Not Shown To Be Arbitrary: Allahabad HC Refuses To Interfere With Transfer Policy Of State Govt For Basic Education Assistant Teachers
The Allahabad High Court has refused to interfere with the Transfer Policy of the Uttar Pradesh Government with regard to the Assistant Teachers in Basic Education Institutions run by Basic Education Board who teach students both in rural and urban local areas.
A Division Bench comprising Justice Ashwani Kumar Mishra and Justice Ashutosh Srivastava held, “Rule 8(1)(d) neither violates any provision of the Act of 1972, nor goes contrary to the Rules of 1981. The posting rules of 2008 in fact lays down the criteria for posting of teachers in different institutions and while doing so, restricts the eligibility for seeking transfer in normal circumstances as two years for female teachers and five years for male teachers. The condition requiring the male teacher to work for five years and female teacher for two years is essentially a matter of policy and unless it is shown to be violative of any Act, Rule or Regulation, we would not be justified in interfering with such policy as it is otherwise not shown to be arbitrary.”
The Bench noted that there is a specific purpose for not entertaining applications of transfer for a few years as the teachers are expected to initially work in the specific cadre allocated to them or else the teachers from the very day of their appointment would start maneuvering their transfer to their desired place.
Advocate Satyendra Chandra Tripathi represented the petitioners while Advocate Archana Singh represented the District Basic Education Board and Standing Counsel represented the State.
In this case, the petitioners were Assistant Teachers working in Primary Institution run by the District Basic Education Board, and petitioner no. 1 was appointed by District Basic Education Officer, Kaushambi in 2019 and was posted in Block Nevada, District Kaushambi. The petitioner no. 2 was appointed as Assistant Teacher in Block Dhanupur, District Prayagraj.
The petitioner no. 1 claimed to be a resident of District Prayagraj whereas petitioner no. 2 was a resident of District Fatehpur. Both the petitioners were desirous of seeking inter-district transfer and hence, approached the court challenging Clause 1 and 15 of the Government Order June 2, 2023 as well as the consequential circular issued by the Secretary, Board of Basic Education, dated June 8, 2023. A further prayer was made to command the respondents to entertain their application for inter-district transfer without imposing a condition of five-year service in the concerned district and to grant approval to their transfer in accordance with Rule 21 of the U.P. Basic Education (Teachers) Service Rules, 1981.
The High Court in the above regard observed, “Rules of 1981 do not lay down the criteria for grant of approval by the Board to the request of transfer. In order to ensure that transfers are made in a fair and uniform manner, it is always open for the competent authority to lay down the criteria for grant of approval to such transfers. … So far as the resort to the online process for effecting the transfer is concerned, we find that the direction in that regard is in conformity with Clause 5.3 of the National Education Policy, 2020 which requires transfers to be conducted through an online computerized system that ensures transparency. Even otherwise, we do not find any error in the Government Order dated 2.6.2023; whereby the process is to be undertaken in consultation with NIC Lucknow on the basis of an online process.”
The Court said that the process undertaken online, prima facie, eliminates the possibility of any pick and choose and is expected to be transparent and the process undertaken online otherwise does not contravene any provision of the statute nor goes contrary to any constitutional scheme.
“We, therefore, find no error in Clause 15 of the Government Order dated 2.6.2023 requiring the process to be undertaken online and thereby decline the entertainment of application in the offline format. The challenge laid to Clause 15 of the Government Order with regard to Transfer Policy, therefore, fails”, held the Court.
The Court further said that the requirement for the teachers to serve cadre for a few years before they are allowed to seek transfer cannot be said to be arbitrary nor the policy can be questioned on any valid ground.
“Transfer in the cadre is ordinarily not contemplated for an Assistant Teacher. The transfer from one cadre to another is conditional in terms of Rule 21 and requires approval of the Board. Transfer, therefore, is not stipulated to be claimed as a matter of right in these institutions. The State/Board would thus be justified in laying down a uniform criteria/process for entertaining applications for transfer”, noted the Court.
The Court found no illegality or infirmity in the policy of the State to restrict entertainment of application for transfer in normal circumstances, unless the teacher has completed a specified length of service in the cadre. It further said that the old age of grandparents, etc., which is the cause pleaded for transfer, would not constitute exceptional circumstance for transfer, and such considerations otherwise are required to be examined by the Board at the first instance.
“In the facts of the case we do not find the policy to be either violating the constitutional parameters or infringing the constitutional values. … Challenge laid to Clause 1 and 15 of the Government Order dated 2.6.2023 as well as challenge to Circular dated 8.6.2023 fails and are rejected. … it is provided that the Board shall open the online portal for mutual transfer, at the earliest possible, preferably within six weeks and claim of eligible teachers shall be dealt with, as per law”, directed the Court.
Accordingly, the Court upheld the condition contained in the policy requiring, in normal circumstances, a minimum length of service of five years in the cadre for male teachers and two-year service for female teachers before seeking transfer.
Cause Title- Kul Bhushan Mishra and Another v. State of U.P. And 4 Others (Neutral Citation: 2023:AHC:127211-DB)
