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Smt. Tej Kumari Chopra And Another v. State Of U.P. And Others - WRIT - A No. 56557 of 2005 [2005] RD-AH 4520 (20 October 2005)


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Civil Misc. Writ Petition No. 56557 of 2005

Smt. Tej Kumari Chopra and others Vs. State of U.P. and others

connected with

Civil Misc. Writ Petition No. 58828 of 2005

Smt. Narvada Rathore                       Vs. State of U.P. and others


Civil Misc. Writ Petition No. 61504 of 2005

Smt. Vibha Srivastava            Vs. State of U.P. and others


Civil Misc. Writ Petition No. 63351 of 2005

Smt. Shanti Devi                  Vs State of U.P. and others


Civil Misc. Writ Petition No. 60048 of 2005

Smt. Geeta Sharma     and  another  Vs. State of U.P. and others


Civil Misc. Writ Petition No. 59411 of 2005

Smt.  Renu Agarwal and others Vs. State of U.P. and others


Civil Misc. Writ Petition No. 64285 of 2005

Smt. Padma Misra and another  Vs. State of U.P. and others


Civil Misc. Writ Petition No.  64288 of 2005

Mohd. Mobin Khan and another Vs. State of U.P. and other

Hon. A.P.Sahi,J.

The petitioners in these writ petitions are challenging the validity of the impugned order dated 15.7.2005 primarily on the ground that the same is in violation of Rule 21 of the Uttar Pradesh  Basic Education Teachers Services Rule, 1981 read with sections 2( e) and (f) and section 9 -A of  the Basic Education Act, 1972 and it is contended that the transfers orders  have been given effect to  without their consent as they have been transferred from " Nagar Chhetra" to " Gramin Chhetra" i.e. from the local urban area as defined under the provisions referred to herein above, to a rular area. It is urged  on their behalf that the transfer orders being in complete violation of the aforesaid provisions, are liable to be set aside.

There is no dispute about the status of the petitioners, who are 14 in numbers in all the  eight writ petitions, and are employed  as Asstt. teachers governed by the provisions of Uttar Pradesh  Basic Education Teachers Services Rule, 1981. There is also no dispute about the fact that all these petitioners were appointees in a  rular area i.e. Gramin Chhetra cadre. There is also no dispute that these teachers are functioning  in such Institutions, which were earlier in point of time within the rular area as defined under the aforesaid provisions.

The Institution in which all these teachers are functioning  now falls within the geographical limits of Jhansi Municipal Corporation, which is a local urban area, as a result of the notification dated 7.2.2002 published by the State Government expanding the limits of the Jhansi Municipal corporation. The petitioners contend that since the Institution in which they are functioning  is within the limit of Jhansi Municipal Corporation  by virtue of the aforesaid notification, therefore, they are teachers in an area which is a local urban area and as  such according to the provisions of Rule 21, they could not have been   transferred from an urban area to rular area by the impugned order either without  their requests or by their consent.

A counter affidavit has been filed on behalf of of the U.P. Basic Shiksha Parishad in the leading case  i.e. writ petition No. 56557 of 2005 and a supplementary affidavit  has also been brought on record and it is contended on behalf of the respondents that the petitioners are not entitled to raise this plea as they continued to retain the status of a teacher of rular area, and as such, neither any consent was required,  nor have any of the petitioners been asked to give their option for being transferred as it was not required under the Rules. Reliance has also been placed on the decision of a Division Bench  of this court reported in 1993 (2) UPLBEC 1120, Smt. Asha Kumari Mishra vs. Zila Basic Shiksha Adhikari, Kanpur and others, and another decision  of learned Single Judge  of this court, reproted in 1998 (2)  UPLBEC, 1474, Smt. Manorma Painuli Vs. Distt. Basic Shiksha Parishad and others. Reliance has also been placed on the guidelines  issued on 5.5.2003, 9.6.2004, 24.7.2004, followed by 17.5.2005 for the proposition, that the Basic Shiksha Parishad  has passed the transfer orders  in consonance with the aforesaid guidelines and as such  the same does not deserve any interference. It is further contended, that by virtue of the extension  of the limit of the Municipal Corporation, so as to bring within its geographical limit, the Institution, where the petitioners are functioning, would not automatically confer status  of a teacher of urban area on the petitioners and they continued to be teachers of the rular area. This, the respondents contend, is  because of the fact,  that  at the time of appointment, teachers are required  to give their option for appointment, and which is also contained in the advertisement against which these teachers have applied and have been appointed. It is for this reason that the embargo of transfer has been incorporated  in Rule 21 and which  stands further explained with the rule of the seniority contained in the II Explanation of rule 22.The Respondents further  urged that the petitioners have absolutely no right to challenge the order of transfer as  transfer is an exigency of service, and that even otherwise, section 13 of the U.P. Basic Education Act, gives wide powers to the State Government to issue directions by way of Government Orders in the matters of transfer as well and such directions are binding on the petitioners as they do not come in conflict with any of the Rule relied upon  by the petitioners. To support this contention, the respondents  have relied on the decision of the learned Single Judge in the case of Smt. Manorama Painuli( supra ).

I have heard Sri Vivek Shandilya and  Sri R.K.Nigam, learned counsel for the petitioners, learned standing counsel Sri K.R.Singh and Sri R.B.Pradhan for the State and Sri P.D.Tripathi and Sri B.G.Singh for the respondents Uttar Pradesh Basic Shiksha Parishad and Basic Shiksha Adhikari respectively.

The first six writ petitions, challenge the order of transfer dated 15.7.2005, which is a common order of transfer issued by the Distt. Basic Education Officer, Jhansi. The last two writ petitions  also challenge  in addition the order dated 15.9.2005, which are orders passed by the same officer, rejecting  the representations  of the petitioners therein, in compliance of the previous directions issued by this Court. However, the essence  of challenge in all writ petitions  remains the same.

The first question, which has to be dealt with is with regard to the status of the petitioners as a teacher of the rular area or of the urban area in the facts and circumstances  given herein above.

The petitioners have not disputed the fact that as on the date of notification dated 7.2.2002 they were functioning  as teachers of the rular area. The respondents contend that in the past whenever such a situation has arisen, appropriate Government Orders have been issued for adjustment of such teachers. Reference has been made to the Government Order dated 27.7.2000 , wherein it has been stated that such Institutions, which have been included within the geographical  limits of an urban area by virtue  of extension of limits of Municipal Corporation upto 20.5.2000, the teachers of such Institutions should be required to give their option for either retaining then in the rular area or opting for the urban area. This exercise also appears to be necessary  in order to give effect to the provisions of seniority  under Rule 22, II Explanation, which requires that once a teacher opts to go from one local area to another local area, he shall be placed in seniority below the last teacher of that local area to which he has been transferred. The affect is that such a teacher loses his previous seniority  if any. It is in  order to protect  the seniority of teachers and to give effect to  the aforesaid Rule, that the aforesaid system  has been devised and incorporated in rule 21 and Rule 22. The respondents stated that no such Government order has been issued prescribing the time limit within which such an option be called for from teachers like the petitioners in the present case.

A perusal of the aforesaid Government Order and the provisions, referred to herein above indicate that as and when such a situation arises, option  should be invited from the teachers  of such Institution as to whether they intend  to retain their status as a teacher  in the rular area or they would opt for another local urban area. The respondents in their affidavits indicate that no such option has been invited  as yet as no such Government Order  as issued previously has been issued as yet. It is urged that as and when such a Government Order is received, an option will be called from the petitioners and they shall be suitably transferred.

In the aforesaid back drop, it is evident that since the petitioners have not been able to exercise their option as yet, they cannot actually presume themselves  to be teachers   of an Institution of an urban area falling within the limits of the Jhansi Municipal Corporation. Unless and until the option is exercised, the petitioners continue to retain  their status as an Asstt. teacher  in an Institutions of the  rular area in which they were continuing as on the date of the issuance  of the notification dated 7.2.2002. The  Institutions did come within  the geographical limits  of  Jhansi Municipal Corporation, but that would not automatically change the status of the petitioners unless and until  the options are exercised. This, in the opinion of the court, would be  the correct  interpretation of the Rules, applicable to the controversy in the facts and circumstances  that have arisen in this case.

The next question is the power of the respondents to transfer the petitioners. This question is no longer res integra inasmuch as the decisions relied upon by the respondents and referred to herein above clearly rule in favour of the respondents. Applying the ratio of the said decision, it can be safely concluded, that there is no embargo on the power of transfer, except in the contingency referred to in Rule 21. The Apex Court in the case of State of U.P. Vs.Gobardhan Lal (A.I.R. 2004 S.C. 2165), has held that the orders of transfer should be interfered with unless there is a violation of some statutory rule or in cases of proved malice. Mere violation of guidelines issued by the Government, cannot be made a ground to interfere in the exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India.

Having answered the aforesaid  questions,  what is to be seen is that the State Government  has not acted upon immediately  to remedy the situation. The notification dated  7.2.2002 whereby the limits of the city of Jhansi Municipal Corporation were extended , was issued almost 3 ½ years ago. Inspite of taking prompt action in the matter, as was done  on the previous occasions  by the Government Order dated 27.2.2002, the State Government  has not issued any direction to the Uttar Pradesh Basic Shiksha Parishad. At least, this is the position on record of this case. The learned counsel for the Basic Shiksha Parishad , however, has stated  that such action is likely to be taken and the exercise completed shortly and the situation, therefore, is likely  to be  remedied very soon and as such, in the opinion  of the court, the respondent no.1 Secretary , Ministry , Basic Education Government of Uttar Pradesh Lucknow should take immediate steps for appropriate action in the matter.

Accordingly, the said respondent is hereby directed to issue necessary instructions to the Secretary, Basic Shiksha Parishad within 15 days  from today. Learned standing counsel shall immediately  despatch a copy of this judgment to the said respondent for necessary compliance. The Basic Shiksha Parishad shall issue necessary instructions within 15 days  thereafter to the concerned Distt. Basic Education Officer, to ask the  petitioners to exercise  their option in accordance with  Rules. Their case shall be considered individually and appropriate orders shall be passed by the Distt. Basic Education Officer within 15 days of the receipt of the directions from the Secretary  U.P. Basic Shiksha Parishad. The aforesaid exercise shall be completed within six weeks as indicated herein above.

The impugned order of transfers only in so far as the petitioners are concerned, shall remain in abeyance till the orders are passed by the Distt. Basic Education Officer as directed herein above.

The learned standing counsel shall ask the State Government, if possible, to endeavour to issue an appropriate Government Order laying down  stable guidelines in this respect to be implemented  as and when required in a situation like the present case.

With the aforesaid directions, all the writ petitions stand disposed of.

Dt. October 20  , 2005



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