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2016 DIGILAW 531 (ORI)

Priyanka Mohanty v. State of Orissa

2016-07-19

S.N.PRASAD

body2016
JUDGMENT : S.N. Prasad, J. This writ petition is directed against Order No.662 dated 30.6.2016 passed by the Block Education Officer, Derabish by which the petitioner, who has been working as a Sikhya Sahayak, has been transferred from Teldia Primary School to Bankimundai Upper Primary School under Derabish Block in the district of Kendrapara. 2. The short fact of the case of the petitioner is that having requisite qualification, she was selected as Sikhya Sahayak by the Collector-cum-Chief Executive Officer, Zilla Parishad, Kendrapara and given posting at Teldia Primary School under Derabish Block vide office order No.101 dated 13.01.2015. The petitioner in terms of the said order has started discharging her duties. The Government of Orissa in School and Mass Education Department has come up with policy decision as contained in Letter No. 11134 dated 4.6.2016 directing the Collectors-cum-Chief Executive Officers, Zilla Parishads to take up rationalization of teachers in elementary schools for the year 2016-17 as per the conditions stipulated therein and to conclude the process of rationalization by June, 2016. The authorities have come up with the transfer order on 30.6.2016 whereby and whereunder the petitioner has been transferred from Teldia Primary School to Bankimundai Upper Primary School, which is 15 kms. away from the present place of working. The ground of assailing the order of transfer is that the District Level Transfer Committee is having no jurisdiction to issue the order of transfer and the Sikhya Sahayaks cannot be transferred since there is no policy decision or rules having been formulated by the competent authority in this regard. The authorities have not taken into consideration the practical difficulties of the petitioner, who is a physically handicapped lady and she has been transferred to a place where there is no facilities of transportation. 3. Learned counsel for the petitioner has relied upon the judgment passed by this Court in the case of Sk.Zafrullah and others v. State of Orissa and others, 2013(I) OLR-432. 4. Learned counsel for the opposite party-State has opposed the prayer of the petitioner and has submitted that there is no infirmity in the order of transfer. The District Level Transfer Committee has got the power to transfer the Sikhya Sahayaks. 4. Learned counsel for the opposite party-State has opposed the prayer of the petitioner and has submitted that there is no infirmity in the order of transfer. The District Level Transfer Committee has got the power to transfer the Sikhya Sahayaks. It has been submitted that the Sikhya Sahayaks are also teachers and in order to substantiate the said submission, reliance has been placed on resolution No. 18668 dated 6.8.2013 issued by the Government of Odisha in the School and Mass Education Department. It has been submitted that the Sikhya Sahayaks are being engaged in pursuance to the provisions of Right of Children to Free and Compulsory Education Act, 2009 (hereinafter to be referred to as the “Act, 2009”), which came into force w.e.f. 1.4.2010. After taking into consideration the provisions made in Section 23 of the Act, 2009, guidelines for engagement of Sikhya Sahayaks have been issued. It has been submitted that the primary work of Sikhya Sahayaks are of teaching in the school. In the State of Odisha there is no provision for direct appointment of primary teachers in the school, rather teaching is being imparted by the Sikhya Sahayaks although initially they are appointed on contract basis for a period of three years and in case of successful completion of the contractual period, they will be taken as Junior Teachers on contract basis for a period of further three years and on being successfully completing the said period of three years, the Junior Teachers will be taken into the regular establishment as Assistant Primary School Teacher and it is incorrect to say that merely on account of the fact that they are being paid consolidated amount towards remuneration, they are not teachers. It has further been submitted that the educational qualification has been provided in the resolution dated 6.8.2013, which is also in consonance with the provisions of the Act, 2009. It has further been submitted that the educational qualification has been provided in the resolution dated 6.8.2013, which is also in consonance with the provisions of the Act, 2009. It has been argued that the judgment relied upon by the learned counsel representing the petitioner in the case of Sk.Zafrullah (supra) also supports the contention of the State and with respect to jurisdiction of the District Level Transfer Committee where Sikhya Sahayaks can be transferred or not that has been answered in the said judgment passed by this Court wherein this Court has been pleased to hold that the District Level Transfer Committee will undertake the rationalization exercise strictly in accordance with the guidelines dated 15.5.2012. It has been submitted that in the said case since the order of transfer was issued contrary to the provisions of the resolution dated 15.5.2012 and as such, this Court has given a finding that the order of transfer is to be passed strictly on the basis of the resolution dated 15.5.2012 and here in this case, paramateria instruction has been issued by the opposite parties-State on 4.6.2016 for completion of the process of rationalization, which was to be completed by June, 2016 and in pursuance to the said policy decision, order of transfer has been issued on 30.6.2016. It has further been submitted that in the judgment relied upon by the learned counsel for the petitioner in the case of Sk.Zafrullah (supra), this Court after taking into consideration the fact that the writ petitioner in the said case was a Gana Sikhayak and was transferred to a place, which is 50 Kms. away from the present place of posting, but that is not the fact here as in the case of the petitioner, she has been transferred to a place, which is at a distance of 15 kms from the present place of posting. It has been submitted that even in the resolution dated 6.8.2013 a specific condition has been stipulated therein that the candidates shall abide by the rationalization of teachers policy of the Government as issued from time to time and taking into consideration the said clause, even in the order of engagement one condition has been inserted as Clause No.8 to the effect that he/ she shall abide by the rationalization of teachers policy of the Government as issued from time to time. Since the impugned order of transfer has been issued in the light of the policy decision dated 4.6.2016 for rationalization of elementary teachers/ Zilla Parishad Teachers, there is no infirmity in the same. 5. Having heard the learned counsel for the parties and on going through the relevant records annexed to the writ petition and after appreciating the arguments advanced on behalf of the learned counsel for the parties, it is necessary to first deal with the nature of engagement of Sikhya Sahayaks and for that purpose it needs to refer to the resolution No.18668 dated 6.8.2013, which has been issued containing the guidelines for engagement of Sikhya Sahayaks. The resolution has been issued in the light of the provisions as contained in the Act, 2009, which came into force w.e.f. 1.4.2010. In accordance with the provisions of Section 38 of the said Act, the Odisha Right of Children to Free and Compulsory Education Rules, 2010 has been notified by the State Government vide notification issued in this regard on 27.9.2010, which came into force w.e.f. 18.10.2010. The said Act proposes to provide free and compulsory education to every child of the age group of 6 to 14 years. 6. Section 8(g) of the said Act stipulates that the State Government shall ensure good quality elementary education conforming to the standards and norms specified in the schedule. 7. In pursuance to Section 23 of the said Act, the National Council of Teacher Education (NCTE), being the Academic Authority had laid down the minimum qualifications for a person to be eligible for appointment as a Teacher in Classes I to VIII vide notification no. 215 dated 25.8.2010. Keeping in view the provisions of the said Act and rules and the guidelines issued by the National Council of Teacher Education (NCTE), the Government had issued several resolutions prescribing the guidelines for engagement of Sikhya Sahayaks. 215 dated 25.8.2010. Keeping in view the provisions of the said Act and rules and the guidelines issued by the National Council of Teacher Education (NCTE), the Government had issued several resolutions prescribing the guidelines for engagement of Sikhya Sahayaks. The National Council of Teacher Education (NCTE) have revised the minimum qualifications for a person to be eligible for appointment as teacher in Classes I to VIII vide notification No. 158 dated 2.8.2011 and taking into consideration the same, passing of Teacher Eligibility Test has been prescribed as an essential condition for a person to be eligible for appointment as teacher in any of the schools referred to in clause (n) of Section 2 of the said Act and accordingly, guidelines for conducting Odisha Teacher Eligibility Test (OTET) has been formulated vide resolution no. 14302/SME dated 4.6.2012. In view of all these situation, the Government of Odisha has been pleased to issue resolution dated 6.8.2013 in supersession of the provisions of the resolutions providing therein that all the functions of elementary education will be transferred in phases to Zilla Parishad and other Panchayati Raj Institutions. The vacant posts as well as newly created posts in the elementary schools on account of opening of new Primary/ Upper Primary Classes or due to Upgradation of existing Primary Schools to Upper Primary Schools or opening of Class-VIII by way of up-gradation of existing Upper Primary Schools shall be filled up by the eligible candidates under each category having the qualification as mentioned under para 6.1. The said resolution contains an eligibility condition as per the provisions of the Act, 2009 along with a condition that the Sikhya Sahayaks shall abide by the rationalization of teachers policy of the Government as issued from time to time. 8. Thus, from a bare perusal of the resolution dated 6.8.2013, it is evident that the Sikhya Sahayaks are to be engaged strictly on the basis of the provisions contained in the Act, 2009 and further the vacant posts are to be filled up in pursuance to the educational qualification as provided in Clause 6.1, meaning thereby, there is no difference in between the educational qualification of regular teachers and the Sikhya Sahayaks. In the State of Odisha, there is no provision for direct recruitment as Primary Assistant Teachers in the respective schools, rather the source of entry is Sikhya Sahayaks. In the State of Odisha, there is no provision for direct recruitment as Primary Assistant Teachers in the respective schools, rather the source of entry is Sikhya Sahayaks. The Sikhya Sahayaks although are to be engaged on contract basis for a period of three years and after successful completion of the period of three years, they are to be taken as Junior Teachers although on contract basis for a period of three years and if they would complete service successfully, then they would be taken as Junior Assistant Teacher in the regular establishment. Thus, the source of entry as Assistant Primary School Teacher is Sikhya Sahayak. 9. It is also necessary to discuss the judgment relied upon by the learned counsel for the petitioner rendered by this Court in Sk.Zafrullah (supra). After going through the said judgment, it is evident that the guidelines issued by the Principal Secretary to the Government in School and Mass Education Department on 15.5.2012 was under consideration which was issued in order to comply the provisions of the Act, 2009, i.e. school-wise Pupil-Teacher Ratio (PTR) of 30:01 at the Primary level and 35:01 at the Upper primary level with minimum 2 teachers per school rationalization of all category of teachers is essentially required. The matter regarding framing of detailed guidelines for undertaking rationalization exercise was under active consideration of the Government. The Government had constituted transfer committee in each Education District in the manner indicated in the guideline. In the said guideline, it is specifically stated that the transfer committee will undertake the rationalization exercise strictly in accordance with the guidelines dated 15.5.2012. In the said judgment at para 15 it has been held that the guidelines dated 15.5.2012 issued by the Principal Secretary to the Government in the School and Mass Education Department has statutory force and therefore, the same is to be followed by the concerned competent authority while transferring the elementary teachers/ Sikhya Sahayaks and any transfer made contrary to the said guideline is not sustainable in law. The circular dated 15.5.2012 provides for constitution of transfer committee in each Education District in the following manner: (a) Collector & D.M. of the District Chairman (b) President of Zilla Parishad Member (c) MLAs and MPs or their nominees Member (d) Chairperson, Urban Local Bodies Member (e) Chairperson Panchayat Samities of the concerned Education District Member (f) District Project Coordinator, SSA Member (g) All B.D.Os of the respective Education District Member (h) Executive Officer, Urban Local Bodies Member (i) District Inspector of Schools Member-convenor It has further been held in the said judgment that in order to comply with the provisions of the Act, 2009, the above guideline has been issued by the Government in the School and Mass Education Department. 10. After taking into consideration the judgments rendered by this Court in Sk.Zafrullah (supra) there is no dispute about the fact that the Sikhya Sahayaks can be transferred, but strictly on the basis of the provisions made in the guidelines dated 15.5.2012 and to that effect reference may be made to paragraph 15 of the said judgment, which is as under: “15. In view of the above, the guideline dated 15.05.2012 under Annexure-2 issued by the Principal Secretary to Government in Department of School and Mass Education has statutory force and therefore the same is to be followed by opposite party No.4 while transferring the elementary teachers/Sikhya Sahayak etc. and any transfer made contrary to the said guideline is not sustainable in law.” 11. At this juncture it also needs to refer to the observation made by this Court in W.P.(C) No. 1860 of 2011 having been confirmed in the writ appeal, reference of which has been made in Writ Appeal No. 329 of 2012, wherein the said observation has been quoted as is being referred hereunder: “It is true that the word ‘teacher’ has not been used in the resolution, but after having gone through the resolution in its entirety, I find that the Sikhya Sahayaks in the same manner would step into the shoes of the teacher either by helping a teacher to teach the students or by directly teaching the students in the elementary level.” Thus, it is evident that the Sikhya Sahayaks are also discharging onerous duty to impart teaching in their respective schools even by directly teaching the students in the elementary level. 12. 12. So far as the fact of the case in hand is concerned, the petitioner has been appointed as Sikhya Sahayak vide office order No.101 dated 13.1.2005 and she was directed to perform her duty in Teldia Primary School of Derabish Block in Kendrapara district. In the said order of appointment, apart from other conditions, one of the conditions is that he/ she shall abide by the rationalization of teachers policy of the Govt. as issued from time to time. For rationalization, the competent authority has come up with a fresh instruction in this regard vide letter dated 4.6.2016 (Annexure-2), which according to the learned counsel for the petitioner is paramateria to the guideline dated 15.5.2012, having been referred in the judgment of this Court in the case of Sk.Zafrullah (supra), which provides the process of rationalization of elementary teachers/ Zilla Parishad teachers in Government primary school. On a bare perusal of the instruction dated 4.6.2016, it is evident that the PTR for the State as a whole is 1:25 in Elementary Schools, but the PTR at school point varies and is very low in many cases. Even after many exercises on rationalization in the past years, there are still single teacher schools in the State and Upper Primary Schools with no Science teachers and this aspect of the matter has been taken note of by this Court in W.P.(C) PIL No. 15395 of 2015. That apart, the Ministry of Human Resources Development Department has also given instructions in the Annual Plan Meeting for complying with the RTE norms of PTR. Taking into consideration all these aspects of the matter, the Government has come up with the instruction dated 4.6.2016 to take up rationalization of teachers in elementary schools for the year 2016-17. In the said notification, power has been vested upon the District Level Transfer Committee under the Chairmanship of the Collector to undertake the process of rationalization solely on the basis U-DISE data, list of schools with surplus teachers and deficit teachers district wise to be given by OPEPA and the teachers will be transferred from schools with surplus teachers to the schools with teacher deficit. The District Level Transfer Committee will ensure certain conditions like (a) Graduate Science and Arts Teachers to be uniformly spread in the Upper Primary Schools. The District Level Transfer Committee will ensure certain conditions like (a) Graduate Science and Arts Teachers to be uniformly spread in the Upper Primary Schools. (b) At least one Science Graduate teacher/ +2 Science teacher in each UP School and at least one Science Graduate teacher and one Arts Graduate teacher in U.P. Schools having Class-VIII. (c) While effecting rationalization, if any teacher with physical disability is felt to be disturbed, he/ she may be absorbed in Schools having good communication facilities. (d) Similarly, if either of the couple teachers posted in the District is felt to be disturbed, he/ she may be absorbed either in the School where his/ her wife or husband is placed or at a nearby school of the posting of the wife or husband. In the said notification dated 4.6.2016 it has been directed that the process of rationalization was to be completed by June, 2016. 13. Thus, it is seen that the Government has come up the guideline dated 15.5.2012 conferring power upon the District Level Transfer Committee in each Education District by providing certain norms in the guideline in order to maintain PTR so that the provisions as contained in the Act, 2009 may be complied with. In continuation of the guideline dated 15.5.2012, another execution instruction has come up on 4.6.2016. In view of this policy decision as discussed hereinabove, the transfer order has been issued on 30.6.2016 in pursuance to the memo No.11137 dated 4.6.2016 of the Additional Secretary to the Government in School and Mass Education Department, Odisha, Bhubaneswar and with the approval of the Collector-cum-Chairman of the District Level Transfer Committee letter No. 468 dated 30.6.2016. In view thereof, the petitioner has been transferred from Teldia Primary School to Bankimundai Upper Primary School. 14. Learned counsel representing the petitioner has challenged the order of transfer on the following grounds: (a) The District Level Transfer Committee has no jurisdiction to transfer the petitioner; (b) The Sikhya Sahayaks cannot be transferred. (c) The impugned order of transfer is contrary to the ratio laid down by this Court in the case of Sk.Zafrullah (supra). 15. 14. Learned counsel representing the petitioner has challenged the order of transfer on the following grounds: (a) The District Level Transfer Committee has no jurisdiction to transfer the petitioner; (b) The Sikhya Sahayaks cannot be transferred. (c) The impugned order of transfer is contrary to the ratio laid down by this Court in the case of Sk.Zafrullah (supra). 15. So far as ground no.(a) regarding the jurisdiction of the District Level Transfer Committee is concerned, it has already been held by this Court in the case of Sk.Zafrullah (supra) that the District Level Transfer Committee has got jurisdiction to transfer the teachers and to that effect reference may be made to paragraphs 9 and 11 of the said judgment, which are quoted hereunder: “9. So far question No.(i) is concerned, it is not in dispute that the Principal Secretary to Government of Orissa, Department of School and Mass Education vide letter No.I-SME-G-35/10(pt)-12644/SME dated 15.05.2012 communicated the Guideline to all the Collectors/CEOs, Zilla Parishads with copy to Panchayati Raj Department, SPD, OPEDA etc. wherein it is stated that the Government have been pleased to constitute the Transfer Committee in each Education District and the Transfer Committee will undertake the rationalization exercise strictly in accordance with the guidelines mentioned therein. For better appreciation, it is necessary to quote the relevant portions of the said Guideline: “In order to comply with the provisions of the Right to Children to Free and Compulsory Education Act, 2009 i.e. school-wise PTR 30:01 at the Primary level and 35:01 at the Upper Primary level with a minimum of 2(two) teachers per school, rationalization of teachers is essentially required. The matter regarding framing of detailed guidelines for undertaking the rationzliation exercise was under active consideration of the Government. Government have now been pleased to constitute the Transfer Committee in each Education District in the following manner: (a) Collector & D.M. of the District -Chairman 8 (b) President of Zilla Parishad -Member (c) MLAs and MPs or their nominees -Member (d) Chairperson, Urban Local Bodies -Member (e) Chairperson Panchayat Samities of the concerned Education District -Member (f) District Project Coordinator, SSA -Member (g) All B.D.O.s of the respective Education District -Member (h) Executive Officer, Urban Local Bodies -Member (i) District Inspector of Schools -Member Convenor The Transfer Committee will undertake the rationalization exercise strictly in accordance with the following guidelines. 11. 11. As per Guideline dated 15.05.2012, in order to comply with the provisions of the Right of Children to Free and Compulsory Education Act, 2009, i.e., School-wise PTR 30:01 at the Primary level and 35:01 at the Upper Primary level with a minimum of 2(two) teachers per school, rationalization of teachers is essentially required. The matter regarding framing of detailed guidelines for undertaking the rationalization exercise was under active consideration of the Government. The Government have constituted the Transfer Committee in each Education District in the manner indicated in the Guideline above. Further in the said Guideline, it is specifically stated that the Transfer Committee will undertake the rationalization exercise strictly in accordance with the Guidelines dated 15.05.2012. Thus the Guideline dated 15.05.2012 (Annexure-2) is a policy decision of the Government in School and Mass Education Department. It is not the case of the State that the notification in question does not hold the field in the matter of transfer. In that background, stand of opposite parties that the petitioner cannot approach this Court, if such Guideline is not followed does not merit consideration. 15. In view of the above, the guideline dated 15.05.2012 under Annexure-2 issued by the Principal Secretary to Government in Department of School and Mass Education has statutory force and therefore the same is to be followed by opposite party No.4 while transferring the elementary teachers/Sikhya Sahayak etc. and any transfer made contrary to the said guideline is not sustainable in law.” Thus, it is wrong to say that the District Level Transfer Committee has no jurisdiction to transfer the Sikhya Sahayaks. 16. So far as ground no.(b) i.e. Sikhya Sahayaks cannot be transferred, is concerned, it is also not worthy to be considered in view of the fact that in the case of Sk.Zafrullah (supra), this Court in para-15 has held that the transfer of the elementary teachers/ Sikhya Sahayaks can be made strictly on the basis of the provisions made in the guideline dated 15.5.2012. In this regard reference may be made to paragraph 15 of the said judgment as quoted above. 17. Thus, even otherwise also, it has already been held that Sikhya Sahayaks can be transferred subject to administrative exigencies. 18. In this regard reference may be made to paragraph 15 of the said judgment as quoted above. 17. Thus, even otherwise also, it has already been held that Sikhya Sahayaks can be transferred subject to administrative exigencies. 18. As has been discussed hereinabove, by referring to the resolution dated 6.8.2013 that Sikhya Sahayaks are to be engaged strictly on the basis of the norms laid down in the Act, 2009 and it is the Sikhya Sahayak, which is the basic entry to teaching cadre in the Government Primary Schools in the State of Odisha and as such, if the Sikhya Sahayaks will not be transferred in order to maintain PTR, then there might be a situation that in one school Sikhya Sahayaks can be more whereas in another school Sikhya Sahayaks will be less and that will ultimately affect the teaching in the school where Sikhya Sahayaks are less in comparison to the availability of students. 19. The order of transfer has been issued on the basis of the policy decision of the competent authority and as such, the competent authority is the best judge to transfer one Sikhya Sahayaks from one school to another in order to maintain PTR and as such, this Court should not interfere in the decision of the competent authority in posting of one or the other Sikhya Sahayaks in order to maintain rationalization of PTR for keeping larger interest of the students and also keeping in view the provisions of the Act, 2009. The ratio of the judgment of this Court in Sk.Zafrullah (supra) will not be applicable to the case of the petitioner because in that case this Court has been pleased to interfere after taking into consideration the fact that the petitioner of the said writ petition had been transferred to a place, which is 50 Kms. away from the existing place of posting, but here in this case it is in the same block, which is at a distance of 15 kms. only. Moreover, since it the policy decision of the State Government, it will not be proper for this Court to interfere with the decision of the Government, which is also the crux of the judgment rendered by this Court in the case of Sk.Zafrullah (supra). 20. only. Moreover, since it the policy decision of the State Government, it will not be proper for this Court to interfere with the decision of the Government, which is also the crux of the judgment rendered by this Court in the case of Sk.Zafrullah (supra). 20. The Apex Court in Mohd.masood Ahmad v. State of U.P. and others, (2007) 8 SCC 150 has been pleased to hold that interference by the Courts with the order of transfer should only be in very rare cases and it should not be interfered with ordinarily by a court of law in exercise of its discretionary jurisdiction under Article 226 unless the court finds that either the order is mala fide or that the service rules prohibit such transfer, or that the authorities who issued the orders, were not competent to pass the orders. Reference may be made to the judgment of the Supreme Court in the case of State of Punjab and others v. Joginder Singh Dhatt, AIR 1993 SC 2486 wherein in paragraph 3 it has been held as follows : “We have heard learned counsel for the parties. This Court has time and again expressed its disapproval of the courts below interfering with the order of transfer of public servant from one place to another. It is entirely for the employer to decide when, where and at what point of time a public servant is transferred from his present posting. Ordinarily the courts have no jurisdiction to interfere with the order of transfer. The High Court grossly erred in quashing the order of transfer of the respondent from Hoshiarpur to Sangrur. The High Court was not justified in extending its jurisdiction under Article 226 of the Constitution of India in a matter where, on the face of it, no injustice was caused.” In Union of India and others v. S.L. Abbas, (1993) 4 SCC 357 , the Apex Court in paragraphs 6 and 7 have been pleased to hold that an order of transfer is an incident of Government service. 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. 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. 21. Applying the ratio laid down by the Apex Court in the cases referred to above, the petitioner has not made out a case of mala fide or violation of any statutory provision, rather what has been gathered by this Court is that the order of transfer has been issued strictly in pursuance to the guidelines issued by the Government and as such, the order of transfer being a service condition, is not to be interfered with by this Court sitting under Article 226 of the Constitution of India. 22. Thus, the well established proposition is that the order of transfer being a condition of service, is least to be interfered with by the Court of law and only in case where the order of transfer has been issued in violation of statutory rule or with mala fide intention or without any authority, the same can be interfered with, but no such ground has been pleaded in the writ petition. 23. Taking into consideration all these aspects, in my considered view, no case is made out by the petitioner for interfering with the decision of the authority with respect to her transfer as has been passed vide order dated 30.6.2016. 24. In view thereof, I find no merit in this writ petition, which is accordingly dismissed.