ARUN KUMAR Vs. STATE OF U P

JUDGEMENT

(1.) The petitioner was transferred along with several other persons by the order dated 7th June, 1997 from Junior High School. Bharthana to Junior High School, Amthari (Thakha). By the same order respondent No. 6 was transferred from Junior High School, Hathanauli to Junior High School. Bharthana. Thus, it appears that the respondent No. 6 was transferred to the place from where the petitioner was transferred. This order of transfer was challenged by the petitioner by means of Civil Misc. Writ Petition No. 31080 of 1997. which has since been disposed of on 22nd of September. 1997. Pursuant to the order dated 22nd of September, 1997 passed in the said writ petition the petitioner had made a representation. By the order dated 29th of April, 1998 the said representation was allowed. The order of transfer was set aside by the Secretary, U. P. Basic Shlksha Parishad. Allahabad. The cancellation of the order of transfer was passed on two grounds. The first is that the petitioner was transferred within one year of his posting in the said school. The second is that the order of transfer was not approved by the Transfer Committee. After the said order, the petitioner was reinstated In the same school and had taken over the charge. Thereafter by an order dated 30.6.98 the petitioner was again transferred. This order has since been challenged in this writ petition. Mr. Ashok Khare, learned counsel for the petitioner contends that this order was not passed by the District Basic Shiksha Officer independently on his own discretion. On the other hand, he passed the order without application of mind on 30.6.98 pursuant to the direction dated 22nd of June, 1998 and letter dated 16.5.1998 and a copy of the said order was also sent to the Hon'ble Minister of the State Incharge of Education, which according to him. was an order passed at the Instance of the Hon'ble Minister of the State Incharge of Education. According to him. no authority is vested in the State to issue any direction with regard to the transfer and posting of an individual teacher or Head-master Inasmuch as the scope and ambit of interference by the State under Section 13 of the U. P. Basic Education Act, 1972 does not postulate any such action. He contends that the Hon'ble Minister of the State Incharge of Education may. however, issue any directions for Government employee. His jurisdiction cannot include those in respect of the administration of the Basic Education, which is carried on through the Board, a statutory authority having an autonomus and independent existence as provided under the Act and Rules framed particularly in respect of transfer and posting. According to him Sections 10, 10A and 11 of the Act provide that the Board shall carry out such directions of the Government for different purposes of administration of the basic schools. In view of such elaborate procedure, the Government in no way can interfere except within the scope and ambit as provided under Section 13 thereof. He also contends that the orders of transfer has been passed without application of mind by the District Basic Education Officer again without approval of the transfer Committee on the grounds on which the earlier order was set aside. Therefore, in effect, which could not be done on the earlier occasion, is being sought to be done with the stamp of the State Government, which is wholly uncalled for and beyond the scope and Jurisdiction by virtue of Section 13 of the Act. Therefore, according to him. the order dated 30th of June. 1998 is wholly without Jurisdiction and void ab initio. On these grounds he prays for quashing of the said order of transfer.

(2.) Mr. Krishna Ji Khare appearing for respondent No. 6 contends that the State Government has every authority and jurisdiction to issue directions even with regard to the transfer and posting by virtue of Section 13 of the Act. The Hon'ble Minister of State being an authority relating to education and the powers having been vested to the Hon'ble Minister, it was well within the Jurisdiction of the said Hon'ble Minister to pass appropriate orders even in respect of transfer and posting. He further contends that there is nothing in the Acts or Rules that the transfers will be affected only with the approval of the Transfer Committee. On the other hand, he contends that the transfer can be made under Rule 18 of the Uttar Pradesh Recognised Basic Schools (Junior High Schools) (Recruitment and Conditions of Service of Teachers] Rules, 1978 which provides that a person can be transferred only on an application of the teacher. He also contends that by the decision in the case of Rajendra Kumar Yadav v. State of U. P. and others. 1996 (4) LCD 178, the authority of the Hon'ble Minister is accepted in the matter of passing an order of transfer. He further contends that the transfer has been effected within the same area which is 2 Kilometers away from where the petitioner is working. He further contends that two years have lapsed in between one of the ground for setting aside the order is no more in existence. In the absence of any provision that the transfer has to be made on the basis of the recommendation of Transfer Committee, the transfer cannol be said to be invalid. He also contends that the District Basic Education Officer being an authority relating to education having applied his mind on the basis of the Government Order, it cannot be said that the order was passed without application of mind. His further contention was that the Hon'ble Minister of the State Incharge of Education has power to give direction for transfer. Alternatively. he further contends that the transfer order was passed on 30th of June. 1998, therefore the petitioner is not entitled to the interim order. On these grounds he contends that the writ petition should be dismissed.

(3.) I have heard both the learned counsel at length. Since both the learned counsel have addressed on merits of the case at length, this writ petition is, therefore, disposed of at the stage of admission, to which they have no objection.