JUDGMENT
V.P. Tipnis, J.
1. By this petition the petitioners, who were primary teachers, are challenging the legality and validity of the transfer order passed by the Block Education Officer, Panchayat Samiti Panvel, dated 12.3.1986. The petitioners who are husband and wife respectively are employed as primary teachers in the schools which are under the control of the Raigad Zilla Parishad.
2. It is alleged in the petition that the petitioner No. 1 joined as Assistant Primary Teacher on 21.2.1972 at Uran and worked there upto 1981. In 1981 he was transferred to Panvel and since then he has been working as Assistant Teacher at Taloje Panchanad. The petitioner No. 1 married to petitioner No. 2 in the year 1976. On 12.11.1981 petitioner No. 2 joined as Assistant Primary Teacher at village Khidupada in Panvel Taluka. Both the petitioners are residing at a place known as Rod Pali in Panvel and they daily commute to their respective schools. In 1980 the couple gave birth to a son and in 1982 and 1984 respectively 2 daughters were born to the couple. It is asserted by the petitioners that both the petitioners have got clean service record without any adverse remarks. The academic year which started in June, 1985 terminated in June, 1986. The annual examinations commence by the middle of April and after examination of the papers etc. results are declared.
3. It is thereafter averred that the officers of the Raigad Zilla Parishad had called a meeting on 11.3.1986 at Saraswati Mandir, a Taluka School at Panvel to propagate family planning programme and to feed cases at the family planning sterilisation camp held at Uran, a distance of about 30 kms. from Panvel. The camp was sponsored by the Zilla Parishad Raigad. It is averred in the petition that the President of the Raigad Zilla Parishad has become the crusader for the family planning programme. While appreciating the laudable object of the President, the petitioners made a grievance that the President is going at times to the objectionable length so as to coerce the teachers to participate in the campaign. At the meeting held on 11.3.1986, the President of the Raigad Zilla Parishad, Chief Executive Officer, Chairman Panvel Taluka Panchayat Samiti, Block Education Officer, Block Development Officer, Panvel and about 350 teachers, which included many lady teachers, were present. The President of the Raigad Zilla Parishad conducted the meeting. The teachers who were present, were asked to form themselves into three groups (1) those teachers who did not procure even single case for sterilisation, (2) those teachers who procured cases for sterilisation and (3) Couple of teachers who had 3 or more children and who were supposed to report for sterilisation at the camp held at Uran. The petitioners obviously were included in the third category. Thereafter it is alleged in the petition that the President started Interviewing the teachers from the third group. The President asked whether they were prepared to get sterilised and those who declined, the President ordered that they should be immediately forwarded to Uran camp for sterilisation. Some of them were ready and some of them were not ready. Some couple asked for time for considering the same. It is averred that the President ordered that they should be transferred immediately from their present school. The petitioners have tried to reproduce the dialogue between the Petitioner No. 1 and the said President. Petitioners told the President that the petitioner and his wife-Petitioner No. 2, procured one case each for sterilisation. Thereafter the President asked them that as the petitioners are having three children they should get operated. The petitioners replied that they have only one son and two daughters. The son is not keeping well and is always sick. After he becomes healthy, petitioners can consider the operation and in any case such operation will be done in private hospital. But in any case they will not get operated in the sterilisation camp. Petitioners have averred that this was so because many a times due to unsanitary condition, lack of operation skill, privacy of the patient etc. at the sterilisation camp were exposed to some danger. The petitioners have asserted that thereafter the President of the Zilla Parishad Raigad flared up and told the officers that the petitioners have insulted him and they should be transferred to Kudapan which is a hilly village in Poladpur Taluka. The petitioners have asserted that 5 others were also ordered to be transferred, but however, the said orders were not insisted upon, upon persuation by other teachers. Petitioners got nervous due to the incident. Though they reported to work on 12.3.1986 to their respective schools, both of them went on sick leave with effect from 13.3.1986 to about 9.4.1996. On or about 23.3.1986 petitioners received order transferring them to Poladpur Taluka with immediate effect. The order which is annexed at Exh. A to the petition is, dated 12-3-1986. The order mentions that on 11.3.1986 a meeting took place between the President, Raigad Zilla Parishad, Alibag, and the Chief Executive Officer, Raigad Zilla Parishad regarding the family planning programme. It further mentions that as per the decision therein the following primary teachers are transferred to the places mentioned against their names. They are relieved after office hours on 12.3.1986. It further mentions that the headmasters should immediately relieve the transferred teachers. The order mentions the names of two teachers and they are transferred to Poladpur Taluka. The order further directed the concerned teachers to hand over complete charge to the headmasters immediately and to relieve them for reporting at the transferred places. The order further mentions that they will not be hereafter granted and leave of whatsoever nature. The order is signed by the Block Education Officer, Panchayat Samiti, Panvel.
4. Shri Limaye, learned Counsel for the petitioners submits that it is common knowledge and there are also instructions to that effect by the Government that transfer of teachers should not be made during the months of March and April because that is the time when the annual examinations are usually held. Shri Limaye also submits that in any case normally transfers are not made during continuation of the Academic Year as it would disrupt the smooth functioning of the schools. In fact Shri Limaye relies upon the Government Resolution, dated 6.4.1977 to that effect. Shri Limaye contended that the transfer order is blatantly mala fide and issued by way of punishment at the behest of the President of the Zilla Parishad and that too on the solitary ground that the petitioner declined to get operated at the sterilisation camp held at the behest of the Zilla Parishad, Raigad.
5. Though all the respondents are served,, no appearance has been filed on behalf of the President, Zilla, Parishad, Raigad Respondent No. 2, Chief Executive Officer Respondent No, 3, and the Block Education Officer Respondent No. 4 or the headmasters of the respective schools.
6. In view of the fact that none of the concerned respondents have either appeared or filed any affidavit in reply, we see absolutely no good reason to discard the serious allegations made-on oath by the petitioners. That apart we find intrinsic evidence in the order of transfer itself regarding the correctness of the assertions made by the petitioners. Firstly the transfer order is passed on 12.3.1986 which normally not the time for such transfers. Secondly the transfer order expressly makes a reference to the meeting held on 11.3.1986 regarding the family planning programme. It further mentions that it was the decisions taken in the said meeting to transfer the petitioners. By the order the petitioners who have been working as Assistant teachers in Panvel Taluka have been transferred at a distant place at Poladpur Taluka. The petitioners are directed to hand over charge immediately and further the order mentions that they will not be hereafter granted any leave of whatsoever nature. In the background of the assertions of the petitioners, which assertions have gone unchallenged, as none of the concerned respondents have chosen to appear and no affidavit in reply is filed, the contents of the order clearly betray the blatent mala fides. The order is obviously issued at the behest of the President Zilla Parishad, Raigad, who was enraged by the refusal of the petitioners to get operated in the sterilisation camp. Such an order of transfer which is mala fide and which is obviously by way of punishing the petitioners cannot be sustained.
7. In the result the petition succeeds. The order, dated 12.3.1986 transfer both the petitioners from their respective schools from Panvel Taluka to Poladpur Taluka, passed by the Block Education Officer, Panchayat Samiti, Panvel, is hereby quashed and set aside.
8. Rule made absolute accordingly. There shall be, however, no order as to costs.