Dhira Bai Saha and Others vs The State of Jharkhand and Others

Rongon Mukhopadhyay, J.—Since in all the writ applications, challenge has been made to the office order passed by the respondent No. 4 as contained in Memo No. 368/Dhanbad dated 12.02.2015, the same are being disposed of by a common order.

The facts, which appear from the writ applications are that the petitioner in WPS No. 713 of 2015 is working as an Assistant Teacher in the district of Dhanbad and the home block of the petitioner is Dhansar. The petitioner was transferred with mutual consent to Aadarsh Hindi Boy Middle School, Dhanbad Bazar from K.C. Girls Middle School, Jharia-1, by an office order as contained in Memo No. 114 dated 29.01.2013. Subsequently, however, the petitioner was transferred from Aadarsh Hindi Boy Middle School, Dhanbad Bazar, Dhanbad to Girls Middle School, Karkendra, Dhanbad-2, by virtue of office order as contained in Memo No. 491 dated 20.02.2014. The petitioner was once again transferred from Middle School, Karkendra Balika, Dhanbad-2 to Boys Primary School, Kusmatand, Baliapur. A representation was submitted by the petitioner, in which it was stated that she is suffering from cancer and is undergoing treatment at Vellore and Patna and transferring her to a distant place would create difficulties for her in getting treatment.

In W.P.S. 708 of 2015, the petitioner is working as an Assistant Teacher. Vide impugned office order as contained in Memo No. 368/Dhanbad dated 12.02.2015, she has been transferred from Middle School, Karkendra Balika, Dhanbad-2 to Middle School Aankdwara, Nirsa-2.

In W.P.S. 707 of 2015, the petitioner was working as an Assistant Teacher in Middle School, Karkendra Balika, Dhanbad-2, from where by the same impugned office order dated 12.02.2015, the petitioner has been transferred to Middle School, Khas, Nirsa-1.

Common argument has been advanced by the learned counsel for the petitioners to the effect that service book of the petitioners denote their home block as Dhansar and that they could not have been transferred and posted at a far away place, which is contrary to the Rules and Regulations issued by the State Government from time to time. It has been submitted that so far as the petitioner in WPS No. 713 of 2015 is concerned, the petitioner has been within a span of two years transferred thrice, once by mutual consent and other two times on the ground of administrative exigency. It has been submitted by the learned counsel for the petitioners that the service condition of the petitioners are governed by the Bihar (Now Jharkhand) Nationalized Primary School Teacher (Transfer and Disciplinary Proceeding) Rules, 1994, as adopted and amended by virtue of Notification dated 16th January, 2001. It has further been submitted that in terms of the aforesaid rules, a teacher normally has to be posted within his/her home block but the respondents have transfered the petitioners to different schools at different blocks outside the home block of the petitioner, which is contrary to the Rules of 1994. It has also been submitted that by virtue of the impugned order, a mass transfer has been sought to be effected, which is contrary to the Government Resolution dated 25.11.2015, which prohibits mass transfer of teachers. It has also been submitted that as per the letter dated 26.09.2011, the period for transfer and posting of the teachers should generally be in the month of May and June but contrary to the said provisions in a haste, the petitioners have been transferred on the ground of administrative exigency.

Shri Dhananjay Kumar Dubey, learned Sr. S.C. 1, has submitted that the transfer order, which has been impugned in the present writ application has been issued on account of administrative reasons and the same cannot be said to be punitive in nature. He has further submitted while referring to the Notification dated 16.02.2001 that the same is not mandatory in nature, rather the same has been generalized to the effect that save and except administrative necessities, teachers should generally be posted in their home block. It has further been submitted that the transfer order issued by the respondent No. 4 was on the basis of the recommendation of the Establishment Committee and the same was issued purely on administrative grounds. It has further been submitted by learned Sr. S.C. 1 that save and except the petitioner in WPS No. 713 of 2015, the other petitioners have already joined their respective schools. It has further been submitted that while the petitioners were posted at Middle School, Karkendra Balika, Dhanbad-2, a surprise inspection was done by the Block Education Officer, Dhanbad-II on 25.08.2014 and it was found that the petitioners and other teachers were absent and the attendance of the teachers and the staffs in the attendance register were crossed. It has also been submitted that in view of the fact that in the inspection, the petitioners and other teachers were not found present, they were transferred on administrative ground on the recommendation of the Establishment Committee.

Controverting the arguments advanced by learned Sr. S.C. I, the learned counsel for the petitioners has submitted that none of the petitioners in the writ applications have joined in their respective schools and the submission of learned counsel for the State is factually incorrect. So far as WPS No. 708 of 2015 and WPS No. 707 of 2015 is concerned, learned J.C. to G.A. and learned J.C. to S.C. 1 have relied upon the counter affidavit filed by the State-Respondents in WPS No. 713 of 2015. Learned counsel have further added that the petitioners in the said writ applications have not stated as to since when they are working in the said school. It has further been submitted that since the transfer order is purely based on administrative exigency and is not punitive in nature, as such under writ jurisdiction the plea of the petitioners cannot be entertained. Learned Sr. S.C. 1 has referred to certain judgments to impress upon the point that the transfer was not punitive in nature and that it was necessary on administrative grounds.

In the case of Jagarnath Prasad Vs. State of Jharkhand and Others, (2008) 56 BLJR 2947 : (2008) 4 JCR 87 , it was held that detailed reasons were not required to be mentioned in an order of chain transfer. The Hon''ble Court refused to interfere in the order of transfer since there was no allegation of mala fide against any person.

In the case of Yugeshwar Mochi Vs. State of Jharkhand and Others, (2009) 1 JCR 521 , it was held that the impugned order of transfer does not indicate that it was passed by way of any punishment against the petitioners or that stigma is attached to the petitioners.

Reference has been made to the case of Airport Authority of India v. Rajiv Ratan Pandey and Ors., reported in 2010 2 JLJR 189 (SC), it was held as follows:-

"In a matter of transfer of a government employee, scope of judicial review is limited and High Court would not interfere with an order of transfer lightly it be at an interim stage or final hearing. This is so because the Court does not substitute thereunder decision in the matter of transfer."

In the case of Vijay Kumar Singh v. State of Jharkhand, reported in 2010 2 JLJR 615, it was held that no legal right vested in the petitioner to continue at one place at longer period despite the administrative exigencies.

The aforesaid judgments do point to the fact that an order of transfer should not be interfered with lightly. Courts should not interfere with purely administrative matters, like transfer and posting except where it is absolutely necessary on account of violation of any fundamental or legal rights. The administration cannot function with its hands tied by the judiciary behind its back. Transfer is an incidence of service and should not generally be interfered with except if the same is actuated with malice or has been passed by way of or in lieu of punishment.

Learned counsel for the petitioners has put much reliance on various government Circulars, Rules and Resolutions to stress on the point that there cannot be mass transfer and that the transfer can only be made in the home block and not beyond. None of the provisions, as have been pointed out by learned counsel for the petitioners, be considered to be mandatory in nature in the face of the administrative requirement or administrative exigencies. The counter affidavit reveals that at the time of inspection, the petitioners and other teachers were found absent from the school. If the petitioners, who are the teachers, have made themselves unavailable during school time when they are expected to educate and guide the children, the same can be considered to be a reason or an administrative exigency leading to issuance of the impugned order of transfer. Although the order of transfer does not indicate in so many words but the grounds, as have been enumerated by the petitioners for stalling the order of transfer in the facts and circumstances of the case do not warrant any interference.

In such circumstances, since no illegality could be pointed out by the petitioners in the impugned order as contained in Memo No. 368/Dhanbad dated 12.02.2015, the writ application is accordingly dismissed.