AI Structured Summary
Not yet generated for this judgment
Judgment
In both the writ petitions, the petitioner respectively being husband and wife individually challenge the orders of transfer passed by the
respondent transferring them from Atomic Energy Central School, Kalpakkam to Atomic Energy Central School, Manuguru by order dated 11th
June 1999.
The separate orders impugned in both the writ petitions are identical in all respects. The petitioner in W.P.No.12475 of 1999 is P.W. Isenth,
while the petitioner in W.P.No.12476 of 1999 is Laly Michael, who is the wife of the said P.S.Isenth.
The challenge to the impugned orders is identical in both the writ petitions and it would be sufficient to set out the common case and contentions
to decide both the writ petitions.
The petitioner in the first writ petition is a trained graduate teacher in Art while the petitioner in the second writ petition is a primary teacher in
Maths/Science. The petitioner in the second writ petition was initially appointed as a primary teacher on 4.2.1995 at Tarapore while the petitioner
in the first writ petition was appointed as trained graduate teacher at Kalpakkam. At the request of the petitioners to post them in any one of the
four centre, the petitioner in the second writ petition came to be transferred and posted to the School at Kalpakkam on 6.5.1997.
The petitioner in the first writ petition was elected as the President for the Kalpakkam Branch of All India Atomic Energy Central School and
Junior College Teachers Welfare Association, a recognised Association and as Area President he had been evincing interest in the activities and
taken up the cause of teachers. Mr.B.P.Sharma became Principal of the 3rd respondent School during October, 1995 and his partisan attitude
towards Physical Education Teacher Ms. Vijaya led to confrontation and as the said partisan attitude was highlighted by the petitioner in his letters
dated 17.11.1997, 3.12.1997 and 15.12.1998. As a result of the petitioner taking up such issues, the petitioner had been transferred from
Kalapakkm in Tamil Nadu to Manuguru in Andhra Pradesh.
According to the petitioner, the said transfer is a measure of victimisation, it is a mala fide and vindictive action to get rid of the petitioner for his
Association activities that there is no public interest nor there is an interest of the institution and that the petitioners should not have been transferred
before the expiry of two years in respect of the petitioner in the second writ petition. It was also contended that the order of transfer has not been
passed by the competent authority and therefore it is illegal and without jurisdiction. Mr.Hariparanthaman learned counsel appearing for the writ
petitioner elaborated the said contentions.
Per contra, the respondents 2 and 3 have filed their counter separately stating that orders of transfer has been passed taking into consideration
of the interest of the institution, which is a public institution, that the order has been passed by the competent authority, that the petitioner in the
second writ petition being the wife of the first petitioner is also posted at Manuguru since the respondents decided to post them together and not to
separate the couple. The respondents also denied the allegations of mala fides, vindictiveness or malice. The respondent also denied all the
allegations set out in the affidavit filed in support of both the writ petitions.
Mr.N.Jothi, appearing for the respondents contended that no interference is called for in both the writ petitions and this Court will decline to
exercise powers of judicial review with respect to the impugned orders of transfer, in both the writ petitions. It was further contended that there
were no guidelines and that one of the petitioners, who had the benefit of transfer from one centre to another centre cannot be allowed to contend
that she cannot be transferred to another centre. A reply affidavit also has been filed. Mr.Hariparanthaman also referred to guidelines which is also
being disputed by Mr.N.Jothi. Mr.N.Jothi also contended that the writ petitions are not maintainable.
In both the writ petitions, the following points arise for consideration:-
Whether the writ petitions are maintainable?
Whether the orders of transfer has been passed by an incompetent authority?
Whether the petitioners are liable to be transferred from one Centre to another Centre ?
Whether the orders of transfer is vitiated by mala fides or vindictiveness, besides being arbitrary?
Whether the reasons assigned that there has been a fall in strength is true or correct and whether relevant?
Taking up the second first contention, whether the impugned order of transfer had been passed by incompetent authority, namely the second
respondent the Assistant Administrative Officer this Court called upon the respondents to substantiate that the orders of transfer has been passed
by the competent authority. The learned counsel for the respondents is able to sustain that the orders of transfer had been passed by the competent
authority by producing the file and that the second respondent had merely communicated the same. Hence it is clear that the orders of transfer had
been passed by the competent authority and the order is not vitiated on that score.
As regards the maintainability of the writ petitions though an objection had been raised in the counter affidavit, at the time of argument realising
the position Mr.Jothi did not advance any arguments. Atomic Energy Society is an autonomous body under the Department of Atomic Energy
Government of India has established the institutions and they are maintaining the institutions. It is clear from the affidavit filed in support of the writ
petition that the schools have been established by the Department of Atomic Energy and it is fully aided by the Central Government. As such the
respondents will fall definitely within the ambit of the expression ""other authority"" under Article 12 of the Constitution. Hence the writ petitions are
maintainable as the Educational institutions established by the said Society is an instrumentality of the Central Government.
As regards the 3rd contention it had been rightly pointed out by Mr.N.Jothi that the petitioners are liable to be transferred from one Centre to
another centre namely from Kalpakkam to Manuguru, Manuguru to Mysore or Bombay wherever the respondent Society had established its
schools. Earlier number of transfers were effected and infact the petitioner in the second writ petition had the advantage of the said policy
otherwise she could not have been posted at Kalpakkam. There was some controversy as to the ""guidelines"" prescribed for transfer.
During the arguments is fairly stated by either side that the transfer from one centre to another centre of the schools established by the Atomic
Energy Education Society which has got a central office at Mumbai and centres at various places is permissible. Therefore the petitioners are liable
to be transferred.
As regards the 4th contention that the orders of transfer is vitiated by mala fides, besides being arbitrary. In this respect, the first petitioner
claims that he is the active office bearer of the Association. It has to be pointed out that the allegations of malafides or vindictiveness have been
made against the 3rd respondent Headmaster of the School and not against the competent authority who had passed the order of transfer. The
order of transfer has not been passed by the 3rd respondent the Head Master of the School. Against the said authority, there are no allegations of
mala fides. It is not as if the petitioners have made allegations of mala fides or vindictiveness against the authority who had passed the orders of
transfer.
Further the allegations are not specific and they are vague. Except stating that the Headmaster of the School had an axe to grind as the
petitioner had made a issue with respect to the Headmaster preferring one of the Physical Education Teachers it is not as if there is any direct
confrontation or element of vindictiveness or enimity between the petitioners and the 3rd respondent or for that matter against the authority who
decided to transfer. The vague averments set out in the affidavit are not sufficient to go into those allegations. Further no materials have been
placed before the Court to substantiate even those vague allegations. Incidentally it was contended that the orders of transfer has been passed
without application of mind and the petitioners were not transferred in public interest.
It was contended by Mr.Hariparanthaman being School teachers no question of public interest arise. Per contra, Mr.Jothi learned counsel
appearing for the respondents pointed out that as a surplus teacher in the school is being transferred from one school to another school the
expression ""public interest"" has been added in addition to other reasons set out in the orders of transfer. It may be that the expression ""public
interest"" has been used as a misnomer. On that score it cannot be said that the order is vitiated. As the school has been established by the Atomic
Energy Education Society and as the entire expenses had been provided for by the Central Government and the schools have been established for
the benefit of the staff and other employees of the Atomic Energy Centre, the expression ""public Interest!"" has been employed while passing the
orders of transfer.
It cannot be said that the order of transfer is vitiated by non-application of mind nor it could be stated that the order of transfer has been made
for collateral reasons. Mr.N.Jothi, rightly pointed out that the necessity to transfer the petitioner arose also due to the fact that there is a surplus
staff at Kalpakkam, who have to be redeployed in anyone of other centres. The respondents have taken into consideration of all relevant aspects
and materials and chosen to transfer both the petitioners together to one centre. In the circumstances, it is clear that the impugned order of transfer
is not vitiated for non-application of mind nor it is liable to be interfered on any one of the grounds.
Mr.Hariparanthaman contended that the second petitioner in the second writ petition had not completed two years and therefore, she should
not be shifted. There is no basis for such a contention. It cannot be said that the teacher employed in the respondent school cannot be transferred
within a period of two years. There is no such guideline or stipulations nor there is any agreement or clause in the appointment order or any such
condition has been prescribed at any point of time.
Mr.Hariparanthaman also contended that merely because the petitioner in the first writ petition has to be transferred, there is no justification to
transfer the petitioner in the second writ petition. This is a contention which has been raised out of frustration. In the first writ petition the petitioner
is the husband, while the petitioner in the second writ petition is the wife, who had come on transfer to Kalpakkam after her marriage to join her
husband.
The respondents have taken into consideration of the relationship between the two petitioners and with that object decided to post them
together and they have shifted them together lest there will be a dislocation in the family of the petitioners in both the writ petitions. The object of
posting them at one centre cannot be deprecated nor it is liable to be criticised but on the other hand it shows that the respondents were
considerate and have no ill-will or mala fide intention but they have decided to transfer and post them to one centre as it was essential to shift the
petitioner from Kalpakkam. In any view of the matter, it'' cannot be said that the order of transfer is vitiated or illegal.
As regards the last of the contention this court has to accept the stand taken by the respondents and necessarily the writ petitioner in the first
writ petition has been shifted from Kalpakkam and after taking into consideration of the strength of the staff and teacher who had been rendered
surplus had to be necessarily transferred or redeployed to other centre, where his services are required and the said teacher could be
accommodated. This is definitely a relevant consideration. Therefore, the last of the contentions also has to be answered in favour of the
respondents.
Mr.Hariparanthaman, contended that the orders of transfer is vitiated and it suffers with illegality and it is liable to be quashed. The power of
judicial review with respect to powers of transfer is limited. It is not as if this Court could interfere with every order of transfer as if it is an appellate
authority as sought to be contended by Mr. Hariparanthaman.
The scope of judicial review with respect to orders of transfer is well settled and the Apex Court in State of Madhya Pradesh, and Another
Vs. S.S. Kourav and Others, held thus:-
The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should
be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the
officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by
mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds
the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.
As regards the contention that the impugned proceedings are vitiated by mala fides, this Court will be justified in presuming-bona fides in
favour of an order of transfer by the employer, unless there is acceptable material to uphold the plea of mala fides or want of bona fides. In this
respect in State of U.P. v. Dr.V.N. Prasad, 1995 (2) SCC Supp 151 it has been held thus:-
The High Court at the interlocutory stage of writ petition moved by the respondent Dr.V.N.Prasad, B.R.D. Medical College, Gorakhpur
challenging an order of transfer, has stayed its operation. We are of the opinion that at the stage at which the matter was brought to engage the
attention of the High Court, there was no prima facie material to establish any mala fides which required strong and convincing evidence. The
presumption is in favour of the bona fides of the order unless contradicted by acceptable material. The interlocutory order of the High Court is, in
our opinion, unjustified- The order is set aside.
Mr.N.Jothi, learned counsel for the respondent referred to the decision of S.S.Subramani, J. in Velayutham v. Deputy Director (Training) CRP
Force etc., 1998 W.L.R 261 wherein the Learned Judge after referring to the various decisions of the Apex Court held that the jurisdiction to
interfere with respect to the orders of transfer under Article 226 is very limited. In that context, it has been held thus:-
In Chief General Manager (Telecom), N.E. Telecom Circle and another Vs. Rajendra Ch. Bhattacharjee and others, . of the judgment, Their
Lordships have held that the transfer of a public servant made on administrative grounds or in public interest should not be interfered with unless
there are strong and compelling grounds rendering the transfer order improper and unjusti-fiable. In that case, against the delinquent employee,
there were many complaints or certain irregularities were found out in his work. In spite of Guidelines, he was transferred. It was challenged before
the Honour-able Supreme Court. While discussing the same, in para 7, their Lord-ships held thus:-
It is needless to emphasise that a government employee or any servant of a Public Undertaking has no legal right to insist for being posted at any
particular place. It cannot be disputed that the respondent holds a transferable post and unless specifically provided in his service conditions, he
has no choice in the mailer of posting............
In that case, their Lordships further said that since there were some complaints, or some irregularities, were found out, the Government servant
was transferred, so- that he can work in a better atmosphere.
In Laxmi Narain Mehar Vs. Union of India and others, , it was a case of transfer of a Scheduled Caste employee. The Guidelines provided
that as far as possible the scheduled caste employees are to be posted near their home towns. In that case, the transfer of a schedule caste
employee was challenged, alleging that the order was passed as a vindictive measure. Their Lordships held that in this case of administrative
exigency the power of transfer is not liable to be interfered with. Respondent-Government contended that in view of the necessity for getting
experienced staff, the concerned employee had to be transferred, and the reason was sheer administrative exigency, and was not by way of
punishment. Considering the case, Their Lordships held that the transfer was due to administrative exigencies and not punitive.
In this case, learned counsel for petitioner submitted that at the instance of the third respondent, the second respondent has transferred the
petitioner. He further submitted that it is averred by the respondents that they received some complaints against the petitioner, and therefore,
according to learned counsel, if that was the reason for the transfer, that will amount to punishment, and, if the transfer is by way of punishment, he
is entitled to be heard before the order is passed.
The said argument also has no force. Respondents have unequivocally admitted in the counter that the transfer is only for administrative
reasons, and the same is not by way of punishment..""''
The first point is answered in favour of the writ petitioners and points 2 to 5 are answered in favour of the respondents.
In the foregoing circumstances and in the light of the above pronouncements this Court holds that there are no merits and both the writ petitions
fail and they are dismissed but without costs. Consequently, the connected W.M.Ps are dismissed. The parties shall bear their respective costs.