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Gujarat High Court · body

2006 DIGILAW 120 (GUJ)

MAYABEN LALBHAI PATEL v. ADMINISTRATIVE OFFICER

2006-02-17

ABHILASHA KUMARI

body2006
( 1 ) THE petitioner is aggrieved by the cancellation of her transfer order after she joined at the place of posting, hence this petition. ( 2 ) THE facts leading to the filing of the present petition are, that the petitioner is serving as a Primary teacher in Gandhinagar District ever since 3. 1. 1983. Thereafter she was performing her duties as such at the primary School in which she was posted by the respondents, from time to time. It is the case of the petitioner that in 1992 she was transferred without her request to School No. 12 in Sector No. 12, Gandhinagar, within seven months of her joining at School No. 13/1 in sector No. 13, Gandhinagar. She obeyed the transfer order to School No. 12 in Sector No. 12, Gandhinagar but, since she faced some inconvenience and her residence was located in Sector No. 6, therefore, she requested for her transfer to any School in Sector No. 6. Moreover, as per the averment of the petitioner, there was an excess of teachers in School No. 12 at Sector No. 12 and a deficit of teachers in School No. 6/1 in Sector No. 6, Gandhinagar, to which School she had made a request to be transferred. The request of the petitioner for transfer from Sector no. 12 to Sector No. 6 was granted and vide order dated 12. 7. 1997 she was so transferred. The Head Master of the school in Sector No. 12 relieved the petitioner at the close of office hours on 26. 8. 1993 and the petitioner joined in School No. 6/1 in Sector. No. 6 on 27. 8. 1993. The petitioner was discharging her duties at this place when her transfer to School No. 6/1 in Sector No. 6, Gandhinagar was cancelled and she was asked to report back to the school at Sector 12, at once. ( 3 ) I have heard Shri K. B. Pujara, learned counsel for the petitioner and Ms. Nandini Joshi, Assistant Government pleader for the respondents, and have gone through the record. Shri K. B. Pujara submits that the petitioner had requested for her transfer to School No. 6/1 in Sector no. ( 3 ) I have heard Shri K. B. Pujara, learned counsel for the petitioner and Ms. Nandini Joshi, Assistant Government pleader for the respondents, and have gone through the record. Shri K. B. Pujara submits that the petitioner had requested for her transfer to School No. 6/1 in Sector no. 6,gandhinagar on the ground that it was inconvenient for her to work in the School at Sector 12, since the primary Schools are located at far distances from one another and some of the Schools are in remote, interior villages, where the transportation facilities are not proper. It is, therefore, difficult for the petitioner, being a lady, to commute between long distances. The respondents had acceded to the request of the petitioner and had transferred her to School No. 6/1 in Sector No. 6, gandhinagar, where she had already joined on 27. 8. 1993. The cancellation of the transfer of the petitioner to this School and the direction that she joins back at school No. 12 was, therefore, highly arbitrary and discriminatory. Moreover, there was an excess of teachers in the School in Sector No. 12 and a shortage of teachers in School No. 6/1 in Sector No. 6 and this factor must have weighed with the then Administrative Officer, while allowing the request of the petitioner and posting her at school No. 6/1 in Sector No. 6. The position being the same, there was no logical reason for cancelling the said transfer without hearing the petitioner. Shri K. B. Pujara, therefore, submits that in view of the above, the impugned cancellation of the petitioners transfer be quashed and set aside. ( 4 ) ON the other hand, Ms. Nandini Joshi, appearing for the respondents submits that the contention of the petitioner that Sector No. 12 and Sector No. 6 are at far distances is not correct, since both these Sectors are adjacent to each other and there is only a distance of about half a kilometer between the petitioners residence and Sector no. 12. There is no question of inconvenience for the petitioner to commute between long distances, in view of this fact. 12. There is no question of inconvenience for the petitioner to commute between long distances, in view of this fact. It is further submitted that the transfer of the petitioner to School No. 6/1 in Sector No. 6 from the school located in Sector No. 12 was not in consonance with the instructions contained in the transfer rules of primary Teachers and, therefore, the petitioner should not have been relieved from the School located in Sector no. 12 at the close of office hours on 26. 8. 1993, in contravention of the terms contained in the transfer order, which clearly stipulated that the petitioner shall not be relieved before the joining of the substitute in her place. ( 5 ) IT is further contended on behalf of the respondents that the excess or deficit of teachers in a particular school is to be looked into by the Administrative Officer and to be determined from the factual position and records of the various Schools by the authorities concerned. It is not for the petitioner to determine in which School there is an excess or deficit. The contention of the petitioner that there is an excess of teachers in Sector No. 12 School and a deficit in Sector no. 6 School, is not at all correct. On the contrary, there is a deficit of one teacher in Sector No. 12 School, since the petitioner had got relieved and joined at sector No. 6 before the new incumbent replaced her in sector No. 12,thereby causing a deficiency. Lastly, it is contended that the cancellation of the transfer of the petitioner is solely due to the administrative exigencies and there is no malafide intention or ulterior motive behind the same. Therefore, the action of the respondents does not suffer from any illegality or infirmity and neither is it arbitrary or discriminatory, and the writ petition is liable to be dismissed. ( 6 ) AFTER hearing the parties and perusing the record, it is clear that the petitioner has not been able to establish any malafide intention behind the cancellation of her transfer. The transfer order of the petitioner contained a clear stipulation that she was to be relieved in order to join the School in Sector No. 6, only upon the joining of her substitute in the School in Sector No. 12. The transfer order of the petitioner contained a clear stipulation that she was to be relieved in order to join the School in Sector No. 6, only upon the joining of her substitute in the School in Sector No. 12. In view of this, the relieving of the petitioner by the head Master of Sector No. 12 School is in contravention of the stipulation contained in order dated 12. 7. 1993 passed by respondent No. 1. Therefore, the cancellation of the transfer of the petitioner and the direction to her to join back at Sector No. 12 School cannot be said to be arbitrary or discriminatory. ( 7 ) AS far as the position regarding the surplus and deficiency of teachers in the respective Schools is concerned, it is not for this Court to go into such matters, since administrative matters are to be dealt with by the competent authority in this regard. The role of the Courts only comes in when the transfer of an employee is vitiated by malafides or is in clear violation of any statutory rules. The Supreme Court in air 1993 SC 2444 (Union of India and others v. S. L. Abbas) has held as under:"who should be transferred where,is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer,there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right. " ( 8 ) THE respondents have cancelled the transfer of the petitioner due to administrative reasons. The petitioner is a Primary Teacher and it is for the respondents to consider the exigency of administration and the public interest in order to ensure the smooth functioning of the schools. Moreover, the personal inconvenience of the petitioner can never over ride the public interest. The petitioner is a Primary Teacher and it is for the respondents to consider the exigency of administration and the public interest in order to ensure the smooth functioning of the schools. Moreover, the personal inconvenience of the petitioner can never over ride the public interest. The petitioner has chosen her career and entered into service as a Primary Teacher of her own volition and, as such, should be ready to be transferred from place to place within the District since, hers is a District cadre. Moreover, the distance between the School at Sector No. 12 and Sector No. 6 is hardly about half a kilometer and therefore, the plea of the petitioner that it will be difficult for her to commute, being a lady, does not seem to be tenable. The reasons for the cancellation of the transfer of the petitioner have been explained and there is no illegality or infirmity in this action of the respondents. ( 9 ) FOR the above reasons, the writ petition is dismissed, being devoid of any merit. The interim order shall stand vacated and rule is discharged. There shall be no order as to costs. .