Research › Search › Judgment

Bombay High Court · body

2000 DIGILAW 462 (BOM)

Sujata Damodar Kakule v. State of Goa and others

2000-07-05

F.I.REBELLO, V.C.DAGA

body2000
JUDGMENT - F.I. REBELLO, J.:---Rule. 2. Respondent No. 3 has filed affidavit. Respondent No. 2 has also filed affidavit. 3. Heard forthwith. 4. The petitioner, working as an Assistant Teacher at a Government High School at Alto-Betim since 1996, was transferred by order dated 9th June, 2000 to the Government High School at Dadachiwadi, Dhargal, Pernem-Goa. Respondent No. 3, who was posted as Assistant Teacher at the Government High School at Dadachiwadi, Dhargal, Pernem, was transferred to the Government High School at Alto Betim vide the petitioner herein. It is the case of the petitioner, as pleaded in the petition, that the petitioner was transferred in mid-term for the sole purpose of accommodating the respondent No. 3 who is a politically influential person and actively associated with the Bharatiya Janata Party. The order of transfer was served on the petitioner on 14th June, 2000. It is the case of the petitioner that the transfer is arbitrary and mala fide and merely meant to accommodate the respondent No. 3. The petitioner had admitted her children to nearby schools. The petitioner's hardship should also have been considered before effecting the transfer. The petitioner relies on a judgment of this Court of a learned Single Judge in the case of (Hareshwar Hiraji Desai others v. The State of Maharashtra others)1, 1984(1) Bom.C.R. 290 and a Division Bench judgment of this Court in the case of (Dr. Sheshrao Nagorao Umap v. The State of Maharashtra others)2, 1985(1) Bom.C.R. 30 . 5. Respondent No. 2, the Director of Education, has filed an affidavit. In para 2 it is set out that the transfer was a normal transfer. Two hundred and eight Primary Teachers were transferred vide orders dated 7th June, 2000 and 12th June, 2000. Thirty-seven Assistant Teachers and five Drawing Teachers in High Schools were also transferred vide orders dated 9th June, 2000. The transfers, it is contended, are made for administrative convenience and in exigencies of service and hence a routine course. No transfer guidelines have been framed in respect of Assistant Teachers in High Schools. The transfers are done every year as a matter of routine. It is further contended that the respondent No. 3 on or around 8th April, 2000 applied for his transfer to the Head of Institution. No transfer guidelines have been framed in respect of Assistant Teachers in High Schools. The transfers are done every year as a matter of routine. It is further contended that the respondent No. 3 on or around 8th April, 2000 applied for his transfer to the Head of Institution. The reasons given were inconvenience caused to him in undertaking long journey to his work place at Dhargal from his residence at Ribandar on account of permanent disability sustained by him in a vehicle accident which occurred in 1996. Respondent No. 3, it is contended, had undergone five major operations. Travelling long distance puts stress on his injured leg which results in severe complications such as swelling, bleeding etc. Respondent No. 3 had given various options. As the respondent No. 3 could not be accommodated in the Schools where he had opted for transfer and as the case of the respondent No. 3 was favourably recommended by the Head of the Institution, he was posted at the nearest school, i.e. Government High School at Alto-Betim. Respondent No. 3, it is contended, submitted joining report in 19-6-2000. The affidavit proceeds that it is verified on the basis of his knowledge and the records available in the office. 6. Respondent No. 3 has filed his affidavit. It is his case that he met with an accident in 1995. He has sustained multiple fractures. Though it is a routine act, to travel long distances causes him inconvenience and discomfort. In 1997 he was promoted as Assistant Teacher and was posted as such at Dadachiwadi, Dhargal, Pernem. Although he was facing inconvenience, he opted for the promotion hoping that after sometime he would get a transfer. He stated that he had not indicated the school at Alto Betim where he was transferred. He has denied that he is a B.J.P. Worker. He stated that after the accident he has curtailed external activities and that the allegations of his political influence or membership is a figment of imagination created mala fidely as the Education Minister happens to be member of that party. 7. From the pleadings and the records as seen it is now clear that respondent No. 3 had not applied for transfer in the school wherein he was posted. He had sought transfer in other schools. The transfer of the petitioner, therefore, is merely to accommodate respondent No. 3. 7. From the pleadings and the records as seen it is now clear that respondent No. 3 had not applied for transfer in the school wherein he was posted. He had sought transfer in other schools. The transfer of the petitioner, therefore, is merely to accommodate respondent No. 3. Such a transfer would be arbitrary as held by this Court in the case of Hareshwar Hiraji (supra) and Dr. Shushrao Umap (supra). On that count alone, the petition must be allowed. 8. However, what disturbs us more is the manner in which teachers are being transferred. The file was called initially to find out the basis on which the transfer was made. The Court was informed that the was no file. On further direction, the file has been produced. It makes a sorry reading to say the least. The power of transfer which normally has to be exercised by the Director of Education has been usurped and taken over by the Minister for Education. We find in the record a letter dated 23rd May, 2000 under the signature of the Minister for Education wherein are shown the names of Assistant Teachers/Drawing Teachers to be transferred and their posting proposed with the assistance of Officials/Officers of the Directorate of Education. The list shows the various teachers who have to be transferred. This is the very list which the Director of Education has meekly accepted and submitted. It is unfortunate that the Director of Education who normally otherwise should exercise the power of transfer, has surrendered the administrative powers in him and has acted meekly at the behest of the Minister. Interference in normal matters like this does not augur well for the administration. The transfer of teachers, has to be based on certain fixed criteria. By not fixing the criteria and resorting to transfer in the manner presently done, least to say, is highly deplorable. 9. We hope that at least in the future the respondents will have a well defined transfer policy so that teachers know the basis and the criteria on which the teachers can be transferred. It is no argument to contend before this Court that this is policy matter and, therefore, this Court should not intervene. Where actions are arbitrary and mala fide this Court has interfered and will interfere depending on the facts and circumstances. This is one such case. 10. It is no argument to contend before this Court that this is policy matter and, therefore, this Court should not intervene. Where actions are arbitrary and mala fide this Court has interfered and will interfere depending on the facts and circumstances. This is one such case. 10. The affidavit of respondent No. 2 has proceeded on the footing as if he has carried out the transfer in the normal course. The record belies this. We hope in the future at least, the Director of Education will exercise the powers if not as a prudent Administrator, for the future generation of students of this State. Transfer of teachers should not be at the behest of the Minister. The independence of the teaching community from political interference must be protected. 11. In order that such incidents do not happen in the future in the vital Departments like the Department of Education, we direct the Chief Secretary of the State to prepare a transfer policy for all teachers in Government schools. The policy as prepared should be submitted to this Court within six weeks from today. 12. Having said what is to be stated and expressing our anguish in the manner in which things have been done, the following order: Rule made absolute in terms of prayer Clause (a). Prayer Clause (a): for an appropriate writ, order or direction for quashing the impugned transfer order dated 9-6-2000 (Exhibit "B" to this petition). -----