S. John Britto v. Chief Educational Officer, Cuddalore, Cuddalore District and Others
2001-10-13
D.MURUGESAN
body2001
DigiLaw.ai
Judgment :- D. Murugesan, J. The petitioner has challenged the order of the 3rd Respondent made in R.C. No. 74 of 2000, dated 24.10.2000 whereby he was transferred from St. Francis Xavier Middle School, Cuddalore O.T. to Krishnankuppam Middle School in the place of the 4th Respondent and vice versa. The challenge to the said order of transfer is that as per clause 7.04 of the Constitution of Archdiocesan Board of Education, with regard to transfer of teachers, a list of transfers should be prepared with the help of the selection committee and get the approval of the Board. In this case, there is no approval from the Board and therefore, the transfer order cannot be made. The writ petition has been filed on further ground that the order of transfer is mala fide and for the said purpose ground (1) of the affidavit filed in support of the writ petition is relied upon. Heard the learned counsel for the petitioner. The learned counsel reiterates the averments made in the affidavit filed in challenge to the order of transfer on the ground that in the absence of compliance of Clause 7.04 of the Constitution of Archdiocesan Board of Education in getting approval of the Board, the impugned order cannot be made and the petitioner has been transferred on the mala fide ground as has been pleaded in ground (1) of the affidavit filed in support of the petition. Mr. A. L. Somayaji, learned senior counsel for the 3rd respondent submitted that the Constitution of Archdiocesan Board of Education which has been relied upon by the petitioner does not have any statutory character as the same has not been framed under the provisions of the Act or Rules governing the administration of the schools in question. It is only a guideline. The learned Senior counsel would rely upon a judgment of the Supreme Court reported in Union of India and others v. S. L. Abbas, to contend that the transfer is an incident of service and the guidelines or the executive instructions framed by the Government do not confer upon the Government employee a legally enforceable right and they do not have statutory force. In that view of the matter, the petitioner cannot claim the violation of the guidelines as it does not affect his lifetime.
In that view of the matter, the petitioner cannot claim the violation of the guidelines as it does not affect his lifetime. Hence, the learned senior counsel submitted that the impugned order of transfer has been made on administrative ground and the same has not been assailed on the ground of mala fides or want of jurisdiction.Heard Mr. C. Selvaraju, learned counsel for the 4th Respondent. The bone of contention in attacking the order of transfer by the petitioner is that, the same has been passed in contravention of Clause 7.04 of the Constitution of Archdiocesan Board of Education which is referred to as follows : "With regard to transfer of teachers, he will prepare the list of transfers with the help of the Selection Committee and get the approval of the Board." In similar circumstance, the Supreme Court considered the executive instructions for transferring the spouse to the same place and held that those executive instructions are in the nature of guidelines and they do not have any statutory force. In fact, the relevant paragraph of the Supreme Court order reported in Union of India v. S. L. Abbas, 1993 II CLR 168 SC, referred is extracted as follows : "An order of transfer is an incident of Government Service. Fundamental Rule 11 says that" the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that" the President may transfer a Government Servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of this transfer is vitiated by mala fides on the part of the authority making the order, though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which findings we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines.
All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force." In view of the specific stand taken by the 3rd respondent that the Constitution of Archdiocesan Board of Education are only guidelines and they do not have any statutory character. I do not find any merit in the submission of the learned counsel for the petitioner that those guidelines ought to have been enforced and the non-compliance of the guidelines would vitiate the order of transfer. In so far as the submission of the learned counsel for the petitioner as to mala fides in ground (1) is concerned, the said averments are as vague as it could be and when the mala fides are pleaded, the same should be pleaded in specific terms by specific averments. Hence, I do not find any merit to accept the said submission of the learned counsel for the petitioner also. In the absence of any other plea like want of jurisdiction on the part of the respondents to pass the impugned order of transfer. I do not find any merit to entertain the writ petition. Accordingly, the writ petition is dismissed. No costs. Consequently, connected W.M.P. is also dismissed. Petition dismissed.