Rajasthan High Court - Jaipur
Smt. Padma Choudhary vs State Of Rajasthan on 4 December, 1989
Equivalent citations: 1989(1)WLN110
JUDGMENT J. R. Chopra, J.
1. Heard learned Counsel appearing for the parties.
2. The case of the petitioner is that she was serving as a Teacher in the Primary School, Bighha, which is under the control of Zila Parishad, Churu. She was a second grade teacher working as Head Mistress. The respondent No. 4 Smt. Jeewen Lala is also a second grade teacher and was working as Head Mistress in Govt. Upper Primary School, Salasar. An order came to be issued by the Chief Executive Officer and Secretary, Zila Parishad, Churu on 11-9-1989 transferring the petitioner from Bighba to Salasar and respondent No. 4 has been transferred from Salasar to Sandwan vide order Annexure-1. It is alleged that Salasar School was upgraded as a Secondary School vide Order Annexure-5 dated 7-9-1989, and certains condition were placed in that order which are actually the repetition of the conditions laid down in the Order of the Govt. dated 7-9-1989. The conditions laid down by the Government are as follows:
(i) That in Class IX, the minimum students should be available for admission;
(ii) The building of the Secondary School should be arranged immediately with the help of the Municipal Board or Panchayat Samiti or with the assistance of the public help;
(iii) Four copies of the form for granting recognition by the Secondary Board Education, Ajmer be sent to District Education Officer and through him to the Director Primary and Secondary Education, Rajasthan, Bikaner and from there, one copy has to be sent to the Board;
(iv) The school where there are no proper facilities for building grounds the District Education Officer should scrutinise that position and will make proposals to the District Collector for allotment of the land.
The order Annexure-5 dated 11-9-1989 was received in the Office of the Deputy District Education Officer, Zila Parishad, Churu on 14-9-1989 and a certificate in that respect has been issued by the Deputy District Education Officer, which has been marked as Annexure-6.
3. It was contended that this order Annexure-1 dated 11-9-1989 issued by the Zila Parishad prior to 14-9-1989 is a bonafide order and that has been complied with and, therefore, the order Annexure-7 dated 20-10-1989 issued by the Director, Primary and Secondary School Education, Bikaner asking the Zila Parishad to revoke its order Annexure-1 deserves to be quashed.
4. No reply has been filed on behalf of the respondents but the writ petition was argued at length by the learned Counsel appearing for the parties.
5. Mr. R.N. Bishnoi, the learned Counsel appearing for the petitioner has contended that an order becomes effective after the receipt of its communication. He has-submitted that in this case, the Order Annexure-5 has been received in the Office of the Zila Parishad on 14-9-1989 and, therefore, the order of transfer Annexure-1 issued by the Zila Parishad is a valid order and it does not become a nullity and therefore, that order cannot be recalled by the order of the Director Education because the services of Zila Parishad are controlled by the Panchayat and Development Department and if that order is to be cancelled, it can be cancelled by the Director, Local Self and Panchayati Raj and not by the Director Education. In this respect, reliance was placed on a decision of this Court in Sumer Singh v. State of Raj. (1988 (2) RLR 499).
6. It was also contended that the decision of this Court in State of Rajasthan v. Ram Pratap (1988 (2) RLR 136) relates to the interpretation of Secton 86 of the Rajasthan Panchayat Samitis and Zila Parishads Act, 1959 and, therefore, the decision in SumerSingh's case (supra) is directly applicable in the case in hand.
7. All bonafide actions taken by an institution before the receipt of the order are saved and the Director of Education has no power to cancel that order and to direct the Zila Parishad to post the petitioner at any other place other than Salasar in a school which is under the control of respondent No. 3. The contention of Mr. Dave and Mr. Parihar is that an order become effective from the date of the order issued by the Govt. and, therefore, although the bonafide acts of the institution do not become null and viod ipso facto but in the facts and circumstances of this case if an executive order is issued then that order becomes effective immediately. In this respect, my attention was drawn to a decision of Calcutta High Court in Umashankar v. UOI (1982 LIC 136), where in it has been held that the order of dismissal and removal of service is sent out then it is effective on the authority concerned because that order cannot be changes or modified and so, not only the Govt. but also the Govt. Servant is also bound by it. Although this analogy is not applicable to the facts and circumstances of this case but this view may be taken into consideration while laying down the law on the point involved in this case.
8. The crucial question that arises for determination before this Court is as to whether different functionaries of the Govt. or Institutions and for that matter the individuals can be given an opportunity to fix a cut out date for making the order effective from a particular date because there are so many implications and fall outs of the cut out date. Different Zila Parishads and Panchayat Samities may be located at different places and an order put in transit may reach their on different dates. It may also be possible that due to postal delay, the orders that have been made by the Govt. reach them late. It may also be possible that on account of postal delay or even normal delays, if the authority or the person comes to know about the issuance of such an order, it can issue order transferring services of the persons which may have effect of keeping certain persons under their own control and transferring some of them to the institutions where they will become Govt. Servants. It has also to be taken into consideration as to from which date, the financial liability is transferred under that order to make payment of the salary to their employees of that institution. Section 86 of the Rajas-than Panchayat Samitis and Zila Parishads Act, 1959 came up for consideration before this Court and this Court came to the conclusion that the persons serving with the Panchayat Samities and Zila Parishad are in a sense Govt. Servants, and they can be transferred to Govt. posts from the posts which are under the administrative control of the Panchayat Samites and Zila Parishads and, therefore, the orders issued by the Govt. are binding on these institutions and they have to be complied with and so, it is futile to argue that only Panchayat and Development Department alone has an authority which can issue orders to the Panchayat Samities and Zila Parishad for revocation or change of that order. Any other competent authority of the Govt. can also issued orders as regards the persons of their department concerned, say for example, Agricultural Department can do so for the A.E.Os., Industries Department for Industrial Extension Officers etc Taking in view all these facts and circumstances of this case. I am firmly of the view that that the administrative Order should become effective from the date it has been passed, and therefore, the view taken by the Addl. Director that after the school has been upgraded to a Secondary School, Zila Parishad ceses to have powers to transfer the employees of that institution has to be upheld. The conditions that have been mentioned in the order are not conditions precedent and they cannot be complied even after the upgradation of the institution and, therefore, they are not the conditions precedent, for non-compliance of which the order which has been issued by the Government may be revoked. The language of the order itself shows that sanction has been granted to upgrade the school. It may be argued about condition No 1 that if the requisite number of students are not available the School cannot be upgraded but that too stands clarified by the note 3 in the order which directs the Head Mistress of the School to start admitting the students in Class IX, which means that the order became effective from the date it is passed and students can be admitted to class IX, It is different matter that if the requisite number of students are not available inspite of all the efforts, the order of upgradation may be revoked but the order clothes the Head Mistress with the powers to give admission to the students in Class IX from the date the order has been passed by the Government.
9. In this view of the matter, I am firmly of the view that Zila Parishad ceases to have control of the school which has been upgraded by the Govt.-Order to the status of the Secondary School and that school does not remain within its jurisdiction from the date it is upgraded. It is different matter that if any post is vacant in that school where the present petitioner may be accommodated and for that the petitioner should approach the concerned authority and the concerned authority and the concerned authority can consider her case but legally speaking Zila Parishad ceases to have any power to transfer teachers of that school.
10. Consequently, this writ petition has no force and it is here by dismissed without any order as to costs.