# Vipin Kumar & Ors v. State Of U.P. & Ors

- **Citation:** (2022) 5 ILRA 897
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2019-02-28
- **Case number:** Special Appeal No. 296 of 2019
- **Bench:** Rajesh Bindal, C.J. J.J. Munir
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/vipin-kumar-ors-v-state-of-u-p-ors-48606
- **Pages:** 6

## Headnote

A. Service Law - U.P. Basic Education
(Teachers) Services Rules, 1981 - Party is
not allowed to approbate and reprobate at
the same time. The appellants who had
secured benefit under the transfer policy,
voluntarily giving up rights, cannot turn around
and regain what they had given up. (Para 13)

The appellants want to retain the benefit of
transfer that they have secured in terms of the
Government Order dated 23.06.2016 to the
districts of their choice, they cannot be
permitted to take the benefit and rid themselves
of the disadvantage that is coupled with it. (Para
16)
Special Appeal Rejected. (E-10)

List of Cases cited:

## Text

5 All. Vipin Kumar & Ors. Vs. State of U.P. & Ors.
897
limitation to file an appeal against the order
dated 28.02.2019 may appear to run from
the date of the order being communicated
to the petitioner i.e. 28.02.2019 itself. At
the same time, that construction has to be
rejected. It is so because, against the order
dated 17.09.2021, no appeal could have
been filed by the petitioner as it remained
completely
prevented/obstructed
from
filing such appeal, owing to technical
glitches suffered by the GSTN portal on
which that appeal may have been filed.

13. In face of clear evidence
existing on record that such technical
glitches were resolved by the GSTN
authority on 17.09.2021, the period of
limitation to file appeal started running
from that date only. For the period
28.02.2019 to 17.09.2021, the period of
limitation to file the appeal must always
be deemed to have remained suspended
for reason of appeal forum being not
made available for filing of appeal by the
petitioner, through prescribed mode.

14. Accordingly, the appeal was filed
by the assessee on 20.09.2021, within time.
The Appeal Authority has completely erred
in rejecting the appeal as time barred.
Accordingly, the present writ petition is
allowed.

15. The order dated 12.10.2021 is
quashed. The matter is remitted to the
Appeal Authority to hear and decide the
appeal on merits, treating the same to have
been filed within time.

16. Since the matter has remained
pending for very long, it is expected that
the Appeal Authority shall take up the
appeal proceedings on priority and hear and
decide the same as expeditiously as
possible, preferably within a period of three
months from the date of production of a
copy of this order.
----------
(2022)05ILR A897
APPELLATE JURISDICTION
CIVIL SIDE
DATED ALLAHABAD 11.03.2022

BEFORE

THE HON'BLE RAJESH BINDAL, C.J.
THE HON'BLE J.J. MUNIR, J.

Special Appeal No. 296 of 2019
with other connected cases

Vipin Kumar & Ors. ...Appellants
Versus
State Of U.P. & Ors. ...Respondents

Counsel for the Appellants
Sri Neeraj Shukla, Sri Bhagwan Dutt
Pandey

Counsel for the Respondents:
C.S.C., Sri Rajesh Yadav

A. Service Law - U.P. Basic Education
(Teachers) Services Rules, 1981 - Party is
not allowed to approbate and reprobate at
the same time. The appellants who had
secured benefit under the transfer policy,
voluntarily giving up rights, cannot turn around
and regain what they had given up. (Para 13)

The appellants want to retain the benefit of
transfer that they have secured in terms of the
Government Order dated 23.06.2016 to the
districts of their choice, they cannot be
permitted to take the benefit and rid themselves
of the disadvantage that is coupled with it. (Para
16)
Special Appeal Rejected. (E-10)

List of Cases cited:

1. St. of Punj. & ors. Vs Dhanjit Singh Sandhu
(2014) 15 SCC 144 (followed)
(Delivered by Hon'ble Rajesh Bindal , C. J.
898 INDIAN LAW REPORTS ALLAHABAD SERIES
&
Hon'ble J.J. Munir, J.)

1. This judgment will dispose of
Special Appeal Nos. 296 to 298, 300, 302,
303 and 853 of 2019 and Special Appeal
Defective No. 905 of 2020.

2. Special Appeal No. 296 of 2019 is
directed against the order passed by the
learned Single Judge in Writ - A No. 22896
of 2018, dismissing the writ petition. This
appeal has been preferred by ten out of the
twelve writ petitioners, who failed before
the learned Single Judge. This appeal and
the other seven Appeals, referred to
hereinabove, raise common questions of
fact and law and are, therefore, being
disposed of by a common judgment.

3. Special Appeal No. 296 of 2019
shall be treated as the leading case.

4. Heard learned counsel for the
parties and perused the relevant referred
record.

5. The question involved in these
appeals is :

"Whether an employee, who
elects to avail of a benefit under an
employer's concession, to which he is not
entitled as of right under the Service
Rules subject to specified disadvantages,
can later on reprobate to retain the
benefit,
but
forsake
the
coupled
disadvantage?"

6. The appellants in all these appeals
were appointed as Assistant Teachers in
Primary Pathshalas, established and run
under the Uttar Pradesh Basic Education
Act, 1972 by the Uttar Pradesh Basic
Education Board (for short, 'the Board').
They were appointed on various dates,
which find mention in the different writ
petitions, giving rise to these Appeals. The
appointments and conditions of services of
each of the appellants are governed by the
Uttar Pradesh Basic Education (Teachers)
Services Rules, 1981 (for short, 'the Rules
of 1981'). It is common ground in these
appeals that the appellants were all
promoted to the post of Headmaster of
Primary Pathshala or Assistant Teacher,
Senior Basic School (Junior High School).

7. On 23.06.2016, a transfer policy was
introduced
by
the
State
Government,
permitting transfer of teachers to the districts
of their choice. It is not in dispute that the
cadre of teachers, governed by the Rules of
1981, is a cadre based on the local area,
where the appointment of a teacher is made.
The relevant Rules in the Rules of 1981, that
have bearing on the issue, are detailed
hereinafter. Rule 4(1) of the Rules of 1981
provides:

"4. Strength of the Service.- (1)
There shall be separate cadres of service
under these rules for each local area.

(2) ......

Provided
that
the
appointing
authority may leave unfilled or the Board
may hold in abeyance and post or class of
posts without thereby entitling any person to
compensation:

Provided further that the Board
may, with the previous approval of the State
Government, create from lime to time such
number of temporary posts as it may deem
fit."

"Local Area" is defined under
rule 2(i) in following words:-
5 All. Vipin Kumar & Ors. Vs. State of U.P. & Ors.
899

"2. Definitions:- (i) "Local Area"
means the area over which a local body
exercises jurisdiction;"

The ''Appointing Authority' and
the ''local area' are defined by Section
2(1)(b) and 2(1)(i) of the Rules of 1981 as
follows:

"2. Definitions. - (1) In these
rules,
unless
the
context
otherwise
requires,--

(a) x x x x

(b) "Appointing Authority" in
relation to teachers referred to in Rule 3
means the District Basic Education Officer;

(c) x x x x

(d) x x x x

(e) x x x x

(f) x x x x

(g) x x x x

(h) x x x x

(i) "Local Area" means the area
over
which
a
local
body
exercises
jurisdiction;"

Rule 21 of the Rules of 1981 is
about the procedure for transfer, which is
extracted below:

"21. Procedure for transfer - There
shall be no transfer of any teacher from the
rural local area to an urban local area or
vice versa or from one urban local area to
another of the same district or from local
area of one district to that of another
district except on the request of or with the
consent of the teacher himself and in either
case approval of the Board shall be
necessary."

8. What appears from the conditions
of service of teachers governed by the
Rules of 1981 is that an Assistant Teacher
of Primary Pathshala, who is promoted to
the post of Headmaster, Primary Pathshala
or Assistant Teacher, Senior Basic School,
has no right to be transferred from one
local area to another, or one district to
another, except on his request or consent,
and in either case, with the approval of the
Board.

9. The Government Order dated
23.06.2016, under which the appellants in
all the appeals applied for transfer, was in
the nature of a concession, to enable the
teachers to go to a local area or district of
their choice in accordance with Rule 21 of
the Rules of 1981. Apparently, since the
facility was extended to all desirous
teachers, the concern of the Government
and the Board was that the existing
positions of seniority and prospects of
promotion in a local area may not be
disturbed to the prejudice of any serving
teacher there, governed by the Rules of
1981. At the same time, in order to
effectuate the purpose of the policy, that
enabled a teacher to go to the district of his
choice, the rights of teacher being given the
facility and the teacher in the local area
cadre, to which he was being transferred,
were finely balanced by providing that in
the transferred local area, the teacher
transferred would be placed at the bottom
of the seniority list of teachers in the cadre
in which he was transferred.

10. There was another condition in
the
transfer
policy
carried
in
the
900 INDIAN LAW REPORTS ALLAHABAD SERIES
Government
Order
dated
23.06.2016,
which does not require much analysis about
the reason for its existence. The said term
in the policy provides that in the case of an
inter-district transfer of teachers, which is
not a matter of right under Rule 21 of the
Rules 1981, made on the request of a
teacher, the transfer would be allowed,
depending on the availability of vacancies
in the district of choice. Now, the
availability of vacancy in the district of
choice would mean the availability of
vacancy of a post in the grade to which the
teacher
seeking
transfer
belongs.
Apparently, if a teacher who had been
promoted to the post of a Headmaster of a
Primary Pathshala or Assistant Teacher,
Senior Basic School, sought transfer to
another district, banking on the transfer
policy, the transfer could only be allowed if
a post of that grade is available in the
district of choice. If no post of that grade
was available, the transfer could not be
permitted.

11. The learned Single Judge has very
rightly noticed in the judgment impugned
in the leading appeal, which is a common
feature to all other appeals as well, that the
request for transfer made by the appellants
could not be considered, because no
vacancy existed on the post of Headmaster
of a Primary Pathshala or Assistant
Teachers, Senior Basic School in the
district of choice, to which the appellants
applied for transfer. It has then been
remarked by the learned Single Judge that
in their anxiety to secure a transfer to the
district of choice, the appellants made an
application, seeking reversion to their
substantive post of Assistant Teacher,
Primary Pathshala. They also gave an
undertaking
on
affidavit,
accepting
demotion to the post of Assistant Teacher,
Primary Pathshala from their promotional
posts in their parent cadres, where they
were working in different districts in the
specified local area.

12. It appears that after transfer, they
were not only demoted, but also placed at
the bottom of the seniority list of Assistant
Teacher, Primary Pathshala. Once firmly
placed in the district of their choice, the
appellants in the various appeals have
thought of regaining lost ground. There was
a prayer on behalf of the appellants in the
leading appeal through representations to
the Authorities that their pay may be
restored to the level that they were drawing
before their elective transfers, invoking the
principles of pay protection. It was also
urged that the appellants be placed at the
bottom of the cadre of Headmaster of
Primary
Pathshalas/Assistant
Teacher,
Senior Basic Schools, instead of placing
them at the bottom of the seniority of
Assistant Teachers, Primary Pathshala.
This prayer was declined and that is what
has made the appellants in the leading
appeal to approach this Court, asking for a
restoration of their status in the higher
cadre and also payment of salary along
with arrears for the higher post that they
had forsaken. This is the common origin of
all the appeals and the cause of action
involved.

13. The case urged by the appellants
in each of the appeals did not find favour
with the learned Single Judge, who heard
the writ petitions. It was held that the
appellants cannot approbate and reprobate
and the appellants, who had secured benefit
under the transfer policy, voluntarily giving
up rights, cannot turn around and regain
what they had given up.

14. At the hearing of the appeals, Mr.
Ashok Khare, learned Senior Advocate
5 All. Vipin Kumar & Ors. Vs. State of U.P. & Ors.
901
assisted by Mr. Siddharth Khare, Advocate
and Mr. Bhagwan Dutt Pandey, Advocate
in the leading appeal and the other appeals,
made a strong point that under Rule 15A(2) of Chapter III of the Financial
Handbook, upon a voluntary transfer of an
employee, his emoluments cannot be
reduced. The appellants were earlier
drawing Grade Pay in the scale of Rs.
4600/-, but have now been made to suffer a
diminution in their Grade Pay to Rs. 4200/-
. It is also assailed that the appellants
cannot be demoted to a lower cadre as a
part of their transfer in terms of the
Government Order dated 23.06.2016. The
fact that there were no vacancies in the
districts of choice in the cadre of
Headmaster, Primary Pathshala/ Assistant
Teacher, Senior Basic School, is disputed
by the appellants.

15. It is also argued that the appellants
being legally entitled to a lien on the
promotion post they hold in the local area
and in the district from which they were
transferred, they cannot be demoted to a
lower post on the basis of an affidavit taken
through compulsion. The demotion, the
learned Counsel for the appellants submits,
would be in violation of Rule 22 of the
Rules of 1981. It was pointed out to the
learned Counsel for the respondents during
hearing of the appeals that the transfer to
the district of choice was a concession
offered by the State Government under the
Policy dated 23.06.2016, to which the
appellants had no right. The concession
was offered taking help of the limited right
available to an employee to seek transfer
from one local area to another or from one
district to another, under Section 21 of the
Rules of 1981. Since no posts in the
relative cadre were available to effectuate
the beneficial policy, the appellants were
given the choice of accepting the lower
post and being placed at the bottom of the
seniority list. They accepted both the
disadvantages with open eyes for the
benefit of being placed in the district of
their choice. Still, bearing in mind that the
appellants spoke about their lien on the
higher post, which, no doubt, can be
determined only in accordance with law,
the learned Counsel for all the appellants
were asked if they were willing to be
repatriated to their local areas in the district
whence they came. The appellants are
unanimous that they do not want to go back
to the districts or the local areas where they
were earlier working. They want to stay
back to the district of their choice, to which
they have moved taking benefit of the
Government
Order
dated
23.06.2016.
Moreover, the fact that cannot be lost sight
of is that the transfer to the districts of
choice on the demoted post of Assistant
Teacher, Primary Pathshala was made on
the appellants' applications and undertaking
given on affidavits that they would accept
the lower posts.

16. In the circumstances, once the
appellants want to retain the benefit of
transfer that they have secured in terms of
the Government Order dated 23.06.2016 to
the districts of their choice, they cannot be
permitted to take the benefit and rid
themselves of the disadvantage that is
coupled with it. The appellants cannot have
the cake and eat it too. As the rights of the
appellants stand, since they want to
continue in the district of their choice after
securing a transfer under the transfer policy
carried in the Government Order dated
23.06.2016, to which they are otherwise not
entitled as of right, they cannot claim
restoration of their status or pay in the
cadre to which they originally belonged. To
permit the appellants to do so, would verily
violate the firmly established principle that
902 INDIAN LAW REPORTS ALLAHABAD SERIES
a party cannot be permitted to approbate
and reprobate. This principle has been
applied by the learned Single Judge in the
judgment impugned in the leading appeal,
particularly, relying on the decision of the
Supreme Court in State of Punjab and
others vs. Dhanjit Singh Sandhu, (2014)
15 SCC 144; and in our opinion, rightly so.

17. In the result, these appeals fail
and are dismissed.

18. There shall be no order as to costs.
----------
(2022)05ILR A902
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 01.04.2022

BEFORE

THE HON'BLE MRS. MANJU RANI
CHAUHAN, J.

Writ A No. 2469 of 2022

Purushottam Narayan ...Petitioner
Versus
State of U.P. & Ors. ...Respondents

Counsel for the Petitioner:
Sri Anil Babu

Counsel for the Respondents:
C.S.C.

A. Service Law - Recruitment - Medical
Examination - On the basis of a report
issued by a Private Doctor or Doctor of a
Government Hospital, which has not been
authorized by the Recruitment Board, the
opinion given by the Medical Board and
the Appellate Medical Board, being an
Expert Body, cannot be annulled and the
same are entitled to be given due weight
and credence. Petitioner has not produced any
document, material or evidence, from which it is
established that the medical examinations of the
petitioner conducted by the Medical Board and
the Appellate Medical Board are incorrect. (Para
7, 11)

B. Matters relating to medical evaluation
of candidates in a recruitment process
involve expert determination and it may
not be desirable to supplant the procedure
prescribed therefore as laid down under
the relevant recruitment rules and taking
any other view may have the effect of
derailing the recruitment process. (Para 12)

The opinion of a Medical Board is the outcome
of an evaluation by experts in the subject.
Except in exceptional situations such as where a
finding of unfitness is returned in violation or
disregard of the standards prescribed or on
grounds which may call upon this Court to
consider the correctness of the opinion on a
legal plain, it would be wholly inappropriate for
this Court to either interfere with the same or
substitute its own opinion with respect to the
medical fitness of a particular candidate.
Treading this path may also cause serious
prejudice
and
jeopardise
the
recruitment
process itself. In the ultimate analysis, it would
be pertinent to emphasise that such requests
must be entertained with due care and
circumspection. (Para 12)

C. Principle of binding precedent - In the
matters of interlocutory orders, principle
of binding precedent cannot be said to
apply. However, the need for consistency
approach and uniformity in the exercise of
judicial discretion respecting similar causes and
the desirability to eliminate occasions for
grievance of discriminatory treatment requires
that all similar matters should receive similar
treatment except where factual differences
require a different treatment so that there is an
assurance
of
consistency,
uniformity,
predictability and certainty of judicial approach.

D. For same relief, second writ petition is
not
maintainable.
The
proper
remedy
available to the petitioner was to file a recall
application in his earlier writ petition referred to
above or to file a Special Appeal against the
judgment and order passed in the said writ
petition.

Writ petition dismissed. (E-4)