Meghalaya High Court
Smti. Rupanylla Kharbamon vs . State Of Meghalaya & Ors. on 24 February, 2020
Author: W. Diengdoh
Bench: W. Diengdoh
Serial No. 01
Regular List
HIGH COURT OF MEGHALAYA
AT SHILLONG
WP(C) No. 489 of 2019
Date of Decision: 24.02.2020
Smti. Rupanylla Kharbamon Vs. State of Meghalaya & Ors.
Coram:
Hon'ble Mr. Justice W. Diengdoh, Judge
Appearance:
For the Petitioner/Appellant(s) : Mr. S. Sen, Adv.
For the Respondent(s) : Mr. A. Kumar, AG. with
Ms. S.G. Momin, Addl. Sr. GA.
i) Whether approved for reporting in Yes/No
Law journals etc.:
ii) Whether approved for publication
in press: Yes/No
1. The petitioner herein was appointed as Lecturer in Physics vide notification dated 28th September, 2007 issued by the Deputy Secretary to the Govt. of Meghalaya, Education Department (Annexure-1 to the writ petition). She was then posted at the District Institute of Education and Training (DIET) at Resubelpara, North Garo Hills District and since then, is presently continuing in the same post and in the same place till date.
2. It is the case of the petitioner that after 2(two) years of service in the said post at the said place i.e. Resubelpara on having learnt that there is a vacant post in the Office of the Director of Educational Research and Training (DERT), Meghalaya, Shillong, she had filed an application dated 18.07.2009 requesting for transfer on medical ground. However, the request 1 of the petitioner was not responded to officially, which prompted the petitioner to file another application on 09.07.2010 to the Director, Educational Research and Training, Meghalaya, Shillong through the In- charge Principal, DIET, Resubelpara, North Garo Hills District with a request for transfer. But again, the petitioner did not receive any official response to her request. Yet again on 05.12.2013 the petitioner filed another application to the Director, Educational Research and Training, Meghalaya, Shillong with a request for transfer and the same was forwarded to the Under Secretary to the Govt. of Meghalaya, Education Department, Shillong vide notification dated 16th December, 2013 (Annexure-3C to the writ petition), however the same was not responded to by the concerned authorities.
3. In the year 2014, the petitioner on coming to know that there is a vacant post of Lecturer in the Evaluation Unit at DERT, Shillong has applied for transfer on the ground that she is suffering from Rheumatic Carditis and was advised to avoid heavy activities, exertion and long journey. On this occasion too, the request of the petitioner was not considered. Thereafter, the petitioner had from time to time made her request for transfer from her present posting vides applications dated 16.08.2015, 27.04.2016 and 31.10.2019, but the concerned authorities had rejected her prayer on one ground or the other.
4. It is also the case of the petitioner that on her request for transfer to the vacant post of Lecturer in Education in the Office of DERT, Meghalaya, Shillong vide application dated 27.04.2016 (Annexure-3H to the writ 2 petition) the Joint Director, Educational Research and Training, Meghalaya, Shillong vide notification dated 25th July, 2016 sought the views and comments of the In-charge Principal, District Institute of Education and Training, Resubelpara, North Garo Hills District on the application for transfer. The In-charge Principal had submitted his views and had also stated that the Lecturers have their own rights to seek to be transferred to the places of their choices. However, inspite of the said views of the In-charge Principal (respondent No. 6 herein) no action was taken on her request for transfer.
5. The petitioner was shocked and surprised to come across the notification dated 6th June, 2019 (Annexure-4 to the writ petition) issued by the Under Secretary to the Govt. of Meghalaya, Education Department, whereby one Smti. H. Nonghuloo, Lecturer in Zoology, (DIET), Resubelpara who was very much junior to the petitioner and who has rendered only 8(eight) years of service was transferred to the vacant post of Lecturer in the Educational Technology Cell, DERT, Shillong. By the same notification, one Smti. Frenida G. Momin, Lecturer in Botany, DIET, Baghmara was posted as Lecturer in Botany, DIET, Resubelpara.
6. The petitioner had then requested the Director, Education Research and Training, Shillong to consider her letter dated 27.04.2016 and to transfer her to the vacant post of Lecturer in Education in the Office of DERT, Shillong, which was lying vacant since the year 2013, to which the Director, Education Research and Training, Shillong had forwarded the letter dated 3 21st June, 2019 (Annexure-5A to the writ petition) to the Under Secretary to the Govt. of Meghalaya, Education Department, Shillong with a copy of the application requesting for transfer of the petitioner herein. However, in the said letter, it is stated that the vacant post at DERT requires M.A in Education which the incumbent does not possess. Again, in response thereto, the petitioner vide letter dated 9th July, 2019 (Annexure-5B to the writ petition) has stated that she has completed her M.Ed in the year 2015 from the North Eastern Hills University (NEHU) and was very much suitable for transfer to DERT, Shillong, since both courses i.e. M.A in Education and M.Ed are equivalent being master courses, but the only differences is that M.A Education is an academic course, whereas M.Ed is a professional course. In the said letter, the petitioner had also cited the instance of one Smti. R.M. Sangma who was serving in the same capacity at DERT, Shillong without having M.A in Education, but possessing the qualification of M.Ed.
7. The petitioner had again stated that the Director, Educational Research and Training, Meghalaya, Shillong while forwarding her application for transfer to the Under Secretary to the Govt. of Meghalaya, Education Department, Shillong has clarified that the earlier incumbent i.e. Smti. R.M. Sangma was appointed as Lecturer in Education at DERT, Shillong in the year 2000 with her qualification being only M.Ed since the NCTE Regulation was not enforced at that point of time. However, the NCTE Regulation, 2014 requires that the post of Lecturer in Education be 4 filled up only by a Lecturer having M.A in Education with M.Ed. Consequently, the request of the petitioner for transfer was rejected.
8. The petitioner on coming to learnt from reliable sources that there is a vacant post of Lecturer in Education at DIET, Sohra had again filed an application dated 31.10.2019 to the Director, Education at DERT, Shillong requesting for transfer. In this regard, the petitioner had also stated that NCTE categorically provides that the faculty in specialized area and some of the pedagogic courses can be shared with other teacher education programmes and that faculty can be utilized for teaching in a flexible manner, so as to optimize academic expertise available.
9. At paragraph 17 of her petition, the petitioner had made an averment that from the information obtained through RTI, the details of the transfer and posting of Lecturers in the Education Department, Government of Meghalaya has been set out in the table, and on perusal of the same, it is seen that Lecturers of a particular discipline have been accommodated in a post, which is not of the same discipline. According to the petitioner, the reason being that a Lecturer in the Directorate of Educational Research and Training in Shillong is mainly entrusted with administrative work.
10. A case cited by the petitioner is that of one Smti. R. Kynta, Lecturer in Botany posted at DIET, Nongpoh with qualification of M.Sc (Botany), and M.ED who has been recently transferred and posted in the vacant post of Lecturer in Education DERT, Shillong, whereas in the case of the petitioner, the respondents have refused to accommodate her in the post of Lecturer in 5 Education at DERT, Shillong citing the reason that she does not possessed M.A in Education.
11. Finally, the petitioner had stated that the settled position of law is that a person should not remain in the same place of posting for more than 4(four) years save in exceptional cases where the period is of continuous stay in one station and may be extended up to five years, but the respondents by refusing to accommodate the petitioner while conceding to the transfer and posting of some of her juniors amounts to discriminatory treatment, which is violative of Article 14 and 16 of the Constitution of India. The prayer of the petitioner is that this Court, inter alia may issue a writ in the nature of mandamus and/or appropriate writ declaring and setting aside the letter dated 6th August, 2019 and 16th August, 2019 issued by the Director, Educational Research and Training (DERT), Meghalaya, Shillong and the Under Secretary to the Government of Meghalaya, Education Department, Shillong as illegal and to transfer and post the petitioner in the vacant post of Lecturer at DIET, Sohra or Lecturer in Botany, DIET, Nongpoh or in any other suitable post at DERT, Shillong.
12. Mr. S. Sen, learned counsel for the petitioner in his oral submission before this Court and also relying on the written argument filed on behalf of the petitioner has apart from reiterating the averments made in the writ petition has also submitted that the writ petitioner has been arbitrarily denied transfer on many occasions despite availability of suitable posts. 6
13. It is also submitted that since the year 2009-2015, the respondents could have considered the petitioner's request for transfer either to the vacant post of the Evaluation Unit at DERT, Shillong on the demise of the incumbent of the post or to the post at the Educational Technology Cell (ET Cell), DERT, Shillong as both posts can be held by any incumbent belonging to any discipline, but ignoring her repeated requests for transfer, the respondents have instead accommodated Smti. H. Nonghuloo who was very much junior to the petitioner, to the vacant post of Educational Technology Cell, DERT, Shillong.
14. It is also the submission of the learned counsel for the petitioner that the contention of the respondents that she had insisted for transfer only to the post of Lecturer in Education is totally misleading and without any basis, because prior to 27.04.2016, the petitioner had filed a number of applications dated 18.06.2009, 09.07.2010, 05.12.2013 and 13.02.2014 respectively mostly on medical ground without insisting on any post with any particular discipline, but with a request that it should be within Shillong region and the application dated 13.02.2014 was an application requesting for transfer on medical ground by specifically mentioning the vacant post of the Evaluation Unit at DERT, Shillong on the demise of the incumbent which post can be held by an incumbent belonging to any discipline.
15. Again the petitioner's request for transfer as Lecturer in Education against the vacant post of Lecturer in Education at DERT, Shillong and Lecturer of Education at DIET, Sohra was rejected by the respondents vide 7 the impugned letters dated 06.08.2019 and 16.08.2019 on the ground that the petitioner does not possessed the required qualification of having a degree of M.A in Education.
16. As per National Council of Teacher Education (NCTE) norms, the petitioner has however contended that the respondents subsequent to issuance of the impugned letters dated 06.08.2019 and 16.08.2019 has transferred one Smti. R. Kynta, Lecturer in Botany posted at DIET, Nongpoh in the vacant post of Lecturer in Education, DERT, Shillong on the ground that she possessed an additional qualification of Ph.D in Education in addition to her Science degree, which is as per NCTE norms.
17. The learned counsel for the petitioner has submitted that the said Smti. R. Kynta does not possess the required qualification of Master of Arts in Education as she belongs to the Science stream and the contention of the respondents that a Ph.D degree in Education is equivalent to Master of Arts in Education as per NCTE norms is totally incorrect and misleading.
18. Leading this Court to the norms set out by the NCTE as regard the post of Lecturer in Education, the learned counsel for the petitioner has submitted that for the post of Lecturer in Education, the NCTE (Recognition of Norms and Procedure) Regulation, 2014 at Clause 9 deals with the norms and standard offering prescribed programmes mentioned in the table appended thereto.
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19. Pointing to Appendix-2 of the said Regulation of 2014 and specifically mentioning Clause 5.2 of the same, the learned counsel for the petitioner has submitted that the qualification for perspectives in Education/Foundations in Education and Curriculum and Pedagogic with their qualifications have been provided as under:-
"Teacher Education in D.El.Ed should have Masters Degree in Social Science/Humanities/Science/Maths/Language with 50% marks, and M.Ed with 50% Marks or M.A.(Education) with 50% marks [except (two) positions where the requirement shall be Postgraduate in Philosophy/Sociology/Psychology with 50% marks and B.El.Ed or B.Ed or D.El.Ed with 50% marks, or M.Phil/Ph.D in Education]."
20. In this regard, the learned counsel for the petitioner has submitted that it is apparent and clear from Clause 5.2 that the requisite qualification for the post of Lecturer in Education is either Master degree in Science or Arts in the discipline mentioned therein, with alternative requisite qualification of either M.ED or M.A. (Education) and as such, the contention of the respondents that M.A. (Education) is alone the requisite qualification for holding the post of Lecturer in Education is misleading and incorrect.
21. Coming back to the posting of Smti. R. Kynta as Lecturer in Education, the petitioner has submitted that admittedly Smti. R. Kynta possessed the qualification of M.Sc (Botany) with M.ED while she was transferred and allowed to hold the post of Lecturer on Education on the ground that she also had Ph.D in Education, which is a requisite qualification for the post is false and misleading, inasmuch as, Ph.D in 9 Education is an alternative requisite qualification, for which post graduate degree in Philosophy, Sociology/Psychology is a mandatory requirement.
22. The learned counsel for the petitioner has submitted that despite holding a transferrable post, the petitioner has been retained in the same station for a period of more than 12(twelve) years, whereas the law is settled as per the notification of the Government with regard to transfer and posting of Government employee vide Office Memorandum No. PER (AR) 183/83/PT/26 dated 06.09.1994 where the Government has decided that different departmental heads holding transferrable post who have been retained in the same station for almost indefinite period's periodical change of posts is desirable both in the officer's interest and the public interest. It was accordingly decided that such officers should have remained in the same place and posting for more than 4(four) years, save and exceptional cases where the period of continuous stay in one station may be extended upto 5(five) years.
23. The learned counsel for the petitioner has therefore prayed that in view of Smti. R. Kynta's case, the petitioner is entitled to and eligible to hold the position of Lecturer in Education or alternatively to be accommodated in any suitable posts preferably within Shillong region.
24. Mr. A. Kumar, learned AG assisted by Ms. S.G. Momin, learned Addl. Sr. GA in his submission before the Court orally as well as through a written argument filed on behalf of the State respondents has at the outset 10 submitted that this instant writ petition is not maintainable in law and as such, is liable to be rejected.
25. The learned counsel for the State respondents in their written argument has firstly submitted that an order of transfer is an incident of Government service and the services of a Government servant is at the disposal of the Government, where he/she may be employed in any manner required by the proper authority. As regard the case of the petitioner, the learned counsel for the State respondent has submitted that the petitioner holding qualification of M.Sc (Physics), M.Ed has been found suitable to be appointed as a Lecturer in Physics and was accordingly posted at Resubelpara, East Garo Hills District admitting the fact that vide the same notification along with the petitioner, some other persons in different disciplines i.e. Mathematics, Zoology, Geography and Economics were also appointed. However, it is the stand of the learned counsel for the State respondents that being appointed vide the same notification does not confer or guarantee same consequences or eventualities to follow in service, as other incumbents belong to different disciplines for different number of posts in different Districts. Transfer and posting will purely be dependent on availability of vacant post in a particular discipline.
26. The other incumbents who were transferred to different places as shown by the petitioner are done so as there were posts available in the discipline they were serving is another submission of the State respondents. 11
27. The learned counsel for the State respondents has again submitted that the request of the petitioner to be transferred to the vacant post demitted by Smti. R.M. Sangma on being promoted is the post of Lecturer in Education, whereas the qualification of the petitioner is that of M.Sc in Physics apart from M.Ed.
28. It is also the submission of the learned counsel for the State respondents that the post of Lecturer in Education at DERT, Shillong and the post of Lecturer in Education at DIET, Sohra could not be filled up by an incumbent belonging to a Science stream.
29. Referring to the NCTE notification of 2014 at Appendix-2 Norms and Standards for Diploma in Elementary Teacher Education programme leading to Diploma in Elementary Education (D.El.Ed) under sub-item 5.1 of item No. 5 Academic Faculty at Note: it was mentioned at sub-clause (1) if the student strength for two years is one hundred only, the number of faculty shall be reduced to eight. The faculty in specialized areas and some of the pedagogic courses can be shared with the other teacher education programmes and (ii) Faculty can be utilized for teaching in a flexible manner so as to optimize academic experts available.
30. According to the learned counsel for the State respondents, the note mentioned at sub-clause (ii) is meant for those teacher education institutes who are running two teachers education programmes/courses at the same time, for instances D.El.Ed and B.Ed courses or D.El.Ed and DPSE courses; 12 but does not have adequate faculty for running the other courses. However, in the State all the DIETs are running only one course. Therefore, there is no question of sharing the faculty with other teacher programmes in the institute.
31. Coming to the case of Smti. H.Nonghuloo, the Zoology Lecturer from DIET, Resubelpara who was transferred to DERT, Shillong, the State respondents has submitted that the notification dated 06.06.2019 was made on her request vide letter dated 27.06.2017 addressed to the respondent No. 1 to be specifically transferred to Educational Technology Cell (ET) Cell, DERT Shillong, a post which can be held by an incumbent belonging to any discipline. On the contrary, the petitioner in her application for transfer dated 27th April, 2016 has specifically requested to be transferred to the post of Lecturer in Education for which she was not qualified.
32. Again, referring to the case of Smti R. Kynta, Lecturer in Botany who was transferred to DERT, Shillong in the vacant post of Lecturer Education besides possessing a Postgraduate Degree in Botany and M.Ed she also possesses a Ph.D in Education which is as per NCTE Norms, and as such the action of the respondents in considering the transfer of Smti. R. Kynta while not transferring the petitioner to the post of Lecturer in Education DERT, Shillong is not an action done in arbitrary or in unauthorized manner.
33. In the written argument, the State respondents have also submitted that in the impugned letters, it has been stated that the petitioner cannot be 13 transferred to a post where the requisite qualification is M.A. in Education which the Petitioner does not possess, however, nowhere has it been stated in the said letters that the Petitioner can/will never be transferred to East Khasi Hills District and will remain in Resubelpara.
34. The State respondent has also admitted that the guidelines changes from time to time and at present there are only three categories of post where an incumbent from any discipline can be posted; they are: (1) E.T.Cell DERT (2) Statistics and Planning DERT and (3) Evaluation Unit DERT for which at present there are no vacant post in these categories.
35. The State respondents have submitted that as far as transfer matters are concerned, there is no scope for interference by the Court. Reliance in this regard was placed in the case of Union of India &Ors v. S.L. Abbas:
(1993) 4 SCC 357 and also in the case of State of M.P. & Anr v. S.S. Kourav & Ors: (1995) 3 SCC 270.
36. Having heard the parties, the main issue to be considered by this Court is whether the action of the State respondents in retaining the petitioner at the same post for a long period of time, inspite of her many representations seeking transfer on the grounds stated therein, some of which has been enumerated above, is an exercise of malafide, is arbitrary and against public policy to the detriment of the petitioner's case. 14
37. The factual matrix may not be repeated as the same had been clearly illustrated from the submissions and contentions of the parties which have been confined to the details noticed above.
38. However, what is required for this Court to decide is whether the respondent No. 3 and 5 herein are justified in non-consideration of the representation of the petitioner, seeking transfer from her present place of posting and whether the same can be termed as an act in mala fide.
39. To answer the above, a reference to the cases cited by the State respondent would suffice to bring home the point that by now it is well settled as far as service jurisprudence is concerned that 'transfer is an incident of service and when made in public interest and for administrative exigencies, will not be interfered with by the Courts or Tribunals, unless it is made in violation of any mandatory statutory rule or on ground of mala fide (emphasis laid)'.
40. In the case of Union of India & Ors v. S.L. Abbas (supra) at paragraph 7, the Hon'ble Apex Court has held that:
"7. Who should be transferred where is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to this transfer, the appropriate authority must consider the same having regard to the exigencies of administration........."15
41. In the case of State of M.P. & Anr v. S.S. Kourav & Ors (supra) at paragraph 4, the Hon'ble Supreme Court has held as under:
"4. ....... The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation......"
42. A look at the factual situation of this case gleaned from the pleadings and submission and contention of the parties would show that the Petitioner has made several requests for transfer from 2009 to 2019 but to no avail, since the same has not been responded to officially.
43. In the year 2014 the petitioner has stated that she has made a request for consideration of transfer in the vacant post in the Evaluation Unit at DERT, Shillong, though admittedly this is a post which can accommodate an incumbent from any discipline, however she was not considered for the same.
44. The State respondents have not specifically controverted this assertion of the petitioner in this regard as to why she could not be accommodated in the said post in the year 2014.
45. As stated above, the State respondents having admitted that the transfer of Smti H. Nonghuloo a Zoology Lecturer from DIET, Resubelpara to Educational Technology Cell (ET Cell) DERT, Shillong was done so at 16 her specific request made vide letter dated 27.06.2017, which post can be held by an incumbent belonging to any discipline, runs contrary to the response meted out to the petitioner who has categorically stated that she has made several requests since the year 2009 even to the extent of request made on medical ground, wherein in some applications she has not specifically mentioned her desire to be posted as Lecturer in Education, for which she could have been considered to be posted to the ET Cell, DERT Shillong at the time the application of Smti H. Nonghuloo was considered.
46. Even if assuming that the contention of the State respondents as regard the qualification required for being posted as Lecturer in Education is not fulfilled by the petitioner vis-a vis the case of Smti R. Kynta taking into consideration the norms set out by the NCTE for being posted to the post of Lecturer in Education is the correct view, the manner in which the many requests made by the petitioner has not been considered at the relevant point of time would lead one to come to a conclusion that an act of mala fide has been committed against the petitioner.
47. It is admitted by the State respondents that the petitioner could not be transferred from her present place of posting, that is, Resubelpara since there is no vacancy suited to her qualification and discipline, which is the subject of physics, while the other incumbents who are transferred to different places as shown by the petitioner are done so as there were posts available in the discipline they were serving.
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48. It is also the submission of the State respondents that each of these incumbents are given a transfer after serving for different lengths of services in a particular place, that is, after nine years, one year, three years, seven years etc. which goes to show that the incumbents are issued a transfer order whenever a post is available at whatever time.
49. Though this Court would be wont to interfere with the administrative decision taken by the State respondents as regard the transfer of Smti H. Nonghuloo, however the point conveyed is to bring to the fore the element of mala fide as far as the issue of transfer or non transfer of the petitioner is concerned, set on the same footing as in the case of the said Smti H. Nonghuloo.
50. It may also be mentioned that the State respondents have not adhered to the stated transfer policy as referred to by the Petitioner in as much as though the Petitioner having been retained in the same place of posting for more than four or five years, in fact, by her own admission, for more than twelve years, she ought to have been transferred, but was not done so.
51. In the case of State of Punjab v. V. K. Khanna & Ors: AIR 2001 SC 343, at paragraph 25 of the same, the Hon'ble Supreme Court has held that:
"25.....The expression 'mala fide' has a definite significance in the legal phraseology and the same cannot possibly emanate out of fanciful imagination or even apprehensions but there must be existing definite evidence of bias and actions which cannot be attributed to be otherwise bona fide - actions not otherwise bona fide, however, by themselves would not amount to be mala fide unless the same is in accompaniment with some 18 other factors which would depict a bad motive or intent on the part of the doer of the act."
52. Viewed from this angle, it now appears that the case of the petitioner has not been attended to judiciously with due application of mind by the authorities concerned and as indicated above, the action of the authorities in not conceding to the requests made by the petitioner smacks of mala fide.
53. On this limited finding alone, it is the considered opinion of this Court that the petitioner has made out a case for herself in being entitled to be considered for transfer from her present posting, albeit to a post suited to her qualification.
54. However, the contention of the petitioner that her case for transfer to the post of Lecturer in Education at Sohra with reference to the case of Smti R. Kynta is justified, this Court is of the view that the same cannot be equated as it is clearly seen that Smti R. Kynta possesses a degree of Ph.D in Education apart from a profession qualification of M.Ed and as such is qualified to hold the post of Lecturer in Education, while the petitioner does not possess any qualification of M.A. in Education.
55. In the final analysis, this Court finds that the petitioner has succeeded to the extent that she has made out a case for transfer out of Resubelpara, however this Court cannot direct the State respondents to appoint the petitioner to a particular post, given the administrative aspect of the matter which is purely within the purview of the State respondents. 19
56. However, while disposing of this instant writ petition, the petitioner, if so advised may file a fresh application requesting for transfer to a suitable post within Shillong region and on receipt of the same, the State respondents, particularly the department concerned, shall examine the same and consider the request expeditiously as and when any suitable post is available for accommodation of the Petitioner.
57. To the extent indicated above, this matter is disposed of. No cost.
Judge Meghalaya 24.02.2020 "D. Nary, PS"
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