Madhya Pradesh High Court
Lakhan Singh Rajput vs The State Of Madhya Pradesh on 21 December, 2018
1
HIGH COURT OF MADHYA PRADESH, MAIN SEAT
JABALPUR
Writ Petition No. 29317 of 2018
Jabalpur, Dated: 21-12-2018.
Ms. Ruchika Singh, learned counsel for the petitioners.
Ms. Nirmala Nayak, learned Govt. Advocate for the
respondents/State.
Heard finally with the consent of learned counsel for the parties.
By way of filing this writ petition under Article 226 of the Constitution of India, has prayed for the following reliefs :-
"(i) A writ, order or direction in the nature of certiorari thereby quashing the impugned order dated 12.04.2016 (Annexure P/9), issued by respondent no.3 and order dated 16.04.2018 (Annexure P/10) issued by respondent no.2;
(ii) A writ, order or direction in the nature of mandamus thereby directing the respondents to immediately relieve the petitioners to join in their institutions;
(iii) Any other appropriate writ, order or direction which the Hon'ble court may deem just and proper in the nature and circumstances of the case."
Learned counsel for the petitioners has relied on a single Bench decision of this Court in W.P. No. 13623/2016 (Vishnu Soni and others vs. The State of Madhya Pradesh and others) decided on 04.10.2018 by a coordinate bench of this Court, and prayed for similar directions.
2Learned Govt. Advocate appearing for the respondents/State has conceded that the relief claimed by the petitioners in the present matter is similar to aforesaid WP No.13623/2016 .
In Vishnu Soni and others vs. The State of Madhya Pradesh and others (supra), a Single Bench of this Court has held, thus :-
" All these above writ petitions are being decided by this common order as the common question of law as well as the facts are involved in these writ petitions. However, for the sake of brevity, facts have been taken from Writ Petition No.13623/2018.
2. The petitioners were initially appointed as Samvida Shala Shikshak in their respective institutions vide orders issued on different dates. The State Government in exercise of its powers conferred under Section 70(2) read with Section 95(1) & (3) of the Madhya Pradesh Panchayat Raj Avam Gram Swaraj Adhiniyam,1993 framed the rules known as M.P. Panchayat Adhyapak Samvarg (Recruitment and Conditions of Service) Rules, 2008 (for brevity 'the Recruitment Rules, 2008'). Shiksha Karmis and Sanvida Shala Shikshaks working in the schools of various Panchayats and fulfilling the prescribed criteria were absorbed/appointed in Adhyapak Samvarg on the post of Sahayak Adhyapaks/Adhyapaks/Varishtha Adhyapaks. Respondent No.1 issued an order dated 10/07/2017 circulating a policy providing for inter-body absorption/transfer in respect of the employees serving with various local bodies under the Recruitment Rules, 2008. Detailed instructions were issued including the procedure for submitting applications for inter-body absorption, the priority to 3 be given in absorption and also other criteria to be fulfilled for such absorption. As per the said policy, absorption/transfer could be made from an institution under School Education Department to an institution under Tribal Department and vice-versa. Similarly, transfer could also be affected from an institution of School Education Department to another institution in the same department and from one Tribal Institution to another Tribal Institution. Respondent No.1 has issued instructions on 21/08/2017 regarding submission of online applications for inter-body absorption.
3. By an order dated 13/02/2018 issued by respondent No.2, all the District Education Officers and Assistant Commissioner, Tribal Development were directed to adhere to the instructions already issued for inter- body absorption and it was provided that the permission for inter-body absorption shall be affected from 01/04/2018. Respondent No.2 was empowered to sanction the interbody absorption in respect of all employees whether serving in the school under the School Education Department or Tribal Department. In view of the said policy issued by respondent No.1, the petitioners submitted their applications for inter- body transfer. The applications submitted by the petitioners were duly processed to respondent No.2 and all formalities as directed by respondent No.2 were completed by the petitioners. Respondent No.2 granted permission for absorption of the petitioners from the school under Tribal Development Department to School under School Education Department and directed for posting of the petitioners in their respective institutions.
4. Respondent No.2 on 05/04/2018 issued instructions to all District Education Officers and Assistant Commissioners, Tribal Development regarding posting and relieving of the Adhyapaks who were 4 permitted to be absorbed under inter-body absorption policy. It was specifically mentioned in the said letter that posting was required to be made upto 15/04/2018 and relieving was to be made between 16/04/2018 to 30/04/2018. Before the petitioners could be relieved in pursuance to the order of absorption dated 16/03/2018, respondent No.3 issued an order on 12/04/2018 directing to stay the orders of inter- district/inter-department absorption including those absorption in which the employees of Tribal Development Department were involved. The aforesaid order was issued on the pretext of deficiency of employees in Adhyapak Samvarg. As a consequence of the order dated 12/4/2018 issued by respondent No.3, respondent No.2 also issued an order dated 16/04/2018 staying the orders relating to inter-body absorption and it was directed that the employees shall not be relieved in pursuance of the order of absorption already passed. Later on, respondent No.2 has issued another order dated 23/05/2018 modifying the earlier order dated 16/04/2018 stay imposed earlier is relaxed except in the cases of the employees where transfer is ordered from Tribal Area to non- Tribal Area and vice-versa and also from tribal area to tribal area. In pursuance of order issued by respondent No.2, respective Chief Executive Officers, Jila Panchayats issued orders of posting in respect of the petitioners. Despite the posting of the petitioners in the institutions under the control of School Education Department, the petitioners are not being relieved in light of the order dated 12/04/2018 and 16/4/2018. Being aggrieved by these orders, the petitioners have filed the present writ petitions.
5. Learned counsel for the petitioners argues that the order dated 12/04/2018 issued by respondent No.3 and the order dated 16/04/2018 issued by respondent No.2 are illegal, arbitrary and without authority. He 5 submits that the policy for inter-body absorption/transfer dated 10/07/207 has been issued by respondent No.1 in the name of His Excellency the Governor of Madhya Pradesh. The policy framed by respondent No.1 is still in operation and it has neither been cancelled nor superseded. Respondents No.2 and 3 being subordinate authorities are required to implement the policy and they have no jurisdiction to pass instructions/orders which have the effect of nullifying the policy. Due to aforesaid letters issued by respondents No.3 and 2, the execution of the order already issued in favour of the petitioners has been put to hold. RespondentNo.2 is the competent authority to sanction the inter-body absorption/transfer, however, respondent No.2 blindly acted on the order dated 12/4/2018 issued by respondent No.2. He further submits that respondent No.3 has stated in the order that there will be deficiency of staff if such policy is implemented, is also false. He submits that by effecting inter-body transfer, the Tribal Department is getting approximately 300 teachers more as compared to earlier strength.
6. Learned counsel for the petitioners further submits that while issuing notices to the respondents, this Court has passed an interim order in favour of the petitioners on 09/07/2018 thereby staying the operation of the impugned orders. He contends that in spite of the interim order passed by this Court, respondents No.2 and 3 have not relieved the petitioners. The petitioners, therefore, file an application i.e. I.A. No.10081/2018 for initiating contempt proceeding against respondents No.2 and 3. Thus, Court was pleased to issue notices on this application on 05/09/2018 and directed the respondents to comply with the order within a period of ten days. However, although a period of ten days has been passed but the order has not been complied 6 with by respondents No.2 and 3 and this Court has directed respondents No.2 and 3 to remain personally present before this Court, if the order is not duly complied with and the matter was posted for hearing on 24/09/2018. On 24/09/2018, the respondents have filed their reply and have stated that so far as respondent No.2 is concerned, respondent No.2 has complied with the order and relieved the petitioners who are working in the School Education Department, but, so far as respondent No.3 is concerned, they have filed reply and in the reply respondent No.3 has refused to comply with the order passed by this Court and constant of her stand which is taken by her in the reply. He, therefore, prays that appropriate contempt proceeding may be initiated against respondent No.3 for non-complying with the order passed by this Court.
7. Respondent No.3 filed reply. In the reply, respondent No.3 has stated that there is no infirmity or illegality in the impugned order passed by respondent No.3 on 12/04/2018 and in consequence of that order, other respondents have passed the order dated 16/04/2018. The School Education Department, Government of Madhya Pradesh, issued an order on 10/07/2017 enabling the persons serving in Adhyapak Samvarg and School Education Department to apply for transfer/absorption from one local body to another irrespective of their initial place of appointment. The transfer from one local body to another was to be sanctioned by respondent No.2 as per the policy. Policy dated 10/07/2017 categorically provides the condition by which entire procedure for absorption to be made. As per para-2.3, it is mandatory for all applicants who submit their absorption applications through online in Educational Portal to submit their NOC from the parental department. It is necessary to obtain NOC from the employer within 15 days after submitting the applications. It is also very specifically 7 mentioned in the said clause that after receiving the applications, the employer issue no objection certificate within 15 days in the prescribed proforma as per Appendix-I. So far as the Tribal Development Department is concerned, no application for no objection certificate was submitted by any candidates, therefore, no objection certificate has been issued to any applicant including the petitioners. Because of lack of NOC from Tribal Development Department, entire absorptions/transfers have not been done as per the provisions/directions of the policy itself. Clause- 1.4 of the policy dated 10/07/2017 provided that teachers can submit their online applications for absorption, but, without following the directions and ignoring the provisions of RTE Act and rationalization policy issued by the State Government in that regards. The petitioners submitted their applications and without following the procedure and norms, the absorption order has been issued by respondent No.2. When these irregularities came in the knowledge of respondent No.3, respondent No.3 by its order dated 12/04/2018 directed the District Officers not to relieve the Adhyapaks who are working in the Tribal Department.
8. Respondent No.3 in the reply has further stated that respondent No.3 has not superseded the policy issued by the State Government in the name of His Excellency Hon'ble the Governor of Madhya Pradesh and all other earlier instructions/directions issued by respondent No.1 with regard to absorption of the Adhyapak Samvarg. Respondent No.3 submits that she has not tried to nullify the policy nor she has passed any order without jurisdiction and against any instruction or order issued by respondent No.1.
9. The next ground which is taken by respondent No.3 in the reply is that due to inter-body transfers, the Tribal Affairs Department, Bhopal faces severe 8 problem of lack of teachers and vacancy position of teachers in the department is nearly 11556 at Primary level, at Middle level it is 5704 and at high school level, it is 2220, therefore, if the teachers who have been working in the department are allowed to be absorbed in School Education Department, the poor tribal students will suffer great hardship and many schools of the department will not have even a single teacher. Respondent No.3 further submitted that the State Government vide its order dated 20/08/2018 has issued directions for absorption of the teachers who were earlier working as employees of local bodies into the Tribal Affairs Department as regular employees of Government. M.P. Janjati Avam Anushuchit Jati Shaikshanik Samvarg (Sewa Evam Bharti) Niyam, 2018 has been notified by the State Government in the official gazette and the detail directions have been issued for absorption in the Tribal Department. The present petition has been filed only to delay the matter.
10. Respondents No.1 and 2 have also filed separate reply. In the reply they have stated that in pursuance of order dated 12/04/2018 issued by respondent No.3, respondent No.2 has passed an order dated 16/4/2018 thereby issuing direction for not relieving the petitioners. They have also stated that some of the teachers who are working in the School Education Department have already been relieved in pursuance of the interim order passed by this Court.
11. I have heard learned counsel for the parties and perused the record.
12. The petitioner were initially appointed as Samvida Shala Shikshaks. The State Government in exercise of the its powers conferred under section 70(2) read with section 95 (1) &(3) of the Madhya Pradesh Panchayat Raj and Gram Swaraj Adhiniyam, 1993 framed the rules known as Madhya Pradesh Panchayat Adhyapak 9 Samvarg (Recruitment and Conditions of Service) Rules, 2008. The Shiksha Karmis and Samvida Shala Shikshaks including the petiioners working in the schools of various Panchayats and fulfilling the prescribed criteria were absorbed/appointed in Adhyapak Samvarg on the post of Sahayak Adhyapaks/ Adhyapaks/Varisth Adhyapaks.
13. Earlier transfer of the persons serving in one local body to another local body were not permitted. The State Government on 10/07/2017 circulated a policy permitting inter body absorption/transfer in respect of the employees serving with various local bodies under the Recruitment Rules, 2008. Under this policy absorption/transfer could be made from an institution under School Education Department to an institution under Tribal Department and vice-versa. Similarly, transfer could also be affected from an institution of School Education Department to another institution in the same department and from one Tribal Institution to another Tribal Institution. Further instructions in this regard were issued by respondent No.2 on 11/07/2017. It was provided in letter dated 21/08/2017 that the Adhyapaks working in schools under the control of School Education Department as well as Tribal Deparetment will be eligible to apply for inter body transfer. As per the policy the orders of inter body transfer were to be issued by the Commissioner Public Instructions.
14. In letter dated 21/08/2017 a time schedule was provided in para-5. By an order dated 13/02/2018 issued by respondent No.2 all District Education Officers and Assistant Commissioner, Tribal Development were directed to adhere to the instructions already issued for inter-body absorption and it was provided that the permission for inter-body absorption shall be affected from 01/04/2018.
1015. In view of the above policy issued by respondent No.1, the petitioners submitted their applications for inter body transfer. Respondent No.2 granted permission for absorption of the petitioners from the school under Tribal Department to school under School Education Department and directed for posting of the petitioners in their respective institutions vide letter dated 16/03/2018. Respondent No.2 on 05/04/2018 issued instructions to all District Education Officers and Assistant Commissioner, Tribal Development to relieve the affected persons between 16/04/2018 to 30/04/2018. Before, the petitioners could be relieved in pursuance to the order of absorption dated 16/03/2018 issued by respondent No.2, respondent No.3 issued an order on 12/04/2018 staying relieving of the petitioners on the pretext that there may be deficiency of teachers in the Tribal institutions. As a consequence of the order dated 12/4/2018 issued by respondent No.3, respondent No.2 also issued an order on 16/04/2018 staying the orders relating to the inter-body absorption and it was directed that the employees shall not be relieved in pursuance of the order of absorption already passed.
16. In pursuance to the order issued by respondent No.2, respective Chief Executive Officers Jila Panchayats issued orders of posting in respect of the petitioners. However the petitioners were not relieved in view of the order dated 12/04/2018 and 16/04/2018. The order dated 12/04/2018 and 16/04/2018 have been challenged by the petitioners before this court and a direction is prayed for directing the respondents to relieve the petitioners to join in their respective institutions.
17. Respondents No.1 to 3 have filed their reply and in their reply they have admitted that as per policy dated 10/07/2017, the order for inter-body transfers were issued by respondent No.2 who was competent 11 authority under this policy. It has admitted by the respondents in their reply that respondent No.2 has passed the order dated 16/04/2018 in pursuance of the order dated 12/04/2018 passed by respondent No.3. Respondent No.2 further stated that they have already been relieved the petitioners who are working in the School Education Department. Respondent No.3 in its reply tried to justify the order dated 12/04/2018 on three grounds; namely (i) the orders of transfer were issued by respondent No.2 without no objection from Tribal Department and it could not have been done,
(ii) the provisions of RTE Act were not followed, and
(iii) in view of the newly framed rules namely M.P. Janjati Avam Anusuchit Jati Shaikshanik Samvarg (Sewa Avam Bharti) Niyam, 2018, the transfer cannot be implemented.
18. Regarding the first ground, clause 2.3 of the policy dated 10/07/2017 provides that if no objection by the parent department is not given within 15 days, it shall be assumed to have been given, therefore, even if it is assumed that the Tribal Department had not given no objection, it was deemed to have been given, thus, the first ground on the basis of which they have tried to justify the order, cannot be accepted. So far as second ground regarding implementation of RTE Act is concerned, the same ground has not been raised by the respondents in the order dated 12/04/2018 and in fact in reply filed by respondent No.3, respondent No.3 has not pointed out any of the grounds to show that the provisions of RTE Act are violated. So far as deficiency of teachers in Tribal Department is concerned, by effecting inter-body transfer, the Tribal Department is getting approximately 300 teachers more as compared to earlier strength.
19. As regards to the new rule of 2018 it is submitted that as per respondent no.3 herself the new rules have been published on 18/08/2018. How the rules 12 published on 18/08/2018 could be a ground to justify the order dated 12/04/2018. Moreover, the inter body transfer is in manner going to affect the implementation of the new rules because the exercise of option by an employees as to whether or not he wants to come in the Government cadre is not dependant on the fact as to whether he is working in school under School Education Department or Tribal Department. Respondent no.3 has failed to see that the employees governed by the same policy of the State Government cannot be discriminated on the ground as to whether they are working in the schools of Education department or Tribal Department.
20. It is well settled in law that an order passed by an administrative authority is judged on the basis of the contents of the letter as it suggests as to what weighed in the mind of the authority to pass that particular order. The validity of the order is examined on the basis of the material available before the authority at the time of passing of the order. The order cannot be supported by filing additional affidavits in the court. Reliance is placed on the case of Mohinder Singh Gill V Chief Election Commission, reported in (1978) 1 SCC 405.
21. It is apparent from the reply filed on behalf of respondent No.1 and 2 that they have admitted the factual position and the orders of transfer/absorption have not been disputed by them. They have in fact implemented the orders after issuance of notice of contempt by this court. As far as respondent No.3 is concerned she before filing of the reply never questioned any order of absorption/transfer passed by respondent no.2 and now in order to justify the illegal order dated 12/04/2018 has filed the rely based on incorrect facts. She has even gone to the extent of questioning the orders passed by respondent no.2 who was the competent authority under the policy issued by 13 respondent No.1. Respondent no.1 is a party before this court. Respondent no.1 has not questioned the orders of transfer/absorption. Respondent no.3 being a subordinate authority can not have a stand contrary to the stand taken by respondent no.1. In any case she has no authority to supersede the policy framed by the respondent No.1.
22. After the applications for inter-body transfer submitted by the petitioners were accepted by respondent No.2 and the orders of posting were issued, therefore, the petitioners got their children admitted in the schools where they are to be posted and they have vacated the present accommodation also. In such circumstances, if the petitioners are not relieved, then they will suffer immense difficulty.
23. Resultantly, all the above writ petitions are allowed. Impugned orders dated 12/04/2018 and 16/04/2018 passed in all the above writ petitions are hereby set aside. The respondents are directed to relieve all the petitioners from their respective institutes forthwith from their present place of institution to join their respective institution of transfer/absorption. There shall be no order as to cost."
Considering the aforesaid, this petition is allowed. The impugned orders (Annexures P/9 and P/10) dated 12.04.2018 and 16.04.2018 respectively are hereby set aside . It is directed that the decision rendered in Vishnu Soni and others vs. The State of Madhya Pradesh and others (supra) and other connnected writ petitions shall apply to the present case mutatis mutandis. The respondents are directed to relieve all the petitioners from their respective institutes forthwith from their 14 present place of institution to join their respective institution of transfer/absorption. There shall be no order as to costs.
(Nandita Dubey) JUDGE rss Digitally signed by RAVI SHANKAR SHRIVASTAVA Date: 2018.12.21 17:11:01 +05'30'