Ramashanker Tiwari vs The State of M.P.

K.K. Trivedi, J.—This petition under Article 226 of the Constitution of India was initially directed against the order dated 26.5.2014 by which the petitioner was transferred from the post of Principal High School, Kalara, Berasiya, district Bhopal to Government High School, Sarsai, District Bhind on the grounds that the order of transfer was issued by an authority not competent to do so. There was no administrative exigency to transfer the petitioner during the period of ban imposed on the transfers. The procedure as laid down under the policy of the State Government for effecting such a transfer during the period of ban was not followed. The petitioner was posted in the present place of posting in the month of October, 2013 and, therefore, there was no occasion to transfer the petitioner within such a short time. Lastly, the petitioner was in fact posted in a higher secondary school though was substantively holding the post of Principal of high school. Therefore, transfer of the petitioner was not just and proper. There were certain personal difficulties, which the petitioner had pointed out, but the same were not considered.

During pendency of this petition, the petitioner was suspended vide order dated 17.7.2014 and calling in question the said order, an amendment was sought in the writ petition. The amendment has been allowed vide order dated 21.8.2014. It is contended that the suspension order is issued only on account of not complying with the order of transfer dated 26.5.2014 though the petitioner was said to be relieved on 4.6.2014. However, the order of suspension is also issued by an authority not competent to do so and as such in terms of the law laid down by the Division Bench of this Court, the order of suspension is not sustainable. It is thus contended that the orders of transfer as also of suspension both are liable to be quashed.

Though the writ petition was not entertained nor any direction was issued to issue notices to the respondents yet it appears that upon service of the advance copy of the writ petition a return has been filed by the respondents. In the return, it is contended that the entire claim made by the petitioner is misconceived. It is contended that the petitioner was posted on promotion from the post of Lecturer to the post of Principal, high school, on 3.10.2013 at Kalara, Berasiya, district Bhopal. It was not a transfer, but a posting on promotion. That being so, the fact was examined by the respondents with respect to the posting of the persons like petitioner. It was found that in District Bhind there were about 69 posts of Principal, high school lying vacant and there was acute need of posting of persons at such place. Since the competent authority was apprised of these facts for filling up of the vacancies, the order of transfer on administrative exigency was issued and, therefore, it was incorrect to say that the petitioner was transferred without there being any justified reason. Since the petitioner was transferred after due approval of the competent authority, the order of transfer was not challengeable. The fact remains that the petitioner was communicated, that he stood relieved from Kalara and was required to join on the transferred place, but the said order was not complied with. Therefore, the petitioner was placed under Suspension. There was no complaint received against the petitioner and, therefore, looking to the administrative exigency, only the order of transfer was issued.

The amendment application was served on the respondents on 1.8.2014 but not a single word is said about the said application nor the contentions raised in the said application are denied or replied though the same have now been made part of the writ petition by allowing the amendment application. However, at the time of arguments it is submitted by the learned counsel appearing for the respondents that the power to suspend a government servant is available to Head of the Department and that being so, if the petitioner has been suspended on account of non-compliance of the order of transfer, it cannot be said that the order of suspension is bad in law.

Heard learned counsel for the parties at length and perused the record. First of all, it would be appropriate to consider the relief with respect to the suspension of the petitioner. It is not mentioned in the order of suspension whether any departmental enquiry is proposed against the petitioner or not. It is also not mentioned in the said order whether the authority issuing the order of suspension was delegated any such power to suspend an officer of the category of the petitioner. It is strongly contended by learned senior counsel for the petitioner that in W.A. No. 1055/2011-Shyam Narayan Sharma vs. State of M.P. and others while considering this aspect the Division Bench of this Court in its order dated 20.4.2012 has categorically held that the Director of the Public Instructions is not the Head of the Department. On the other hand, the Head of the Department is the Commissioner, Public Instructions. That being so, the order of suspension issued by the Director of the Public Instructions is said to be bad in law in terms of the circulars of the State Government dated 12.9.1983 and 3.2.2011. It is further held that in the case of Whirlpool Corporation Vs. Registrar of Trade Marks, Mumbai and Others, the Apex Court has said that if the order is per se without jurisdiction, the aggrieved person can be permitted to by-pass the alternative remedy which may be available to him under the law. Therefore, the petitioner cannot be compelled to file an appeal against the order of suspension before the appellate authority in terms of the provisions of Rule 23 of the M.P. Civil Services (Classification, Control & Appeal) Rules, 1966 (hereinafter referred to as ''the Rules'').

It is true that certain delegation of powers is made by the State Government vide circulars dated 12.9.1983 and 3.2.2011, but the fact remains that generally the power of suspension is to be exercised by appointing authority, disciplinary authority or the appellate authority, as the case may be. The appointing authority of the petitioner would be the State Government as promotion on the post of Principal in the High School is to be made by the State. The disciplinary authority would be any such authority, who is delegated the powers to impose any of the penalties prescribed under Rule 10 of the Rules. The respondents were required to show whether the order of suspension was issued by any such authority. If there was any delegation of powers to the Director of Urban Administration to impose a minor punishment or to issue an order of suspension in terms of Rule 12 of the Rules, the said document was required to be placed on record. Nothing is indicated in that respect. On the other hand, the law as has been examined by the Division Bench of this Court in the case of Shyam Narayan Sharma(supra) will make it clear that in terms of the circulars dated 12.9.1983 and 3.2.2011 the Head of the Department of the concerning department only is made the competent authority to suspend the officers holding Class II post. That being so, the suspension of the petitioner on account of not complying with the order of transfer cannot be sustained. The said order is hereby quashed.

Now the question is with respect to the transfer of the petitioner. Though it is stated in the return filed by the respondents that there are large number of vacancies at Bhind, but why a single order of transfer has been issued has not been explained anywhere. From the document placed on record by the respondents as Annexure R/1 it is clear that at Bhind District there are 69 high schools where the Principals are not posted. If that was the exigency and if posting of persons on the vacant place was required to be done, the entire matter was to be considered in the special meeting to be held in terms of the policy made by the State Government. The policy authorizes the State to take action in such circumstances where large number of vacancies are available and the ban imposed on transfers generally would not be attracted in such circumstances, but, for the said purpose, the matter is required to be placed before the Chief Minister in coordination and then only the orders are required to be issued. From the wordings mentioned in the order Annexure P/3 issued in respect of the petitioner, only this much is said that on administrative approval the posting of the petitioner with immediate effect is made in the High School, Sarsai, District Bind. Why a single order was issued in respect of the petitioner only during the period of ban when there was indication of 69 vacancies at Bhind District is not explain. This being a case where single order of transfer was issued allegedly on administrative exigency that to in respect of a person, who was recently promoted and posted, it cannot be said that proper action was taken by the respondents-State. If it was not a malafide action, then it was a hasty action on the part of the respondents and, therefore, the same cannot be countenance. From the order placed at Annexure P/1. It is clear that recently the petitioner was posted at Kalara on his promotion and that too by the Commissioner of the Public Instructions, who is a competent authority being Head of the Department. Why change in such an order of transfer of the petitioner was necessary is not explained. In view of this analysis, the order of transfer is liable to be quashed.

As a result, the writ petition is allowed. The order dated 26.5.2014 (Annexure P/3) and order dated 17.7.2014 (Annexure P/14) are hereby quashed. The petitioner be reinstated in service and be allowed to continue on his post of Principal, High School, Kalara, Berasiya, district Bhopal. However, this order will not come in the way of the respondents in considering the cases of persons including the petitioner for transfer on administrative exigency.

The writ petition is allowed and disposed of to the extent indicated hereinabove. There shall be no order as to costs.