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Smt. Pushpalata Maurya v. State Of U.P. & Others - WRIT - A No. 78278 of 2005 [2006] RD-AH 1477 (19 January 2006)


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Reserved Judgment

Civil Misc. Writ Petition No.78278 of 2005

Smt. Pushpalata Maurya Vs. State of U.P. and others


Hon'ble A.P. Sahi, J

This writ petition has been filed by an Assistant Teacher of a Primary School governed by the provisions of the U.P. Basic Education Act, 1972 read with Uttar Pradesh Basic Education Teachers Service Rules 1981 (hereinafter referred to as the "Act" and "Rules" respectively). The challenge is to the order dated 6.12.2005 (Annexure-17 to the writ petition), whereby the Assistant Basic Education Officer, Baharia, Allahabad and the Sub Deputy Inspector of Schools, Baharia, Allahabad, have issued directions to the Headmaster of all the institutions within their territorial jurisdiction including the Headmaster of Primary School, Beerganj, for relieving all such Teachers immediately from the institution to enable them to join at their original place of posting in view of the orders passed  by the Basic Education Officer, Allahabad, dated 5.12.2005.

The main thrust of the arguments of the learned counsel for the petitioner is that the orders are without jurisdiction; that the orders have been passed without obtaining any approval of the Board; and that no final orders have been passed in view of the judgment of this Court on 6.2.2004 in writ petition no.4561 of 2004 and other connected writ petitions, copy whereof has been appended as Annexure-8 to the writ petition. Learned counsel for the petitioner has invited the attention of the Court to another judgment dated 8.11.2005 delivered by me in Writ Petition No.48980 of 2005 and it is alleged that none of the judgments are being complied with and the petitioner is sought to be repatriated without any valid orders and that the payment of salary of the petitioner has been unjustifiably withheld which deserves to be released.

Learned counsel for the petitioner has urged that the impugned order is in violation of Rule 21 of 1981 Rules and also in violation of the guidelines promulgated by the respondents themselves. He has further questioned the validity of the policies declared by the respondent - Board in the year 2001-02 and has further prayed for quashing of the order dated 13.5.2005 passed by the Basic Education Officer stopping the payment of salary of the petitioner.

Before delving on the issues raised, it is relevant to refer to the provisions pertaining to transfers contained in the Act and Rules. Section 9 of the 1972 Act states that any person, who is an employee of the Board, shall be liable to be transferred from the school or from the local area concerned to any other local area on the same terms and conditions. The said provisions are contained in sub-section 3 of Section 9 and which have been clearly explained by this Court in the case of Shashi Dutt Pandey Vs. Sri Baleshwar Tyagi, 2000 (1) ESC 699. Another provision which deserves to be noted is Section 13 of the Act which declares the powers of control by the State Government and that the Board is obliged to carry out such directions as may be issued by the State Government for the efficient administration of the matters under the Act. The said provision has been interpreted by this Court in the case of Smt. Manorma Painuli Vs. Basic Shiksha Parishad, U.P., and others, (1998) 2 UPLBEC 1474, to encampass within its fold sufficient powers for affecting transfers from one school to another. The third provision which deserves to be noted is Rule 21 as pointed out by the learned counsel for the petitioner which provides an embargo on transfers from a 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. The Rule says that such a transfer shall not be made except on the request of or with the consent of  the teacher himself and in either case approval of the Board shall be necessary. In the instant case, the petitioner was transferred by the then Basic Education Officer Smt. Asha Lata on 12.12.2003 from Primary School, Bibipur, Block Baharia, to Primary School, Beerganj of the same block. The transfer of the petitioner, therefore, was within the same local rural area of the block concerned. The petitioner contends that she joined at primary school, Beerganj, but thereafter the same Officer passed an order on 19.12.2003 staying all the transfer orders passed by her after 7.11.2003 as approval of the Board had not been obtained. The Secretary of the Uttar Pradesh, Basic Shiksha Parishad, on 20.1.2004 issued orders cancelling all the transfer orders passed by Smt. Asha Lata and an inquiry was also set up against the said officer. These aspects have been indicated in the judgment of Lubna Zahid (Annexure-15 to the writ petition).

However, none of the issues which have been raised by the petitioner are at all involved herein in view of the simple reason that the transfer of the petitioner was within the same rural local area which did not require any approval of the Board as per Rule 21. Apart from Rule 21, learned counsel for the petitioner was unable to point out any provision either under the Act or under the Rules prohibiting transfer from one school to another school within the same rural area.

The transfer order which had been passed by Smt. Asha Lata Verma was found to be in violation of the guidelines as the same was done almost in mid Session for which there was a direction by the Board that the same should not be done except with the orders of the Secretary. Learned counsel for the Board Sri P.D. Tripathi has invited the attention of the Court to the directions issued by the Secretary of the Board on 22.5.2003 which indicates that transfers should not be given effect to as the same has a detrimental effect on the academic Session of the students of an institution. The said direction of the Secretary has been issued on the basis of the Government Order dated 5.5.2003. As noticed herein above, the State Government has the power to issue instructions under Section 13 of the 1972 Act for the effective administration of the employees of the Board and the running of the institution. In view of this, the Secretary of the Board was fully justified in issuing the instructions on 22.5.2003 which were in consonance with the directions of the State Government dated 5.5.2003. The Secretary, therefore, was well within his jurisdiction to exercise control over transfers which were sought to be made after 30th of June and hence the Secretary rightly issued the directions that no such transfer should be made without his previous approval. In view of the aforesaid position, the contention of the learned counsel for the petitioner that the order issued by the Basic Education Officer and its implementation by the impugned order dated 6.12.2003 is without jurisdiction is patently misconceived. The said orders have been issued in consonance  with the directions issued referred to herein above. It is admitted to the petitioner that the transfer order passed in her favour by Smt. Asha Lata Verma was without the permission of the Secretary, Basic Shiksha Parishad. Sri P.D. Tripathi has further brought to the notice of the Court the directions issued by the Secretary on 13.12.2005 to the Basic Shiksha Adhikari, Allahabad, clearly stating therein that the directions issued by the Board on 31.5.2005 should be complied with as the previous orders have already been annulled and the action taken by Smt. Asha Lata of issuing transfer orders has been found to be invalid. In these circumstances, the contention advanced by the petitioner is absolutely untenable. Consequently, no interference is called for and the writ petition is liable to be dismissed. The petitioner shall, therefore, report to her duties at the institution where she has been directed to join and the respondents shall thereafter ensure payment of salary to the petitioner in accordance with rules.

The writ petition is dismissed with the aforesaid observations.

Dt.Jan. 19, 2006



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