Allahabad High Court: In a writ petition filed by two Assistant Teachers (‘petitioners') challenging Clause 1 and 15 of the Government Order dated 2-6-2023 as well as the consequential circular issued by the Secretary, Board of Basic Education, wherein the State had restricted entertainment of application transfer in normal circumstances, unless the teacher has completed specified length of service in the cadre, the division bench of Ashwani Kumar Mishra and Ashutosh Srivastava, JJ. has held that the requirement of minimum length of service before seeking transfer does not contravene any provisions of the U.P. Basic Education (Teachers) Service Rules, 1981 (‘Rules, 1981') or any provision or Act. Thus, the Court found no illegality or infirmity in the policy of the State.
The petitioners were desirous of seeking inter-district transfer. They have prayed to command the State to entertain their application for inter-district transfer without imposing condition of five years of service in the district concerned and to grant approval to their transfer in accordance with Rule 21 of the Rules of 1981
The circular dated 8-6-2023 is also challenged on the ground that the Board has invited applications for inter-district transfer of Assistant Teachers, but while doing so, the transfers by way of mutual consent have been excluded.
The Court noted that the grievance of petitioners is essentially two-fold:
Firstly, while inviting applications for transfer of Assistant Teachers, there is no rationale to exclude teachers seeking transfers on mutual consent.
Secondly, it is urged that the restriction of five years’ service by a male teacher before applying for transfer is arbitrary and discriminatory. As the U.P. Basic Education (Teachers)(Posting) Rules, 2008 (‘Rules, 2008') do not regulate transfer of teachers and as no such restriction is contained in Rule 21 of the Rules,1981, as such, the restriction imposed of five years’ service is unwarranted and arbitrary.
After perusing the Government Order dated 2-6-2023, the Court said that it laid down the policy for inter-district transfer of teachers working in the institutions run by the Basic Education Board as also for mutual transfer. Petitioners’ grievance is that the Board, while inviting applications on the online portal has restricted the applications only for inter-district transfer and has kept aside applications for mutual transfer. The State has admitted that as of now applications are invited only for inter-district transfers and the process is not initiated for mutual transfer since there are some technical glitches and that the process will be initiated shortly.
Concerning the second grievance of the petitioners, the Court took note of Part II of the Rules of 1981, and said that it is apparent that transfer of a teacher from one cadre to another would be permissible either on his consent or on the request of the teacher. In both the exigencies, however, approval of the Board is necessary. Transfer from one cadre to another otherwise is not contemplated.
The Court took note of the criteria for transfer formulated by the State vide Government Order dated 2-6-2023 for the Academic Session 2023-24. Further, it also took note of Clause 1 and 15 of the Government Order. Clause 1 states that female teacher must complete two years while male teacher must complete five years before her/his transfer would be considered. Clause 15 of the Government Order specifies that the transfer process would be undertaken in consultation with the National Informatics Centre (‘NIC') in an online format. In no circumstance an offline application would be considered.
The Court said that the direction of resorting to the online process for effecting the transfer is in conformity with Clause 5.3 of the National Education Policy, 2020, which requires transfers to be conducted through an online computerised system that ensures transparency. The process undertaken online, prima facie, eliminates the possibility of any pick and choose and is expected to be transparent. The process undertaken online does not contravene any provision of statute nor goes contrary to any constitutional scheme. Therefore, the Court found no error in Clause 15.
Concerning Clause 1 of the Government Order, the Court said that the allocation of cadre and place of posting to a teacher is on the basis of merit and the option exercised. There is a specific purpose of not entertaining applications for transfer after 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. The teachers have an important task to perform and the anxiety on their part must be to impart proper teaching to the students. By restricting their eligibility to seek transfer in normal circumstances for few years the State/Board apparently intends to discourage teachers from hankering for their desired posting soon after their appointment. 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 can the policy be questioned on any valid ground.
As per the Court 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. Thus, the Court held that transfer 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.
[Kul Bhushan Mishra v State of UP, 2023 SCC OnLine All 286, Order dated 16-06-2023]
