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2011 DIGILAW 1318 (HP)

Neelam Shandil v. State of Himachal Pradesh

2011-03-16

RAJIV SHARMA

body2011
JUDGMENT Rajiv Sharma, Judge. Petitioner was appointed as Volunteer Teacher in Government Primary School, Khatnol on 3.3.1992. She was regularized as Junior Basic Trained Teacher on 1.1.1998. She was transferred to Government Primary School, Madhraich on 13.9.2004. Thereafter, she was transferred to Government Primary School, Kuftu on 16.2.2006. She was further transferred from Government Primary School, Kuftu to Government Primary School, Kufri on 19.9.2009. However, vide impugned order dated 23.8.2010, petitioner has now been transferred from Government Primary School, Kufri to Government Primary School, Gania vice respondent No.5. 2. Mr. P.P. Chauhan has strenuously argued that the transfer of the petitioner from Government Primary School, Kufri to Government Primary School, Gania is in contravention of the norms prescribed by the respondent-State. According to him, the normal period prescribed for posting the teachers at one station is 3-5 years. He lastly contended that the transfer order has been issued to accommodate respondent No.5. 2. Mr. Anshul Bansal, learned Additional Advocate General and Ms. Ranjana Parmar have supported the order dated 23.8.2010. 3. I have heard the learned counsel for the parties and have perused the pleadings carefully. 4. Petitioner was transferred from Government Primary School, Kuftu to Government Primary School, Kufri only on 19.9.2009. The normal tenure/period prescribed for a teacher at one particular station is between 3-5 years. The purpose of posting the teacher for a period of 3-5 years is to maintain continuity in the studies of the children. If the teacher is shifted in mid-academic session, it disturbs the studies of the students. Petitioner has three children, who are pursuing their studies in 9th, 6th and 3rd standards. The transfer ought not to have been made in mid-academic session. 5. Mr. Anshul Bansal and Ms. Ranjana Parmar have strenuously argued that petitioner has remained posted within the radius of 25 kilometers. This fact was known to the respondent-State when the petitioner was transferred from Government Primary School, Kuftu to Government Primary School, Kufri. Once the request of the petitioner has been acceded to and she has been posted at Kufri, she ought not to have been disturbed before completing her normal tenure, as prescribed. 6. Ms. Ranjana Parmar has argued that her client has made a representation after she lost her father-in-law and mother-in-law. The representation was acceded to by the competent authority. The copy of the representation has not been placed on record. 6. Ms. Ranjana Parmar has argued that her client has made a representation after she lost her father-in-law and mother-in-law. The representation was acceded to by the competent authority. The copy of the representation has not been placed on record. Death of father-in-law and mother-in-law hardly constitutes ground for transfer. In the case in hand, the petitioner, who has hardly worked for about 10 months at Government Primary School, Kufri has been disturbed by the respondent-State. The reasons assigned by the respondent-State for transferring her are neither convincing nor cogent. State should exercise the power vested in it judiciously, transparently and in a fair manner. The exercise undertaken by the respondent-State to transfer the petitioner after a period of 10 months is arbitrary and unreasonable. What is arbitrary has been succinctly explained by their Lordships of the Hon’ble Supreme Court in East Coast Railway and another versus Mahadev Appa Rao and others, (2010) 7 SCC 678 as under: “20. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. This may be evident from the order itself or the record contemporaneously maintained. Application of mind is best demonstrated by disclosure of mind by the authority making the order. And disclosure is best done by recording the reasons that led the authority to pass the order in question. Absence of reasons either in the order passed by the authority or in the record contemporaneously maintained is clearly suggestive of the order being arbitrary hence legally unsustainable.” 7. Accordingly, in view of the observations and discussions made hereinabove, the petition is allowed. Annexure P-2 dated 23.8.2010, qua the petitioner, is quashed and set aside. Respondents are directed to permit the petitioner to discharge her duties at Government Primary School, Kufri, till the completion of normal tenure. No costs.