Monday, February 26, 2024

Allahabad HigH Court refuses to interfere with transfer policy of UP Basic Education Department

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The Lucknow Bench of the Allahabad High Court has refused to interfere in the transfer policy of the UP Basic Education Department.

A Single Bench of Justice Om Prakash Shukla passed this order while hearing petitions filed by Puja Kumari Singh and Others.

The petitioners apparently claimed to have been selected and posted as Assistant Teacher in Junior Basic Schools in various districts of the State of Uttar Pradesh as per the selection process prescribed under the U.P Basic Education (Teachers) Services Rules, 1981. The 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 the petitions are desirous of seeking inter-district 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.

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.

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 Shiksha 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.

Additionally, Writs have also been filed claiming weightage of ‘10’ marks for serious disease and few writs 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 with emphasis on Rule 5(2) (a) and (b) of Chapter II of the Rules, 2017 were not followed.

Yet, Writ 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 has been filed challenging Clause-1 of Order dated 16.06.2023 as weightage of ‘10’ marks for spouse working in the same district would not be awarded to them as provided under Clause 12 (4) of the Government Order dated 02.06.2023.

Having heard the respective Counsels for the petitioners at length, the Court found 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 the 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 the Board dated 08.06.2023 and 16.06.2023, which are not permitted under law.

The Court has given a rational thinking to the grievances raised by the petitioners. Before the 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 the Court relating to matters of Transfer.

On the facts of the said case, the Co-ordinate Bench dismissed the aforesaid writ petition, however what is remarkable that the Single Bench while refusing to grant any relief to the petitioner, also observed that once a policy has been issued by the State Government, obviously it is the author of the said policy, who is in the best position to interpret the conditions of the said policy.

The Court further found that these Assistant Teachers being an employee of the Board of Basic Education, it is the Board, which has to take a final call on the Transfer of the Teachers. These teachers have no vested right to claim a transfer or posting of their choice as Rule 21 provides that any transfer is subject to the approval of the Board.

As held by the Apex Court, the Transfer Policy as being executive instructions and administrative directions concerning transfers and postings do not confer an indefeasible right to claim a transfer or posting.

Thus, the claim of the petitioners that since their spouse are working in Public Sector Banks or Public sector organisation like NHPC/ LIC etc and are to be construed as Government service, so as to enable them to be awarded 10 quality points as per Clause 12(4) of the Government Order dated 02.06.2023 is subject to the interpretation by the Board.

Once the Board has interpreted that the said quality points could not be given to the petitioners as per the policy decision, the Court cannot substitute its view to the said interpretation.

However, the Court also found that the case is not of downgrading any of the petitioners, be it a person belonging to the PwD and the said cited case is distinguishable on facts. However, the Court cannot be oblivious to the observation of the Apex Court in the same judgment, wherein the Apex court observed that the High Court should have been more sensitive and empathetic to the plight of a physically disabled and it erred in law in overlooking the difference between physically disabled persons impaired in their movement and normal able bodied persons.

For all the aforesaid reasons, the Court disposed of the bunch of the petitions with the following directions :-

(i) The Court does not find any illegality or infirmity in the policy of the State to restrict the meaning of Government servant as has been mentioned in Clause 12 (4) of Government Order dated 02.06.2023 and also contained in Clause 10(4) of the order dated 08.06.2023 and explained vide Clause 8 of the order dated 16.06.2023 and consequently, the challenge to the Transfer list dated 26.06.2023 fails.

(ii) It is held that in exercise of judicial review under Article 226 of the Constitution of India, this Court cannot direct the executive/Board to frame a particular policy. In the facts of the case, this Court does not find Clause 12 (4) of Government Order dated 02.06.2023 and also contained in Clause 10 (4) of the order dated 08.06.2023 and explained vide Clause 8 of the order dated 16.06.2023 to be either violating the constitutional parameters or infringing the constitutional values.

(iii) Employees of non-government aided schools, Public sector Banks (Nationalised Bank), Public sector undertakings like NHPC/ LIC/ IOCL/Paschimanchal Vidyut Vitran Nigam Ltd/ Delhi Metro Rail Corporation Ltd/ Bharat Electronics Ltd, /Municipal Corporation of Delhi/ BSNL/ BHEL/ Madhyanchal Vidyut Vitran Nigam/ Sugar cane Development Board/ Intermediate College/ Madhyamik Shiksha Parishad/ UPPCL/ Bal Vikas Pariyojna etc. cannot be construed to be in Government Service within the meaning of clause 12 (4) of the Government Order dated 02.06.2023.

(iv) As held by the Apex Court in Bank of India Vs Jagjit Singh Mehta (1992) 1 SCC 306, as far as the policy requiring the two spouses to be posted at one place as far as practicable is concerned, there does not exist any inalienable right to claim such a posting. The only thing required is that the Board 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.

(v) As far as the petition of differently abled petitioners or petitioners claiming transfer on grounds of serious ailments are concerned, the matters are remanded to the Board to take appropriate decisions in view of the observation made in this order. In any case, these considerations are required to be examined by the Board at the first instance. Thus, it is directed that these petitioners shall file individual representation detailing their cause to the Board, which shall take a decision in that matter keeping in view the broad principle devised by this Court in the instant judgment as well as in the case of Divya Goswami (supra), including the adversity on candidates in all these kinds of mid-session transfer.

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