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2008 DIGILAW 1177 (JHR)

Sulochana Kumari v. State of Jharkhand

2008-10-16

AJIT KUMAR SINHA

body2008
Order All the writ petitions have been preferred for issuance of an appropriate writ, order or direction to quash the order, as contained in Memo No. 1878/Chaibasa dated 14th July, 2008, whereby and whereunder, the Director, Primary Education, Government of Jharkhand, Ranchi (respondent no. 2) without jurisdiction and without application of mind has cancelled all the orders of transfer and posting, involving approximately 311 Assistant Teachers, including the petitioners, made by the erstwnile District Superintendent of Education, West Singhbhum. They are being disposed of by a common order. 2. The case of the petitioners is that they upon the recommendation of the District Education Establishment Committee were transferred, relieved and submitted their joining at the transferred place/post and since then are working and getting their salary from there. All these transfer orders were issued pursuant to lifting of ban on transfer vide Memo No. 3 dated 2.1.2008, issued by the Secretary, Human Resources Development Department, Government of Jharkhand, Ranchi. There were five terms and conditions laid down in the aforesaid Memo. 3. It appears that there was a ban on transfer of Assistant Teachers as per letter no. 46 dated 2.6.2005, however in exceptional cases it was permissible. This ban was lifted by the aforesaid Memo No. 3 dated 2.1.2008. According to the respondents, there were 221 transfers and not 311 as claimed by the petitioners. 4. The Director, Primary Education, Jharkhand, Ranchi, vide its- impugned common order dated 14.7.2008 cancelled all the transfer orders, made during the tenure of District Superintendent of Education, West Singhbhum, Sri Ramakant Modi, on the ground that it has not followed the departmental guidelines. 5. The main contention raised on behalf of the petitioner(s) is that there was total non-application of mind and no reason has been assigned for canceling the earlier orders of transfer and posting, involving 311 Assistant Teachers. It has further been submitted that the impugned order is punitive in nature and not a single reason has been assigned as to how the transfer/posting was in violation of any rule or regulation and, thus, the same is unsustainable in the eyes of law, since no opportunity was given before passing the impugned order. It has further been submitted that the impugned order is punitive in nature and not a single reason has been assigned as to how the transfer/posting was in violation of any rule or regulation and, thus, the same is unsustainable in the eyes of law, since no opportunity was given before passing the impugned order. It has further been contended that even as per the rules and regulations the District Education Establishment Committee is the competent authority and in many cases the earlier orders of transfer and posting were issued by the competent authority. 6. At paragraph no. 7 of the counter affidavit, filed by respondent no. 5, District Superintendent of Education, West Singhbhum, Chaibasa, in W.P.(S) No. 3731 of 2008, it has been stated that the earlier orders of transfer and posting were passed ignoring the guidelines laid down in Memo No.3 dated 2.1.2008 and, thus, they were not sustainable in the eyes of law. 7. I have considered the pleadings and heard Sri Ajit Kumar, learned Advocate for the petitioners and Sri Modi for the State. On perusal of Memo No.3 dated 2.1.2008 it appears that the District Education Establishment Committee was duly authorized for transfer/posting of the teachers of Primary Schools till 15.1 .2008, keeping in mind five guidelines laid down therein. 8. The basis on which the impugned order is passed appears to be erroneous vis-a-vis many Assistant Teachers who are petitioners herein and were duly transferred and posted on the recommendation of the District Education Establishment Committee. The petitioners have annexed a series of orders, issued by the competent authority i.e. District Education Establishment Committee, which had taken such decision in accordance with letter no. 3 dated 2.1.2008. Thus, the general order canceling the transfer/posting of all the Assistant Teachers was not justified. The earlier orders have already been acted upon and given effect to, since the petitioners have joined their respective place• of posting and are working and drawing salary from there. 9. It also appears that the respondent no. 2 has traveled beyond the scope of its authority and jurisdiction in passing the impugned order under challenge, since such power has been specifically conferred upon the District Education Establishment Committee. One thing does not stand to reason as to what action has been taken against Mr. Ramakant Modi, since there is no averment to that effect in the counter affidavit. One thing does not stand to reason as to what action has been taken against Mr. Ramakant Modi, since there is no averment to that effect in the counter affidavit. Even otherwise, for the mistake of the authority (Mr. Ramakant Modi), as alleged, the petitioners cannot be made to suffer. 10. The impugned order dated 14th July, 2008 suffers from total non-application of mind and no reason has been assigned even though the cancellation of transfer/posting orders is punitive in nature and is, thus violative of the well settled cardinal principle of natural justice. The respondents have not even stated as to which of the conditions/guidelines was flouted by Mr. Ramakant Modi nor have they pointed out the irregularity/illegality committed by Mr. Modi. 11. Be that as it may, the fact remains that the transfer being a condition precedent to service, the respondent authorities are always at liberty to scrutinize the cases of individual Assistant Teachers and in case they find that the earlier order(s) of transfer and posting was/were illegal and against letter no. 3 dated 2.1.2008, the competent authority is certainly at liberty to cancel such order(s) of transfer and posting assigning reasons. However, .that by itself does not mean that even such orders of transfer and posting, which are perfectly valid and legal and in accordance with letter no. 3 dated 2.1.2008, should also be cancelled. 8. In the aforesaid facts and circumstances of the case the writ petitions are allowed and the impugned order dated 14.7.2008, passed by the Director, Primary Education, Government of Jharkhand, Ranchi, respondent no. 2, is, accordingly, quashed with the liberty aforesaid. However, there will be no order as to costs.