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1987 DIGILAW 188 (ALL)

Kumari Krishna Yadav v. State of Uttar Pradesh

1987-02-19

RAVI SWAROOP DHAVAN, V.K.KHANNA

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JUDGMENT Ravi Swaroop Dhavan, J. - The petitioner. Km. Krishna Yadav, is an employee of the State Government, the Department of Education, and has petitioned this Court under Article 226 of the Constitution of India to resist her transfer from Allahabad to Bindki, District Fatehpur, a neighbouring district. At Allahabad the petitioner held the designation of Upper Basic Shikha Adhikari (Mahila), Allahabad. At Fatehpur she was required to hold the post and designation of Principal, the State Girls Intermediate College at Bindiki. The petitioner alleges that the Director of Education (Mahyamik), Uttar Pradesh arrayed as respondent No. 2 does not have the authority under the law to effect this transfer order. The petitioner contends that such an order of transfer cannot be passed by the Director of Education (Madhyamik), but by the Director of Education (Basic). To fortify this plea the petitioner contends that the order of transfer cannot be justified under the State Government orders dated 30 May, 1977 and to the writ petition. 2. In answer to the petition were filed two counter affidavits on behalf of State respondents. The first counter affidavit was in pursuance of the direction of this court to the effect that a short affidavit be filed by pleading before the Court that the order of transfer has been passed by a competent officer. In pursuance of the direction of this Court a short counter affidavit was filed on behalf of the State respondents to the effect that the order of transfer, in reference to the context, has been passed by the Director of Education (Secondary) with the consent of the Director of Basic Education. The order of transfer was in pursuance of the guidelines provided by a Government Order of the Department of Education Uttar Pradesh dated 31 March, 1986, which has been appended to the short counter affidavit (herein-after referred to as such) affirmed on 18 July, 1986 by one Sabhapati Pandey, a Senior Clerk at the Director of Education, U.P. Allahabad. Subsequently the State respondent filed a counter affidavit in answer to the writ petition, which was affirmed by Miss. Hemlata Bhatia, Assistant Deputy Director of Education (Women). 3. These two counter affidavits were answered by two rejoinder affidavits. 4. The arguments were heard by the Court at length after hearing Mr. R.A. Sharma, Advocate, on behalf of the petitioner and Mr. Hemlata Bhatia, Assistant Deputy Director of Education (Women). 3. These two counter affidavits were answered by two rejoinder affidavits. 4. The arguments were heard by the Court at length after hearing Mr. R.A. Sharma, Advocate, on behalf of the petitioner and Mr. P.C. Srivastava, learned standing counsel on behalf of the State of Uttar Pradesh. The arguments were concluded virtually on 9 September, 1986 except for the fact that Mr. R.A. Sharma, learned counsel for the petitioner, sought indulgence to produce before this Court rules, if, framed by the Department of Education, to the effect that the petitioner could not be transferred from the Directorate of Basic Shiksha to the Directorate of Madhyamik Shikha. This indulgence was granted by this Court at the request of learned counsel, aforesaid. On behalf of the petitioner, the matter was taken on 11 September, 1986, when learned counsel, Mr. R.A Sharma, appeared at the Bar and made statement to the effect that he has not been able to locate any rule having a bearing on the issue sought to be raised by him on 9 September, 1986. He candidly and fairly added that he has argued all that he could. Subsequently on that day, that is, 11 September, 1986 a learned Advocate, Mr. Radhey Shyam, appeared at the Bar with a request that the petition be adjourned so that it may be further argued by Mr. V.C. Mishra, Senior Advocate, who has been instructed. Mr. R.A. Sharma learned counsel for the petitioner has not withdrawn from the case and he made a statement at the Bar that he had no knowledge of the request made by Mr. Radhay Shyam, Advocate, aforesaid. Notwithstanding, the fact that the matter had been heard at length and arguments were closed, this Court granted indulgence of further hearing to the petitioner's counsel subsequently engaged, that is, Mr. V.C. Mishra Senior Advocate. Thus this Court directed that the case be adjourned on 11 September, 1986 and be taken up at the request of the subsequent counsel so instructed, on 23 September, 1986. The resume of the court proceeding is on record of the order-sheet. On 23 September, 1986 were filed on behalf of the petitioner two applications, one seeking the addition of two grounds to the writ petition and by the other application written arguments were placed on record. The resume of the court proceeding is on record of the order-sheet. On 23 September, 1986 were filed on behalf of the petitioner two applications, one seeking the addition of two grounds to the writ petition and by the other application written arguments were placed on record. There were no further arguments on that day, and judgment was reserved. 5. This Court after hearing arguments on behalf of the parties has perused the pleadings as are on record and also the written arguments submitted on record and also the written arguments submitted on behalf of the petitioner. In effect, the effort of the petitioner is to resist an administrative order of transfer on legal plea. Even in the written arguments the petitioner has reiterated the plea that as the petitioner is an officer of the U.P. Education Services; U.P. Saikshik Seva (Kanist Vetan Kram) and she can be transferred only by the Director of Education (Basic) as she is holding the post of Upper Zila Basic Shikhsa Adhikari (Women), under the aforesaid Director. In addition the petitioner also submits that the aforesaid Director can only transfer her within his Directorate and does not have the power to accord consent so that she may be transferred to the control of any other Directorate, though within the Department of Education. 6. Even before there was a change of counsel on behalf of the petitioner after Mr. R.A. Sharma, Advocate, has closed his argument this Court had summoned the original records on the basis of which the mechanics of the transfer order in reference to the petitioner have been set in motion. This Court has asked the subsequent counsel appearing on behalf of the petitioner whether they were aware of the fact that the original records have been summoned and that this Court had devoted considerable time to see the notings made on the department file. It appears that subsequent counsel so instructed on behalf of the petitioner, was not aware of the details placed before the Court that the original records have beep summoned, and seen. 7. Contrary to what has been asserted before this Court that the transfer of the petitioner is not on administrative ground but as a measure of punishment, the original record as summoned by this Court reveals a different story. The petitioner was not alone when she was transferred. 7. Contrary to what has been asserted before this Court that the transfer of the petitioner is not on administrative ground but as a measure of punishment, the original record as summoned by this Court reveals a different story. The petitioner was not alone when she was transferred. She was transferred in routine amongst four other persons by a formal order dated 24 June, 1986. The same transfer order also contains posting of three other officers. These were Miss. Durga Tewari from Principal, Rajkiya Inter College, Phulpur, Allahabad to Upper Zila Basic Shiksha Adhikari (Mahila) Allahabad, Mrs. Suman Chunekar, Principal, Rajkiya Kanya Inter College, Mohammadabad, Ghazipur to Principal, Rajkiya Kanya Inter College, Phulpur, Allahabad and Mrs. Priyamda Srivastava, Principal, Rajkiya Kanya Inter College, Fatehpur to Zila Balika Vidyalaya Nirikshak, Kanpur. All these transfers and postings were done in the interest of administration. 8. The record further shows that the petitioner had been attempting to resist her transfer by putting extraneous pressure on the department. At times, the department had succumbed to these pressures. We are not examining the reasons why the petitioner stalled her transfer as, atleast the records reveal, that, it was at times on compassionate ground. Once the transfer order was stalled for reasons that she had an aged mother at Allahabad and she was the only one to look after her. The three others who have been transferred along with the petitioner, likewise are also either leaving an administrative assignment and taking a teaching post or vice-versa. 9. At the Bar the petitioner pleaded that as she was working as Upper Basic Shiksha Adhikari (Mahila), Allahabad, she could only be transferred by the Director of Education (Basic) and not by the Director of Education (Madhyamik). Even this plea of the petitioner is misconceived. Firstly, the transfer is inter-departmental within the Directorate of Education, Uttar Pradesh and secondly even if, the petitioner's contention could be appreciated, the record of the department as produced before this Court shows that on 22 June, 1986 the two Directors of Education, aforesaid, that is to say the Director of Education (Basic) and Director of Education (Madhyamik) jointly signed the order of transfers and postings in reference to the four persons, aforesaid. The petitioner was one of them. The petitioner was one of them. It is only when the two Directors had accorded their approval to the transfers and postings of four persons, mentioned above, that the impugned order was issued. This is the transfer order dated 24 June, 1986, appended as annexure 3 to the writ petition. This Court after examining the pleadings and the original record summoned and produced by the State respondent does not find any victimisation or any irregularity or illegality in reference to the transfer order impugned by the petitioner. The three others who have been transferred along with the petitioner, likewise are also either leaving an administrative assignment and taking a teaching post or vice-versa. 10. In 1981, when the petitioner was Principal, Rajkiya Balika Intermediate College, Phulpur, District Allahabad, she was transferred as Upper Zila Basic Siksha Adhikari (Mahila), Bahraich. She never went there. Subsequently she was transferred on a like post to Gonda, she never went there too. She had the transfer stalled. The records reveal that her mother wrote to the State Education Minister. Her mother's appeal was backed by a letter of recommendation from a Hon'ble Member of the Legislative Assembly. This was in September, 1984. The recommendation was that the petitioner's transfer to Gonda be cancelled, so that she remains in Phulpur, Allahabad, and if that is not possible then she should be stationed in Allahabad as Upper Zila Basic Shiksha Adhikari (Mahila). The Hon'ble Minister of Education, directed the Education Secretary, in effect, to accept the suggestion. The petitioner, thus, remained in Allahabad. 11. The petitioner clung to a teaching post when it suited her; she sought an administrative post when it was convenient. No issue was made on these occasions that either of these posts were ill suited to her cadre All these are matters of record. Then the petitioner also desired and solicited through a Hon'ble Member of the Legislative Assembly, a posting in or around Allahabad. In her rejoinder affidavit these circumstances are accepted; she submits: 13........the petitioner was transferred from Phulpur (Allahabad) to Bahraich then to Gonda. She was transferred to Allahabad in January, 1985 on account of her personal difficulties and within such a short time and she is being again transferred from Allahabad without any justification. In her rejoinder affidavit these circumstances are accepted; she submits: 13........the petitioner was transferred from Phulpur (Allahabad) to Bahraich then to Gonda. She was transferred to Allahabad in January, 1985 on account of her personal difficulties and within such a short time and she is being again transferred from Allahabad without any justification. The petitioner was transferred to Allahabad on the recommendation and order of the State Minister of Education considering her genuine cause for post at Allahabad. The said cause still continues hence it is unjustified to transfer her from her present place of posting. 12. This bring this Court to examine another aspect which arises out of the issues in the writ petition. The petitioner has sprung a surprise upon the Department of Education to raise issues of service cadres and consequently the claim that the Director of Education, Higher Secondary has no authority to pass the order of transfer as she is under the control of the Director of Education (Basic), and that the latter alone could issue an order of transfer in reference to the petitioner. If, indeed the petitioner had reservations on her order of transfer on the basis of illegalities, then it would be appropriate that she ought to have first represented before the authorities under whom she serves, by questioning the order of transfer which she had otherwise desired. The record does not reveal that the petitioner at any stage confronted the authorities in her department with the issue that her transfer order was made for reasons that it had been passed by an officer, who had not been vested with powers to do so. It was in more or less, like circumstances that the Supreme Court in Shanti Kumar v. Regional Deputy Director, Health Services, Patna Division Patna and others, A.I.R. 1981 SC 1577, upheld the decision of the Patna High Court when it declined to interfere in a matter of an administrative transfer, impugned by a petition under Article 226 of the Constitution of India. 13. The case as made out by the petitioner in her writ petition is not bonafide. She chased her order of transfers and was more or less successful in receiving the postings which she had been seeking. The transfer order impugned, that is, to Bindki, Fatehpur near Allahabad, was also brought about at the petitioner's initiative. It was made purely for administrative reasons. She chased her order of transfers and was more or less successful in receiving the postings which she had been seeking. The transfer order impugned, that is, to Bindki, Fatehpur near Allahabad, was also brought about at the petitioner's initiative. It was made purely for administrative reasons. It was also a result of a decision in concert between the Director of Education (Basic) and the Director of Education (Madhyamik). This Court, thus finds no illegality in the order of transfer which has been impugned, and would refrain from interfering with it. The petition is, thus, dismissed with costs.