Gujarat High Court
Bhavikkumar Govindbhai Patel vs State Of Gujarat & 2 on 2 May, 2014
Author: Abhilasha Kumari
Bench: Abhilasha Kumari
C/SCA/12550/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CIVIL APPLICATION NO. 12550 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
===============================================================
1 Whether Reporters of Local Papers may be allowed to see the
judgment ?
Yes
2 To be referred to the Reporter or not ?
Yes
3 Whether their Lordships wish to see the fair copy of the
judgment ? No
4 Whether this case involves a substantial question of law as to
the interpretation of the Constitution of India, 1950 or any order
made thereunder ?
No
5 Whether it is to be circulated to the civil judge ? No
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BHAVIKKUMAR GOVINDBHAI PATEL....Petitioner(s)
Versus
STATE OF GUJARAT & 2....Respondent(s)
Appearance:
MR SHALIN N MEHTA, LEARNED SENIOR ADVOCATE WITH MR HEMANG R RAWAL,
ADVOCATE for the Petitioner
MR DM DEVNANI, LEARNED ASSISTANT GOVERNMENT PLEADER for Respondent(s) No. 1
MR JAYRAJ CHAUHAN FOR MR UM SHASTRI, ADVOCATE for Respondent(s) No. 2 - 3
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CORAM: HONOURABLE SMT. JUSTICE ABHILASHA KUMARI
Date : 02 /05/2014
CAV JUDGMENT
Page 1 of 36
C/SCA/12550/2013 CAV JUDGMENT
1. Rule. Mr.D.M.Devnani, learned Assistant Government Pleader waives service of notice of Rule for respondent No.1 and Mr.Jayraj Chauhan, learned advocate for Mr.U.M.Shastri, learned counsel waives service of notice of Rule for respondents Nos.2 and
3.
2. On the facts and in the circumstances of the case and with the consent of learned counsel for the respective parties, the petition is being heard and decided finally.
3. The challenge in this petition, preferred under Article 226 of the Constitution of India, is to the order dated 31-7-2013, passed by respondent No.3, whereby the petitioner has been transferred from Ghusar Primary School, Kalol, to Dudhapura Primary School, Goghamba Taluka, Pay Centre Chandranagar. The petitioner challenges the above order on the ground that it is punitive and stigmatic in nature, casting a stigma upon the petitioner who held the charge as a Principal and who has now been directed to work as an Assistant Teacher, with no prospects of being given such charge in future.
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4. Briefly stated, the facts of the case are that the petitioner was initially appointed as Primary Teacher at Devni Muvadi Primary School on 13-4- 2002. He got married to Hemlataben Jayantilal Patel, on 20-5-2001. The wife of the petitioner was also working as a Primary Teacher at Adadra Primary School, Taluka Kalol prior to the marriage. Even after the marriage, she continues to serve at the same place as a Teacher. The case of the petitioner is that the Education Department of the State Government has framed a policy, to the effect that preference would be given to a married couple to choose the same School, so that their married life subsists. In light of this policy, the petitioner and his wife were transferred to Ghusar Primary School, Taluka Kalol, District Panchmahals on 13-6- 2013, where they were working to the best of their abilities. The petitioner was given the charge of Head Teacher/Principal on 1-7-2012, after following due procedure.
4.1 On 5-5-2012, an Assistant Teacher by the name of Bhagliya Rashid Ahmed Abdul Majid (herein-after referred to as "the other teacher") came to be Page 3 of 36 C/SCA/12550/2013 CAV JUDGMENT transferred to Ghusar Primary School. It is averred in the petition that from the very beginning, the conduct of the other teacher was not good and he was acting in an improper manner with the petitioner and more especially, his wife. In February, 2013, the petitioner went to attend a Cricket Camp, for a period of one month, pursuant to an order passed by the District Development Officer. The other teacher, taking the benefit of the absence of the petitioner, started harassing the petitioner's wife by giving her threats and making inappropriate gestures. The situation of the petitioner's wife got worse day- by-day. On 18-2-2013, the other teacher allegedly made an illegal demand from the wife of the petitioner and tried to pressurize her to succumb to such illegal demand. The wife of the petitioner found herself helpless, in the absence of the petitioner. The harassment by the other teacher, to the wife of the petitioner, continued. After the Cricket Camp was over, when the petitioner returned to his house, he was shocked to know about the illegal demand made by the other teacher from his wife and of the harassment caused to her. The petitioner resumed duties in the School, after Page 4 of 36 C/SCA/12550/2013 CAV JUDGMENT attending the Cricket Camp, on 01.03.2013. He asked the other teacher not to act in such a manner and to preserve the dignity of his wife. As per the averments made in the petition, the other teacher started abusing the petitioner and threatened both him and his wife, that they would not be allowed to come to the School and would face damage to their property and injury to their bodies. According to the petitioner at about 11.00 a.m. on 11.03.2013, during the prayer session of the School, the other teacher started making recordings of the wife of the petitioner on his mobile phone, with a malicious intention. Since the petitioner came to know of this incident, he objected. On account of the objection, the other teacher went away from the School, leaving his mobile in the School itself. The petitioner orally informed respondent No.3 about the incident. Respondent No.3 visited the School and prepared a report, which confirmed that the other teacher had left the school at 11:30 a.m., without permission from the petitioner. Even in the Muster Roll, respondent No.3 has noted the absence of the other teacher. Respondent No.2 asked respondent No.3 to make an inquiry of the incident that had occurred in Page 5 of 36 C/SCA/12550/2013 CAV JUDGMENT the school on 11.03.2013. Pursuant thereto, respondent No.3 recorded the statements of the petitioner, his wife and other teachers of the School. The wife of the petitioner also addressed a complaint to the concerned Police Station, against the other teacher. It may be noted that the other teacher had also filed a complaint against the petitioner and his wife. It is averred in the petition that the other teacher never resumed his duties at the said School. However,in order to hide his wrong, kept on making complaints to the authorities. The petitioner wrote to respondent No.2 on 13.04.2013, to the effect that the other teacher had remained absent from 11.03.2013. According to the petitioner, the other teacher kept misleading the authorities in the inquiry conducted by respondent No.3. It is averred in the petition that a copy of the inquiry report was not given to the petitioner. In the meanwhile, the results of the annual examination were to be declared on 04.05.2013. The other teacher had not submitted the results of the terminal examination to the petitioner and the other concerned documents. On account of the same, the final result could not be prepared. Under the Page 6 of 36 C/SCA/12550/2013 CAV JUDGMENT circumstances, the petitioner requested respondents Nos.2 and 3 for guidance by addressing a letter dated 02.05.2013. Instead of providing guidance, the said respondents, with a view to favouring the other teacher, transferred him to another School on his own request, vide order dated 03.05.2013 passed by respondent No.3. Though the other teacher was not coming to the School, respondent No.3 passed an order relieving him from the School and posting him at the place of his request. The other teacher did not co- operate with the petitioner or give the terminal results, due to which the results of the annual examination could not be declared in time. It was only when the photostat copies of the results were procured from the other teacher that the results could be declared by the petitioner.
4.2 It is further averred in the petition that the petitioner was on leave from 12.07.2013, on account of illness, therefore, he could not attend the School. A camp was organized for transfer on 15.07.2013, by respondent No.2. Some irregularity regarding transfer of a teacher took place in the said camp, which was brought to the notice of the Page 7 of 36 C/SCA/12550/2013 CAV JUDGMENT concerned authorities by the petitioner. On the very next day of the complaint, the petitioner was transferred by the impugned order dated 31.07.2013. Aggrieved thereby, the petitioner has approached this Court, by way of the present petition.
5. Mr. Shalin N. Mehta,learned Senior Advocate with Mr.Hemang R. Rawal, learned advocate for the petitioner, has made the following submissions:
(1) The impugned order dated 31.07.2013, passed by respondent No.2, is not in consonance with the provisions of law. The said order is not only punitive in nature but is also stigmatic. The petitioner had fought for maintaining the dignity of his wife, who is a lady teacher. For this reason alone, he is being punished by respondent No.2. The person who is involved in committing the wrong has been transferred at his own request to another suitable place and no action has been taken against him. The petitioner and his wife were transferred to Ghusar Primary School as a couple case, in light of the policy of the State Government. By virtue of the impugned order, the petitioner is again separated Page 8 of 36 C/SCA/12550/2013 CAV JUDGMENT from his wife, who is pregnant. As the order of transfer is not an order simpliciter but is punitive and stigmatic in nature, this Court may interfere with the same.
(2) That the petitioner has a blotless career and not a single complaint has been made against him in the past. The complaints allegedly received after the incident are engineered by vested interests. There is no reason to disturb the petitioner from his present place of work, where he has settled with his wife, who needs his presence during her pregnancy.
(3) The hearing that was kept by respondent No.2 was not pertaining to the transfer. Before passing the impugned order, the petitioner was not issued any show-cause notice or provided with an opportunity of hearing. The transfer of the petitioner is not for administrative purposes but has been deliberately made, only with a view to harassing the petitioner, for no fault of his own.
(4) It is stated in the impugned order that the only reason for the transfer of the petitioner, as Page 9 of 36 C/SCA/12550/2013 CAV JUDGMENT mentioned in the impugned order, is that there was a fight between three teachers, that is, the petitioner and his wife and the other teacher. This is factually wrong as there is no dispute between the petitioner and his wife. The petitioner and his wife resisted the behaviour of the other teacher who was harassing the wife of the petitioner. As the other teacher has already been transferred, there exists no reason to transfer the petitioner and separate him from his wife.
(5) The impugned order is arbitrary in nature and offends the provisions of Articles 14 and 21 of the Constitution of India, apart from contravening the Government Policy that stipulates that married couples should be posted together. The order of transfer, being punitive in nature, could not have been passed without affording an opportunity of hearing. The validity of the transfer order is to be tested on the reasons mentioned in the said order.
The affidavits filed by the respondents to the effect that complaints were received against the petitioner, cannot supplement the reasons given in the impugned order,as per settled law by the Supreme Court in the Page 10 of 36 C/SCA/12550/2013 CAV JUDGMENT case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others, reported in (1978)1 SCC 405.
(6) The impugned order is factually incorrect as it states that three teachers have quarreled and there is a need to transfer petitioner. The said reason is non-existent, as the petitioner and his wife have not quarreled with each other and the other teacher has been transferred. The very foundation of the impugned order is false. The impugned order discloses malice in law, as it is based on a non-existent foundation.
In support of the above contention, learned Senior Advocate has placed reliance upon the judgment of the Supreme Court in Somesh Tiwari v. Union of India and others reported in (2009)2 SCC 592. (7) It is further submitted that though judicial review in transfer matters is limited, however, there are certain exceptions; one of them being malice in fact and malice in law, or an order passed on non- existing facts.
(8) The impugned order is stigmatic in nature, as Page 11 of 36 C/SCA/12550/2013 CAV JUDGMENT the petitioner has been divested of his charge of Head Teacher and it has been stated that he shall not be given such charge in future. This casts a stigma upon the career of the petitioner. Such an order could not have been passed without affording the petitioner an opportunity of hearing. (9) The respondents have not understood the controversy in its proper perspective and have not taken into consideration the aspect that the other teacher was harassing the petitioner's wife, which led to the dispute. The other teacher left without an explanation in midstream, because of which the petitioner could not declare the result in time. The petitioner is being punished because the respondents want to shield the other teacher, as no action has been taken against him. The so-called complaints against the petitioner have only emanated after the dispute took place in the year 2012, and not before that. This means that they are engineered. The only thing that is mentioned in the complaint is that there is a fight going on between three teachers. The entire factual aspect has been grossly manipulated in order to punish the petitioner, by transferring him Page 12 of 36 C/SCA/12550/2013 CAV JUDGMENT and separating him from his wife. There is no reason why the petitioner cannot be granted the benefit of the policy of the State Government, to keep a married couple together, especially when the reason for the dispute, that is, the other teacher who was misbehaving with the wife of the petitioner, is no longer present in the School.
(10) The wife of the petitioner is pregnant and needs the care and attention of the petitioner, therefore, in view of the Government policy, the case of the petitioner may be reconsidered by the respondents.
Learned Senior Advocate for the petitioner has placed reliance upon the following judgments:
(a) State of U.P. and others v. Jagdeo Singh, reported in AIR 1984 SC 1115
(b) Chandra Singh and Others v. State of Rajasthan and another, reported in (2003)6 SCC 545 Page 13 of 36 C/SCA/12550/2013 CAV JUDGMENT
(c) State of U.P. and another v. Siya Ram and another, reported in (2004)7 SCC 405
(d) Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others, reported in (2005)7 SCC 627
(e) Somesh Tiwari v. Union of India and others, reported in (2009)2 SCC 592
6. The petition is strongly opposed by Mr.Jayraj Chauhan, learned advocate appearing for Mr.U.M.Shastri, learned counsel for respondents Nos.2 and 3, by making the following submissions:-
(1) The petitioner has an alternative remedy of filing an appeal before the Director of Municipalities, as per Section-24 of the Primary Education Act,1947.
(2) The impugned order of transfer is not a punitive one. There were complaints from the parents of students that due to the dispute between the petitioner, his wife and the other teacher, the Page 14 of 36 C/SCA/12550/2013 CAV JUDGMENT atmosphere of the school was vitiated, therefore, it was thought to be necessary to transfer the petitioner to another place.
(3) Before passing the impugned order, all parties were heard, therefore, the principles of natural justice have been complied with.
(4) The petitioner was only holding the charge of Head Teacher and was not appointed as such, therefore, it cannot be said that by depriving him of the charge, the impugned order becomes stigmatic.
(5) The wife of the petitioner and the other teacher have filed cross-complaints against each other. The quarrels that took place between the three teachers would have had an adverse effect upon the tender minds of the students studying in the school, therefore, the action of transferring the petitioner is just and proper.
(6) Once a married couple has exercised the option to remain together, there is no bar to separating them for administrative reasons, or for any other Page 15 of 36 C/SCA/12550/2013 CAV JUDGMENT justifiable reason. The petitioner knew about the transfer order passed by the respondent-authorities but has not joined service at the place of transfer.
The petitioner has no right to stay at a particular place for all times to come. As the transfer of the petitioner has been necessitated by the quarrels that took place between the three teachers, it is legally valid, just and proper.
In support of the above submissions,reliance has been placed on the following judgments :
(1) National Hydroelectric Power Corporation Limited Vs. Shri Bhagwan, reported in (2001) 8 SCC 574.
(2) Rajendra Roy Vs. Union of India, reported in (1993) 1 SCC 148.
(3) State of Punjab Vs. Joginder Singh Dhatt, reported in AIR 1993 SC 2486.
(4) State of U.P. Vs. Gobardhan Lal, reported Page 16 of 36 C/SCA/12550/2013 CAV JUDGMENT in (2004) 11 SCC 402.
(5) State of U.P. Vs. V.N.Prasad, reported in 1995 Supp. (2) SCC 151.
(6) Mohd. Masood Ahmad Vs. State of U.P., reported in (2007) 8 SCC 150.
(7) Laxmi Narain Mehar Vs. Union of India, reported in (1997) 3 SCC 87.
(8) Union of India Vs. Janardan Debanath, reported in (2004) 4 SCC 245.
7. This Court has heard learned counsel for the respective parties, perused the averments made in the petition, contents of the impugned order and other documents on record.
8. The judgments cited by the learned advocate for respondents Nos.2 and 3 may be referred to at this stage. In National Hydroelectric Power Corporation Limited Vs. Shri Bhagwan (Supra), the Supreme Court has held as below:
Page 17 of 36 C/SCA/12550/2013 CAV JUDGMENT
"No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala-fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the management, as against such orders passed in the interest of administrative exigencies of the service concerned."
9. In Rajendra Roy Vs. Union of India (supra) the Supreme Court has held as below:
"The order of transfer often causes a lot of difficulties and dislocation in the family set- up of the concerned employees but on that score the order of transfer is not liable to the struck down. In a transferable post an order of Page 18 of 36 C/SCA/12550/2013 CAV JUDGMENT transfer is a normal consequence and personal difficulties are matters for consideration of the department. Unless such order is passed mala-fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer." (Para 7)
10. In State of Punjab Vs. Joginder Singh Dhatt (Supra) the Supreme Court has reiterated that it is entirely for the employer to decide when, where and at what point of time, a public servant is to be transferred and ordinarily the Courts should not interfere.
11. In State of U.P. Vs. Gobardhan Lal (Supra), the Supreme Court has held that transfer is the prerogative of the authorities concerned and the Courts should not normally interfere therewith, except when (i) transfer order is shown to be vitiated by mala-fides or (ii) in violation of any statutory provision, or (iii) having been passed by an authority not competent to pass such an order. It is further elaborated that the allegations of mala- fides must be based on concrete material and must Page 19 of 36 C/SCA/12550/2013 CAV JUDGMENT inspire the confidence of the Court.
12. In State of U.P. Vs. V.N.Prasad (supra) the Supreme Court has held that the nature of evidence to establish mala-fides in cases of transfer has to be strong and convincing.
13. In Mohd. Masood Ahmad Vs. State of U.P. (supra), the Apex Court has held that the transfer on the basis of recommendation of a MLA did not vitiate the transfer order as transfer is an incident of service and, therefore, judicial interference should be in very rare cases.
14. In Laxmi Narain Mehar Vs. Union of India (Supra), the Supreme Court has held that though it is true that the convenience of the Officer belonging to SC or ST may be considered and he may be posted near his hometown but the authority has the power to transfer him when an administrative need arises. In that case, the petitioner had made allegations against the officers to the effect that the transfer order is a vindictive measure of punishment. However, on the facts, it was held that the transfer was made Page 20 of 36 C/SCA/12550/2013 CAV JUDGMENT on account of administrative exigency.
15. In Union of India Vs. Janardan Debanath (supra), the Supreme Court has held that transfer to another post in the same cadre on account of inefficiency or misbehaviour is not barred by Fundamental Rule 15.
16. The judgments relied upon by the learned Senior Advocate for the petitioner may now be noticed.
17. In State of U.P. and others v. Jagdeo Singh (Supra) the Supreme Court set aside the transfer order as it was found to have been passed by way of punishment. In that case, the respondent was working as a Station House Officer at Chandpur Police Station in Uttar Pradesh and had the overall charge of Police Station. As such, he was entitled to special emolument of Rs.15/- per month while he was in-charge of a police station. By the impugned order, the respondent was transferred to another police station as a Second Officer. He protested against the posting, since it involved the loss of the special emolument. His representation was rejected. The writ Page 21 of 36 C/SCA/12550/2013 CAV JUDGMENT petition filed before the High Court was allowed, which judgment was challenged by the State of Uttar Pradesh before the Apex Court. The Supreme Court found that by the impugned transfer, the respondent was deprived of the special emolument as a punishment, therefore, it confirmed the judgment and order of the Division Bench of the High Court of Allahabad.
18. Learned Senior Counsel for the petitioner has submitted that in the present case, as well, the transfer of the petitioner is punitive in nature as he has been deprived of the charge of Head Teacher which he was holding, till the impugned order came to be passed. Moreover, it is stated in the impugned order that the petitioner would not be given such charge in future.
19. Learned senior counsel for the petitioner has placed reliance upon the judgment of the Supreme Court in Chandra Singh and Others v. State of Rajasthan and another (Supra), particularly, paragraph-37 thereof, wherein it is held as below: Page 22 of 36 C/SCA/12550/2013 CAV JUDGMENT
"37. This takes us to the question as to whether the action of the High Court in making the assessment of the performance of the appellants prior to 31.3.1999 stands the scrutiny of Rule 53 of the Rajasthan Civil Services (Pension) Rules, 1996. In a given case, the said rule may be taken recourse to but the High Court never took any stand that its action was justified thereunder. Ex facie, the said rule is not applicable inasmuch as it has never been the contention of the respondents that the impugned order had been passed in public interest or other pre-requisite therefor, namely, giving of three months' notice in writing to the Government servant before the date on which he is required to retire in public interest or three months' pay and allowances in lieu thereof, had been complied with. Compliance with pre-requisites of such a rule, it is well- settled, is mandatory and not directory. Such a plea has expressly been negatived by this Court. [See Rajat Baran Roy's case (supra) -paras 13 to 16]. It is fairly well-settled, that the legality or otherwise of an order passed by a statutory authority must be judged on the face thereof as the reasons contained therein cannot be supplemented by an affidavit. [See Mohinder Singh Gill and Another vs. The Chief Election Commissioner, New Delhi and Others (1978) 1 SCC 405] . It may be true that mentioning of a wrong Page 23 of 36 C/SCA/12550/2013 CAV JUDGMENT provision or omission to mention the correct provision would not invalidate an order so long as the power exists under any provision of law, as was submitted by Mr. Rao. But the said principles cannot be applied in the instant case as the said provisions operate in two different fields requiring compliance with different pre- requisites. It will bear repetition to state that in terms of Rule 53 of the Pension Rules, an order for compulsory retirement can be passed only in the event the same is in public interest and/or three months' notice or three months' pay in lieu thereof had been given. Neither of the aforementioned conditions had been complied with." (emphasis supplied)
20. The principles of law enunciated in the above- quoted judgment have been pressed into service on behalf of the petitioner on the ground that the affidavits filed by the respondents in the present case cannot supplement the reasons given in the impugned order of transfer.
21. In State of U.P. and another v. Siya Ram and another (supra), the Supreme Court has reiterated the settled position of law that unless the transfer order is shown to be mala-fide or in violation of the statutory provisions, it is not open to interference Page 24 of 36 C/SCA/12550/2013 CAV JUDGMENT by the Court.
22. In Hindustan Petroleum Corpn. Ltd. v. Darius Shapur Chenai and others (Supra), the Supreme Court has held as below:
"24. Submission of Mr. Chaudhary to the effect that the circumstances pointed out in the counter-affidavit filed in WPMP No. 27633 of 2003 should be held to be substitute for the reasons which the State must be held to have arrived at a decision, cannot be countenanced.
When an order is passed by a statutory authority, the same must be supported either on the reasons stated therein or on the grounds available therefor in the record. A statutory authority cannot be permitted to support its order relying on or on the basis of the statements made in the affidavit de'hors the order or for that matter de'hors the records."
(emphasis supplied)
23. In Somesh Tiwari v. Union of India and others (Supra), the Supreme Court has held as below:
"An order of transfer is an administrative order. Transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala Page 25 of 36 C/SCA/12550/2013 CAV JUDGMENT fides on the part of the authority is proved. Mala fides are of two kinds - first, malice in fact and second, malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane to passing of an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in an anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of, or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal. No vigilance enquiry was initiated against appellant. Transfer order was passed on material which was non-existent. The order suffers not only from non-application of mind but also suffers from malice in law.
(Paras 16 and 21) (emphasis supplied)
24. The rival submissions advanced by the learned counsel for the respective parties are required to be tested on the touchstone of the settled principles of law, as enunciated by the Supreme Court, quoted hereinabove. There can be no doubt regarding the Page 26 of 36 C/SCA/12550/2013 CAV JUDGMENT settled position of law that judicial review of an order of transfer of an employee is rather limited, as transfer is an incident of service and no employee has a vested right to remain in the same place forever. The employer can transfer its employee to any suitable place where his services are required, on grounds of administrative convenience in the normal course, and exigency of service. There are, however, certain situations which render an order of transfer amenable to judicial scrutiny and interference by the Court. Though such situations are quite rare, they are known to exist in service jurisprudence.
25. As held in Somesh Tiwari v. Union of India and others (Supra) an order of transfer can be interfered with, when mala-fides on the part of the authority is proved. In the said judgment, the Supreme Court has elaborated that mala-fides are of two kinds; one is malice in fact and the other is malice in law. It has been held, in the said judgment, that the order in question would attract the principles of malice in law, as it was not based on any factor germane for passing an order of transfer and was based on an Page 27 of 36 C/SCA/12550/2013 CAV JUDGMENT irrelevant ground, that is on the allegations made against the person concerned in an anonymous complaint. The second ground on which the order of transfer can be interfered with is that it has been passed in lieu of punishment. It is held by the Supreme Court in the above judgment, that when an order of transfer is passed in lieu of punishment, it is liable to be quashed and set aside, being wholly illegal.
26. It has been strongly contended by the learned Senior Counsel for the petitioner that the impugned order of transfer is vitiated on the ground of malice in law as it is not based on any factor germane to passing an order of transfer but is based upon irrelevant grounds. Moreover, the order of transfer is a punitive one. According to the learned Senior Counsel both these aspects are evident from a perusal of the order of transfer, considering the incidents leading up to its passing. Looking to the nature of the dispute between the petitioner and his wife on the one hand and the other teacher on the other hand, the Court would be within its right in interfering with the order of transfer as, in the Page 28 of 36 C/SCA/12550/2013 CAV JUDGMENT view of this Court, the reasons stated in the impugned order are not based on any factor germane to passing of an order of transfer and are based on irrelevant grounds. In addition thereto, the order of transfer is punitive in nature and casts a stigma upon the petitioner. These are the distinguishing factors which differentiate the case of the petitioner from a normal transfer case where the transfer is effected for administrative exigency.
27. In order to take the submissions advanced by the learned Counsel for the respective parties to their logical conclusion, a brief overview of the factual matrix and the events leading upto the transfer of the petitioner, as stated in the petition, would be necessary.
28. It is the case of the petitioner that the petitioner and his wife were transferred to Ghusar Primary School, Taluka Kalol, District Panchmahals in consideration of the policy of the State Government, permitting a married couple to choose the same School, so that their married life subsists. Since then, the petitioner and his wife have been serving Page 29 of 36 C/SCA/12550/2013 CAV JUDGMENT at that place. In February 2013, the petitioner was sent to attend a Cricket Camp, pursuant to an order passed by the District Development Officer, for a period of one month. According to the petitioner, during that period, the other teacher, taking undue advantage of his absence, started harassing the wife of the petitioner, by threatening her and making inappropriate gestures. It is further stated that the other teacher made illegal demands from the wife of the petitioner and pressurised her to fulfill such demands. The situation became intolerable for the wife of the petitioner. Upon his return, the petitioner was apprised of the recent events by his wife. As the issue pertained to the dignity of a lady teacher, who is also the wife of the petitioner, he confronted the other teacher. It appears that quarrels ensued between the petitioner and his wife on one hand and the other teacher, on the other. Both parties filed cross-complaints against each other. It is stated in the petition that the other teacher started to make recordings of the wife of the petitioner on his mobile phone, during the assembly session of the School. On being confronted, he left the School without taking his mobile with him. Page 30 of 36 C/SCA/12550/2013 CAV JUDGMENT
29. In the impugned order dated 31-7-2013, passed by respondent No.2, the reason for the transfer of the petitioner is stated to be that there were internal differences and disputes between the three teachers, namely, the petitioner, his wife and the other teacher, due to which it was not possible for them to work at the same place. The petitioner was,therefore, transferred by the impugned order and the charge of Head Teacher was taken away from him. It is stated in the impugned order that henceforth, he would not be given the charge of Head Teacher. The impugned order has been passed on the premise that three teachers, that is, the petitioner, his wife and the other teacher, could not work together at the same place due to their internal differences and disputes. However, what has been ignored is the aspect that there were, and are, no disputes between the petitioner and his wife. The other teacher has now been transferred to another School, therefore, there is no occasion for differences or disputes to take place any more. According to the petitioner, no action has been taken against the other teacher. This is also clear from the affidavit-in-reply filed Page 31 of 36 C/SCA/12550/2013 CAV JUDGMENT on behalf of respondent No.2 where no such thing is mentioned. It is not denied by the respondents that there are no differences between the petitioner and his wife. The submission advanced by the learned Senior Counsel to the effect that the impugned order has been passed on incorrect premises, on the basis of factors that are not germane for passing an order, and is based on irrelevant grounds, carries considerable weight and deserves to be accepted.
30. In Somesh Tiwari v. Union of India and others (Supra), the Supreme Court has elaborated upon the nature of mala-fides. The Supreme Court has stated that mala-fides can be of two kinds. One is malice in fact and the other is malice in law. In order to attract the principle of malice in law, the order in question would have to be based on factors not germane for passing an order of transfer and upon irrelevant grounds. The principles of law enunciated in the above-quoted judgment would squarely apply to the peculiar facts and circumstances of the present case.
31. The second ground urged by the learned Senior Page 32 of 36 C/SCA/12550/2013 CAV JUDGMENT Counsel for the petitioner is that the order of transfer is stigmatic in nature, in addition to being punitive. This submission, when tested in relation to the manner in which the order is worded, deserves consideration. It is clear from the said order that the charge of Head Teacher has been taken away from the petitioner, with a stipulation that in future he would not be given such charge any more. The order of transfer is clearly of a punitive nature and, as such, can be interfered with by this Court on that ground.
32. The affidavit-in-reply filed by respondent No.2 places on record certain material in the nature of complaints, that are in addition to the order of transfer. The order of transfer cannot be supplemented by filing an affidavit as held by the Supreme Court in the case of Mohinder Singh Gill and another v. The Chief Election Commissioner, New Delhi and others (Supra) and reiterated several times thereafter. The reasons given in the transfer order cannot be buttressed by filing an affidavit on completely different grounds.
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33. It may be noted that the petitioner was working in Ghusar Primary School due to the fact that his wife was also working there, in accordance with the policy of the State Government to keep the married couples together. Though this rule is subject to administrative exigency, no administrative exigency is shown necessitating the transfer of the petitioner. The dispute with the other teacher was regarding the inappropriate behaviour of that teacher towards the wife of the petitioner. Once the other teacher has been transferred to another place the reason for the dispute also goes and there is no requirement for transferring the petitioner, especially as there are no disputes between the petitioner and his wife.
34. It appears that the petitioner is the only one who has been singled out for punitive and stigmatic treatment whereas the other teacher has been transferred to a place of his choice. The results of the final examination could not be declared by the petitioner on time as the other teacher had not handed over the results. Though the petitioner was only given the charge of Head Teacher and was not Page 34 of 36 C/SCA/12550/2013 CAV JUDGMENT promoted to the substantive post, however, the stipulation that the charge is taken away from him and he would not be given such charge in future is stigmatic in nature and would effect the future career of the petitioner. Moreover, the wife of the petitioner is pregnant and needs the presence of the petitioner, at this stage.
35. A submission has been advanced by the learned advocate for respondents Nos.2 and 3 that the petitioner has an alternative remedy of filing an appeal before the Director of Municipalities under Section 24 of the Primary Education Act, 1947, therefore, the petition be not entertained. Section 24(2) provides that any person who is aggrieved by an order of dismissal, removal, reduction or any other order involving disciplinary action made under Sub- Section (1), can file an appeal to a Tribunal consisting of the Charmain of the School Board and the Education Inspector of the District. No appeal is provided for, in the case of transfer. The submission regarding the alternative remedy is, therefore rejected.
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36. Taking into consideration all the above-noted aspects of the case, in the considered view of this court, the present is not a case of transfer simpliciter, to which the principles of law enunciated by the Supreme Court in the judgments relied upon by learned counsel for respondents Nos.2 and 3, would apply. The present is a case where a punitive and stigmatic order of transfer has been passed on irrelevant grounds, on factors that are not germane to the order. The impugned order, therefore, suffers not only from non-application of mind, but also from malice in law.
37. For the afore-stated reasons, the impugned order dated 31-7-2013 passed by respondent No.2 is quashed and set aside. The petitioner shall be permitted to resume his duties at Ghusar Primary School, where he was working prior to the passing of the impugned order.
38. The petition is allowed in the above terms. Rule is made absolute, accordingly.
(SMT. ABHILASHA KUMARI, J.) ARG Page 36 of 36