JUDGMENT
Mahitosh Majumdar, J.
1. By this writ application the petitioner prays for a mandate upon the respondents concerned to withdraw, cancel and/or rescind the order of her transfer issued by the District Inspector of Schools (SE) North 24-Parganas-Annexure ‘C’ to the application from E.C. Block Primary School, Salt Lake, South Dum Dum Circle to Goalbati F.P. School, Sukantanagar and also for not allowing the respondent No. 5 to join as Head Teacher to E.C. Block Primary School (for short the said school hereafter).
2. The facts of the case in brief are as follows :
Since 1980 the petitioner has been discharging her functions as Head Teacher of the said school and due to her utmost sincere service from the very inception as Organiser Teacher the said school has earned reputation and produced a number of brilliant students. The petitioner being an Inter mediate with Basic training degree was initially appointed on transfer from Sirampore Circle to act as Organising Teacher-in-charge of C.A. Block, Salt Lake, Calcutta which was later renamed as E.C. Block Primary School ‘ on usual terms and conditions in accordance with the memo No. 65-SC-P dated January 11, 1980 issued by the West Bengal Education Directorate and her appointment as Organiser Teacher-in-charge of the said school was approved by the Director of Primary School Education vide memo No. 3908 SC-P/7P.26P/75 dated November 29, 1980 with effect from December 1, 1980. The petitioner at her age of 49 years became seriously ill after her abdomen operation in 1985 so much so that she could not move on foot at a stretch. Besides, her husband also is suffering from ailment on account of his old age. Further, her only daughter is studying in M. Tech. at Science College. When the said school has and had earned good reputation and has been well placed some interested people of the locality with the intent of throwing her out of service or for harassing by way of transfer started to create troubles/ disturbance in many ways almost every day. On August 24, 1990 by memo No. 638/1/8HNI the petitioner was ordered to be transferred from the said school to Goalbati F.P. School, South Dum Dum Circle and in her place one Smt. Sikha De, respondent No. 5, herein, sought to be posted at the said school sought to be posted at the said school was very much desirous to be transferred. This respondent No. 5 has some backing of the high-ups and access to the corridor of power and thus obtained an order of transfer to suit her convenience at the cost of the petitioner who will immensely suffer. The petitioner attends the said school from her residence which is very near her residence and as such her transfer to Goalbati Free Primary Morning School was passed with malafide intention to satisfy the Minister concerned who was intimated such transfer of the petitioner by the District Inspector of Schools (SE) North 24-Parganas. Therefore, the petitioner contends that the said order is illegal and contrary to the concept of fairness or fairplay.
3. The affidavit-in-opposition was filed on behalf of the respondent Nos. 1 to 5 whereby all the allegations contained in the writ petition are denied. Apart from denial, the stand taken by the respondents as would appear in the affidavit-in-question is presented below.
4. The plea of disturbance and harassment by interested persons of the locality is without any factual foundation, that the petitioner was in fact neglecting her duties towards the smooth running of the said school since long. Moreover, another primary school was being run in the same premises of E.C. Block Primary School without any report having been lodged with the District Inspector of Schools (P.E.) by the petitioner, being head teacher of the said primary school, that the Development Committee of the school was being run illegally and the head teacher can never shirk off her responsibility in this respect, as a result, the guardians made several representation to the District Inspector of Schools, Director of Schools Education and the Minister-in-charge of Education. An unhappy incident took place in the premises in presence of the teachers and students on June 30, 1989 when Smt. Subhra Mukherjee assaulted the petitioner. This incident was reported to the respondent Nos. 3 and 4 including the Minister-in-charge of Education whereupon an enquiry was held on July 29, 1989 in terms of letter No. 2042SC/P dated July 19, 1989 of the Director of School Education. Thereafter another enquiry was held on August 3, 1989 by the Asstt. Inspector of Schools (PE) which revealed that there was an unauthorised Committee in the said School. The Dy. Director of School Education held an enquiry on October 4, 1989 whereupon a detailed report was filed. The said report recommended the punitive measures to be taken against the petitioner. The District Inspector of Schools (PE) transferred Mrs. Subhra Mukherjee and the petitioner on the basis of the enquiry report and the matter was intimated to the Director of School Education (Primary) as also the Minister-in-charge of Education as a special case. The transfer of the petitioner was passed on the basis of the report of the Assistant Inspector of Schools (PE) and the Deputy Director of School Education and there is no scope of influence from any corner or otherwise. Further, the writ petitioner did not furnish any good ground for the purpose of interference with the order passed by this Court and accordingly, the writ petition should be dismissed.
5. The affidavit-in-reply affirmed on January 9, 1991 on behalf of the petitioner presented her rejoinder in the manner following :
Some persons having vested interest tried to disrupt the peaceful atmosphere of the said school by making false representation against the petitioner to the higher authorities. Thereafter, an enquiry was held on July 29, 1989 by one Shri Tamal Baran Pal, Assistant Inspector of School which revealed that Smt. Subhra Mukherjee, an Assistant Teacher of the said school assaulted the petitioner while she was asked to hand over the key of almirah where valuable documents kept. The petitioner had to undergo medical treatment and also brought this incident to the notice of Local Police Station on June 30, 1990 for which the petitioner should not be held responsible. The Assistant Inspector of Schools recommended transfer of Mrs. Subhra Mukherjee from the concerned school and after her transfer the said school was-running smoothly. The report of Asstt. Inspector does not reveal that the petitioner is involved in any illegal activities in running an unauthorised school in the said premises. The petitioner also sent written objection to the Secretary of the said unauthorised school. Smt. Subhra Mukherjee with the active support of local Mahila Samity assaulted the petitioner on June 30, 1990 and the report of the Deputy Director of School Education (PE) is-partial and bias in view of the fact that the complaint against the petitioner was not lodged by the guardians of the students of the said school but by the members of Mahila Samity. The Deputy Director of School Education on being influenced by the members of Manila Samity recommended transfer of the petitioner. The transfer of the petitioner was effected on the basis of the report of the Deputy Director of Schools. The petitioner was neither attending the said school in irregular way nor she is at all connected with any unauthorised activities of the said unauthorised school run unauthorisedly in the same premises. On the other hand, the petitioner made written objection to the Secretary ‘of the unauthorised school for stopping functioning of the said school immediately. The petitioner claims that the genuine guardians of the students and teachers made representation to the school authorities revealing the actual picture of the said school. The Deputy Director of Schools (PE) recommended the following measures :-
(a) The responsibility may be equally fixed on both Smt. Kanika Das, the H. T. and Smt. Subhra Mukherji, an A. T. and disciplinary action may be taken against them. As a disciplinary measure, I recommend that Smt. Das and Smt. Mukherji may not be allowed increments of pay for the next two years. Besides, on administrative ground Smt. Das and Smt. Mukherji may not be allowed to work in E. C. Block Primary School, Salt Lake as their teacher-image in the minds of the pupils in the school has been greatly tarnished and their presence in the school will adversely affect the effective development of the children.
Running of the said school from 1-15 P.M. was approved by the Sub-Inspector of Schools on July 16, 1989 and in support of the above contention Attendance Register and other documents were produced before this Court to show that no irregularity has been committed by the petitioner in the matter of running the said school smoothly.
6. Mr. Amar Nath Ghosh, the learned Advocate for the petitioner claimed and contended that the order of transfer of the petitioner is illegal, improper and violative of the concept of fairness inasmuch as respondents acted arbitrarily and illegally in transferring the petitioner from one school to another as a measure of punishment on the basis of recommendation of the Deputy Director of School Education. The concerned authorities should not have been guided by the punitive measures as recommended by the Deputy Director. Mr. Ghosh further claimed that the records as produced by Mr. Swapan Banerjee, the learned Advocate for the respondents presents that the order of transfer passed at the instance and behest of the Minister-in-Charge of Education at whose instance the Deputy Director of School made recommendation is also illegal. The order impugned as contained in Annexure “C” to the writ application operates to the prejudice of the petitioner inasmuch as the said order of transfer was imposed by way of punishment upon the petitioner. In support of his contention, Mr. Ghosh referred to Memo No. EMS(PE)989/90 dated August 18, 1990 written in Bengali script which discloses that at the instance of the Minister-in-Gharge, Primary Education, the District Inspector of School (PE) was directed to take necessary steps against the petitioner. The said letter further recorded that the Deputy Director of School Education (PE) in reply to the letter from the Personal Secretary to the Minister-in-Charge informed that certain steps were taken and the concerned Minister expressed his desire that he should be kept informed of the present state of affairs. Apart from that, Mr. Ghosh further submitted that a plain reading of the report signed by the Deputy Director of School Education would show that the Deputy Director without giving any opportunity of hearing and without obtaining any explanation from the petitioner, recommended the measures adverse to the right of the petitioner. The Deputy Director while recommending measures, came to certain rinding which fastens stigma on the petitioner. Further reference was made to the enquiry report of Mr. Tamal Behari Paul, Assistant Inspector of Schools to the District Inspector of Schools (PE), North 24-Parganas.
The relevant portion of the report reads thus :-
1. That on interrogation Smt. Subhra Mukherjee, Asstt. Teacher of E.C. Block Primary School, admitted that she had assaulted physically Smt. Kanika Das, Head Teacher of the said school on 30.6.89 in the school hours in presence of some of the teachers as a result of which she had to undertake medical treatment at R.G. Kar Medical College and Hospital.
2. This unpleasant incident was occured due to the facts that when Smt. Subhra Mukherjee, Asstt. Teacher was forbidden from leaving the school with keys of the Almirah of the School without having permission or intimation from the Head Teacher.
3. It was also learnt from the records and the report that she did not care and obey the decorum and discipline of the school. She used to come and leave school at her whims without maintaining the proper working hours.
4. It is also transpired from the enquiry that the Head teacher was involved in some irregular activities and (i) she did not spent contingency money of the school properly and could not show the contingency register and vouchers of the enquiry officer, (ii) un-recognised primary school had been running in the school premises during the school hours of the recognised primary school though there is no record whether the Head teacher is involved in this matter.
Under the circumstances following measure may be taken.
“(i) Smt. Subhra Mukherjee may be transferred immediately on penal measure,
(ii) The Head teacher may be warned for her irregular activities,
(iii) The un-recognised school running in the recognised site without permission may be stopped immediately,
(iv) As it is an aided school a consent resolution from the committee may be obtained.”
7. Attention was also drawn to the letter of Smt. Sikha Dey, Head Teacher of Goalbati Primary School as contained in letter dated September 21, 1989 to the respondent No. 3 which is quoted below :-
“With due honour to your chair, I beg to state that I have been working as a Head Teacher in Goalbati F.P. School. In this connection it is mentioned here that earlier the school was functioning in Day-shift for primary Section and thereafter, at the request of local people, the school has been functioning in the morning shift for primary section and in the day-shift for high school section, under your instruction.
Since the primary school is being run in the morning shift in place of Day-shift, I have been facing a lot of difficulties in attending the school in the morning shift, due to transport and other domestic problems.
I would be highly obliged to you if you kindly arrange to transfer me to any primary school (day-shift) in the Salt Lake area, as a Head Teacher.”
8. It would appear from the endorsement on the said letter of respondent No. 5, by the Sub-Inspector of Schools, Dum Dum Circle forwarding the said letter to the respondent No. 3 with the following request:
“Forwarded to the D.IPS(PE) North 24-Parganas for favourable consideration. Smt. Sikha Dey, H.T. of Goalbati F.P, School may be transferred to E.C. Block Primary School, Salt Lake vide Smt. Kanika Das who may be transferred to Goalbati F.P. School if rule permits.”
9. This recommendation of the Deputy Director was not made available to the petitioner nor a copy of the enquiry report on the basis of which District Inspector of School Education passed order of transfer, was made known to the petitioner till the hearing of this application. Mr. Ghosh further claimed that the members of Manila Samity, being completely a foreign body, no cognigence of their letter should have been taken either by the respondent No. 3 or by the Deputy Director of School Education. Apart from that the Minister-in-Charge of Education not being the competent authority should not have imposed dictation upon the Deputy Director of School Education for taking necessary action in the matter. Further, it appears from the documents placed before this Court that the steps taken by the Deputy Director of School Education is brought to the notice of Personal Secretary to the Minister-in-Charge of Education. After stressing upon the said report as also the complaint lodged by the members of local Manila Samity, Mr. Ghosh contended that the order of transfer of the petitioner is vitiated for the reasons set forth hereinbelow.
10. The action of the Director of School Education, Deputy Director of School Education and the District Inspector of Schools was initiated at the instance or at the behest of the concerned Minister of Education and also the action of the respondents concerned in transferring the petitioner on the basis of a representation received from Smt. Sikha Dey, Head Teacher of Goalbati F,P. School who was transferred to the said School where the petitioner was holding the post of Head Teacher. The impugned order of transfer is otherwise impermissible in law. The order of transfer is vitiated by instruction of the Minister as also the dictation of higher authorities upon the Director of School Education, Deputy Director of School Education and the District Inspector of Schools who failed to act independently and impartially. Moreover, the order of transfer, as claimed by the petitioner, was made so as to accommodate Mrs. Sikha Dey, Head Teacher of Goalbati F.P. School, South Dum Dum Circle. The order made not in valid and proper is contrary to the concept of justice and reason. The order of transfer was passed on extraneous consideration or as a measure of punishment- In support of the aforesaid contention Mr. Ghosh referred to the decisions in the following cases ;-
1. Prof. P. S. Velayudhan v. The Director of Public Instruction, Trivandram and Anr. reported in 1977 SLWR 511 (Kerala).
2. Dr. E. T. Kuriakose v. Government of Kerala and Ors., reported in 1979(2) SLR 508 (Kerala).
3. C. Ramanathan v. Acting Zonal Manager, Food Corporation of India, Mount Road, Madras and Ors. reported in 1980(1) SLR 309 (Madras).
4. Prakash Chandra Saxena v. State of M.P. and Ors. reported in 1980(1) SLR 788 (M.P.).
5. Narain Chitravansi v. Chairman, Board of Governors Sainik School Society, New Delhi and Ors. reported in 1981(3) SLR 181 (Guj.).
6. Dr. P. Damodaran v. State of Kerala and Ors. reported in 1982(1) SLR 563 (Kerala).
7. Ram Pratap v. State of Rajasthan and Ors. reported in 1982(1) SLR 278 (Raj.).
8. Achyutana Behera v. State of Orissa and Ors. reported in 1985(2) SLR 16 (Ori).
9. State of U.P. and Ors. v. Maharaja Dharmander Prosad Singh .
11. Mr. Swapan Banerjee, learned counsel appearing for the respondents claimed and contended that disclosure of facts as would appear from the A/O would show the reasons and/or grounds led to the passing of the order of transfer as a measure of punishment imposed upon the petitioner. The allegations made against the petitioner were properly enquired into and thereafter the order of transfer was made. Furthermore, this Court is not competent to interfere with the order of transfer which does not involve civil and penal consequence and thus the order of transfer is valid and legal and in the case of transfer, observance of the principles of audi alteram partam is not required.
12. Let me now examine pros and cons of the facts situation as well as the rival contentions of the parties.
Before embarking upon the respective contentions of the parties it is fit and proper to record the following facts which are not disputed.
(a) The concerned Minister-in-Charge of Education desired the enquiry should be made and necessary steps should be taken against the petitioner,
(b) The District Inspector of Schools (PE), 24-Parganas (N) after taking necessary steps duly transmitted the outcome of decision to the personal secretary to the concerned Minister of Education.
(c) The order of transfer was not passed by the D.I. but at the instance or on the dictation of the higher authorities namely the Director of Schools-Education and the Deputy Director of School Education, West Bengal.
(d) The Deputy Director of School Education made recommendation against the petitioner. The said recommendations being penal in nature operate to the prejudice of the petitioner.
(e) The members of Mahila Samity lodged complaint against the petitioner.
(f) The copies of the adverse reports /recommendations were not made available to the petitioner.
(g) The transfer of the petitioner was made on the basis of the report of Asst. Inspector of School and the Deputy Director of School Education.
13. The order of transfer was passed on the basis of complaint received by the District Inspector of Schools from the members of the Mahila Samity.
14. In the perspective of facts not in dispute it appears clear that the order of transfer is not a routine transfer nor was passed in exercise of power conferred upon the authorities Under Section 60(k) of the West Bengal Primary Education Act, 1973 (for short the said Act hereafter) cannot be exercised capriciously and for collateral grounds. It is also very clear that the Deputy Director of School Education, West Bengal (Primary) should not have recommended the measures which operates adverse to the rights of the petitioner. Furthermore, the provisions of West Bengal Primary Education Act, 1973 are not made applicable to the district of 24-Parganas (South and 24-Parganas (North). Section 60(k) of the said Act cannot be invoked. Apart from that, the District School Board still continues to function in the district of South and North 24-Parganas., The District Inspector of School Education (Primary) as claimed by Mr. Ghosh has no power or authority or competent to make the order of transfer. The exercise of power by the District Inspector of School (Primary) Education, North 24-Parganas for transferring the petitioner from E.C. Block Primary School to Goalbati F. Primary School (Morning) Sukanta Nagar, South Dum Dum Circle is wholly dehors the provisions of the Bengal Primary Education Act, 1930 and the Rules framed thereunder.
15. Apart from that, in respect of the allegations and/or complaint against the petitioner, the authorities concerned should have given the petitioner an opportunity to controvert allegations contained in the complaint.
16. Mr. Ghosh referred to the following government order as against the transfer.
(a) The Govt. circular No. 281-Edn. (P) dated February 27, 1989 which inter alia provides that if an approved teacher of a recognised primary school under a District School Board seeks appointment in any other primary school under a different District School Board, the teacher concerned need not again come through the panel. Such cases of changing over from one Board to another at teacher’s own seeking are subject to prior approval of the District School Board concerned i.e. the Board under which the teacher intends to join. The Board on its part should post him/her to a school against justified appointment of another teacher.
The past services (of approved period) of the teachers so appointed will, however, count towards increment in pay and terminal benefits.
17. The Govt. Memo No. 1901 SC/P dated April 4, 1979-which, inter alia, provides-that G.O. No. 1936-Edn. (P) dated 8.12.78 does not provide for the transfer of teachers in an aided Primary School in Urban Area to another one of the same category. So the question of diverting a post from one School to another for the purpose of transfer does not arise.
18. It may also be noted that the District Inspector of Schools (P.E.) has not been empowered by the said G.O. to take any initiative in the matter of changing over from one School to another. The function of the District Inspector of Schools (P.E.) is simply to accord approval when a proposal is received by her/him from the aided school after being satisfied that the appointment has been made in a clear vacancy (that is, there is no dispute about the vacancy and the post fallen vacant was previously held by an approved teacher) and that the teacher-pupil ratio at the time of appointment justifies the appointment of an additional teacher. If the appointment is made against an additional post sanctioned by him, the new incumbent should be trained.
19. In this connection it is also stated for her information that the District Inspector of Schools (P-E.) can withdraw any sanctioned additional post, if in her opinion, the enrolment of the school no longer justifies the retention of the additional post previously sanctioned by him. But this withdrawal of post should be made in the event of a vacancy. The District Inspector of Schools (P.E.) can also distribute that post to some other deserving schools within the same municipal area where the teacher-pupil ratio justifies creation of an additional post.
20. The Govt. Memo No. 426-Edn. (P) dated May 21, 1983-Which, inter alia, provides that sanction of quotas of new primary schools/posts of teacher was accorded year-wise for the last six years commencing from 1977-78. Out of this said quotas a number of new primary schools have since started functioning in rural areas as well as urban areas. This is however understood that distribution of teachers in the schools has not been uniform. Some schools could not be provided with adequate member of teachers according to the prescribed teacher-pupil ratio ; while some schools have been running with teachers than are admissible. The problem of the understaffed schools can be partly solved if excess teacher of the over-staffed schools are transferred to the under-staffed schools. This measure can be introduced in the urban areas by transfering teachers within the same Municipality or to a nearby municipality. The position regarding the distribution of teachers in primary schools in rural areas also appears to be the same and the problem may be tackled similarly.
21. The Govt. Memo No. 557-Edn. (P) dated July 28, 1983 which, inter alia, provides-The attention of the Government has been drawn to the problem of uneven distribution of teachers in some primary schools in urban areas. The result is that some Government sponsored Free Primary Schools (whether under R.S. Scheme or otherwise) could not be provided with adequate number of teachers according to the teacher-pupil ratio although some Committee-managed Schools are reported to have been running with more teachers than are admissible, and vice-versa.
After a careful consideration, the Governor has been pleased to decide that the excess teachers of the over-staffed Committee-managed Primary Schools (where under R.S. Scheme or otherwise) in the same or neighbouring municipal area in the interest of the pupils. Similarly, the excess teachers of the over-staffed Govt. sponsored Free Primary School (whether under R.S. Scheme or otherwise) in a municipal area may be transferred to the under-staffed Committee-managed Primary Schools of the same neighbouring municipal area.
22. Therefore, the order of transfer, in the facts and circumstances of the case, as claimed by Mr. Amar Nath Ghosh, should be viewed from the records produced before this Court. The transfer of a Head teacher from one school to another school within the jurisdiction of the North 24-Parga-nas District School Board in my view should be exercised sparingly and not capriciously.
23. Let me now examine the propriety of the order of transfer in its factual and legal perspective. The order of transfer is liable for interference by this court sitting in its writ jurisdiction in such a situation as is placed below.
(a) Judicial review of the order of transfer is permissible when the order is made on irrelevant consideration and the order of transfer, even if appears to be innocuous on its face is passed to give vent to the ill-feeling which the
concerned authority has and had against the concerned employees ; in those circumstances, the Court is competent to go into the matter to find out the real foundation of transfer ;
(b) When the order of transfer is not passed bona fide in a case where the authority entertains adverse report against the concerned employee, and that too, without holding any enquiry into the allegations by giving opportunity of hearing to the concerned employee, in those circumstances, the court may strike down the order of transfer thus passed not in a bona fide exercise of power ;
(c) An order transferring an employee to accommodate some other officials cannot be sustained as the same is not in a proper and valid exercise of power ;
(d) An order of transfer cannot be exercised capriciously and arbitrarily ;
(e) An order of transfer passed at the instance of concerned Minister or at the instance of higher authorities founded upon irrelevant consideration or extraneous grounds cannot be sustained ;
(f) An order of transfer passed on the basis not in the exigency of service, but at instance of the higher authorities.
24. The court is competent to ascertain whether the order of transfer is passed bona fide or as a measure of punishment. The court, for the purpose of finding out the basic ground that led to the passing of transfer, is competent to look into the records.
25. The order of transfer thus is liable to be set aside in a case where the Competent Authority is abusing his functions and acting solely at the behest of outsiders or extra-legal agencies. The order of transfer would then be labelled as an action infected with the colourable exercise of power and thereby it is open for challenge under Article 226 of the Constitution of India. In the present case, the District Inspector of Schools (PE) North 24-Parganas did not exercise the power independently but acted on the basis of the influence of outsiders or extra-legal agencies, namely the members of local Manila Samity and the order of transfer was not passed on the basis of report of the Assistant Inspector of Schools, but on the basis of measures as recommended by the Deputy Director of Schools Education without giving the petitioner an opportunity of knowing the adverse report of the Deputy Director. The order of transfer was passed not in the exigency of service but as a measure of punishment inasmuch as the petitioner was transferred at the instance of the complaints lodged against her by the members of local Manila Samity who pursuaded the concerned authorities to pass an order of transfer which, in fact, was passed on the basis of the recommendations made by the Deputy Director of Schools Education (PE) and also at the instance of the Minister-in-Charge of Education who desired certain necessary steps should be taken against the petitioner. The Minister concerned not being the competent authority is not empowered unless such order of Minister is passed in exercise of powers under Rules of business. The Court is competent to look into the records which were produced before this Court by Mr. Swapan Banerjee, the learned Advocate for the respondents for the purpose of ascertaining whether the order of transfer was passed as a routine measure or on the basis of complaint lodged against her or at the instance of behest of the higher authorities including the concerned Minister.
Let me now deal with the cases cited hereinbefore.
26. In the case Prof, P.S. Valayudhan v. The Director of Public Instruction, Trivandram and Anr. reported in 1977 SLWR 511 (Kerala) the learned Judge held-Discretion vested in a particular authority must be exercised by that very authority and not to be directed by the discretion of another authority however high that authority may be. In transfer of management of one school to another management the Director of Public Instruction is not competent to interfere with the statutory functions of the District Education Officer or Assistant Education Officer.
27. In the Case Dr. E. T. Kuriakose v, Government of Kerala and Ors. reported in 1979(2) SLR 508 (Kerala) the High Court while dealing with the scope and extent of judicial review and power of the Court to interfere in the administrative orders held that the Court is competent to interfere if power is exercised for extraneous purposes in the garb of ostensible purpose of public interest.
28. In the case C. Ramanathan v. Acting Zonal Manager, Food Corporation of India and Ors. reported in 1980(1) SLR 309 (Madras) the High Court while dealing with the scope of judicial review in transfer made on irrelevant consideration in utter disregard of policy decision, held that the order though innocuous but in fact motivated to give vent to the ill feelings which the officer was harbouring against the employee, the court is competent to go into the matter to find out the real intention to transfer.
29. In the case Prakash Chandra v. State of M.P. and Ors. reported in 1980(1) SLR 788 (M.P.) the High Court while examining the plea of malafide or bona fide of the Authority in entertaining suspicion about employer held that the Authority acted without holding an enquiry and in reckless disregard of consequences and accordingly the action was found not to be bona fide.
30. In the case Narain Chitravansi v. Chairman Board of Governors Sainik School Society and Ors. reported in 1981(3) SLR 181 (Guj.) the High Court while dealing with the case of transfer also considered the applicability of the Rules of Natural Justice and held that the order of transfer on the basis of complaint and not in the exigencies of service by the Society is to be made by observance of the principle of Natural Justice inasmuch as the transfer by way of punishment and in those circumstances the society is to act reasonably and in accordance with rules of natural justice.
31. In the case Dr. P. Damodaran v. State of Kerala and Ors. Reported in 1982(1) SLR 563 (Kerala) the High Court while dealing with malafide exercise of power held that matafide does not necessarily mean a fraud on power, but where power to transfer is exercised to accommodate another servant without due regard to the interest of the administration or the interest of the public or the provisions of law or requirements of justice or is exercised for extraneous or irrelevant consideration or as a measure of punishment, the order of transfer is bad and the transfer in such circumstances where the details of according discriminatory treatment is not explained by government amounts to abuse of power and such order is liable to be quashed.
32. In the case Ram Pratap v. State of Rajasthan and Ors. reported in 1982(1) SLR 278 (Raj.) the High Court while dealing with Judicial review and the transfer order, held that the review is not permissible unless transfer is made in matafide exercise of power or any extraneous consideration.
33. In the case Achyutana Behera v. State of Orissa and Ors. reported in 1985(2) SLR 16 (Orissa) the High Court while dealing with malafide held that the order of transfer passed by the Competent Authority abdicating his functions and acting solely at the behest of an outsider or extra-legal agency or authority would be often to challenge as colourable exercise of power and as such malafide order of transfer would be vulnerable if it is made on political consideration but not on administrative grounds of exigency public service.
34. In the case State of U.P. and Ors. v. Maharaja Dharmander Promd Singh reported in (1989)2 SCC 506 (paragraph 55 at p. 523) the learned Judges of the Supreme Court held-“It is true that in exercise of powers of revoking or cancelling the permission is akin to and partakes of a quasi-judicial complexion and that in exercising of the former power the authority must bring to bear an unbiased mind, consider impartially the objections raised by the aggrieved party and decide the matter consistent with the principles of natural justice. The authority cannot permit its decision to be influenced by the dictation of others as this would amount to abdication and surrender of its discretion. It would then not be the authority’s discretion that is exercised, but someone else’s. If an authority “hands over its discretion to another body its acts ultra vires.” Such an interference by a person or body extraneous to the power would plainly be contrary to the nature of the power conferred upon the authority. DeSmith sums up the position thus :
35. The relevant principles formulated by the courts may be broadly summarised as follows. The authority in which a discretion is vested can be compelled to exercise that discretion, but not to exercise it in any particular manner. In general, a discretion must be exercised only by the authority to which it is committed. That authority must genuinely address itself to the matter before it; it must not act under the dictation of another body or disable itself from exercising a discretion in each individual case. In the purported exercise of its discretion it must not do what it has been forbidden to do, nor must it do what it has not been authorised to do. It must act in good faith, must have regard to all relevant considerations and must not be swayed by irrelevant considerations, must not seek to promote purposes alien to the letter or to the spirit of the legislation that gives it power to act, and must not act arbitrarily or capriciously. Nor where a judgment must be made that certain facts exist can a discretion be validly exercised on the basis of an erroneous assumption about those facts. These several principles can conveniently be grouped in two main categories : failure to exercise a discretion, and excess or abuse of discretionary power. The two classes are not, however, mutually exclusive.”
36. In this case the real authority is the District Inspector of School. The exposure that is made shows that the District Inspector of School did not exercise independant discretion but hands over the same to another body or in other words, the discretion of the District Inspector of School was seriously interferred with by those authorities or body extraneous to the power. In those circumstances the Court is to apply the principles applicable in the examination of the propriety of the order of transfer in its factual and legal perspective. The order of transfer in the instant case is not passed bona fide. It is a case where adverse report against the petitioner was made and that too without offering the petitioner any opportunity of being heard in the matter. The order of transfer of the petitioner was made so as to accommodate Sm. Sikha De, respondent No. 5. The order of transfer thus passed at the instance of the Minister or at the instance of the higher authorities suffers from irrelevant consideration and extraneous grounds. The order of transfer was made for the collateral purpose and the same is not in the exigency of the service but at the instance of the superior authorities.
37. I have carefully considered the totallity of the circumstances. I am of the view that disclosure of the adverse reports thus made makes it clear that circumstances preceding to and attendant upon the order of transfer render the order of transfer illegal inasmuch as the District Inspector of Schools had no occasion to exercise administrative discretion independently, but merely acted on the recommendation of the Deputy Director of School Education (PE). The inescapable conclusion that emerges that the order of transfer is infected without legality and improper exercise of power. It is true that the Court should not normally interfere with the order of transfer, but in a situation of the present nature the Court cannot shut his eyes. The decisions cited above have a great pursuasive value. The principles as laid down in a number of decisions of the High Courts and particularly in the case- State of U.P. and Ors. v. Maharaja Dharmandar Prosad Singh (supra) are clearly applicable in the facts and circumstances of the case. The contention of Mr. Swapan Kumar Banerjee, the learned Advocate for the respondents appears to be very attractive in appearance but in fact lacks in substance inasmuch as in exceptional circumstances the Court is competent to interfere with the order of transfer in a case where those principles which are stated hereinbefore are applicable.
38. In view of the foregoing findings I set aside the order of transfer of the petitioner and I direct that the petitioner shall not be transferred from the post of Head Teacher of E.C. Block Primary School, Salt Lake to any other school. Transfer of respondent No. 5 to E.C. Block Primary School is hereby set aside. This order shall not, however, prevent the respondents from taking steps for holding enquiry into the allegations levelled against the petitioner, but in that event the petitioner shall be heard in person in accordance with law.
39. Respondents are directed to take steps to allow the petitioner to join her duties in E.C. Block Primary School, Salt Lake within a fortnight from this date and she shall be paid her salary for the period she has not been paid, as admissible under rules. Respondent No. 5 shall be posted in the school where from she has been transferred within a fortnight period.