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Madhya Pradesh High Court · body

2020 DIGILAW 69 (MP)

Arvind Dangi v. State Of M. P. And Others

2020-01-10

G.S.AHLUWALIA

body2020
JUDGMENT 1. This petition under Article 226 of the Constitution of India has been filed challenging the order dated 23/11/2019 as well as order dated 31/12/2019 passed by respondent no.3. 2. It is not out of place to mention here that this is the second round of litigation. By order dated 23/11/2019, Annexure P/1, the petitioner has been transferred to the Government Primary School Village Tilera from Government Middle School Village Diswar. The said order was challenged by the petitioner by filing writ petition No.26779/2019 and this Court by order dated 10/12/2019 disposed of the said writ petition with a liberty to the petitioner to file a representation and it was further directed that in case if the representation is filed, then the same shall be decided by the respondents by passing a speaking order within a period of four weeks from the date of receipt of representation and it was further directed that till the representation is decided, the petitioner shall be allowed to continue at the present place of posting. Thereafter, the petitioner moved a representation, Annexure P/10, which has been dismissed by the respondent no.3 by order dated 31/12/2019. 3. Challenging the orders dated 23/11/2019 and 31/12/2019, it is submitted by the counsel for the petitioner that as per the list of surplus teachers uploaded on the portal, two teachers and one headmaster is working in Primary School Diswar against the total strength of 53 students and according to the uploaded list, the post of headmaster was in surplus. As per the provisions of Right of Children to Free and Compulsory Education Act, 2009, two teachers are required in a school having the strength upto 60 students. Since the post of headmaster was surplus, therefore, the petitioner was not in surplus and thus, he should not have been transferred. Further, the petitioner was transferred to the present place of posting by order dated 21/9/2017 and he has completed just two years of his regular posting in Primary School Diswar. Therefore, it is prayed that the impugned order dated 23/11/2019 is bad because of frequent transfers. 4. Heard learned counsel for the petitioner. 5. Against the order dated 23/11/2019 the petitioner had made a representation, Annexure P/10, and in the said representation no ground with regard to the frequent transfer was raised. Therefore, it is prayed that the impugned order dated 23/11/2019 is bad because of frequent transfers. 4. Heard learned counsel for the petitioner. 5. Against the order dated 23/11/2019 the petitioner had made a representation, Annexure P/10, and in the said representation no ground with regard to the frequent transfer was raised. The only ground raised in the representation was that in fact the post of headmaster was surplus and the petitioner has been wrongly transferred. This Court in the case of Devendra Rajoriya vs. State of M.P. by order dated 6.12.2019 passed in W.P.No.26384/2019 has held as under:- ' Shri Brijesh Sharma, Counsel for the petitioner. Shri Pawan Singh Raghuvanshi, Govt. Advocate for the respondents/ State. This petition under Article 226 of the Constitution of India has been filed challenging the order dated 23/11/2019 (Annexure P1) passed by respondent No.4, by which the petitioner has been transferred from UEGS Dharam Singhkapura, Pithan, Block Ater, District Bhind to Primary School Kamanpura, Block Mehagaon, District Bhind. (2) It is fairly conceded by the Counsel for the petitioner that the petitioner is working at the present place from the date of his appointment. It is submitted that the transfers are to be made from 22/06/2019 to 31/07/2019, however, the transfer order has been passed during ban period. Since the transfer order has been passed without approval of the Chief Minister-in Coordination, therefore, the transfer of the petitioner is bad. Further, there are only two teachers for twenty-one students and if the petitioner is transferred, then only one teacher would be left, which would be contrary to the provisions of Section 25 of Right of Children to Free and Compulsory Education, 2009 [in short '' the Act, 2009'']. The petitioner has been transferred to Primary School Kamanpura, Block Mehagaon, District Bhind where two teachers are already working there with less number of students. Thus, it is submitted that not only the transfer order has been passed during the ban period, but it is violative of Section 25 of Act, 2009 and there is no administrative exigency. (3) Per contra , it is submitted by the Counsel for the State that so far as the question of ban on the transfer is concerned, the School Education Department by letter dated 15th November, 2019 has relaxed the ban from 15.11.2019 to 23.11.2019. (3) Per contra , it is submitted by the Counsel for the State that so far as the question of ban on the transfer is concerned, the School Education Department by letter dated 15th November, 2019 has relaxed the ban from 15.11.2019 to 23.11.2019. (4) So far as the requirement of maintaining ''pupil-teacher ratio'' under Section 25 of the Act, 2009 is concerned, it is submitted by the Counsel for the State that every step would be taken to maintain the ''pupil-teacher ratio'', however, the transfer of the petitioner be not quashed on the said ground. So far as the administrative exigency is concerned, it is submitted that even according to the petitioner himself, he has spent his entire service career at the present place of posting and since transfer is an exigency of service, therefore, the petitioner cannot claim that he should be posted at a particular place. (5) Heard the learned Counsel for the parties. (6) Section 25 of the Act, 2009 deals with ''pupil-teacher ratio''. Thus, it is the duty of the State to ensure that the ''pupil-teacher ratio'' is maintained as required under Section 25 of the Act, 2009. Therefore, it is believed that the State would post some teachers in place of the petitioner in order to maintain the ''pupil-teacher ratio''. However, this Court cannot act as an appellate authority and cannot quash the transfer order because it will disturb the ''pupil-teacher ratio'' under the Act, 2009. (7) So far as the transfer during the ban period is concerned, the School Education Department by letter darted 15th November, 2019 has relaxed ban on the transfer till 23/11/2019. Thus, it is incorrect to say that the transfer order has been issued during the ban period. Under these circumstances, this Court is of the considered opinion that since the petitioner has already spent his entire service career at the present place of posting and as the employee cannot claim that he/she should be posted at a particular place and the transfer is an exigency of service, no case is made out warranting interference. (8) This petition fails and is hereby dismissed. " 6. It is the case of the petitioner that the strength of the students studying in Primary School, Diswar is 58 and, therefore, two teachers are required to be posted. (8) This petition fails and is hereby dismissed. " 6. It is the case of the petitioner that the strength of the students studying in Primary School, Diswar is 58 and, therefore, two teachers are required to be posted. This Court has already held in the case of Devendra Rajoriya ( supra ) that it is the duty of the respondents to maintain pupil-teacher ratio and no transfer can be quashed only on the ground that the transfer of a teacher would disturb the pupilteacher ratio. Accordingly, it is directed that the respondents shall ensure that the pupil-teacher ratio is not disturbed. Furthermore, according to the petitioner himself, three teachers including the headmaster are already posted in Primary School Diswar. Furthermore, it is not the case of the petitioner that any other teacher in Primary School Diswar was posted subsequent to the posting of the petitioner in the said school. As per clause 1.3 of the transfer policy dated 22/6/2019, in case if the teachers are in surplus, then the junior most teacher would be transferred and the words 'junior most' have also been explained in the said clause and it has also been mentioned in clause 1.3 that the junior most teacher would mean that who is junior most amongst the teacher posted in the school. It is not the case of the petitioner that any one of the remaining two teachers are junior to that of the petitioner. Accordingly, this Court is of the considered opinion that the respondent no.3 did not commit any mistake in rejecting the representation made by the petitioner. 7. Accordingly, the petition fails and is hereby dismissed.