Madhya Pradesh High Court
Swati vs Atomic Energy Education Society on 20 September, 2017
WP-4284-2017
(SWATI Vs ATOMIC ENERGY EDUCATION SOCIETY)
20-09-2017
Shri Ashish Choube, learned counsel for the petitioner.
Shri Dharmendra Chelawat, learned counsel for the respondent
No.3.
Heard finally with consent.
By this writ petition the petitioner who is working as Primary Teacher in the respondent-Society has challenged the transfer order dated 30.6.2017, whereby she has been transferred from AECS Indore to AECS Kakrapar.
Learned counsel for the petitioner submits that vide order dated 27.8.2002 the petitioner was appointed as Primary Teacher in Atomic Energy Central School No.4, Rawatbhata and vide order dated 30.4.2005 she was transferred to Indore and on account of the family circumstances she had forgone her promotion to the Head Master made by order dated 26.11.2016. He further submits that the petitionerâs father is an asthmatic patient and he can not live in the coastal area and the petitioner is the only person to take care of him. He further submits that as per the transfer policy dated 2.6.2017 (Annexure P/9), the senior most teacher is to be considered for transfer.
As against this, learned counsel for the respondent has raised a preliminary objection that the writ petition against the respondent- Society is not maintainable and that the earlier order of transfer to Indore was on request and there are other persons in the petitionerâs family to take care of the petitionerâs father and since the petitioner has been declared surplus, therefore, she has been transferred on the administrative ground. I have heard the learned counsel for the parties and perused the record.
So far as the issue of maintainability of the writ petition is concerned, counsel for the respondent has placed reliance upon the orders of the Mumbai High Court enclosed along with the reply but the Andhra Pradesh High Court in the matter of Md. Saleem Vs. Atomic Energy Education Society reported in 2003(6) ALD 778 after considering the entire matter in detail has held that the writ petition is maintainable against the respondent-Society. The Andhra Pradesh High Court has held as under:-
â9. A plain reading of these Rules and Regulations of the Society makes it clear that it is ultimately the Chairman, Atomic Energy Commission or the Secretary, Department of Atomic Energy, who holds the total control over the Management, Evidently, under Rule 3(a)(i) the Chairman of the Society shall be nominated by Chairman, AES/Secretary, Department of AE, notwithstanding his membership of the Society under Rule 2. The Chairman of the Society may with the approval of the Chairman, AES/Secretary, Department of Atomic Energy, appoint two of the other Members of the Governing Council from amongst academicians of standing. Further Rule 3(a)(vi) mandates that the Chairman of the Society may constitute an Academic Advisory Committee to recommend and advise the Society on matters relating to the improvement of academic programmes and the academic Advisory Committee shall be chaired by the Chairman, Atomic Energy Education Society. Further, Full Time or the Part Time Secretary shall be nominated by the Chairman of the Society with the approval of the Chairman, Atomic Energy Commission/Department of Atomic Energy notwithstanding his membership under Rule 2 and the terms and conditions shall be decided by him with the approval of the Chairman, Atomic Energy Commission/ Secretary, Department of Atomic Energy. Evidently, though there is provision of Governing Council, it functions under the very teeth of the Chairman, Atomic Energy Commission/Secretary, Department of Atomic Energy and thus the powers conferred on the Governing Council are indirectly supervised and controlled by the Chairman, Atomic Energy Commission/ Secretary, Department of Atomic Energy. Therefore, apparently though the Society is registered under the provisions of Societies Registration Act, 1860 and also under the Bombay Public Trust Act, 1950, it is being wholly funded by the Department of Atomic Energy and indirectly the total control is also with the Chairman, Atomic Energy Department/Secretary, Department of Atomic Energy. As stated earlier, though the Society is registered under the Society Registration Act and Bombay Public Trust Act, its aims and objects and the nature of functions it is discharging, clearly suggest that they are very much connected to the affairs of the Department of Atomic Energy. Therefore, I have no hesitation in holding that the petitioners herein and other teaching and non-teaching staff, who are working under the management of Society, are the employees of the Department of Atomic Energy. Therefore, a plain reading of these Rules, Regulation and Bye-laws satisfy the requirements to bring the Society within the definition of State or Authority appearing in Article 12 of the Constitution of India. None of the decisions sought to be relied on by the learned Standing Counsel for the respondents elucidates this aspect. Evidently, this issue was not dealt with in those decisions and the Courts held that the respondent Society is an Autonomous body and writ jurisdiction is not amenable to such a Society. Therefore, I am of the considered view that those decisions cannot have binding effect.
10. I am fortified in my view that the Respondent Educational Society falls within the parameters required by law, to term it as an Instrumentality of State, by the ratio that emerges from the decision of the Apex Court in Pradeep Kumar Biswas v. Indian Institute of Chemical Biology and Ors., wherein majority of Their Lordships have laid down the tests to determine the question as to a body when can be said to fall within the scope of a State. Their Lordships held that the question in each case would whether on facts the body is financially, functionally and administratively dominated by or under the control of the Government and such a control must be particular to that body and must be pervasive and if that is in affirmative, then that body is a State. Therefore, the facts and circumstances narrated above certainly satisfy the tests laid down by the Apex Court in Pradeep Kumar Biswas's case that the Society is financially, functionally and administratively dominated by the Atomic Energy Department through its Chairman by way of nominating the Chairman of the Governing Council. Thereafter with the prior approval of the Chairman, Atomic Energy Commission/ Secretary, Department of Atomic Energy, appoint two of the other Members of the Governing Council, from amongst academicians of standing entire funding is made by the Department of Atomic Energy. Therefore, as stated earlier, the Society squarely falls within the meaning of State or the Instrumentality of State, under Article 12 of the Constitution of India.â Having regard to the aforesaid, the writ petition is held to be maintainable.
So far as the merits of the matter is concerned, the record reflects that in Clause 4 of the order of appointment dated 27.8.2002 itself it was mentioned that services of the petitioner are transferable and she could be transferred to any school/junior college under the aegis of the Society in public interest. The record further reveals that earlier on the petitionerâs own request she was transferred to Indore by order dated 30.4.2005 and she has completed more than 12 years at Indore. The reply of the respondents reveal that before the commencement of the academic session the rationalization exercise was conducted by the respondent-Society to assess the need of the teacher in the school and in the process of the said exercise, the petitioner was declared surplus at AECS, Indore. The said identification of the surplus teacher was by the duly constituted committee and on the recommendation of the said committee, the petitioner has been transferred. So far as the petitionerâs representation is concerned, the same has been rejected by a reasoned speaking order dated 8.8.2017 (Annexure R/10). It has further been disclosed that the petitioner has been transferred by following the guideline which is contained in the circular dated 3.5.2017 (Annexure R/11). Though the petitioner has raised the plea that she is the only child of her parents, therefore, there is no one to look after her father but the reply of the respondents reveal that as per the family details furnished by her with the Society, she has two sisters and that her father is a retired Bank employee and as such he is not dependent on the petitioner. That apart the impugned order of transfer has been passed on the administrative ground and no malafides have been shown, nor the order of transfer is found to have been passed in violation of any statutory rule or regulation. Hence, I am of the opinion that no case for interference in the impugned order of transfer is made out. The writ petition is accordingly dismissed.
C.C. as per rules.
(PRAKASH SHRIVASTAVA) JUDGE