitioner No. 5
and 6 are working under State
of Uttrakhand.

3. Spouse of Petitioner No. 7
are working under State of
Haryana.

4. Spouse of Petitioner No. 8
and 9 are working under State
of Jharkhand.
31. Writ-
A No.
5459
of
2023
(i) The Spouse of Petitioner
No.1, 2 &3 are employee with
Uttar Pradesh Rajya Vidyut
Utpadan Nigam Limited

(ii) The Spouse of Petitioner
No.4 is an employee of Uttar
Pradesh Power Corporation
Limited.

(iii) The Spouse of Petitioner
No.5 is an Asst. Professor in
A
Degree
College
under
Directorate
of
Higher
Education, Uttar Pradesh.

(iv) The Spouse of Petitioner
No.6 is an Asst. Teacher
selected and appointed in
terms
of
U.P
Secondary
Education Service Selection
Board, Act, 1982.

(v) The Spouse of Petitioner
No.7 is an employee of
Dakshinanchal Vidyut Vitran
Nigam Limited.

(vi) The Spouse of Petitioner
No.8 is an employee of Union
Bank, a Nationalized Bank.
32. Writ-
A No.
5674
of
2023
Ground relates to divorcee
lady teacher
33. Writ-
A No.
5804
of
2023
Ground of 2 and 5 years of
posting in backward area for
female and male respectively
34. Writ-
A No.
5906
of
2023
The Spouse of Petitioner No.1
is working in Subhash inter
college, Unnao, is un aided
Inter College.
35. Writ-
A No.
5947
of
2023
Stated ground of illness
36. Writ-
A No.
8810
Stated ground of Serious and
Incurable illness
798 INDIAN LAW REPORTS ALLAHABAD SERIES
of
2023

D. Contention of the Parties

(14) Having heard the respective
Counsels for the petitioners at length, this
Court finds that the grievance of petitioners
are essentially centred around the fact that
weightage
system
provided
in
the
Government
Order
dated
02.06.2023,
Board
Orders
dated
08.06.2023
and
16.06.2023 are violative of Article 14 of
the Constitution of India inasmuch as the
benefit of weightage for the spouse
working in public sector banks, public
sector enterprises, Power Corporation,
Aided
Institutions
and
other
similar
organisations, has not been given to them
by excluding the employment status of
these spouses from the definition of
"Government Service" under Clause 12(4)
of the Government Order dated 02.06.2023.
It has been submitted that the said
exclusion is not based on any intelligible
differentia, especially in light of the fact
that Board of Basic Education is also
similarly placed as these organisations,
who are under the administration and
control of the State or the Central
Government. According to the petitioners,
an artificial classification by including
certain classes of services while leaving out
the rest has been created by the said orders
of Board dated 08.06.2023 and 16.06.2023,
which are not permitted under law.

(15) It has also been argued that nondisclosure of weightage obtained by the
Assistant Teachers are in variance with the
past-practice of the Board in disclosing the
weightage obtained by the teachers, which
in itself is antithetical to the principles of
Article 14 of the Constitution of India.
Further, it has been submitted that as per
earlier
Government
Order
dated
02.12.2019, the benefit of weightage of
government service was made available to
the employees of public sector banks,
public sector enterprises and other statutory
corporations as well as teachers under
Madhyamik Siksha Parishad and even the
weightage given to each teacher was also
disclosed during the said previous transfer
process.

(16) As far as the differently abled
petitioners are concerned, it has been
submitted by the learned Counsel for the
petitioners that in the Government Order
dated 02.06.2023, provisions of the Rules,
2017 with emphasis on Rule 5(2)(a) & (b)
of Chapter II of the Rules, 2017 were not
followed. He has placed reliance upon the
judgment of the Apex Court rendered in
Net Ram Yadav Vs. State of Rajasthan,
AIR Online 2022 SC 1407. Additionally, it
has also been argued by some petitioners
that their claim for grant of weightage of 10
marks for serious disease/ailments had not
been given to them and yet some other
petitioners have argued that weightage of
10 marks for spouse working in same
district had not been provided to them
under Clause 12(4) of the Government
Order dated 02.06.2023.

(17) Moreover, as far as the female
candidates/petitioners
are
concerned,
learned Counsel drawing attention Rule
8(2)(d) of the Rules, 2008 has argued that
special
circumstances
existed
for
application of inter-district transfers in
respect
of
female
teachers,
can
be
entertained to the place of residence of their
husband or in law's district. It has been
argued that although female teachers are
given the advantage of applying for transfer
after two years as mandated under Rule 8
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
799
of the Rules, 2008, however, it ignored the
provisions, whereby these female teachers
are permitted to be transferred to the place
of in law's or husband under special
circumstances. Some writ (No. 4739 of
2023 etc.) has been additionally filed
challenging
paragraph
12
(6)
of
Government
Order
dated
02.06.2023,
which grants weightage of '10' marks to
women teachers and writ (No. 5674 of
2023) has been filed claiming weightage of
10 marks for Divorcee Women.

E. Discussion & finding

(18) This Court has given a rationale
thinking to the grievances raised by the
petitioners. Before this Court embarks on to
decide the issue agitated in the present
bunch of matters, it would be appropriate to
understand the scope and limit of this Court
relating to matters of Transfer. Recently,
the Apex Court in SK Nausad Rahaman
& Ors V/s Union of India & Ors. 2022
SCC OnLine SC 297 as regard the basic
fundamentals of the incidence of Transfer
has
captured
the
said
sentiment
at
paragraph 24 and 25 in the following words
:-

"24. First and foremost, transfer
in an All India Service is an incident of
service. Whether, and if so where, an
employee should be posted are matters
which are governed by the exigencies of
service.
An
employee
has
no
fundamental right or, for that matter, a
vested right to claim a transfer or
posting of their choice.

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

(19) The Apex Court in the same very
judgment,
quoted
with
approval
the
Judgment passed by a Three-Judge Bench
of the Apex Court in Bank of India Vs
Jagjit Singh Mehta : (1992) 1 SCC 306
relating to the stipulation that the posting of
spouses should be preferably, and to the
extent practicable at the same station is
always subject to the requirement of the
administration. The Apex Court in said
Jagjit Singh Mehta's case at paragraph 5
held as follows :-

"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.
800 INDIAN LAW REPORTS ALLAHABAD SERIES
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."

(20) Further as regards the extent of
interference, the Apex Court in the case of
Union of India v. S.L. Abbas: (1993) 4
SCC 357 held at paragraph-7 in the
following words :-

"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 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."

(21) Having traced the precepts of
service jurisprudence developed for the
incidence of Transfer, this Court finds that
admittedly all the petitioners are Assistant
Teacher and their service conditions
including transfer is governed by the Rules
of 1981. Rule 21, extracted above, Rules,
1981 opens with the wording; "There shall
be no transfer of any teachers......",
which sufficiently indicate that transfer of
these teachers were not contemplated under
the Act as the legislature in its wisdom did
not envisage transfer of these Teachers.
However, in order to make the said
provision commensurate to the existing
laws and most importantly, it does not fall
within the mischief of being declared as
ultra vires to our constitution, it also
provided for transfer of these Teachers to a
limited extent, however the same was
always subject to the approval of the
Board. The said contemplation has a
reasoning, in as much as it is borne out
from the Rules of 1981 that the cadre of
these petitioners are of a District Level
Cadre and selection and appointment of
these teachers are being made after
notifying the vacancies at the District Level
itself and every eligible person is at liberty
to apply in the District of his/her choice.
Therefore, it is well established that all
these teachers have been selected and
appointed in the District where he/she has
applied as per their choice only.

(22) Further, Rule 21 of Rules, 1981
although contemplates no transfer of
teachers as a general rule, but it also
12 All. Puja Kumari Singh & Ors. Vs. State of U.P. & Ors.
801
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 it makes the approval of the Board
necessary. Besides Rule 21 of Rules, 1981,
there is no provision made in the Rules,
1981
relating
to
Transfer,
which
sufficiently indicate that the legislature in
its wisdom never intended for Transfer of
these
Assistant
Teachers
in
normal
circumstances, once they are appointed in a
particular district. Thus, on the face of it, it
can be safely concluded that there exists no
substantive enforceable right in favour of
these Assistant Teachers in the matter of
Transfer.

(23) 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 and the approval of the Board
becomes
of
utmost
significance.
Apparently, these transfers are not allowed
as a general practise, which has a holistic
meaning and purpose as has been rightly
recently observed by a Division bench of
this Court vide Judgment/Order dated
16.06.2023 passed in Writ -A-No. 10209
of 2023 (Kul Bhushan Mishra and Anr. v/s
State of U.P & Others) as under :-

(24) Although, the service conditions
of the petitioners are governed by the Rules
of 1981. However, U.P. Basic Education
(Teachers)(Posting) Rules, 2008 have been
framed in the context of posting of teachers
in different local area. Rule 8 of 2008
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 five years' service. Though the
Rules of 2008 are coined as posting rules,
but rule 8 (2) (d) of Rules of 2008 inter-alia
creates a hurdle for all kinds of normal
inter-district transfer in the initial period of
five years. Thus, Rule 8 (2) (d) of Rules,
2008 says :-

"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."

(25) Thus, whether it is Rule 21 of the
U.P Basic Education (Teachers) Services
Rules, 1981 or Rule 8 of the U.P. Basic
Education (Teachers)(Posting) Rules, 2008,
although they relate to regulating of
Transfer and posting of Assistant Teachers,
however, in both the Rules, Transfer is not
contemplated as a matter of general rule
and are subject to restrictions, which have
been found by this Court to be lawful in
several precedents.

(26) Since Rules of 1981 do not lay
down the criteria for grant of approval by
the Board to the request of transfer.
Therefore, in order to ensure that transfers
are made in a fair and uniform manner, the
Board lays down the criteria for grant of
approval to such transfers as a general
policy in view of Rule 21 of the Rule of
1981. As far as the present case is
concerned,
the
policy
for
transfer
802 INDIAN LAW REPORTS ALLAHABAD SERIES
apparently has been formulated by the State
Government vide Government Order dated
2.6.2023 for the Academic Session 202324.