Union of India through the General Manager, E. Rly v. Nityanand Jha
1985-03-13
P.S.SAHAY, SANDHAWALIA
body1985
DigiLaw.ai
JUDGMENT P.S. Sahay, J. This appeal under Clause 10 of the Letters Patent is directed against the judgment of a learned single Judge passed in C.W.J.C. 4585 of 1982 on 7.11.1983. 2. Respondent no. 1, Nityanand Jha was appointed as a teacher in the Eastern Railway High School in Grade II on 26.11.1964 and respondent no. 2, Ramadhar singh, was appointed some times in the same grade in 1977 and was working in Jhajha High School. On 25.5.1979 he was transferred to M.E, School Jhajha and respondent no.1 was sent in his place. On 25.9.1979 respondent no.2 was reposted in the High English School and respondent no. 1 was transferred to Middle English School. Being aggrieved by the aforesaid order respondent no. l moved this Court under Articles 226 and 227 of the Constitution of India which gave rise to C.W.J.C. 4585 of 1982. 3. A point was taken in that writ application that he was senior to respondent no. 2, Ramadhar Singh, having been appointed earlier and has been transferred from High English School to Middle English School and the transfer was discriminatory in nature. The learned judge after bearing the case of the parties, held that respondent no.1 being senior to respondent no.2 was being transferred to a Middle School from a High School, the transfer was discriminatory against the well known principle that per80n having the same status should be transferred from one School to another and he, therefore, quashed the order of transfer. The learned Judge further gave the following direction: "I further direct the Railway authorities to keep a separate cadre of the teachers of primary and middle Schools. They should also keep a separate cadre for the teachers of the High Schools." Being aggrieved by the aforesaid judgment the appellants have preferred this appeal. 4. Mr. A.B. Ojha, learned counsel appearing on behalf of the Railway Administration, has submitted that the order of the learned single Judge canceling the order of transfer is wholly illegal and unjustified and is fit to be set aside. He has further argued that it was neither pleaded nor argued before the learned Judge that a separate cadre should be created for the High English School and Middle English School and, therefore the direction given by the learned single Judge was beyond the scope of the writ application.
He has further argued that it was neither pleaded nor argued before the learned Judge that a separate cadre should be created for the High English School and Middle English School and, therefore the direction given by the learned single Judge was beyond the scope of the writ application. He has submitted that creation of cadre is within the domain of the Railway administration who are the employers and these involve policy matters, and the direction given by the learned single Judge will prejudice the Railway administration and is bound to create complications. He has, further, submitted that the two respondents were working in the same cadre as teachers and even if respondent no.1 was working in the High School and was transferred to Middle School the action cannot be said to be discriminatory. In my opinion, the contention raised on behalf of the learned counsel bas to be accepted. Mr. Tara Kant Jha, learned counsel appearing for respondent no.1, frankly conceded that the second part of the order was not even urged by him and could not be supported. Regarding the order of transfer ho has half heartedly contended that respondent no.2 was working in the High School and himself asked for his transfer to the Middle School and, therefore, now he could not resist the transfer. This submission has absolutely no force. A person, for some reason or other, may seek transfer from one School to the other but it does not mean that he can never go back to that School from where he was transferred. Moreover, transfer from one place to another, is made on administrative grounds and also according to exigencies of the situation and Courts normally do not interfere in such transfers except in few exceptional cases. It was not shown to the learned single Judge and it has also not been show to us that there has been a violation of any statutory rules of procedure. Both the respondents were of the same cadre and the second part of the direction given by the learned single Judge to create a separate cadre clearly indicate that there was no separate cadre till then. In that view of the matter, no question of discrimination arises. Thus, in my considered opinion the order, of the learned single Judge canceling the transfer, must hold to be bad.
In that view of the matter, no question of discrimination arises. Thus, in my considered opinion the order, of the learned single Judge canceling the transfer, must hold to be bad. The second part of the order to create separate cadres to teachers of High School and Middle School is equally bad and was neither pleaded argued by the parties and, thus, was beyond the scope of the writ application. 5. Tile appeal is, accordingly, allowed end the order of the learned single Judge is hereby, set aside. But there shall be no order as to costs. Appeal allowed.