H. KRISHNA v. STATE OF MYSORE — 1973 DIGILAW 184 (KAR)

MALIMATH, J. ( 1 ) AS common questions are raised in all these cases, they were heard together and disposed of by this common order. ( 2 ) AFTER all the Counsel for the petitioners were heard and when sri K. S. Puttaswamy, Addl. Govt. Advocate, was on his legs, he made a request for giving some time to file a further affidavit in, support of the respondents' case. As the request was made at a very belated stage, that request of Shri K. S. Puttaswamy was not acceded to. ( 3 ) THE petitioners in all these cases are Government servants who are working as Primary School Teachers in various schools cf the State government. The petitioners in some of these writ petitions have challenged the validity of clause No. 3 of the order of the State Government bearing No. ED 65 PMS 7s dated 25th April 1973 published in the Mysore gazette dated 3rd May 1973. The petitioners in the other writ petitions have challenged the validity of the entire older referred to above. After the learned counsel for the petitioners in all these cases as well as Shri k. S. Puttaswamy, learned Additional Government Advocate were heard the counsel appearing for the petitioners made it clear to me that they are restricting their prayer in all these Writ Petitions for the quashing of clause No. 3 of the aforesaid order of the State Government. It is, therefore, unnecessary to go into the other contentions raised in the affidavits filed in support of some of the Writ Petitions challenging the validity of the other portions of the impugned order. ( 4 ) THE posts of Primary School Teachers held by the, petitioners, it is not disputted, are transferable and that transferability is one of the conditions of service. It is also not disputed that there is neither a legislative enactment nor a rule framed under the proviso to Art. 309 of the constitution regulating transfer of Primary School Teachers. The matter relating to transfer was "regulated from time time by executive orders issued by the State Governmet under Art. 162 of the Constitution. Along with the counter affidavit filed on behalf of the State, an Official memorandum of the Government dated 24th January 1964 has been, produced as Ext. The matter relating to transfer was "regulated from time time by executive orders issued by the State Governmet under Art. 162 of the Constitution. Along with the counter affidavit filed on behalf of the State, an Official memorandum of the Government dated 24th January 1964 has been, produced as Ext. R (1) which contains the summary of orders pertaining to transfer issued by the State Government from time to time. It is clear from paragraph no. 2 of the said Official Memorandum that instructions were issued to the effect that Gazetted Officers and Non-Gazetted Non-Ministerial officers should not normally be posted to their home towns or areas where they own immoveable property, this restriction being not applicable in the case of officers having jurisdiction over more than one District. There was, however, a specific instruction issued by the Government by its Order No. ED 129 PMS 70 dt. lsth August 1970 produced along with the counter affidavit, Annexure R-3 pertaining to transfer of Primary school Teachers. The said order directed that in the case of new appointments, no posting should be given to the Primary School Teachers in their home taluks and that in the case of teachers who are already in service in their home taluks, they should be transferred out of their respective taluks in a phased programme, over a period of time, commencing from the academic year 1971-72. The order states that strict instructions should be issued to the appointing officers to enforce the said order. This order was followed by th,e impugned order of the State Government dt. 25th april 1973. The order states that it will come into effect forthwith, and that the same has been issued in supersession of all the previous orders and circulars on the subject of transfer of Primary School Teachers. It directs that general orders of transfers of Primary School Teachers should be issued before the end of May every year. Clause (2) of the order provides that teachers who have stayed (not necessarily continuous stay) in. a particular place (not institutions) for more than five years should be transferred in a phased programme. It further provides that teachers with less than five years of stay in a particular place may be transferred either on the ground of complaint or on their own requests. It makes it clear that in the latter case, T. A. will not be allowed. It further provides that teachers with less than five years of stay in a particular place may be transferred either on the ground of complaint or on their own requests. It makes it clear that in the latter case, T. A. will not be allowed. Clause (3) of the impugned order may be extracted here. It reads as follows :" (3) Teachers who are working in their home taluks should be transferred out of their home taluks in a phased programme. In the beginning those who have stayed for more than ten years or more be transferred. Such transfers should not exceed ten per cent of the total number of teachers in the Taluk. "exemption is, however, given by the order to the following categories of primary School Teachers: - (i) Teachers closely related to employees working in the Defence Services and who are required to look after their families provided requests come from the persons working in the Defence Service through their commanding Officer duly recommended. (ii) Husband and wife working in the same place in Government (Both State and Central Governments or Quasi-Government institutions) unless both can be transferred. (iii) A teacher who has less than five years of service before retirement. It is, however, made clear that the exemptions are subject to the condition that there are no complaints against the 'teachers concerned. Cl. (4) of the order provides that as regards the transfer of teachers, he or she may be transferred to the same place where his/her wife/husband is working. It further provides that if both wife and husband are working as teachers they should be posted to a place outside their native taluk. This portion of Cl. (4) of the order is really in the nature of a corollary to the Impugned Cl. (3) of the order. The remaining portion of Cl. (4) of the order gives the order of preference for giving effect to the said clause. Cl. (5) of the order provides that in respect of Scheduled Castes/scheduled Tribes teachers, he or she may be posted to a place where he or she can get living accommodation, and that their request to a particular place be considered and given effect to provided there are no complaints against them and subject to other conditions being satisfied. Cl. (5) of the order provides that in respect of Scheduled Castes/scheduled Tribes teachers, he or she may be posted to a place where he or she can get living accommodation, and that their request to a particular place be considered and given effect to provided there are no complaints against them and subject to other conditions being satisfied. It further provides that except in the case of those exempted by the order, a teacher working outside his native taluk should not be brought into his native taluk. This portion of Cl. (5) of the order again is in the nature of a corollary to Cl. (3) of the impugned order. Cl. (5) further provides that in respect of a teacher working in his native 'taluk if he desires a change within that taluk, the question of native taluk does not arise so long as he has not reached the stage for. being transferred outside the native taluk. This portion of Cl. (5) of the order is also in the nature of a corollary to cl. (3) of the impugned order. It is unnecessary to advert to the other portions of the order whicn have relevance to the transfer of the Primary school Teachers in Bangalore City District and the procedure to be followed by the officers concerned for implementation of the impugned order. ( 5 ) CLAUSE (3) of the impugned order and other portions of Cls. (4) and (5) of the order which are in the nature of corollaries to Cl. (3), which i have adverted to above, are impugned by the petitioners on the ground that the same are violative of the fundamental rights guaranteed to the petitioners under Art. 14 of the Constitution. The case of the petitioners is that even if the Primary School Teachers may be regarded as a well defined class different and distinct from other Government servants, there is no justification for treating the Primary School Teachers for special treatment by Cl. (3) of the impugned order in the matter of transfer. That the State Government has power to issue instructions regulating transfer of its Government servants cannot be disputed. It cannot also be disputed that the State Government can, in exercise of its executive powers under Art. 162 of the Constitution, prescribe the conditions for transfer as well as the procedure for effecting such transfers. That the State Government has power to issue instructions regulating transfer of its Government servants cannot be disputed. It cannot also be disputed that the State Government can, in exercise of its executive powers under Art. 162 of the Constitution, prescribe the conditions for transfer as well as the procedure for effecting such transfers. It cannot also be disputed that this Court cannot go into the question of the propriety of an order of transfer made by the State Government or its Officers in a given case. But if the State government issues a general order as it has done in these cases laying down the conditions and the procedure for transfer of Primary School teachers and a complaint is made that the action taken by the State government amounts to hostile discrimination against the petitioners, the court has necessarilly to examine as to whether the classification made by the State Government is justified on the basis of well known principles. In order to meet the attack of the petitioners that the impugned order violates Art. 14 of the Constitution the State has necessarily to establish that it has made a reasonable classification and that the classification so made has a rational nexus with the object sought to be achieved. It is no doubt true that che Court has to bear in mind that there is an initial presumption in regard to the constitutional validity of the impugned order. ( 6 ) AS already mentioned, the principal contention of the petitioners is that though the Primary School Teachers' can be regarded as a clear and distinct class from other Government servants of the State, the classification made for the purpose of impugned order has no nexus with the object sought to be achieved by the order. Generally stated, the object of the order of transfer must be regarded as being ' public interest'. The petitioners have asserted that whereas there is no directive issued by the state Government, that other Government servants should not be posted to their home taluks, it is only the Primary School Teachers that have been picked and chosen for such hostile treatment by the State and for which there is no justification whatsoever. The order itself does not give any reasons as to why this class of Govt. servants has been picked and chosen for imposition of a ban as contained in Cl. The order itself does not give any reasons as to why this class of Govt. servants has been picked and chosen for imposition of a ban as contained in Cl. (3) of the impugned order against the Primary School Teachers being posted in their home taluks. There is no apparent reason which can easily be discerned. The State Govt. which has filed its counter affidavit, though it has given the background for the passing of the impugned order, has not stated any reason as to why it became necessary to impose a ban against transfer to the home taluks only in respect of one class of Government servants viz. , the primary School Teachers. In paragraph 5 of the counter affidavit, this is what is stated :" Notwithstanding the above orders and instructions, Government found that a large number of Primary School Teachers were employed in their home towns or places or taluks and the competent officers had not strictly carried out the instructions issued thereto by the Government. In addition to the above there were general complaints of favouritism and victimisation in the matter of transfer against competent authorities. To obviate this kind of complaint, the government thought it necessary to have a rational and consistent policy in the matter of transfers of Primary School Teachers and therefore the impugned Government Order was issued. "the reference in the aforesaid portion of the counter affidavit to the earlier order of the State Government is to the order dt. 13th August 1970 by which the State Government directed that so far as the Primary school Teachers are concerned, they should not be posted to their home taluks,. That the ban contained in the order of 13th August 1970 is similar to the ban contained in Clause (3) of the impugned order does not afford any justification. If Clause (3) of the impugned order is violative of Article 14 of the Constitution, it follows that the earlier direction issued by the -State Government on 13th August, 1970 also suffers from similar infirmity. Therefore that an order similar to Cl. (3) of the impugned order was not given effect to by the subordinate officers or that there was favouritism or victimisation in enforcing that order can hardly be regarded as affording justification for the impugned order. Therefore that an order similar to Cl. (3) of the impugned order was not given effect to by the subordinate officers or that there was favouritism or victimisation in enforcing that order can hardly be regarded as affording justification for the impugned order. The counter affidvait filed on behalf of the State does not therefore give any reason for justifying a special treatment so far as the Primary School Teachers are concerned by the imposition of the ban contained in Cl. (3) of the impugned order. If orders of transfer are required to be made in public interest, public interest wo'jld necessarily require similar treatment being meted out to other Government tervants of the State. There ia no peculiarity or special reason pleaded or proved justifying the imposition, of a ban as contained in Cl. (3) of the impugned order read along with its corollaries in Cls. (4) and (5) of the said order. I am, therefore, clearly of the opinion that there is no nexus between the object sought to be achieved and the classification sought to be made by the impugned order. ( 7 ) IN the decision reported in the case of Moti Ram Deka v. General Manager, NEFRly. (1), the Supreme Court struck down Rules 148 (3) and 149 (3) of the Railway Establisment Code on the ground that there was no justification for prescribing a special rule, of retirement by giving three months notice only so far as Railway servants are concerned as against all other servants of the Central Government. The Supreme court held that the subject matter being termination of service, there was no special-reason as to why the Railway servants should be treated in a different manner. The same principle equally applies to the facts of the present case. In the matter of transfer of Government servants, I do not find any reason or justification for treating the Primary School Teachers in a different manner than other Government servants. Cl. (3) of the impugned order of the Government is therefore clearly violative of art. 14 of the Constitution. Hence the same is struck down as offending art. 14 of the Constitution. The following sentences in Cls. (4) and (5) respectively being in the nature of corollaries to Cl. (3) the same are also struck down as offending Art. 14 of the Constitution. 14 of the Constitution. Hence the same is struck down as offending art. 14 of the Constitution. The following sentences in Cls. (4) and (5) respectively being in the nature of corollaries to Cl. (3) the same are also struck down as offending Art. 14 of the Constitution. They read as follows :" Clause (4)-If both wife and husband are working as teachers they should be posted to a place outside their native taluk. Clause (5)-Except in the case of those exempted as above, a teacher working outside his native taluk should not be brought into his native taluk. In respect of a teacher working in his native taluk if he desires a change within that taluk, the question of native taluk does not arise so long as he has not reached the stage for being transferred outside the native taluk. " ( 8 ) AS the petitioners were transferred from their home taluks in pursuance of the impugned order a writ in the nature of mandamus has to be issued directing the State Government and their officers to forbear from going effect to the portions of the impugned order of the State government which have been struck down by this order. It is ordered accordingly. ( 9 ) THE petitioners are entitled to their costs. Advocte fee Rs. 100 in each case. --- *** --- .