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2011 DIGILAW 1489 (HP)

Jagbir Singh Chandel v. State of Himachal Pradesh

2011-03-18

RAJIV SHARMA

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JUDGMENT : Rajiv Sharma, J. (Oral): Mr. Vikas Rathore, learned Deputy Advocate General has placed on record letter dated 23rd December, 2010, according to which the petitioner has been adjusted in Government Middle School, Saroun, District Mandi and he has joined his duties on 14th December, 2010. Mr. Rajesh Kumar, learned counsel for the petitioner submits that his client has joined at Government Middle School, Saroun under compulsion and his client wants the adjudication of the matter on merits. 2. Petitioner was promoted as Trained Graduate Teacher (Arts) on 3rd January, 2006. He worked as Trained Graduate Teacher in Government Senior Secondary School, Choru at Nadaun, District Hamirpur upto 21.7.2008. He was transferred from Government Senior Secondary School, Choru to Government Senior Secondary School (Girls), Hamirpur on 21st July, 2008. Thereafter he was transferred to Government Senior Secondary School (Boys), Hamirpur on 10th June, 2010. The petitioner has now been transferred from Government Senior Secondary School (Boys), Hamirpur to Government Middle School Manihal, district Hamirpur vide Annexure P-1, dated 24th November, 2010. 3. Mr. Rajesh Kumar, learned counsel for the petitioner has argued that his client was not permitted to work in Government Senior Secondary School (Boys), Hamirpur for a normal period of 3 to 5 years. He has also argued that the petitioner has been shifted out from Government Senior Secondary School (Boys), Hamirpur in advance to accommodate the daughter of a local M.L.A., i.e. respondent No.4. Respondent-State has not chosen to file any reply. Respondent No.4 stands duly served. However, neither the respondent No.4 is present in person nor is she represented by any Advocate. 4. I have heard Mr. Rajesh Kumar, learned counsel for the petitioner and Mr. Vikas Rathore, learned Deputy Advocate General and perused the pleadings. 5. Petitioner has worked at Government Senior Secondary School (Boys), Hamirpur only for a period less than six months. Mr. Vikas Rathore, learned Deputy Advocate General has failed to satisfy the Court why the petitioner has been transferred within a short span of six months. Petitioner ought to have been permitted to work at Government Senior Secondary School (Boys), Hamirpur for a normal period of 3 to 5 years. Petitioner being a teacher should not have been disturbed in a mid-academic session. Shifting of teachers during mid-academic session disturbs the continuity of studies of students. Petitioner ought to have been permitted to work at Government Senior Secondary School (Boys), Hamirpur for a normal period of 3 to 5 years. Petitioner being a teacher should not have been disturbed in a mid-academic session. Shifting of teachers during mid-academic session disturbs the continuity of studies of students. Since the respondents have not filed any reply to the petition of which notice was issued to them, it can safely be held that the entire exercise has been undertaken by respondents No.1 to 3 in order to accommodate the daughter of a local M.L.A., who was posted immediately after the transfer of petitioner pursuant to order dated 24th November, 2010. Respondent No.4 has been appointed purely on contract basis on 26.11.2010. It is apparent that a regular incumbent has been shifted to accommodate a person who has been appointed purely on contractual basis. The action of respondents No.1 to 3 to shift the petitioner in advance to accommodate respondent No.4 is arbitrary exercise of power. The power bestowed upon the authority is to be exercised judiciously, fairly and in a transparent manner. Moreover, Respondent-State has framed its own transfer policy/guidelines. These guidelines should be followed scrupulously and should be applied uniformly to all the employees. 6. 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 (paras 20, 21 and 23): “To the same effect is the meaning given to the expression “arbitrary” by Corpus Juris Secundum which explains the term in the following words: “Arbitrary.-Based upon one’s will, and not upon any course of reasoning and exercise of judgment; bound by now; capricious; exercised according to one’s own will or caprice and therefore conveying a notion of a tendency to abuse possession of power; fixed or done capriciously or at pleasure, without adequate determining principle, non-rational, or not done or acting according to reason or judgment; not based upon actuality but beyond a reasonable extent; not founded in the nature of things; not governed by any fixed rules or standard; also, in a somewhat different sense, absolute in power, despotic, or tyrannical; harsh and un for bearing. When applied to acts, ‘arbitrary’ has been held to connote a disregard of evidence or of the proper weight thereof; to express an idea opposed to administrative, executive, judicial, or legislative discretion; and to imply at least an element of bad faith, and has been compared with ‘willful’.” There is no precise statutory or other definition of the term “arbitrary”. In Shrilekha Vidyarthi V. State of U.P. this Court explained that the true import of the expression “arbitrariness” is more easily visualized than precisely stated or defined and that whether or not an act is arbitrary would be determined on the facts and circumstances of a given case. This Court observed: (SCC p. 243, para 36) “36. The meaning and true import of arbitrariness is more easily visualized than precisely stated or defined. The question, whether an impugned act is arbitrary or not, is ultimately to be answered on the facts and in the circumstances of a given case. An obvious test to apply is to see whether there is any discernible principle emerging from the impugned act and if so, does it satisfy the test of reasonableness. Where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. Every State action must be informed by reason and it follows that an act uninformed by reason, is arbitrary. The rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is trite that ‘be you ever so high, the laws are above you’. This is what men in power must remember, always.” 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. 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. Consequently, in view of the observations and discussion made hereinabove, the petition is allowed. Annexure P-1, dated 24th November, 2010 and Annexure P-2, dated 26th November, 2010 so far as it pertains to the posting of respondent No.4 is concerned, are quashed and set aside. Respondents No.1 to 3 are directed to permit the petitioner to discharge his duties at Government Senior Secondary School (Boys), Hamirpur till the completion of his normal period. The pending application(s), if any, also stands disposed of. No costs.