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2021 DIGILAW 792 (ALL)

Geetika Katiyar v. State of U. P.

2021-08-04

YASHWANT VARMA

body2021
JUDGMENT : 1. Heard Sri Seemant Singh, learned counsel for the petitioner, Sri Birendra Pratap Singh, learned Standing Counsel for the State respondents and Ms. Archana Singh, who appeared for the contesting respondents. 2. This petition has been preferred seeking the following reliefs : "(a) Issue a writ, order or direction in the nature of Certiorari calling for the records of the case and quashing the impugned Clause 2(13) of the Government Order dated 02.12.2019 issued by the Additional Chief Secretary, Government of U.P., Lucknow only to an extent that it only refers to exemption for getting transferred from the aspirational districts like Bahraich to District Kannauj insofar as it relates to the petitioner, whose spouse is serving in the Indian Army/ Air Force/ Navy/ Paramilitary Forces (CRPF/ CISF/ SSB/ Assam Riffles/ ITBP/ NSG/ BSF) and not to the petitioner whose husband has served in the Indian Army and died while being in service of the Indian Army and the result of online inter-district transfer dated 01.01.2021 where the result is shown as not transferred due to aspirational district restriction as per Government Order dated 02.12.2019. (b) Issue a writ, order or direction in the nature of Mandamus directing the respondents to consider the inter-district transfer relating to the petitioner on the post of Assistant Teacher in a primary school, from the district Baharaich to her desired district Kannauj by extending benefit of Clause 2(13) of the Government Order dated 02.12.2019 issued by the Additional Chief Secretary, Government of U.P., Lucknow which provides exemption to the Assistant Teachers whose spouse are working in the Indian Army/ Air Force/ Navy/ Paramilitary Forces (CRPF/ CISF/ SSB/ Assam Riffles/ ITBP/ NSG/ BSF)." 3. The petitioner is a widow whose husband served in the Armed Forces. He unfortunately died while serving in the Forces. The submission of Sri Singh was that Clause 2(13) insofar as it restricts consideration of requests for transfer to those whose spouses are serving members of the Armed Forces is arbitrary. As would be manifest from a reading of reliefs as framed, the petitioner essentially seeks the extension of Clause 2 (13) to even those cases where the spouse of the Assistant Teacher may have previously been in the Armed Forces. 4. It becomes pertinent to note that the petitioner admittedly applied for transfer in terms of the policy as framed by the respondents. 4. It becomes pertinent to note that the petitioner admittedly applied for transfer in terms of the policy as framed by the respondents. She raised no challenge to the clause on grounds aforenoted prior to filing her application for transfer. If the petitioner was of the view that Clause 2 (13) was invalid, she should have raised a challenge in that respect at the very outset and when the process was initiated. In the considered view of the Court the petitioner cannot now turn around and assail those very conditions and restrictions subject to which she had applied for transfer in the first place. 5. As is manifest from a reading of the Government Order of 2 December 2019, transfer could not be claimed as a matter of right. The respondents formulated a policy in terms of which requests for transfer was to be considered based on points which were earmarked to cover varied eventualities. One of those clauses related to those Assistant Teachers whose spouse may be currently serving in the Forces. The petitioner was fully aware of the extent of the application of Clause 15 of the Government Order and was placed on notice that she would not be eligible to be assigned marks merely because her husband had prior to his demise been a member of the Forces. Yet she chose not to assail that stipulation at the first available opportunity. This circumstance weighs heavily against the petitioner. 6. Turning then to the legal challenge which is raised, it would be apposite to notice the legal position as it obtains under the 1981 Rules and the U.P. Teachers Posting Rules 2008. In Smt. Ruchi Vs. State of U.P., 2018 (10) ADJ 161 a learned Judge of the Court enunciated the position as under: 19. It is settled law that transfer is not a right. As per Rule 4 of the Rules 1981, the service cadre of the petitioners is the local area of the respective district. Their appointing authority is the concerned District Basic Education Officer. It is settled law that transfer is not a right. As per Rule 4 of the Rules 1981, the service cadre of the petitioners is the local area of the respective district. Their appointing authority is the concerned District Basic Education Officer. In view of Rule 21 of the Rules 1981, the Assistant Teachers of basic schools run by the Board cannot be transferred from 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 except on the request of or with the consent of the teacher himself and in either case, approval of the Board shall be necessary. Rule 8(2)(d) of the Rules 2008 also does not confer any right for inter-district transfer. On the contrary it provides that in normal circumstances, the applications of inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. However, an exception has been provided in respect of female teachers that in special circumstances their applications for inter-district transfer would be entertained to the place of residence of their husband or in-laws' district. Rule 21 read with Rule 8(2)(d) of the Rules 1981 clearly indicates that teachers have no right for inter-district transfer. 28. In view of the above discussion, the question No. (b) is answered as under : Petitioners do not have any right for transfer or a right for consideration of their application for transfer. Applications for inter-district transfer may be entertained by the competent authority only if such applications for inter-district transfer are within the four corners of the provisions of the Rule 21 of the Rules, 1981 read with Rule 8(2)(d) of the Rules, 2008 and the guidelines framed by the Board for transfer.” 7. The aforesaid position stands reiterated in Clauses 9, 10 and 11 of the Government Order of 2 December 2019. The Court then proceeds to consider whether the challenge to Clause 2(13) is legally sustainable. 8. As is manifest from a reading of Clause 15 of the Government Order, the facility of transfer was provided to those Assistant Teachers whose spouses were “currently serving” in the Forces. The Court then proceeds to consider whether the challenge to Clause 2(13) is legally sustainable. 8. As is manifest from a reading of Clause 15 of the Government Order, the facility of transfer was provided to those Assistant Teachers whose spouses were “currently serving” in the Forces. Clause 15 reads thus:- ^^,sls v/;kfidk,a@v/;kid ftuds ifr@iRuh (spouse) Hkkjrh; lsuk@ok;q lsuk@ukS lsuk vFkok v/kZ lSfud cyksa ;Fkk] CRPF/CISF/SSB/ASSAM RIFLES/ITBP/NSG/BSF, esa dk;Zjr gSa vkSj bl laca/k esa l{ke çkf/kdkjh }kjk çek.k i= fuxZr fd;k x;k gS] mUgsa muds bfPNr tuin@bfPNr xzke iapk;r esa LFkkukUrfjr fd;k tk;sxkA çfrca/k ;g gS fd bl çko/kku dk ykHk ek=k ,d ckj gh vuqeU; gksxk-** 9. The reason and the underlying logic for restricting the application of Clause 15 to those whose spouses were “currently serving” is clearly obvious and discernible. The respondents essentially wanted to provide a ground for Assistant Teachers whose spouses were serving in the Forces to seek transfer on a preferential basis in order to consider their posting closer to their spouses or the family of their spouses. The provision so made clearly appeals to logic and good sense bearing in mind the unique situation in which such families are placed. The Court cannot possibly shut its eyes to the anxious and trying conditions in which such families carry on with their lives separated for long periods with the spouse on many occasions posted in remote, harsh and unfriendly locations. Regard must also be had to the fact that the members of the Forces are often called upon to discharge their duties in tense and stressful environments. Their families continue to go about their daily lives living in a state of constant uncertainty. Those families, thus, stand on a completely distinct footing from others. In any case, the aim of the policy as noted above clearly appears to be to provide some relief and comfort to the families of those who serve in the Forces. The restriction of that clause to those whose spouses are “currently serving” thus cannot be said to be either irrational or arbitrary. 10. In any case, the aim of the policy as noted above clearly appears to be to provide some relief and comfort to the families of those who serve in the Forces. The restriction of that clause to those whose spouses are “currently serving” thus cannot be said to be either irrational or arbitrary. 10. The Court also bears in mind that the policy makes adequate provision for a situation where one of the parent is physically challenged as well as in respect of families which are headed by a single parent thus clearly providing adequate avenues for the petitioner and other similarly situate teachers to have asserted their right to seek consideration. What the Court seeks to underline is that the policy as promulgated does provide for situations where teachers are single parents irrespective of whether their spouses are serving, retired or erstwhile members of the Forces. The policy similarly introduces sufficient provisions for situations where both parents are serving under the State. It is thus manifest that the policy does not operate arbitrarily or irrationally. 11. A challenge to a policy measure, it becomes relevant to note, must be evaluated bearing in mind the need for a certain degree of discretion and leeway being recognised to vest in the executive. A stipulation made therein would not merit interference unless it appears to be manifestly unjust or patently arbitrary. Courts while exercising their power of judicial review cannot take over the mantle of framing policy. That must necessarily be left to the executive. Courts are obliged to step in where there is either a failure on the part of the executive to discharge their constitutional functions and obligations or where it is found that a measure adopted by the State causes grave injustice or operates harshly from a constitutional standpoint. The challenge in the instant case fails to meet that well recognised threshold. 12. The writ petition consequently fails and shall stand dismissed.