Heard Shri Ashok Khare, learned Senior Counsel assisted by Shri Siddharth Khare, learned counsel appearing for the Appellants, Ms. Archana Singh, learned counsel who has put in appearance on behalf of Respondent Nos. ...
No Acts & Articles mentioned in this case
1
Neutral Citation No. 2025:AHC:6854DB
AFR
Reserved
In Chamber
Case : SPECIAL APPEAL No. 969 of 2024
Appellant : Naveen Kamal Srivastava And 2 Others
Respondent : State Of U.P. Through Secretary, Department Of
Basic Education, Government Of U.P. And 3 Others
Counsel for Appellant : Siddharth Khare,Sr. Advocate
Counsel for Respondent : Archana Singh,C.S.C.
Hon'ble Vivek Kumar Birla,J.
Hon'ble Dr. Yogendra Kumar Srivastava,J.
(Per : Dr. Yogendra Kumar Srivastava,J.)
1.Heard Shri Ashok Khare, learned Senior Counsel assisted
by Shri Siddharth Khare, learned counsel appearing for the
Appellants, Ms. Archana Singh, learned counsel who has put in
appearance on behalf of Respondent Nos. 3 and 4 as well as Sri
Tej Bhanu Pandey, learned Standing Counsel for the State
Respondent Nos. 1 and 2 .
2.The instant appeal is listed alongwith Special Appeal
No.998 of 2024 (Manoj Kumar and another Vs. State of UP and
others); however, since the appeals have been argued
independently, the same are being decided by separate orders.
3.The present intracourt appeal is directed against the
judgment and order dated 05.01.2024, passed by a learned
Single Judge, in Writ–A No.20779 of 2023 [Naveen Kamal
Srivastava And 2 Others Vs. State Of U.P. and Others], praying
2
for modification of the judgment and order and to allow the writ
petition in toto with a further prayer for a direction that the
petitionerappellants would be entitled to avail all benefits
flowing from sanction orders dated 26.06.2023 sanctioning their
transfers.
4.The records of the case before us indicates that the writ
petition had been filed praying for quashing of notices dated
23.09.2023 issued by the District Basic Education Officer,
Jhansi, and the subsequent orders dated 29.11.2023 directing
relieving of all the petitionersappellants from District Jhansi
with direction to report back to the original district Chitrakoot.
The petitioners had also sought quashing of the Circular Letter
dated 28.06.2023 issued by the Secretary, Board of Basic
Education, U.P. Prayagraj, and a further direction to the
respondents not to interfere in their functioning as teachers in
District Jhansi and to pay their regular salary including arrears
from July 2023.
5.The writ petition was finally disposed of with certain
observations/directions in terms of an order dated 05.01.2024,
which is being reproduced below:
“Order on Amendment Application No. 02 of 2023.
Heard Shri Ashok Khare, learned senior counsel assisted by
Shri Siddharth Khare, learned counsel for petitioner and Ms.
Archana Singh, learned counsel for respondent nos. 3 and 4.
The amendment application is allowed.
Order on Writ Petition.
Learned senior counsel fairly submits that on the issue of
clause 5 of a circular issued by the Secretary Basic Shiksha
Parishad in pursuance of the transfer policy 20232024, this
Court has reserved a judgement.
3
Learned senior counsel further submits that in peculiar
circumstances of the present case that in pursuance of
transfer orders passed by the respondents, petitioners were
relieved from district Chitrakoot, and submitted their joining
before the Basic Shiksha Adhikari, Jhansi, respectively on
03.07.2023, 07.07.2023 and later on they were allotted their
respective institutions and they have joined their also on
14.09.2023, 15.09.2023 respectively.
Learned senior counsel further submits that subsequently by
the independent impugned order dated 29.11.2023
petitioners' transfer order was set aside which was brought on
record by way of an amendment application and challenged,
and they were directed to report to their original district
Chitrakoot.
Learned senior counsel submits that at mid session of the
present educational year, impugned orders will adversely
affect studies of students and prayed that it may be set aside
and at least kept in abeyance till end of present academic
session so that they may file a fresh application for their
interstate transfer if situation so warrant.
Ms. Archana Singh, learned counsel for respondents has
opposed the aforesaid prayer, however, she has not disputed
that normally no transfer is allowed in mid session.
In the aforesaid circumstances, without going into the merits
of the case in regard to the effect of clause 5 of a circular
issued by the Board, I find merit in argument of learned
senior counsel for the petitioners that it would be adverse to
the interest of students to allow petitioners to relieve from
their transferred place in mid session in this regard reliance
placed of clause 18 of the transfer policy dated 02.06.2023 is
also taken note of.
Therefore, the impugned orders dated 29.11.2023 are kept in
abeyance till end of present educational session and the
petitioners will be at liberty to file a fresh application in terms
of prevailing transfer policy for next academic session if so
advice.
This writ petition is disposed of with aforesaid
observation/directions.”
6.The principal ground which is sought to be taken in
support of the appeal is that by submitting that the orders
passed by the District Basic Education Officer, in terms of which
the petitioners were relieved for rejoining their original place of
posting at District Chitrakoot, having been challenged by
4
amending the writ petition, there existed no justification for the
aforesaid controversy not to be adjudicated on merits by the
learned Single Judge while deciding the writ petition. The
orders passed by the District Basic Education Officer relieving
the petitioners are being sought to be challenged by asserting
that the said orders are based upon a Circular dated 28.06.2023
issued by the Secretary, Board of Education, and therefore there
was no justification for passing the said orders on the basis of
conditions which were not part of the order passed by the State
Government.
7.Learned counsel appearing for the State respondents and
also the counsel appearing for the Board of Education have
pointed out that Clause 5 of the Circular dated 28.06.2023
issued by the Secretary, U.P. Basic Education Board which forms
the basis of the orders which were impugned in the writ
petition, were subject matter of challenge in a batch of writ
petitions, leading being Writ – A No. 15163 of 2023 [Shraddha
Yadav and 6 Others Vs. State of U.P. and 10 Others], which had
been heard at length, and the Court had reserved its judgment.
8.It is pointed out that before the writ court, the learned
Senior Counsel after making a fair submission in this regard had
submitted that in the midsession of the current academic
session the impugned orders would adversely affect the studies
of the students and accordingly made a prayer that the
impugned orders by means of which the petitioners' transfer
orders had been set aside, and they were directed to join their
original place of posting, be set aside or at least be kept in
abeyance till the end of the current academic session.
5
9.In the aforesaid circumstances, the learned Single Judge
without going into the merits of the case in regard to the effect
of Clause5 of the Circular issued by the Basic Education Board
held that there was merit in the argument of the petitioners and
it would be adverse to the interest of the students to allow the
petitioners' transfer from their present place of posting in the
mid session. In this regard, Clause18 of the transfer policy
dated 02.06.2023 was also taken note of. Accordingly, the writ
petition was disposed of with a direction that the impugned
orders dated 29.11.2023 be kept in abeyance till the end of the
current academic session and the petitioners were set at liberty
to file fresh applications in terms of the prevailing transfer
policy for the next academic session, if so advised.
10.Counsel for the appellant has sought to advert to certain
grounds taken in the memo of appeal to contend that the
transfer policy of the teachers for the year 20232024 was
determined as per the Government Order dated 02.06.2023,
and the orders dated 29.11.2023 issued by the District Basic
Education Officer, Jhansi, which were based on a Circular Letter
dated 28.06.2023, cannot be legally supported. It was sought to
be argued that there was no justification for passing of the
orders impugned on the basis of conditions which were not part
of the Government Order dated 02.06.2023.
11.Counsel appearing for the State respondents as also the
counsel for the respondent Nos. 3 and 4 have controverted the
aforesaid submissions by pointing out that the aforesaid grounds
which are sought to be canvassed on behalf of the appellants
were neither raised nor pressed before the learned Single Judge
6
and as such the appellants cannot support the appeal by raising
the said grounds at this stage.
12.It is pointed out that a bare reading of the order under
appeal would indicate that the learned counsel appearing for
the petitioners before the writ court had fairly submitted that on
the issue of validity of Clause5 of the circular issued by the
Secretary, Basic Shiksha Parishad, the Court had already
reserved its judgment. It was in the said backdrop that the
counsel appearing before the learned Single Judge had made a
submission that the impugned orders dated 29.11.2023, in
terms of which the transfer orders of the petitioners had been
cancelled would adversely affect the studies of the students, and
a prayer was made that the said orders may be set aside or at
least kept in abeyance till the end of the current academic
session. It is submitted that the grounds which are now sought
to be urged in the present appeal, have been duly examined in
the batch of writ petitions, leading petition being Writ – A No.
15163 of 2023 [Shraddha Yadav And 6 Others Vs. State of U.P.
And 10 Others], which were subsequently decided in terms of
the judgment dated 09.01.2024, and similar contentions which
were raised were repelled.
13.The question as to whether the points allegedly raised but
not dealt with in the judgment impugned can be pressed in
support of an appeal thereagainst, was adverted to in the
decision of Mohd. Akram Ansari Vs. Chief Election Officer
and others
1
, and it was held that there is a presumption in law
that a Judge deals with all the points which have been pressed
1(2008) 2 SCC 95
7
before him and that a party who has grievance must approach
the same court which passed the judgment and to urge that
other points were pressed but not dealt with. The relevant
observations made in the judgment, in this regard, are as
follows:
“14. In this connection we would like to say that there is a
presumption in law that a Judge deals with all the points which
have been pressed before him. It often happens that in a petition or
appeal several points are taken in the memorandum of the petition
or appeal, but at the time of arguments only some of these points
are pressed. Naturally a Judge will deal only with the points which
are pressed before him in the arguments and it will be presumed
that the appellant gave up the other points, otherwise he would
have dealt with them also. If a point is not mentioned in the
judgment of a Court, the presumption is that that point was never
pressed before the learned Judge and it was given up. However, that
is a rebuttable presumption. In case the petitioner contends that he
had pressed that point also (which has not been dealt with in the
impugned judgment), it is open to him to file an application before
the same learned Judge (or Bench) which delivered the impugned
judgment, and if he satisfies the Judge (or Bench) that the other
points were in fact pressed, but were not dealt with in the impugned
judgment, it is open to the concerned Court to pass appropriate
orders, including an order of review. However, it is not ordinarily
open to the party to file an appeal and seek to argue a point which
even if taken in the petition or memorandum filed before the Court
below, has not been dealt with in the judgment of the Court below.
The party who has this grievance must approach the same Court
which passed the judgment, and urge that the other points were
pressed but not dealt with.
15. Since no other point except the point of office of profit has been
dealt with in the impugned judgment of the High Court, the
presumption is that no other point was pressed before the High
Court, even though the point may have been contained in the
election petition. Hence we do not allow these points to be raised
here.”
14.Taking similar view in a case where several points were
raised in the application but arguments were confined to, and
therefore decision was given by the Tribunal on only one point,
the Supreme Court in the case of Union of India and others Vs.
8
N.V. Phaneendran
2
, held that the appellants were not entitled
to seek opportunity to agitate the remaining questions before
the Tribunal. It was observed as follows:
“4. It is next contended that though several contentions have been
raised on merits, the Tribunal had only dealt with on this issue and,
therefore, an opportunity may be given to the respondent to agitate
those questions by remitting the matter to the Tribunal. We find it
difficult to accept this contention. It is true that though several
points appear to have been raised, but before the Tribunal the only
contention argued for the respondent was as extracted in paragraph
4 of the order of the Tribunal. It says:
"The only point that was urged before us by the learned
counsel appearing for the applicant is that the Divisional
Railway Manager not being the appointing authority is not
competent to impose a punishment of removal from service
on the applicant who is a Travelling Ticker Examiner in the
pay scale of Rs.425640."
Since the controversy was only limited to this point before the
Tribunal, we do not find any justification to remit the matter.”
15.In the present case, the grounds which are sought to be
urged in support of the appeal, may have been stated in the writ
petition, but the judgment impugned does not indicate that any
such ground was pressed. It is not the case of the appellants that
the aforesaid grounds which are now sought to be taken in the
appeal were argued before the learned Single Judge and the
same have not been accorded consideration.
16.It is commonly observed that in the memorandum of
petition or appeal, several points may be taken but at the time
of arguments only some of those points may be pressed. In such
a situation the court concerned would deal only with the points
which are argued and there would be a presumption that the
party concerned gave up the challenges based on the other
points. There is general presumption in law that a Judge deals
2(1995) 6 SCC 45
9
with all the points which have been argued before him, and in
case the party seeks to contend that he had pressed certain
points which have not been considered, it would be open to him
to file an application before the same learned Judge which
delivered the judgment, and seek an order of review. It would
ordinarily be not open to the party concerned to argue a point in
appeal, which even if taken in the petition before the court
below, was neither argued nor pressed before the court of first
instance.
17.In an intra Court appeal, the appellate court would not
normally reassess the material and seek to reach a conclusion
different from the one reached by the court of first instance, if
the one reached by that court was reasonably possible on the
material available. This would be more so in a case where the
grounds which are sought to be urged were never pressed
before the court of first instance.
18.The judgment of the learned Single Judge clearly records
that the learned counsel appearing for the petitioners had
submitted that Clause5 of the circular dated 28.06.2023 issued
by the Secretary, U.P. Basic Education Board, which forms basis
of the orders which were impugned in the writ petition, was
subject matter of challenge in a batch of writ petitions, wherein
the Court had reserved its judgment. It was in the said
background that the learned counsel submitted before the writ
Court that in the midst of the current academic session, the
impugned orders would adversely affect the studies of the
students and accordingly prayed that the same may be set side
or at least kept in abeyance till the end of the academic session.
10
Finding merit in the aforesaid argument that it would be
adverse to the interest of the students to allow the petitioners to
be relieved from their transferred place in the midsession, the
learned Single Judge disposed of the writ petition with a
direction that the impugned order dated 29.11.2023 be kept in
abeyance till the end of the current academic session. The
judgment under appeal does not indicate that any other ground
was urged before the learned Single Judge, and therefore we are
of the view that it would not be open to the appellants to press
any other ground which had not been argued before the learned
Single Judge.
19.Even otherwise, the grounds which are now sought to be
urged in support of the present appeal have been duly
considered in the batch of writ petitions with leading petition
being WritA No.15163 of 2023 (Shraddha Yadav and others
Vs. State of UP and others) which were decided in terms of
judgment dated 09.01.2024 and similar contentions which had
been raised, were repelled. The observations made in the
judgment in the case of Shraddha Yadav (supra), in this regard,
are as follows:
"१३.
यािचकाकतारगण की सेवाये
' ’
िनयमावली १९८१ के परावधानो के अधीन है।
िजसके िनयम २१ मे
' ’
सथानानतरण का परावधान है जो सामानयतः सथानानतरण
की अनुमित नही देता है और सथानानतरण
,
यिद होता है तो वो
,
पिरषद के
अनुमोदन के िबना नही हो सकता है।
१४.
पूवर मे उललेिखत िनणरयों से यह भी िनिवरवािदत है िक सथानानतरण नीित मात
एक परशासिनक नीित है
,
िजसकी पृषठभूिम मे कोई वैधािनक परावधान नहीं है।
िकसी भी कमरचारी को अपनी पसंद के सथान पर सथानानतरण का दावा करने का
कोई मौिलक या िनिहत अिधकार परापत नही होता है।
१५.
िशककों व िशिककाओं के वषर २०२३
-
२०२४ की अनतजरनपदीय एवं
पारसपिरक सथानानतरण नीित को उतर परदेश शासन के शासनादेश िदनाँक ०२
,
ज
ून
,
२०२३ दारा िनधारिरत की गई। इसके खणड १६
,
१७ व १८ पूवर मे
उललेिखत िकये जा चुके है
,
के अनुसार पिरषद को इस सथानानतरण नीित के
'
तकनीकी चरण एवं परिकया के िनधाररण का दाियतव सौपा गया और उसी कम मे
,
11
और सथानानतरण नीित के कम मे अगरतर कायरवाही हेतुसिचव
, उ.प
र
.
बेिसक िशका
पिरषद ने पिरपत िदनांक १६
.०६.
२०२३ व २८
.०६.
२०२३ को िनगरत िकया
,
िजसके अनुसार ऑनलाइन आवेदन के सतयापन व परीकण की परिकया को
िनधारिरत िकया। इन पिरपतों के माधयम से एकल अिभभावक
, िदवयांगता, असाधय
या गंभीर रोग
,
सरकारी सेवा का लाभ
,
िनलमबन की िसथित आिद के िवषय मे
परावधान बनाये गये। इसी कम मे पिरपत िदनांक २८
.०६.
२०२३ दारा
अनतजरनपदीय सथानानतरण परिकया के अनतगरत सथानानतिरत िशकक एवं िशिकका
(१६,
१६४ िशकक एवं िशिकका
)
को कायरमुकत िकये जाने की कायरवाही की
,
िवसतृत परिकया को भी िनधारिरत िकया। इसी पिरपत के खणड
(५)
को िनरसत
करने की पराथरना यािचकाकतारगण ने की है। उकत खणड पुनः िनमन उललेिखत
िकया जा रहा हैः
-
"५.
परोननित पद पर कायररत िशकक एवं िशिकका के सथानानतिरत जनपद
मे बैच की पदोननित वषर
/
मौिलक िनयुिकत ितिथ के आधार पर कायरमुकत
करने की कायरवाही की जायेगी।
"
१६.
सथानानतरण नीित के खणड १६
,
१७ व १८ के अनतवरसतुसे सपषट है
, जो
पिरषद के उकत पिरपतों को
,
जो उकत नीित के
'
तकनीकी चरण व परिकया के
’
िनधाररण
,
इसकी समय सािरणी व कायरमुकत कराने के समबनध मे है
,
िनगरत करने
के िलए सपषट रप से पिरषद के सिचव को अिधकृत करते है। अतः उकत
पिरपतों को िनगरत करने का अिधकार सिचव
, उ.प
र
.
बेिसक िशका पिरषद को पूणर
रप से था। अतः पिरपत वैधािनक है व िविधक रप से संधारणीय भी है। यह
पिरपत सथानानतरण नीित के कम मे उसके कायरवाहन के िलए है
,
न िक उसकी
परकृित के िवरोध मे िनगरत िकये गये है। सपषटता व संदभर के िलए सथानानतरण
नीित के खणड १६
,
१७ व १८ पुनः िनमन उललेिखत िकये जा रहे हैः
-
“(१६)
अनतजरनपदीय एवं पारसपिरक सथानानतरण के िलए िनगरत
शासनादेश के अनुसार उ०पर० बेिसक िशका पिरषद दारा अनतजरनपदीय
एवं पारसपिरक सथानानतरण के तकनीकी चरण एवं परिकया का िनधाररण
िकया जायेगा तथा शासनादेश के कम मे अगरतर कायरवाही की जायेगी।
(१७)
अनतजरनपदीय सथानानतरण हेतुसमय
-
सािरणी सिचव
,
बेिसक िशका
पिरषद दारा अपने सतर से पृथक से िनगरत की जायेगी।
(१८)
अनतजरनपदीय एवं पारसपिरक सथानानतरण के उपरानत
िशकक/
िशिकका को कायरमुकत करने तथा कायरभार गरहण करने की
कायरवाही मधय शैिकक सत मे नहीं की जायेगी। िशकक
/
िशिकका को
कायरमुकत करने तथा कायरभार गरहण करने की कायरवाही अवकाश के
दौरान ही की जायेगी।
"
१७.
अब नयायालय को यह िनधारिरत करना है िक पिरपत िदनाँक २८
.०६.२०२३
के खणड
(५)
मे उललेिखत
'
सथानानतिरत जनपद मे बैच की पदोननित वषर
/मौिलक
िनयुिकत ितिथ के आधार पर
'
कायरमुकत करने की कायरवाही का कोई नयायोिचत
कारण है अथवा नही। यहां यह धयान रखना होगा िक यािचकाकतारगण के संबंध
मे अंतजरनपदीय सथानानतरण का आदेश पािरत हो गया था परनतुउपरोकत खणड
(५)
के कारण उनको कायरमुकत नहीं िकया गया है।
१८.
उपरोकत विणरत खणड
(५)
के अनतःवसतुके मात पिरशीलन से सपषटता
परतीत नही होती है परनतुपिरषद के दारा दायर परितउतर पत व उसके िवदान
अिधवकता के कथन से सपषटता परतीत होती है
,
िक अगर यािचकाकतारगण जो
पदोननित पद पर है सथानानतिरत जनपद
,
जहां उनके बैच के िशककों की पदोननित
नही हुयी है
,
कायरभार गरहण कराया जाता है तो वो अपने संवगर मे िनमनतम
विरषठता पर रहे। िफर भी वो उनके बैच मे कायररत िशकक
/
िशिकका िजनको
पदोननित नहीं की गई है
,
से विरषठ हो जायेगे और उनके पदोननित होने के बाद भी
यािचकाकतारगण ही विरषठ रहेगे। िजससे असमंजसता की िसथित उतपनन हो
12
जायेगी,
चाहे विरषठता सूची मूल जनपद के सतर पर ही कयो न हो। यह िसथित
सहकमी को साथ कायर करने के िलए परितकूल होगी। उपरोकत विणरत कारण एक
नीितयुकत कारण है जो उपरोकत खणड
(५)
को वैधािनकता परदान करता है।
अगर पिरषद उकत खणड
(५)
के अऩ्तःवसतुमे और सपषटता ला पाते तो अचछा
होता। अिगरम सथानानतरण नीित मे सपषटता का धयान रखना चािहये।
१९.
मा० उचचतम नयायालय के एक नवीन िनणरय जो
देवेश शमार परित भारत
संघ व अनयः २०२३ एस
.सी.सी.
ऑनलाइन एस
.सी. ९८५,
के परकरण मे
पािरत िकया गया है
,
मे पुनः यह परितपािदत िकया िकः
-
“ ७३.
हमारे मिसतषक मे िनिशचत रप से कोई संदेह नही है
, िक
साधारणतः राजय के नीितगत िनणरयों मे संवैधािनक नयायालयों दारा
उसके पुनः िनरीकण अिधकारो के अंतगरत हसताकेप नहीं िकया जा
सकता है। इसी के साथ अगर नीितगत िनणरय सवयं मे ही िविध के
िवरद और वो मनमाना व तकर हीन हो तो पुनःिनरीकण के अिधकार का
उपयोग करना ही चािहये।
"
२०.
मा० उचचतम नयायालय दारा एक अनय परकरण
सतयदेव बागुर परित
राजसथान शासन व अनय
(२०२२)
५ एस
.सी.सी. ३२४,
के परकरण मे पूवर मे
पािरत
कृषणनन कककनाथ परित के रल राजयः
(१९९७)
९ एस
.सी.सी. ४९५
व
शेर िसंह परित भारत संघः
(१९९५)
६ एस
.सी.सी. ५१५
के िनणरयों का संदभर
लेते हुए यह िनणीत िकया िकः
-
“१५.
यह अितसामानय है िक नयायालय नीितगत मामलो मे हसतकेप
करने मे मनद रहेगे
,
जब तक िक नीित सपषट रप से पकपाती और
मनमानी न सथािपत हो जाये। यह नयायालय राजय की नीितगत िनणरय मे
हसतकेप नही करेगा
,
जब राजय यह इंिगत कर सके िक नीित के
कायारवहन मे युिकतयुकत अंतर है और वो युिकतयुकत अंतर
,
उसके उदेशय
”
की परािपत से संबंध रखता है।
२१.
जैसा ऊपर िवशलेषण िकया गया है िक खणड
(५)
के अनतःवसतुका आधार
नयायोिचत एवं नयाय संगत है
,
जो एक युिकतयुकत अनतर है
,
िजसका संबंध उदेशय
की परािपत के िलये है िक अगर यािचकाकतार गणो को सथानानतिरत जनपद
, जहां
उनके बैच के सह िशकको की पदोननित नहीं हुई है
,
सथानानतिरत कर िदया जाये
तो वहां अवयवसथा हो जायेगी और सहकमी को साथ काम करने मे असहजता
होगी। अतः इसको िनरसत करने की पराथरना असवीकार की जाती है। और यह
यािचका बलहीन होने के कारण
िनरसत
की जाती है।
"
20.It has been brought to our notice that several writ
petitions seeking similar reliefs were dismissed, and against one
of such orders, Special Appeal No.61 of 2024 [Smt. Radha Vs.
State of U.P. And 4 Others], was filed, and the same was
dismissed by a coordinate Bench, by means of an order dated
16.02.2024. The aforesaid order is being reproduced below:
“1. Following orders were passed on 06.02.2024:-
"1. Appellant was transferred in terms of the Inter District
Transfer Policy from Mirzapur to Lucknow. She was however not
allowed joining on the ground that though she was promoted to the
13
post of Head Mistress at Mirzapur but persons senior to the
appellant were still working as Assistant Teacher at Lucknow. The
cadre of Assistant Teacher is otherwise a district level cadre. The
authorities accordingly have refused to allow joining to the
appellant at Lucknow and have also cancelled her transfer.
2. A representation was made by the appellant stating that she is
willing to give up her claim of promotion and she would accept her
transfer to Lucknow on the post of Assistant Teacher in a primary
institution. It is submitted that this aspect of the matter has not
been bestowed any consideration and therefore, the order of the
authority rejecting petitioner's representation is unsustainable.
3. Learned counsel representing the respondents seeks a week's
time to obtain instructions in the matter.
4. Put up on 16.02.2024, as fresh."
2. Ms. Archana Singh, appearing for the Basic Shiksha Board,
states that in the past also such claims have been put forward by
the teachers, who gave preference to their posting at the place of
their liking by giving up their previous promotion on the post of
Headmistress. Such claims were rejected by the Board. It is also
submitted that during the academic session it would not be in the
academic interest to consider any personal for transfer. It is also
urged that the claim of the appellant, if allowed, may result in large
number of other persons coming up with similar pursuits, which
would adversely affect the functioning of these institutions.
Learned counsel then states that as and when posts are available on
the post of Headmistress at Lucknow and the claim of seniority
would not be breached, the claim of appellant for promotion be
accorded consideration in terms of the policy.
3. We find substance in the objection of the respondents, inasmuch
as transfer cannot be insisted upon by a teacher as a matter of right.
Consideration regarding smooth functioning of the educational
institutions would be of paramount importance. It is otherwise not
disputed that persons senior to the appellant since are continuing at
Lucknow as Assistant Teacher, her claim of transfer as
Headmistress would create unnecessary heart burn. Giving up
claim of promotion also creates complications as very often such
claims are revived. It may otherwise lead to more similar claims
being raised by other teachers. It is otherwise undisputed that the
cadre of teacher/headmistress under the Rules is a district cadre
post and transfer, outside the district, can only be allowed in terms
of the policy.
4. In that view of the matter, we find no good ground to interfere in
the matter and, consequently, the present appeal is consigned to
records. It goes without saying that as and when fresh transfer
policy is floated by the department, it shall be open to the appellant
to apply and her claim would be examined in accordance with the
policy.”
21.It has been further pointed out that subsequently one of
14
the petitioners in the leading writ petition in the batch of writ
petitions decided in terms of the judgment under appeal,
preferred a special appeal, being Special Appeal Defective
No.159 of 2024 [Shradha Yadav Vs. State of U.P. through
Secretary, Department of Basic Shiksha], which too was
dismissed by means of an order dated 28.02.2024, following the
order passed in the appeal of Smt. Radha (supra). The aforesaid
order dated 28.02.2024 passed in the special appeal is as
follows:
“(Ref: Civil Misc. Delay Condonation Application)
1. Heard.
2. Delay in filing the present appeal is explained to the satisfaction
of the Court. Delay is, accordingly, condoned. Office is directed to
allot a regular number to the present appeal.
3. Application stands allowed.
Ref: Appeal
4. Heard learned counsel for the petitioner and learned counsel
for the respondents
5. It is pointed out that similar controversy, as is raised in this
petition, has been adjudicated by this Court in Special Appeal
No.61 of 2024 (Smt. Radha vs. State of U.P. and others) vide
following order passed on 16.2.2024:-
"1. Following orders were passed on 06.02.2024:-
"1. Appellant was transferred in terms of the Inter District
Transfer Policy from Mirzapur to Lucknow. She was however
not allowed joining on the ground that though she was
promoted to the post of Head Mistress at Mirzapur but persons
senior to the appellant were still working as Assistant Teacher
at Lucknow. The cadre of Assistant Teacher is otherwise a
district level cadre. The authorities accordingly have refused to
allow joining to the appellant at Lucknow and have also
cancelled her transfer.
2. A representation was made by the appellant stating that she
is willing to give up her claim of promotion and she would
accept her transfer to Lucknow on the post of Assistant
Teacher in a primary institution. It is submitted that this aspect
of the matter has not been bestowed any consideration and
therefore, the order of the authority rejecting petitioner's
representation is unsustainable.
15
3. Learned counsel representing the respondents seeks a week's
time to obtain instructions in the matter.
4. Put up on 16.02.2024, as fresh."
2. Ms. Archana Singh, appearing for the Basic Shiksha Board,
states that in the past also such claims have been put forward
by the teachers, who gave preference to their posting at the
place of their liking by giving up their previous promotion on
the post of Headmistress. Such claims were rejected by the
Board. It is also submitted that during the academic session it
would not be in the academic interest to consider any personal
for transfer. It is also urged that the claim of the appellant, if
allowed, may result in large number of other persons coming
up with similar pursuits, which would adversely affect the
functioning of these institutions. Learned counsel then states
that as and when posts are available on the post of
Headmistress at Lucknow and the claim of seniority would not
be breached, the claim of appellant for promotion be accorded
consideration in terms of the policy.
3. We find substance in the objection of the respondents,
inasmuch as transfer cannot be insisted upon by a teacher as a
matter of right. Consideration regarding smooth functioning of
the educational institutions would be of paramount
importance. It is otherwise not disputed that persons senior to
the appellant since are continuing at Lucknow as Assistant
Teacher, her claim of transfer as Headmistress would create
unnecessary heart burn. Giving up claim of promotion also
creates complications as very often such claims are revived. It
may otherwise lead to more similar claims being raised by
other teachers. It is otherwise undisputed that the cadre of
teacher/headmistress under the Rules is a district cadre post
and transfer, outside the district, can only be allowed in terms
of the policy.
4. In that view of the matter, we find no good ground to
interfere in the matter and, consequently, the present appeal is
consigned to records. It goes without saying that as and when
fresh transfer policy is floated by the department, it shall be
open to the appellant to apply and her claim would be
examined in accordance with the policy."
6. For the reasons recorded in the order dated 16.2.2024 and the
controversy being identical, this writ petition is also disposed of
on same terms.”
22.Against the judgment in the Special Appeal in the case of
Smt. Radha (supra), a special leave petition being Special
Leave to Appeal (C) No(s). 10912 of 2024 [Radha Vs. State
of U.P. & Others] was preferred, which stood dismissed by an
16
order dated 13.05.2024.
23.Accordingly, even if the grounds which are now sought to
be urged on behalf of the appellants are taken into
consideration the controversy involved in the present case is
fully covered in terms of the judgment dated 28.02.2024 passed
in Special Appeal Defective No.159 of 2024 (Shradha Yadav Vs.
State of UP through Secretary, Department of Basic Shiksha).
24.We are not inclined to take a different view in the matter.
25.The special appeal, therefore, stands dismissed.
Order Date : 16.01.2025
Arun K. Singh
[Dr. Y.K. Srivastava, J.] [V.K. Birla, J.]
Legal Notes
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