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2022 DIGILAW 364 (ALL)

Vipin Kumar v. State of U. P.

2022-03-11

J.J.MUNIR, RAJESH BINDAL

body2022
JUDGMENT : 1. This judgment will dispose of Special Appeal Nos. 296 to 298, 300, 302, 303 and 853 of 2019 and Special Appeal Defective No. 905 of 2020. 2. Special Appeal No. 296 of 2019 is directed against the order passed by the learned Single Judge in Writ - A No. 22896 of 2018, dismissing the writ petition. This appeal has been preferred by ten out of the twelve writ petitioners, who failed before the learned Single Judge. This appeal and the other seven Appeals, referred to hereinabove, raise common questions of fact and law and are, therefore, being disposed of by a common judgment. 3. Special Appeal No. 296 of 2019 shall be treated as the leading case. 4. Heard learned counsel for the parties and perused the relevant referred record. 5. The question involved in these appeals is : ''Whether an employee, who elects to avail of a benefit under an employer's concession, to which he is not entitled as of right under the Service Rules subject to specified disadvantages, can later on reprobate to retain the benefit, but forsake the coupled disadvantage?'' 6. The appellants in all these appeals were appointed as Assistant Teachers in Primary Pathshalas, established and run under the Uttar Pradesh Basic Education Act, 1972 by the Uttar Pradesh Basic Education Board (for short, 'the Board'). They were appointed on various dates, which find mention in the different writ petitions, giving rise to these Appeals. The appointments and conditions of services of each of the appellants are governed by the Uttar Pradesh Basic Education (Teachers) Services Rules, 1981 (for short, 'the Rules of 1981'). It is common ground in these appeals that the appellants were all promoted to the post of Headmaster of Primary Pathshala or Assistant Teacher, Senior Basic School (Junior High School). 7. On 23.6.2016, a transfer policy was introduced by the State Government, permitting transfer of teachers to the districts of their choice. It is not in dispute that the cadre of teachers, governed by the Rules of 1981, is a cadre based on the local area, where the appointment of a teacher is made. The relevant Rules in the Rules of 1981, that have bearing on the issue, are detailed hereinafter. Rule 4(1) of the Rules of 1981 provides: ''4. Strength of the Service.-(1) There shall be separate cadres of service under these rules for each local area. The relevant Rules in the Rules of 1981, that have bearing on the issue, are detailed hereinafter. Rule 4(1) of the Rules of 1981 provides: ''4. Strength of the Service.-(1) There shall be separate cadres of service under these rules for each local area. (2) ...... Provided that the appointing authority may leave unfilled or the Board may hold in abeyance and post or class of posts without thereby entitling any person to compensation: Provided further that the Board may, with the previous approval of the State Government, create from lime to time such number of temporary posts as it may deem fit.'' ''Local Area'' is defined under rule 2(i) in following words : ''2. Definitions : (i) ''Local Area'' means the area over which a local body exercises jurisdiction;'' The 'Appointing Authority' and the 'local area' are defined by Section 2(1)(b) and 2(1)(i) of the Rules of 1981 as follows: ''2. Definitions. - (1) In these rules, unless the context otherwise requires,- (a) x x x x (b) ''Appointing Authority'' in relation to teachers referred to in Rule 3 means the District Basic Education Officer; (c) x x x x (d) x x x x (e) x x x x (f) x x x x (g) x x x x (h) x x x x (i) ''Local Area'' means the area over which a local body exercises jurisdiction;'' Rule 21 of the Rules of 1981 is about the procedure for transfer, which is extracted below: ''21. Procedure for transfer-There shall be no transfer of any teacher from the 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.'' 8. What appears from the conditions of service of teachers governed by the Rules of 1981 is that an Assistant Teacher of Primary Pathshala, who is promoted to the post of Headmaster, Primary Pathshala or Assistant Teacher, Senior Basic School, has no right to be transferred from one local area to another, or one district to another, except on his request or consent, and in either case, with the approval of the Board. 9. 9. The Government Order dated 23.6.2016, under which the appellants in all the appeals applied for transfer, was in the nature of a concession, to enable the teachers to go to a local area or district of their choice in accordance with Rule 21 of the Rules of 1981. Apparently, since the facility was extended to all desirous teachers, the concern of the Government and the Board was that the existing positions of seniority and prospects of promotion in a local area may not be disturbed to the prejudice of any serving teacher there, governed by the Rules of 1981. At the same time, in order to effectuate the purpose of the policy, that enabled a teacher to go to the district of his choice, the rights of teacher being given the facility and the teacher in the local area cadre, to which he was being transferred, were finely balanced by providing that in the transferred local area, the teacher transferred would be placed at the bottom of the seniority list of teachers in the cadre in which he was transferred. 10. There was another condition in the transfer policy carried in the Government Order dated 23.6.2016, which does not require much analysis about the reason for its existence. The said term in the policy provides that in the case of an inter-district transfer of teachers, which is not a matter of right under Rule 21 of the Rules 1981, made on the request of a teacher, the transfer would be allowed, depending on the availability of vacancies in the district of choice. Now, the availability of vacancy in the district of choice would mean the availability of vacancy of a post in the grade to which the teacher seeking transfer belongs. Apparently, if a teacher who had been promoted to the post of a Headmaster of a Primary Pathshala or Assistant Teacher, Senior Basic School, sought transfer to another district, banking on the transfer policy, the transfer could only be allowed if a post of that grade is available in the district of choice. If no post of that grade was available, the transfer could not be permitted. 11. If no post of that grade was available, the transfer could not be permitted. 11. The learned Single Judge has very rightly noticed in the judgment impugned in the leading appeal, which is a common feature to all other appeals as well, that the request for transfer made by the appellants could not be considered, because no vacancy existed on the post of Headmaster of a Primary Pathshala or Assistant Teachers, Senior Basic School in the district of choice, to which the appellants applied for transfer. It has then been remarked by the learned Single Judge that in their anxiety to secure a transfer to the district of choice, the appellants made an application, seeking reversion to their substantive post of Assistant Teacher, Primary Pathshala. They also gave an undertaking on affidavit, accepting demotion to the post of Assistant Teacher, Primary Pathshala from their promotional posts in their parent cadres, where they were working in different districts in the specified local area. 12. It appears that after transfer, they were not only demoted, but also placed at the bottom of the seniority list of Assistant Teacher, Primary Pathshala. Once firmly placed in the district of their choice, the appellants in the various appeals have thought of regaining lost ground. There was a prayer on behalf of the appellants in the leading appeal through representations to the Authorities that their pay may be restored to the level that they were drawing before their elective transfers, invoking the principles of pay protection. It was also urged that the appellants be placed at the bottom of the cadre of Headmaster of Primary Pathshalas/Assistant Teacher, Senior Basic Schools, instead of placing them at the bottom of the seniority of Assistant Teachers, Primary Pathshala. This prayer was declined and that is what has made the appellants in the leading appeal to approach this Court, asking for a restoration of their status in the higher cadre and also payment of salary alongwith arrears for the higher post that they had forsaken. This is the common origin of all the appeals and the cause of action involved. 13. The case urged by the appellants in each of the appeals did not find favour with the learned Single Judge, who heard the writ petitions. This is the common origin of all the appeals and the cause of action involved. 13. The case urged by the appellants in each of the appeals did not find favour with the learned Single Judge, who heard the writ petitions. It was held that the appellants cannot approbate and reprobate and the appellants, who had secured benefit under the transfer policy, voluntarily giving up rights, cannot turn around and regain what they had given up. 14. At the hearing of the appeals, Mr. Ashok Khare, learned Senior Advocate assisted by Mr. Siddharth Khare, Advocate and Mr. Bhagwan Dutt Pandey, Advocate in the leading appeal and the other appeals, made a strong point that under Rule 15-A(2) of Chapter III of the Financial Handbook, upon a voluntary transfer of an employee, his emoluments cannot be reduced. The appellants were earlier drawing Grade Pay in the scale of Rs. 4600/-, but have now been made to suffer a diminution in their Grade Pay to Rs. 4200/-. It is also assailed that the appellants cannot be demoted to a lower cadre as a part of their transfer in terms of the Government Order dated 23.6.2016. The fact that there were no vacancies in the districts of choice in the cadre of Headmaster, Primary Pathshala/Assistant Teacher, Senior Basic School, is disputed by the appellants. 15. It is also argued that the appellants being legally entitled to a lien on the promotion post they hold in the local area and in the district from which they were transferred, they cannot be demoted to a lower post on the basis of an affidavit taken through compulsion. The demotion, the learned Counsel for the appellants submits, would be in violation of Rule 22 of the Rules of 1981. It was pointed out to the learned Counsel for the respondents during hearing of the appeals that the transfer to the district of choice was a concession offered by the State Government under the Policy dated 23.6.2016, to which the appellants had no right. The concession was offered taking help of the limited right available to an employee to seek transfer from one local area to another or from one district to another, under Section 21 of the Rules of 1981. The concession was offered taking help of the limited right available to an employee to seek transfer from one local area to another or from one district to another, under Section 21 of the Rules of 1981. Since no posts in the relative cadre were available to effectuate the beneficial policy, the appellants were given the choice of accepting the lower post and being placed at the bottom of the seniority list. They accepted both the disadvantages with open eyes for the benefit of being placed in the district of their choice. Still, bearing in mind that the appellants spoke about their lien on the higher post, which, no doubt, can be determined only in accordance with law, the learned Counsel for all the appellants were asked if they were willing to be repatriated to their local areas in the district whence they came. The appellants are unanimous that they do not want to go back to the districts or the local areas where they were earlier working. They want to stay back to the district of their choice, to which they have moved taking benefit of the Government Order dated 23.6.2016. Moreover, the fact that cannot be lost sight of is that the transfer to the districts of choice on the demoted post of Assistant Teacher, Primary Pathshala was made on the appellants' applications and undertaking given on affidavits that they would accept the lower posts. 16. In the circumstances, once the appellants want to retain the benefit of transfer that they have secured in terms of the Government Order dated 23.6.2016 to the districts of their choice, they cannot be permitted to take the benefit and rid themselves of the disadvantage that is coupled with it. The appellants cannot have the cake and eat it too. As the rights of the appellants stand, since they want to continue in the district of their choice after securing a transfer under the transfer policy carried in the Government Order dated 23.6.2016, to which they are otherwise not entitled as of right, they cannot claim restoration of their status or pay in the cadre to which they originally belonged. To permit the appellants to do so, would verily violate the firmly established principle that a party cannot be permitted to approbate and reprobate. To permit the appellants to do so, would verily violate the firmly established principle that a party cannot be permitted to approbate and reprobate. This principle has been applied by the learned Single Judge in the judgment impugned in the leading appeal, particularly, relying on the decision of the Supreme Court in State of Punjab and others v. Dhanjit Singh Sandhu, (2014) 15 SCC 144 ; and in our opinion, rightly so. 17. In the result, these appeals fail and are dismissed. 18. There shall be no order as to costs.