Research › Search › Judgment

Orissa High Court · body

2017 DIGILAW 484 (ORI)

State of Orissa v. Minarva Dash

2017-04-27

S.N.PRASAD, SANJU PANDA

body2017
JUDGMENT : S.N. Prasad, J. This writ petition is under Articles 226 and 227 of the Constitution of India whereby and where under the order 1.7.2016 passed by the State Administrative Tribunal, Principal Bench, Bhubaneswar in O.A.No.2760 of 2015 is under challenge having been assailed by the State of Odisha wherein order of transfer dated 12.6.2015 and order dated 17.10.2015 has been quashed by the Tribunal. 2. Brief facts of the case is that the opposite party no.1/applicant had joined in her service as an Assistant Teacher (TG) in Kada Baranga Girls High School in the district of Bhadrak on 1.7.1981. She was transferred to Cuttack circle and joined in Bhakta Madhu Bidyapitha, Cuttack on 1.11.1996 but while she was continuing as such, she was promoted to the cadre of Sr. SES and then Inspector of Schools, posted her as Headmaster of Sahid Smruti Bidyapitha on 8.11.2011. The opposite party no.1 while continuing as such, made representation for her transfer on the ground of suffering with serious cardiac problem and accordingly she was posted at Kunjabihari Jew High School, Chauliaganj, Cuttack as Headmaster. The opposite party no.1 while discharging her duty as Headmaster in Kunjabihari Jew High school, Chauliaganj,Cuttack was transferred vide order dated 21.8.11 dated 12.6.2015 to Dadhibaman Jew Bidyamandir, Gholpur by the order of the petitioner no.2 against which she has made a representation for recall of the order of transfer on the ground that she has only joined at Kunjabihari Jew High School, Chauliaganj, Cuttack on 4.6.2012 and is suffering from medical ailment but since her reliever who was bent upon to join in her place, she having no option filed O.A.No.2478(C) of 2015 before the State Administrative Tribunal, Cuttack Bench, Cuttack, the Tribunal while disposing of the original application directed the petitioners to consider the case of the opposite party no.1 as per the ground taken in the representation and take decision within one month from the date of receipt of copy of the order. The authority has passed order on 17.10.2015 assigning reason of her transfer, that is, on the basis of the allegations received from the President of the School management, as such on administrative reason she has been transferred, hence declined to interfere with the order of transfer. The authority has passed order on 17.10.2015 assigning reason of her transfer, that is, on the basis of the allegations received from the President of the School management, as such on administrative reason she has been transferred, hence declined to interfere with the order of transfer. Accordingly, fresh original application has been filed assailing the order of transfer dated 12.6.2016 as the order dated 17.10.2015 was passed in pursuance to the order passed by the Tribunal in O.A.No.2478(C) of 2015 on the ground that the transfer order has been passed which is punitive. 3. Learned counsel for the petitioners-State of Odisha has submitted that the order of transfer is on administrative reason, same has been passed on the basis of the complaint having been received against the opposite party no.1 and since she was discharging her duty as Headmaster, Headmaster being the head of the institution, cannot be allowed to involve herself in the miss-management of the school, only in order to maintain good atmosphere in the school, she has been transferred on administrative ground. It has been submitted that the transfer since is incidence of service and as such a person having transferable post can be transferred to a place subject to the terms and conditions of offer of appointment. It has been controverted that it cannot be said to be order of transfer punitive in nature because nothing is reflected in the order of punishment but simultaneously the authority who is supposed to maintain good atmosphere in the school and if complaint is received, the incumbent has to be transferred otherwise there will be no meaning being the controlling authority. It has been submitted that the order of transfer can only be unfair if the same is without jurisdiction or in exercise of malafide or issued in violation of the statutory rule but none of the grounds has been made by the opposite party no.1. It has been submitted that the order of transfer can only be unfair if the same is without jurisdiction or in exercise of malafide or issued in violation of the statutory rule but none of the grounds has been made by the opposite party no.1. He further submits that ground of malice has been taken and alleging that no adequate opportunity of being heard has been given to the opposite party no.1, but in the facts and circumstances of the case, it cannot be said that there is malice against the opposite party no.1 otherwise she could not have been transferred on her request on earlier occasion to Kunjabihari Jew High School, Chauliaganj,Cuttack where she was continuing since June, 2012, as such she has already completed more than four and half years and about to complete five years, while the normal procedure for transfer is after three years, hence there is no illegality having been committed by the authorities. It has been submitted by learned counsel for the petitioners that the Tribunal without appreciating this aspect of the matter and putting reliance of the judgment passed by the Hon’ble Apex Court in the case of Somesh Tiwari –vs- Union of India and others, reported in (2009)2 SCC 592 has quashed the order of transfer which is not proper because the judgment relied upon by the opposite party no.1 in the case of Somesh Tiwari –vs- Union of India and others(supra) is not applicable in the facts and circumstances of the instant case. 4. While, on the other hand, learned senior Standing Counsel representing the School and Mass Education Department while defending the order passed by the Tribunal has submitted that there is no infirmity in the order passed by the Tribunal rather the Tribunal, after taking into consideration all aspects of the matter and considering the fact that the transfer has been made on the basis of some allegations, has came to definite finding that the transfer is by way of punishment and it is settled that transfer cannot be made on punishment. 5. We have heard learned counsel for the parties and perused the documents available on record. 6. 5. We have heard learned counsel for the parties and perused the documents available on record. 6. The admitted position in this case is that the opposite party no.1/applicant was working as Headmaster in Sahid Smruti Bidyapitha with effect from 8.11.2011, while continuing there she was suffering from cardiac problem and as such made representation to the competent authority for her transfer to the district of Cuttack on the ground of having better medical facility there, the authorities have considered this, passed order of transfer on 4.6.2012 posting her to Kunjabihari Jew High school, Chauliaganj, Cuttack as Headmaster. While she was continuing there, some allegations have been leveled against her, in course of enquiry the authority have taken decision to transfer her on administrative ground vide order dated 12.6.2015, accordingly she was transferred to Gholpur which is 55 km. away from Cuttack. The petitioner has assailed the order of transfer before the Tribunal on earlier occasion but the Tribunal while disposing of the original application has directed the authorities to pass an order, accordingly order has been passed on 17.10.2015 rejecting her representation on the ground that there is some allegations against her which she has challenged before the Tribunal which is the subject matter of the present writ petition. 7. The ground which has been taken by learned counsel representing the petitioners that the background of transfer is on the basis of allegation, as such it cannot be said that the transfer is punitive in nature. There is no dispute about the fact that transfer cannot be made by way of punishment. It is also not in dispute that the State/employer is the best to adjudge who is to be posted in which place. Simultaneously, authorities who is in control of the system, is also supposed to maintain congenial atmosphere for smooth functioning of the institution. Case in hand pertains to transfer of a Headmaster against whom certain allegations have been leveled to which the authorities after confirmation of the allegations on enquiry has taken decision to transfer her on administrative reason without reflecting anything on the order of transfer so that the same may not be prejudicial to her interest. Case in hand pertains to transfer of a Headmaster against whom certain allegations have been leveled to which the authorities after confirmation of the allegations on enquiry has taken decision to transfer her on administrative reason without reflecting anything on the order of transfer so that the same may not be prejudicial to her interest. If any allegation is leveled against the head of the institution that too against the incumbent who is holding the post of Headmaster who is supposed to maintain administration in all respects of the school, the authority cannot be said to be silent spectator otherwise the entire system of the school will collapse and jeopardize. The opposite party no.1 has been transferred to another place which is about 55 kms from the present place of posting. He further submits that on earlier occasion order of transfer has been passed but the said contention is not acceptable to us because of the reason that the allegations cannot be said to be a punishment unless punished by the competent authority and that stage has not yet come, rather on some allegations she has been transferred. He further submits that on earlier occasion order of transfer has been passed but the said contention is not acceptable to us because of the reason that the allegations cannot be said to be a punishment unless punished by the competent authority and that stage has not yet come, rather on some allegations she has been transferred. Learned Tribunal ought to have taken into consideration this aspects of the matter in larger respect but it failed to do that rather putting reliance in the case of Somesh Tiwari –vs- Union of India and others (supra) has interfered with the order of transfer by taking into consideration the word used in the order impugned dated 17.10.2017 the “allegation”, but the Tribunal failed to consider that there is wide difference between “punishment” and “allegation”, but so far as applicability of the judgment in the case of Somesh Tiwari –vs- Union of India and others (supra) to the this case is that, the appellant in that case has been transferred on the ground of allegations contained in an anonymous letter while the directive of the Central Vigilance Commission was that no enquiry could have been initiated but ultimately allegations were found to be untrue but that is not the fact here, in the instant case on the basis of the complained by known persons, enquiry has been conducted and in course thereof the allegations leveled against the opposite party no.1 is found true, hence she has been transferred, as such on false case relied upon by the opposite party no.1 before the Tribunal, which has been accepted by it, is not applicable in the instant case. 8. We have examined the judgments of the Hon’ble Apex Court regarding interference by High Court in the matter of transfer, some of them are being referred herein below. In the case of Union of India –vs- S.L. Abbas, reported in (1993)4 SCC 357 wherein at paragraph-7 the Hon’ble Apex Court has been held which is being quoted below: “An order of transfer is an incident of Government Service. Fundamental Rule 11 says that “the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority”. Fundamental Rule 15 says that “the President may transfer a government servant from one post to another”. Fundamental Rule 11 says that “the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority”. Fundamental Rule 15 says that “the President may transfer a government servant from one post to another”. That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed “mischief” to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.” In the case of Masood Ahmad –v- State of U.P. and others, reported in (2007) 8 SCC 150 , wherein at paragraph-7 the Hon’ble Apex Court held which is being quoted herein below: “The scope of judicial review of transfer under Article 226 of the Constitution has been settled by the Supreme Court in Rajendra Roy –vs- Union of India, (1993)1 SCC 148 ; National Hydroelectric Power Corpn. Ltd. –vs- Shri Bhagwan, (2001)8 SCC 574 ; State Bank of India –vs- Anjan Sanyal, (2001) 5 SCC 508 . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh –vs- State of U.P.,1998 All. Ltd. –vs- Shri Bhagwan, (2001)8 SCC 574 ; State Bank of India –vs- Anjan Sanyal, (2001) 5 SCC 508 . Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh –vs- State of U.P.,1998 All. LJ.70 and Onkar Nath Tiwari –vs- Chief Engineer, Minor Irrigation Deptt.,1998 All LJ.245 has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which 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.” In the case of Government of Andhra Pradesh –vs- G.Ventaka Ratnam, reported in (2008)9 SCC 345 , wherein the Hon’ble Apex Court at paragraph-11 held which is being quoted below: “The legal position regarding interference by courts in the matter of transfer is too well established to be repeated here. The respondent’s transfer neither suffers from violation of any statutory rules nor can it be described as mala fide by any stretch of imagination. We are, accordingly, unable to sustain the High Court’s order. In the result, this appeal is allowed, the order coming under challenge is set aside and the writ petition filed by the respondent in the High Court is dismissed.” In the case of Novartis India Limited –vs- State of West Bengal, reported (2009) 3 SCC 124 , wherein at paragraph-34 it has been held by Hon’ble Apex Court that “there cannot furthermore be any doubt that the transfer is an incident of service. Unless an order of transfer is passed contrary to the provisions of the statutory rule or settlement, the same should not be interfered with”. 9. We, taking into consideration the factual aspect as narrated herein above and relying upon the judgments referred to above, are of the considered view that the Tribunal has passed order which cannot be said in consonance with the settled proposition of law, hence, we are not in agreement with the same. Accordingly, the order dated 1.7.2016 passed by the Tribunal in O.A.No.2760 of 2015 is set aside. In the result, the writ petition stood allowed.