HIGH COURT OF JUDICATURE AT ALLAHABAD
?Court No. - 17
Case :- WRIT - A No. - 30808 of 2017
Petitioner :- Bibha Singh Kushawaha
Respondent :- U.P.Basic Education,Board,Allahabad And 3 Others
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh,Arvind Kumar Singh
Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi,Sunil Kumar Singh
Hon'ble Pradeep Kumar Singh Baghel,J.
The petitioner is an Assistant Teacher. She is presently posted at Junior Basic School, Umar Khan-Ka-Tola, Padrauna, District Kushinagar. Her husband is posted at Junior Basic School, Ekwari, Gadhwara, Ballia. Both the institutions are conducted and run by the U.P. Board of Basic Education (for short, "the Board"). She has made a representation for her transfer from Kushinagar to Ballia, where her husband is posted as Assistant Teacher. A copy of her application is on the record as annexure-4 to the writ petition.
Learned counsel for the petitioner submits that Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 deals with the posting and transfer of the teachers working in Junior Basic Schools and Senior Basic Schools run by the Board.
The Rule 8(d) of the Rules, 2008 provides that in normal circumstances the applications for inter-district transfers can be entertained of only those teachers who have completed five years of their posting, however, the exception is provided that an application of a female teacher for her transfer at the place of her husband or in-laws would be entertained.
It is contended by learned counsel for the petitioner that in case the petitioner is directed to submit on-line application in terms of Government Order dated 3.5.2017, in that event the petitioner would not be eligible for transfer as she has not completed five years of requisite service.
Learned counsel for the petitioner has placed reliance on a judgment of Full Bench of this Court in the case of R.B. Dixit v. Union of India and others, (2005) 1 UPLBEC 83.
Sri Sanjay Chaturvedi, learned Advocate, who has put in appearance on behalf of the District Basic Education Officer submits that the State Government has issued guidelines on 13.6.2017 in respect of inter-district transfer of the assistant teachers of Junior Basic Schools and Senior Basic Schools for the session 2017-18. He further submits that on-line applications would be accepted from 7th to 20th August, 2017 and the procedure has been laid down under the said guidelines.
I have heard learned counsel for the parties. With their consent the writ petition is being disposed of finally at this stage in terms of the Rules of the Court.
The Uttar Pradesh Basic Education (Teachers) (Posting) Rules, 2008 have been framed under Section 19(1) of the U.P. Basic Education Act, 1972. The Rule 8(d) provides as under:
"(d) In normal circumstances the applications for inter-district transfers in respect of male and female teachers will not be entertained within five years of their posting. But under special circumstances, applications for inter-district transfers in respect of female teachers would be entertained to the place of residence of their husband or in law's district."
From a reading of the aforesaid Rule it is evident that under the special circumstances an application of a female teacher can be entertained for her transfer at the place of residence of her husband or in-law's district. In such cases the requirement of five years of posting has been relaxed.
It is a well settled law that the Government Order cannot supplant the law, it can only supplement it. Indisputably, an executive order cannot override the Rules which have been framed by the rule making authority in exercise of powers conferred upon it by the Act. In case of any inconsistency with the delegated legislation, executive instructions or the Government Order, the Rule cannot be ignored. The same issue fell for consideration before a Division Bench of this Court in R.B. Dixit (supra) in the following terms:
"6. We have held in Smart Chip v. State of U.P., 2002 (49) ALR 419, that in every legal system there is a hierarchy of norms as noted by the eminent jurist Kelson in his Pure Theory of Law. In the Indian Legal System this hierarchy is as follows:
1. The Constitution.
2. Statutory law, which may either be made by the Parliament or by the State legislature.
3. Delegated legislation, which may be either in the form of Rules, Regulations or Statutes made under the Act.
4. Executive instructions or Government Orders.
7. In the above hierarchy if there is conflict between a higher law and a lower law then the higher law will prevail. The executive instructions are part of the fourth layer in the hierarchy, which is at the lowest level, whereas an Act is part of the second layer and the Statutes made under the Act are delegated legislation and hence part of the third layer. The letters dated 31.8.1998 and 30.3.1999 are only executive instructions and hence they belong to the fourth layer. Hence they are neither Act nor Statutes. Hence in our opinion the age of retirement of an employee of the Indian Institute of technology is 60 years and not 62 years vide Section 13(2). We, therefore, respectfully disagree with the decision in Raja Ram Verma's case."
This issue has been considered by this Court in the case of Sarita Gupta v. State of U.P. & Others, Writ-A No. 7096 of 2010, decided on 30.7.2010. The Court had occasion to deal with the similar arguments and at that time a Government order was issued imposing certain restrictions on transfer. The Court has expressed its view in the following terms:
"The ban is general in nature. However, the provision of transfer for the purposes of placing husband and wife in the same district is a special provision which will normally prevail upon general temporary restriction on transfer.
Accordingly, writ petition is allowed. Impugned order is set aside. Secretary, U.P. Basic Shiksha Parishad, Allahabad is directed to decide the matter ignoring the ban order dated 6.6.2009. The decision shall be taken positively within three weeks from today."
It is trite that in most of the services of the Central Government and the State Governments, there is provision in their transfer policy that an endeavour should be made that husband and wife may be posted at the same place. In view of the said principle, under the Rules 2008 the provision of the couple posting has been incorporated.
The intention of rule making authority is very clear and it needs no elaboration.�Relevant it would be to mention that in transfer policy of State Government for Government employees there is provision only for husband and wife but in Rule 8(d) of the Rules, 2008 the in-laws of the female teachers have also been included. Hence, in my view, in spite of the Government Order dated 3.5.2017 a female teacher's application for her transfer on the ground of couple posting or in-laws can be entertained notwithstanding some of the contrary provisions of the said Government order.
For the above-mentioned reasons, there is no legal bar in considering the representation of the petitioner in terms of Rule 8(d) of the Rules, 2008.
Accordingly, a direction is issued upon the first respondent to consider the representation of the petitioner in the light of the observations made herein-above and pass appropriate order expeditiously, preferably within six weeks from the date of communication of this order.
The writ petition is, accordingly, disposed of.
No order as to costs.
Order Date :- 19.7.2017