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2004 DIGILAW 185 (GAU)

Mozibur Rahman v. State of Assam

2004-03-16

BIPLAB KUMAR SHARMA

body2004
JUDGMENT B.K. Sharma, J. 1. Having regard to the facts and circumstances involved in these two writ petitions, they are taken up together for decision and disposal. 2. In W.P.(C) No. 10,209/2003 (hereinafter referred to the "1st petition"), the Petitioner has made a grievance in respect of an order dated 8.12.2003 issued by the Deputy Inspector of Schools, South Salmara keeping in abeyance an earlier order dated 4.12.2003 by which he was transferred to another school in place of the Respondent No. 4 who is the writ Petitioner in W.P.(C) No. 382/2004 (hereinafter referred to the "2nd petition"). It is the case of the Petitioner that in pursuance to the said order dated 4.12.2003 he has been released from his earlier school and joined the new school on 5.12.2003. However, by the impugned order dated 8.12.2003 the transfer order dated 4.12.2003 was kept in abeyance. This Court by an interim order dated 16.12.2003 stayed the order dated 8.12.2003 and there is no dispute that the Petitioner has been continuing in the transferred school to the replacement of the Respondent No. 4. 3. In the 2nd petition, the writ Petitioner who is the Respondent No. 4 in the 1st petition has assailed the legality and validity of the order of transfer dated 4.12.2003 on ground of same being punitive in nature. Referring to Annexure-6 to the writ petition, a letter dated 8.12.2003 issued by the Deputy Inspector of Schools, South Salmara addressed to the Petitioner by which the Petitioner was directed to join in the school to which he has been transferred indicating therein that the Petitioner was so transferred due to public complaint, it is the case of the Petitioner that the order of transfer is punitive and not in public interest. Further case of the Petitioner is that such a course of action was adopted by the official Respondents at the behest of the Respondent No. 4, the writ Petitioner in the 1st petition. The Petitioner made representation dated 7.12.2003 before the Deputy Inspector of Schools, South Salmara making a request therein to retain him in his original school. Contents of the said representation dated 7.12.2003 are as follows: The Deputy Inspector of Schools South Salmara, Mankachar Dated 1488 No. Pecharkandi L.P. School the 7th Dec. 03. Sub: Representation in regard to stay the transfer order. Contents of the said representation dated 7.12.2003 are as follows: The Deputy Inspector of Schools South Salmara, Mankachar Dated 1488 No. Pecharkandi L.P. School the 7th Dec. 03. Sub: Representation in regard to stay the transfer order. Sir, With humble submission beg to state that I have been working as Headmaster at 1488 No. Pecharkandi L.P. School. The school is at the distance office Kilometer from my house, on the other hand I have been suffering from bronchial asthma and in such condition I have been transferred to Charbari L.P. School which is 8 Kilometer away, due to my ill health condition. I request your honour not to transfer me and to retain me in my original place. As per advised of doctor I have been asked to take rest for period of 15 days. The certificate of the doctor is annexed herewith. Therefore I request your honour to stay the transfer order and retain me in my earlier school. This is my humble submission. Yours faithfully, Sd/Sk. Mozibor Rahman Head Teacher N.D.I, of Schools S. Salmara, Mankachar, Please stay. Sd/- Illegible Hosneara Begum. 8.12.03 M.L.A. Mankachar (Seal and Signature) D.I. of school S/Salmara Please stay of transfer order as recommended by the local M.L.A. Sd/- Illegible 8.12.03 Minister of State (Ind) P. and S. Minority Char areas Housing, Assam. Received. Sd/Illegible 9.12.03 4. The learned Sr. Standing Counsel, Education Department was directed to obtain instruction in the matter. He has produced the records pertaining to the case. I have heard the learned Counsel for the parties and have perused the records. 5. The admitted position is that the impugned order of transfer dated 4.12.2003 has come into operation by way of joining of the new incumbent in the school of the Petitioner in the 2nd petition. Although the transfer order was kept in abeyance temporarily till completion of the annual examination, this Court by order dated 16.12.2003 passed in the 1st writ petition has stayed the same and by now the annual examination is also over. Thus the reason for which the order of transfer was temporarily kept in abeyance is no longer in existence. 6. Although the transfer order was kept in abeyance temporarily till completion of the annual examination, this Court by order dated 16.12.2003 passed in the 1st writ petition has stayed the same and by now the annual examination is also over. Thus the reason for which the order of transfer was temporarily kept in abeyance is no longer in existence. 6. The above quoted representation made by the Petitioner in the 2nd petition and the endorsements made therein reveal that the Petitioner made approach to extra-legal authorities and those extra-legal authorities who are M.L.A. and Minister not connected with the Education department readily recommended the case of the Petitioner for stay of the order of transfer. It is further revealed that the Petitioner did not make any grievance in respect of the Annexure-6 letter dated 8.12.2003 to the departmental authorities about which much have been said in the writ petition so as to bring home the point of argument that the impugned order of transfer is in fact punitive in nature. 7. I have perused the records produced by the learned Sr. standing Counsel, Education Department. It revealed that there were certain complaints against the Petitioner in the 2nd petition including the complaints lodged by the Managing Committee of the school. On receipt of the complaints the Deputy Inspector of School, South Salmara asked the Block Elementary Education Officer, Mancachar to make an enquiry and to submit the report. The Block Elementary Education Officer submitted the report recording prima facie finding relating to certain irregularities on the part of the Petitioner. Thereafter, the impunged order of transfer was issued transferring the Petitioner to another school in his own capacity, which is as per the own admission of the Petitioner, is at a distance of about 8 kilometers. The records do not reveal any indulgence and/or influence on the part of the Petitioner in the 1st petition. It is primarily on the basis of certain irregularities detected on the part of the Petitioner in the 2nd Petitioner, the impugned order of transfer was issued. 8. An order of transfer of an employee is a part of the service conditions and such order of transfer is not to be interfered with lightly by a writ Court in its discretionary jurisdiction unless such order of transfer is founded on malafide exercise of power or has been issued in violation of any statutory rule. 8. An order of transfer of an employee is a part of the service conditions and such order of transfer is not to be interfered with lightly by a writ Court in its discretionary jurisdiction unless such order of transfer is founded on malafide exercise of power or has been issued in violation of any statutory rule. Transfer of a Government servant in a transferable service is a necessary incident of the service career. The Apex Court in the case of N.K. Singh v. Union of India as reported in (1994) 6 SCC 98 observed as follows: Transfer of a Government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may be involved, at times. The only realistic approach is to leave it to the wisdom of that hierarchical superiors to make that decision. Unless the decision is vitiated by malafides or infraction of any professed norm or principle governing the transfer, which alone can be scrutinized judicially, there are no judicially manageable standards for scrutinising all transfers and the Courts lack the necessary expertise for personnel management of all government departments. This must be let, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated. 9. Unsatisfactory performance on the part of the Petitioner in the 2nd petition was the basis for his transfer to another school. The formation of opinion in this regard was the motive behind, which cannot be said to be the foundation. As observed by the Apex Court in the case of N.K. Singh (supra) several factors including suitability of the person and several imponderables requiring formation of a subjective opinion may be involved in the matter of transfer as in the instant case which cannot be regarded and/or taken into the fold of a punitive transfer. In the instant case, the authority found certain irregularities on the part of the Petitioner and to maintain the healthy atmosphere of the school in question in which the Petitioner developed certain self interest, the authorities resorted to the impugned action which in my considered opinion cannot be said to be illegal or arbitrary. In the instant case, the authority found certain irregularities on the part of the Petitioner and to maintain the healthy atmosphere of the school in question in which the Petitioner developed certain self interest, the authorities resorted to the impugned action which in my considered opinion cannot be said to be illegal or arbitrary. The petitioner was not transferred solely on the basis of certain complaints. The procedure was adopted to verify the allegations through the subordinate officer, who in turn submitted a report and it was only thereafter on formation of an opinion, the impugned action was resorted to. 10. In the case of Ram Murti Singh v. District Inspector of Schools as reported in : 1995 Supp. (3) SCC 170, the contention of the Appellant that he being the seniormost teacher in the school was entitled to be appointed as head of the Institution did not find favour of the Apex Court in consideration of the fact that the Appellant, though the seniormost, was not found to be competent. His relationship with teachers and other employees was not satisfactory and hence the Management of the school expressed its apprehension that he would not be able to draw the cooperation of the teachers and employees for working as a team. The Apex Court held that if such factors were found to be detrimental to the interest of the Institution and the Appellant was not promoted though seniormost, no fault could be found in the order of the District Inspector of Schools. In the instant case also, the Managing Committee of the School found certain irregularities on the part of the Petitioner and if on that basis pursuant to a fact finding enquiry, the Petitioner was transferred to another school, no fault is attributable to the impugned action and the order. 11. The expression "punitive transfer" may be misleading for "transfer" has not been mentioned as one of the punishments in the Assam Services (Discipline and Appeal) Rules, 1964. A distinction is, therefore, drawn up between "punitive transfer" and the order of transfer by "itself being punitive". When inspite of alleged misconduct an employee is transferred from one station to another, the authority uses transfer as an alternative to disciplinary proceeding. A distinction is, therefore, drawn up between "punitive transfer" and the order of transfer by "itself being punitive". When inspite of alleged misconduct an employee is transferred from one station to another, the authority uses transfer as an alternative to disciplinary proceeding. In the case in hand the authority decided to transfer the Petitioner from one school to another taking into the factors which cannot be said to be irrelevant and that too in proper management of a school administration. Merely because the authority did not proceed against the Petitioner by way of departmental proceeding, it cannot be said that the authority is debarred from taking resort to the impugned action of transferring the Petitioner to another school. 12. There is another aspect of the matter. The Petitioner has invoked the equity jurisdiction of this Court. Article 14 of the principle of non discrimination is an equitable principle and therefore, any relief claimed on that basis itself be founded on equity and not be alien to that concept. The Petitioner in his respresentation quoted above obtained the recommendations of the extra-judicial authorities and thereby tried to influence the authorities. Thus on the face of it, it is the Petitioner in the 2nd petition who wanted to influence the authorities and not the Petitioner in the 1st petition which is also evident from the records. The Annexure-6 letter dated 8.12.2003 also reveals the pressure mounted by the Petitioner for cancellation for the impugned order of transfer by way of sending the students to the office of the Deputy Inspector of Schools which itself is unbecoming of a model teacher. Such activities on the part of the Petitioner coupled with the irregularities committed by him on which the authorities have recorded prima facie satisfaction towards issuance of the impugned order of transfer do not behove of a school teacher. These circumstances also justify refusal of the relief claimed by the Petitioner under Article 226 of the Constitution of India. 13. In view of the above I do not find any merit in the writ petition being W.P.(C) No. 382/2004 and accordingly same is dismissed. Consequently the writ petition being W.P.(C) No. 10209/2003 in which the impugned order has otherwise also spent its force stands allowed. There shall be no order as to costs. Petition dismissed.