Santosh Poswal And Ors vs State Of Rajasthan And Ors

The petitioners allege breach, to their detriment, of Rule 6D of the Rajasthan Educational Subordinate Service Rules, 1971 (hereinafter 'the Rules of 1971') which reads as under:-

"6D.In case of teachers as referred to in Section F of the Schedule, 100% vacancies shall be filled in by transfer of Primary and Upper Primary School teacher working in Panchayat Samities: Provided-

(i) That the teacher shall be made available strictly on the basis of seniority;

(ii) That they possess the minimum qualification prescribed for the posts under the rules; and

(iii) That they have served in Panchayat Samities for at least 5 years and their record has been found satisfactory by the committee indicated in column no.7 of the schedule.

Exception-If suitable persons are not available for appointment by transfer from Panchayat Samities in a particular year or those appointed do not join within 30 days of the appointment than appointment by direct recruitment in relaxation of the prescribed percentage may be made in the same manner as specified in these rules elsewhere."

The case of the petitioners, all erstwhile Teachers Gr.III Level I and II with the Panchayati Raj and Rural Development Department (Panchayat Department) is that while transferring them from the Panchayat Department to the Secondary Education Department (Education Department), Rule 6D of the Rules of 1971 has been breached on various counts. It has been submitted that subsequent to the transfers, in the counselling for posting in the schools of the Education Department, Seniority cum preference for posting on vacant posts was arbitrarily negated inter alia by suppression of information on vacant posts to which posting could be sought. Further teachers posted in urban areas on their request have been conferred an unfair advantage by being entitled to continue on such posts without regard to their competing seniority vis-a-vis the petitioners. This modus, according to the petitioners, facilitates favouritism in postings for connected and influencial transferred teachers to choice schools on the one hand and discrimination against the petitioners on the other hand.

Mr.Y.S. Jadoun appearing on behalf of the respondents submitted that the issue agitated in this petition is covered in principle by the judgement of this court in the case of Surendra Kumar Bhatt & others Versus State of Rajasthan & Others and other connected matters decided on 03.12.2015, SBCWP No.16671/2015. Therein the court dealing with transfer orders under Rule 6D of the Rules of 1971 from the Panchayat Department to the Education Department while refusing to interfere with such orders under challenge before it disposed of the petitions with a direction to the respondents that in resorting to Rule 6D of the Rules of 1971 they adhere to the rule of seniority of all Grade III Level I and II teachers in the Panchayat Raj Department. And it was further directed that if any senior Grade-III teacher were left out from being transferred from the Panchayat Department to the Education Department, and contrarily any junior teacher had been yet transferred, corrective steps with regard to the resultant contravention of Rule 6D of the Rule of 1971 be taken within a period of four weeks of the receipt of the court's order. Mr.Y.S. Jadoun submitted that the same issue i.e with regard to transfer of Teacher Gr.III Level I and II from the Panchayat Department to Education Department by resort to Rule 6D of the Rules of 1971 again came up for consideration of this court in SBCWP No.10232/2016 titled Smt.Rooplata Meena Versus State of Rajasthan & Others and other connected matters which were decided on 19.08.2016. Therein the court issued multiple directions to the respondents to ensure the statutory integrity of the process of transfers and for the appropriate allocation of schools to those transferred. Mr.Y.S. Jadoun then submitted that as this court under Article 226 of the Constitution of India exercises discretionary jurisdiction, a writ is not to issue as a matter of course even where any deviation from the statutory rule is made out if interference by the court would entail detriment to public interest. In this context Mr.Y.S. Jadoun submitted that the petitioners are all Teachers Gr.III Level I and II engaged to instruct at the Primary and the Upper Primary level (Class-I to V and VI to VIII) students in government schools where ordinarily the less affluent parents send their children. He submitted that holding of classes in government school's where the Grade-III Level I and II teachers are posted is absolutely imperative for desirable academic outcomes of children reading in such schools. It is not so happening. The absence of teachers in classes in some measure contributed to by court's interference on technical grounds inevitably will have deleterious long term adverse effects on the quality of instructions to students reading in junior classes without any teachers. It has been submitted that the less than desirable quality of school education in government schools in primary and upper primary classes is testified to by the Annual Survey of Education Report (ASER) recently released which states that Class-V students cannot do Class-II level mathematics or even Class-II level reading. The government thus has a humongous task at hand. Interference by the courts in the government's effort, albeit not perfect, to improve education outcomes at the primary and upper primary levels with transfer orders of teachers leading to vacant positions and classes without teachers will only exacerbate the colossal problems of lack of even reasonable quality of education in primary/secondary level school education. He submitted that there can indeed be no doubt that this court has the power of judicial review including regarding transfer orders but interference should be limited to stark illegalities from blatant contravention of statutory rules, absence of administrative exigencies and public interest or mala fides leading to gross ex facie prejudice to the teachers concerned. No such situation obtains in the present cases, he submitted. All transfers impugned are within Districts. Mr.Y.S. Jadoun submitted in this view of the matter aside of the fact that the issue agitated in this petition is covered by the aforesaid two judgements, this court should not exercise its discretionary jurisdiction in these petitions as no cause for interference obtains and the petitions be dismissed.

Heard. Considered.

It is not in dispute that in terms of Section 89 (9) and (10) of the Panchayati Raj Act, 1994 Teacher Gr.III Level I and II in the Panchayat Department can be transferred to the State Government-in this case to the Education Department. It is no doubt true that Rule 6D of the Rules of 1971 inter alia sets out a condition that such transfers to the posts under Section F of the Rules of 1971 will be made on the basis of Panchayat Department seniority of the concerned teachers. It is not difficult to visualize that while exercising the power to transfer under Rule 6D of the Rules of 1971 of Teacher Gr.III Level I and II from Panchayat Department to Education Department, and in relation to their posting with reference to government's circulars, errors both accidental and deliberate could creep in. No doubt this court would have the power to address such errors but only if they impinge on the legal right of the petitioner/s. But simultaneously, as the matter relates to getting teachers into classes to teach young students the court has, in the exercise of its discretionary jurisdiction under Article 226 of the Constitution of India, also to be conscious of the crying public interest of sustaining what little remains of education at government schools at the Primary and Upper Primary level (as testified by the ASER) - which education is at the foundation of the children's future academic attainments in an extremely competitive world and a literate, educated, functional and productive citizenry. Good education contributed to in substantial measure by regular classes manned by qualified teachers is at the foundation of a country's growth and greatness. I am therefore of the considered view that in matters relating to transfers of teachers, more so when they are before the court in bulk as in the instant case, interim orders and as also final orders of interference have the potential of disrupting the entire schooling system to enormous public detriment. The court therefore has to be very cautious and exercise its discretion with care and circumspection. In the instant case there appears to be no palpable illegality in the petitioner's intra-district transfers as Grade-III Level I and II teachers from the Panchayat Department to the Education Department, Government of Rajasthan. Jostling for transfers to convenient places is at the heart of these petitions. It is alleged that Senior Grade-III teachers in the Panchayat Department have been retained while juniors to be transferred under Rule 6D of the Rules of 1971 to the Education Department and allocations of schools thereafter arbitrarily made. These issues have been adequately and extensively dealt with by this court in Surendra Kumar Bhatt & others Versus State of Rajasthan & Others (supra) and Smt.Rooplata Meena Versus State of Rajasthan & Others (supra). I would reiterate the direction therein. To so do would suffice to meet the ends of justice in these petitions.

I would therefore dispose of these petitions setting the petitioners at liberty to file their individual representations ventilating their respective grievances with supporting facts/material before the Director, Secondary Education within two weeks from today. The Director shall dispose of each of the said representation with reference to the case of Surendra Kumar Bhatt & others Versus State of Rajasthan & Others (supra) and Smt.Rooplata Meena Versus State of Rajasthan & Others (supra) within two weeks of its receipt ensuring the integrity of Rule 6D of the Rules of 1971 and with due regard to seniority and preference of the petitioners for postings in the first instance on vacant posts in schools of the Education Department obtaining on the date of the transfers.

Pending the aforesaid exercise the transfer of the petitioners from the Panchayat Department to the Education Department and allocation of schools thus far made would sustain. Resultantly all interim orders in these petitions staying the petitioners' transfers under Rule 6D of the Rules of 1971 and allocation of Schools for their posting in schools of the Education Department would stand vacated.

The petitions are accordingly disposed of.

A copy of this order be placed in each connected petition.