JUDGMENT
Palok Basu, J.
1. “Petitioners are challenging transfer order. The petitioners are in Government service and transfer is an exigency of service. Petition is dismissed” is the order of the learned single Judge dated 6.7.1999 which is under challenge in the present Special Appeal filed by all the five petitioners, namely. B. P. Singh, Virendra Singh, Rameshwar Prasad Pandey, Shahir Uddin and Abdul Qayyum Khan though it is admitted case that the transfer order in so far as It related to B. P. Singh, petitioner stood cancelled, Consequently, during the course of arguments, the learned counsel for the petitioner-appellant has argued the case only of the remaining four petitioners-appellants.
2. The principal question argued by the petitioners-appellants counsel was that after affidavits have been exchanged between the parties, relevant materials were brought on record challenging the transfer order, the learned single Judge may have gone into the reasons but the aforesaid order which has been described as perfunctory should not be permitted to stand as it is and in the absence of any reason, the aforesaid conclusion alone should not be made the basis of disposal of the writ petition/appeal on merits. Consequently, it was argued that this Appellate Bench specially nominated under the orders of the Hon’ble the
Chief Justice may hear the writ petition as if on merits. In order that substantial justice is done to the cause, the learned counsel for the petitioners-appellants was heard as if he was arguing the writ petition itself.
3. The aforesaid arguments-apart the decision in this case may be a pointer to the old saying that liberty without discipline will be anarchy and discipline without liberty will lead to chaos. Similarly, power with an authority without any check would lead to corruption and absolute power left unchecked may lead to corruption absolute. Therefore, the relevant facts arising in this writ petition/appeal have to be stated in a nut shell to come to the correct conclusion as to the arguments advanced on behalf of the petitioners by their counsel.
4. Dr. R. G. Padia assisted by Shri Bheem Singh has argued the matter with great ability. Similarly Shri Anil Mehrotra, standing counsel appearing for the respondents has also assisted the Court with great tenacity and sincerity. The entire material has been thoroughly scrutinised over and over again, because neither counsel took any chance to permit the Court to waylay itself on any factual basis.
5. All the five petitioners are teachers in the Government Intermediate College, Allahabad. All the five have been transferred by the orders dated 23.4.1999 to various places as indicated in the respective transfer orders relating to all the five petitioners. Petitioner B. P. Singh’s transfer order dated 23.4.1997 has been cancelled by the issuing authority by a subsequent order dated 3.7.1999. As already indicated above, the learned single Judge’s order is dated 7.7.1999. Consequently, the issuing authority passed the order of cancellation when the matter was subjudice and arguments were going on. The contents in each of the transfer orders would read thus :
“With immediate effect, the following assistant teachers working in the grade 4,500-7,000 in Government Intermediate College.
Allahabad, are transferred in public interest and on administrative grounds, in accordance with the recommendation of the Principal, Government Intermediate College, the District Inspector of School and District Magistrate. Allahabad, to the institution indicated in column 4 below :
Name
From
To
Virendra Singh
Govt. Inter College. Allahabad
Govt. Inter College. Balia.
Abdul Qayyum Khan
Govt. Inter College. Allahabad
Govt. Inter College. Farrukhabad.
B. p. singh
Govt. Inter College. Allahabad
Govt. Higher Secondary School. Arjunpur Garha.
Fatehpur.
Rameshwar Prasad Pandey
Govt. inter College. Allahabad
Govt Higher Secondary School. Arjunpur Garha
Fatehpur.
Shahir Uddin
Govt. Inter College.Allahabad
District Education and Traning Institution Atan Khand. Pratapgarh.
6. It was argued with pronounced vehemence that the transfer orders were identical in nature and, therefore, once the transfer order of B. P. Singh was recalled on 3.7.1999, the transfer order with regard to the remaining four should be quashed by this Court. Simultaneously, it was argued that all the five transfer orders suffered from the vice of punishment being punitive in nature because the authority concerned proceeded on the basis of the reports which were: forwarded by the Principal of the Government College. District Inspector of Schools. Allahabad and the District Magistrate, Allahabad, therefore, it was neither in the public interest nor on the administrative exigencies. Reliance has been placed on two factual basis. First, the Government servants were not asked to be guided by the rules and regulations framed by the Intermediate and High School Board and, therefore, they were not duty bound to carry the answer books after examinations either from the examining centre to the collection
centre or from collection centre to the evaluation centre. Second, the Government itself was conscious of this shortcoming and, therefore, it issued a Government Order on 24.4.1999 whereby carrying of the bundles of answer books was indicated to be included as one of the duties of the teachers whether Government servants or others. Argument, therefore, proceeded that the transfer order issued on 23.4.1999 was relating to an action which was done by the petitioners as being members of the Union known as Rajkiya Shikshak Sangh, Uttar Pradesh and, therefore, this Court should quash the transfer orders being punitive, without application of mind and for a reason which was non-existent.
7. In reply, it was strongly contended that the carrying of the answer books from examining centre to the collection centre and from the collection centre to the evaluation centre was a part of the duty of all the teachers and for that purpose, it did not matter at all whether teacher was an employee of a private institution managed by a Committee of Management or a Government Institution managed and financed by the State Government. It was contended that the directions issued by the Board of High School and Intermediate were as much binding on the teachers of the Private Institutions as on the Government Teachers. By the annexures which exist on the record, it was indicated by Shri Anil Mehrotra that carrying of the answer books from the examining centre to the collection centre and from the collection centre to the evaluation centre was being consistently done and followed by all teachers right from the year 1982. The reasons why such responsibilities were cast upon teachers and such carrying of the books was not left with either employees was highly emphasised by Shri Mehrotra. Perhaps rightly. It goes without saying that the students are imparted education to see their mental development and attaining of intellectual growth. This is to be judged at periodical examination.
which is generally called as annual examinations and then the High School or Intermediate Examinations, which are held under the Board of High School and Intermediate Education. Uttar Pradesh, Allahabad. Great sanctity is, therefore, to be “attached to the evaluation job and also to the maintenance of the answer books in best of security and safety. Dr. Padia argued that examining the copies was being done and is being done by the Government teachers voluntarily, and it should not be taken to be a part of the duty of the teaching profession of those who are teachers in Government Colleges. In this connection also, reliance was placed on the Government Order of
24th of April, 1999 which says that examining of the answer books will be part of the duty of Government teachers. Not much discussion on this limited aspect is necessary for the time being as it was rightly stated by Dr. Padia that the point In controversy started with the order of the Principal or Board authorities to carry the answer books from the one place to the other and not the evaluation of the answer books.
8. The writ petition was filed as soon as the transfer orders were passed, upon which counter-affidavits were called which have been filed to which rejoinder-affidavits were also filed. Before the learned single Judge, the question of deciding merits of the matter was subjudice when cancellation of transfer order relating to B. P. Singh petitioner-appellant came into existence. Consequently, the Court has been called upon by the learned counsel for the petitioner to address itself to the aforesaid order dated 3rd of July, 1999 and in order to extend the equality as envisaged by Articles 14 and 16 of the Constitution of India, the remaining four petitioners’ transfer orders were also prayed for that reason, to be quashed. It has been held by the Apex Court that no reliance can be placed on such orders for Invoking Article 14 of the Constitution of India. In the case of Chandigarh Administration v. Jagjit Singh, AIR 1995 SC 705, it has been held :
“Para 8 : Generally speaking, the mere fact that the respondent authority has passed a particular order in the case oj another person similarly situated can never be the ground for issuing a writ in favour of the other person might be legal and valid or it might not be. That has to be investigated first before it can be directed to be followed in the case of the petitioner. If the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal or unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order.”
9. The aforesaid decision has been cited with approval in the case of Secretary, Jaipur Development Authority v. Daulatmal Jain, 1997 (1)SCC 35, and likewise similar provisions have been laid down in Hadunandan Garg v. State of Rajasthan, 1996 (1) SCC 334.
10. It is impossible to accept that just because the petitioners happened to be connected with some trade union activities, as they claimed through the writ petition, they will be protected in their action so as to jeopardise the entire career of the students and liberty of other teachers, by themselves refusing to carry the answer books and also thereafter by refusing to do the evaluation Job on the ground that those duties were not connected with teaching duties and thus would resolve to go on strike forthwith. This action, to say the least, may amount to teacher’s treason as against his pupil, crime against the students, the Innocent budding generation of this Nation. The teachers can always take up matters at suitable time, with the Government and the Union activity can not bring a halt to the examinations system at least temporarily, if not permanently. Discipline in the Society and through it in the Nation has to spread under the guidance of able teachers. Naturally, it follows that the working method or discharging of the duties
by teachers in Educational Institution must indicate a high sense of discipline along with exercising their rights. They are the backbone of the Society and, therefore, the teachers have to balance these Union activities with the career of the students. In order to stop any untoward fallout on the students, the teachers will have to be cautious and exercise their liberty or freedom with all sense of discipline otherwise, the Society will run into chaos. Similarly, an authority, which is empowered to recall earlier orders, has to be told that wrong recall of an order for one may give rise to passing repetitive wrong orders. Then the duty of this Court under Article 226 of the Constitution of India is not only to decry it but stop the possible perpetrating of injustice through such uncalled for and destructive recalling order.
11. In view of what has been stated above, it being a duty on the part of the teachers to conduct the examinations, their threat to go on strike and refuse to abide by the directions of the authorities had to be taken with extreme seriousness and gravest concern which was rightly so taken by the Principal of the Government College, the District Inspector of Schools, Allahabad and the District Magistrate. Allahabad. Incidentally, it may be mentioned here that under the Government Orders, the examining committees have been constituted of which Principals of the Colleges and the District Magistrates as well as the District Inspector of Schools are all members having various and different capacities as indicated in the Government Order itself. In this view of the matter, nobody could have left the future of the Innocent students into dark and had to take a serious action on that very moment. Since the petitioners were Government servants, the matter had to be forwarded to the concerned authority for considering the reports of the said three officers for such an action as may be deemed necessary. In this background, there was absolutely nothing wrong when the three reports were fully considered by the authority concerned and the five transfer orders
were passed. The argument that there was non-application of the mind at the time of passing of the order or they were punitive in nature as the carrying of the answer book was not part of the duty of the Government teachers is hereby rejected. The respondents very rightly reported the, agitational decision to go on strike for immediate action. It was in the fitness of things that the State considered the gravity of the situation and that is why the transfer orders were passed.
12. Coming now to the order of 3.7.1999 cancelling the transfer order of B. P. Singh dated 23.4.1997, it may be stated that the cancellation order has been passed by the issuing authority apparently due to some ulterior reason. The Court itself may have gone into the reasons but refrains from doing so for the reason that the respondent Government will be expected to look into the reasons and must enquire into its justifiability. The Principal of the Government Intermediate College, the District Inspector of Schools and the District Magistrate, Allahabad are not authorities to be sidelined by mere opinion of one or two individual here or there. Their opinions are already sustained by the State Government by retaining the orders of the four petitioners consequently,, the cancellation order dated 3.7.99 looks perverse on” the face of it but its continuity shall have to be examined by the respondents in pursuance of this decision.
13. Reliance was placed by Dr.
Padia on the decision of the Hon’ble Supreme Court in Purtabpur Company Ltd. v. Cane Commissioner of Bihar and others. AIR 1970 SC 1896 (Paras 13, 14 and 15). There is absolutely no doubt that the executive officers entrusted with statutory discretions may in some cases be obliged to take into account considerations of public policy and in some context the policy of a Minister or the Government as a whole when it is a relevant factor in weighing the policy but this will not absolve them from their duty to exercise their personal judgment in individual cases unless explicit
statutory provision has been made for them to be given binding instructions by a superior. This case, therefore. Instead of supporting Dr. Padia rather helps the arguments advanced by Shri Anil Mehrotra.
14. The next case cited is the decision of the Apex Court in B. Vardha Rao v. State ofKarnataka, AIR 1986 SC 1955. It has been held that the power of transfer is abused, the exercise of the power is vitiated. But it is one thing to say that an order of transfer which is not made in public interest but for collateral purposes and with oblique motives is vitiated by abuse of powers, and an altogether different thing to say that such an order per se made in the exigencies of service varies any condition of service, express or implied, to the disadvantage of the concerned Government servant. If the power is exercised mala fide, then obviously the order of transfer is liable to be struck down. Equality is antithetic to arbitrariness and held that the observations equally apply to the policy regarding the transfer of public servants also……. It is the baste
principle of rule of law and good
administration, that even
administrative actions should be just
and fair. In the cited case, the
Hon’ble Apex Court deprecated
frequent, unscheduled and
unreasonable transfer. But in the
Instant case, as noted above, there
was no mala fide reason for passing
the transfer order against all the five
petitioner-appellants.
15. Dr. Padia also cited a decision in AIR 1983 SC 130, the Division Bench decision of this Court in Harish Chandra Tiwari v. Upper Shiksha. 1998 (3) ESC 2239, and a learned single Judge’s decision dated 11.5.1999 in Civil Misc. Writ Petition No. 17195 of 1999.
16. There is absolutely no quarrel with any of the proposition which have been advanced by Dr. Padia but on the facts there is no application of the aforesaid ruling. The learned counsel for the respondents. Shri Anil Mehrotra has also placed reliance on several decisions including 1994 (68) FLR 1083 that is a decision in Sagir
Ahmad’s case. It has been held by a learned single Judge that if there are complaints. It will be legitimate exercise of power to transfer on such complaints. He has also cited 1998 (1) AWC 346. This is a Division Bench decision in Vinod Shanker Shukla, wherein it has been held as to what are the criteria, which can be applied to hold the transfer order to be punitive. On the strength of the aforesaid ruling. It was rightly contended that the five transfer orders in the instant writ petition does not Indicate in any manner whatsoever any punitive action on the part of the respondents in the petitioners having been so transferred.
17. It may be stated here that the law relating to the transfers is by now well-settled as has been pointed out through the decisions of the Apex Court in Mrs. Shilpi Bose and others v. State of Bihar and others, AIR 1991 SC 532, in Union of India and others v. S. L. Abbas, JT 1993 (2) SC 678 and N. K. Singh’s case. 1994 (6) SCC 98. Applying all the principles of Hon’ble Apex Court as followed or explained by various decisions of this Court, it is explicit on the face of it that the transfer orders, for that matter all the five transfer orders were fully in accordance with law and Justified on merits. Consequently, the view of the learned single Judge does not require any interference whatsoever.
18. As already noted the cancellation order in favour of petitioner-appellant. B. P. Singh passed by the issuing authority on 3.7.1999 is apparently contrary to the orders dated 23.4.1997 which exist on the record in so far as the other four petitioners are concerned. The Government will do well to go into the issue of examining correctness or otherwise or the justifiability to continue, with the said order any more and, therefore, a copy of this order shall be sent by the Registrar to the Chief Secretary, State of Uttar Pradesh within ten days from today.
19. This special appeal is consequently dismissed. Parties will bear their costs.