‘Transfer Not Matter Of Right’: Allahabad HC Upholds Validity Of UP Govt’s Transfer Policy For Basic Education Assistant Teachers

The bench of Justice Ashwani Kumar Mishra and Justice Ashutosh Srivastava did not find any illegality in the policy of the State to restrict the entertainment of application for transfer in normal circumstances unless a particular teacher has completed a specified length of service (five years’ service for male teachers and two years’ service for female teachers) in the cadre.

“…the legitimacy of a policy can be assessed on the touchstone of constitutional parameters. Constitutional values are also taken into consideration while designing its policy. In the facts of the case, we do not find the policy to be either violating the constitutional parameters or infringing the constitutional values,” the Court said as it dismissed a writ petition filed by 2 assistant teachers challenging Clause 1 and 15 of the Government Order (of June 2, 2023) as well as the consequential circular issued by the Secretary, Board of Basic Education (of June 8).

The case in brief

Essentially, it was the case of the petitioners that Clause 1 of the GO puts a restriction on a male teacher to complete at least five years in service before applying for transfer and hence, the same is arbitrary and discriminatory.

It was also the case of the petitioners that while inviting applications for transfer of Assistant Teachers, there was no rationale to exclude teachers seeking transfers on mutual consent. It was their argument that requests for mutual transfers be considered liberally, without imposing any restriction on the minimum length of service in the district concerned.

High Court’s observations

So far as the petitioners’ grievance with regard to mutual transfer not being allowed was concerned, the Court noted that the Government Order of June 2 lays down the policy for inter-district transfer of teachers working in the institutions run by the Basic Education Board as also for mutual transfer.

Now, regarding the petitioners’ grievance that the Board, while inviting applications on the online portal, restricted the applications only for inter-district transfer and kept aside the applications for mutual transfer, the Court took into account the statement of the counsel for the Board that the process is not initiated for mutual transfer since there are some technical glitches and that the process will be initiated shortly.

In view of this, the Court noted that this statement of the board adequately protects the petitioners so far as their grievance on the first count is concerned.

Now regarding the challenge to the requirement of five years of working before making an application for transfer, the Court opined thus:

“There is a specific purpose of not entertaining applications for transfer for a 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 manoeuvring their transfer to their desired place.”

Further, stressing that the teachers have an essential task to perform and the anxiety on their part must be to impart proper teaching to the students, the Court observed thus:

“By restricting their eligibility to seek transfer in normal circumstances for a 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 thus cannot be said to be arbitrary nor the policy can be questioned on any valid ground…Transfer, therefore, 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.”

Against this backdrop, the Court did not find any infirmity in the policy of the State. Even otherwise, the Court clarified, in exceptional circumstances minimum period can be waived provided the Board is satisfied with regard to the existence of exceptional circumstances for transfer.

“Old age of grandparents, etc., which is the cause pleaded for transfer, would not constitute exceptional circumstance for transfer. These considerations otherwise are required to be examined by the Board at the first instance,” the Court added.

In view of the deliberations and discussion held by the Court, the Court disposed of the writ petition on the following terms: -

(i) Challenge laid to Clause 1 and 15 of the Government Order dated 2.6.2023 and a challenge to Circular dated 8.6.2023 fails and is rejected.

(ii) In light of the statement made by the Board that online applications for inter-district transfer would be entertained shortly, and claims of eligible Assistant Teachers would be dealt with, it is provided that the Board shall open the online portal for mutual transfer, at the earliest possible, preferably within six weeks and claims of eligible teachers shall be dealt with, as per law.

(iii) Condition contained in the policy requiring, in normal circumstances, a minimum length of service of five years in the cadre for male teachers and two years’ service for female teachers before seeking transfer is upheld. The challenge to such policy fails, accordingly.

Appearances

Counsel for Petitioner: Satyendra Chandra Tripathi

Counsel for Respondent: C.S.C, Bipin Bihari Pandey, Archana Singh

Case title - Kul Bhushan Mishra And Another vs. State Of U.P. And 4 Others 2023 LiveLaw (AB) 197 [WRIT - A No. - 10209 of 2023]

Case Citation: 2023 LiveLaw (AB) 197

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