Dharam Chand v. State Through Education Department
2003-10-17
PERMOD KOHLI
body2003
DigiLaw.ai
Petitioner has assailed his transfer from Govt Girls Higher Secondary School, Nagrota Jammu to Govt Higher Secondary School, Malhar, District Kathua made vide Govt Order no. 1352-Edu of 2003 dated 7-8-2003. Vide this order petitioner has been posted and transferred as Incharge Principal, Govt Higher Secondary School, Malhar vice one Balbir Singh and respondent No.3 has been posted as Incharge Principal Govt Girls Higher Secondary School, Nagrota vice the petitioner on promotion from the post of Senior Lecturer. This transfer has been challenged on two counts, firstly that the petitioner has been transferred pre-maturely after the period of nine months and secondly that in the transfer order he has been shown as Incharge Principal, whereas he is a regularly appointed Principal. Petitioner has submitted that his transfer is only to accommodate respondent No.3, who is a blue-eyed boy of the respondents. Some allegations have been made that respondent No.3 has served all along in Jammu and is doing tuition work. It is also stated that respondent no.3 was posted at Batote but he hardly attended his duty and continued the tuition work at Jammu. There was a protest against him by the students at Batote and instead of taking any action against him he has been awarded his posting near to Jammu City to enable him to continue the tuition work at Jammu. Petitioner claims to have served in the remote areas during his long tenure of service right from his appointment as Teacher, and now again he has been posted just after nine months. 2. Writ petition has been contested on the ground that the allegations made by the petitioner are baseless. As many as 94 persons have been transferred including the petitioner and respondent No.3. Same is in public interest and in the interest of administration. 3. Respondent no.3 who filed separate objections has given details of places where he has served from time to time. It is argued on behalf of the respondents that the petitioner does not have any right to challenge the transfer which is an incidence of service. It is only in the exigency of service that the petitioner has been transferred from one place to another and respondent No.3 also transferred on promotion. Regarding the claim of the petitioner that he is a regularly promoted principal, but shown as Incharge Principal, Mr.
It is only in the exigency of service that the petitioner has been transferred from one place to another and respondent No.3 also transferred on promotion. Regarding the claim of the petitioner that he is a regularly promoted principal, but shown as Incharge Principal, Mr. Johal has submitted that at the time of his transfer he continued to be Incharge Principal. Petitioner has placed on record copy of Govt order No.244-Edu of 1999 dated 24-2-1999, where-from it is evident that he was regularized/promoted as Principal of Higher Secondary School w.e.f. 1-2-1996 though in the impugned order he has been shown as Incharge Principal. Be that as it may whether the petitioner is a Incharge Principal or a regular Principal, the same does not constitute a ground for challenging the transfer. If petitioner has already acquired the status of that of a regularly appointed/promoted principal, the same is not affected by mentioning the word "incharge" in the transfer order. Therefore, no benefit is available to the petitioner on this count. 4. Mr. Salaria, learned Senior Advocate appearing on behalf of the petitioner has vehemently argued that the transfer of the petitioner is contrary to the Governments own Transfer Policy as notified vide Circular No.10 of 1964 dated 31-7-1964, Govt Order No. 912-GD of 1988 dated 16-6-1988 and Circular No. 6-GAD of 1991 dated 24-1-1991. Reliance is also placed on schedule-B of Civil Services Regulations Vol-II. In Circular No. 10 of 1964 dated 31-7-1964 period of transfer is indicated as under: @Z_TBL_BEG = COLUMNS(2), DIMENSION(IN), COLWIDTHS(.5000,E1), ABOVE(.0400), BELOW(.0400), HGUTTER(.0500), VGUTTER(.0500), KEEP(OFF) @Z_TBL_BODY = TBLCN, TABLE TEXT "2. , Periodicity of transfers @Z_TBL_BODY = TBLCN, TBLFT (i), Transfers should normally be made not before two years and,, if possible only after three years,, invariably after five years. Exception may,, however,, be necessary in case of misconduct or bad reputation or the like or where in order to enforce a series of transfers some changes are un-avoidable." @Z_TBL_END = Similarly in Circular No. 912-GD of 1988 dated 16-6-1988 the following instructions have been incorporated -- "(2).
Exception may,, however,, be necessary in case of misconduct or bad reputation or the like or where in order to enforce a series of transfers some changes are un-avoidable." @Z_TBL_END = Similarly in Circular No. 912-GD of 1988 dated 16-6-1988 the following instructions have been incorporated -- "(2). In exigent circumstances where premature transfer of an employee (Gazetted or Non-Gazetted) is sanctioned in accordance with the provisions of Government Order No.1586-GD of 1978 dated 1-7-1978 (copy enclosed) with the approval of the Cabinet Minister incharge of the Deptt concerned, a copy of the order so issued shall invariably be endorsed to the General Department for information of the Chief Secretary. The order shall bring out in brief the reasons which necessitated the premature transfer." In Circular No.6-GAD of 1991 dated 24-1-1991also the instructions are indicated as under:- "1. Ordinarily transfer orders will be issued for such employees who have completed two years in their present place of posting; 2. x x x 3. x x x 4. While issuing the orders the eligibility of the concerned employee and the interest of Government work should be kept uppermost in view. The convenience of the employees may also be considered provided it does not affect the interest of the Government work." 5. It has been argued on behalf of the petitioner that the transfer of the petitioner being in violation of the above Government orders, Circulars/ Instructions is liable to be quashed. Petitioner also relied upon AIR 1993 SC 1234, 1983 (3) SLR 783 and argued that the Governmental instructions are enforceable and have the force of law in absence of statutory rules. 6. A perusal of the Government instructions issued from time to time and relied upon by the petitioner would reveal that the tenure of two years for a Government employee at a particular place, is not mandatory as all these circulars indicate this tenure is only if possible, keeping in view the interest of the Government/ Administration. In Circular No.10 of 1964 (Supra) it is further stated that if series of transfers make the transfer of a Government servant before the tenure un-avoidable, the same is permitted. Even if these Government instructions are considered to be of some consequence and enforceable, the same do not make it necessary to allow a Government servant to serve for a minimum period of two years at a particular place.
Even if these Government instructions are considered to be of some consequence and enforceable, the same do not make it necessary to allow a Government servant to serve for a minimum period of two years at a particular place. Therefore, it cannot be said that a Government servant cannot be transferred before the expiry of the period of two years. In the present case vide the impugned order as many as 94 persons have been transferred, therefore, the respondents were entitled to make necessary adjustments in the interest of administration. 7. Regarding the plea of the petitioner that the transfer of respondent No.3 to Govt Girls Higher Secondary School, Nagrota is malafide and for the ulterior motive, no specific allegations have been made in this regard in the writ petition. Who is responsible for the transfer of respondent No.3 has not been indicated. In absence of there being any specific allegations against any particular person in position, who can be said to be an instrument for the adjustment of respondent No.3 no cognizance can be taken. 8. Mr. Salaria has strenuously argued that the allegations of malafide have not been rebutted and the transfer is an arbitrary exercise of power. He has relied upon 2001 SCW 2823, wherein the Apex Court has held that if the allegations of malafide remain un-rebutted by necessary affidavit, the same are required to be taken note of. This judgment has no application to the facts of the present case as no specific allegations against any particular person have been made. Vague allegation that respondent No.3 is a blue-eyed boy of some un-known person cannot persuade the court to take note of the same. Similarly, the argument of Mr. Salaria that the respondents have acted arbitrarily only deserves to be rejected in absence of any specific averment to this effect in the writ petition. As regards the allegation that respondent No.3 do tuition work again the allegation is vague. Respondent No.3 has placed on record the result statement of the Government Higher Secondary School, Batote for the session 2001-2002 and 2002-03, which indicate that the result for the subjects taught by the said respondent is more than satisfactory. In any cause, it is not for the Court to enter into this area. It is for the employer to look into this aspect of the matter. 9.
In any cause, it is not for the Court to enter into this area. It is for the employer to look into this aspect of the matter. 9. The settled position of law that transfer is an exigency of service and no person has any vested right to serve at a particular place or position. I do not find any merit in the present petition, which deserves to be dismissed. I order accordingly.