:.^i:- A HIGH COURT OP GHHATTISGARH: BIL^PUR W,P.(Sl No. 1708 of 2008 Smt. Jharaa Acharva Versus State ofC.G. and others Aad W.P. (S') No.3400 of 2008 Sm.t. Savita Nair Versus State ofC.G. and others ^^^^E 3BBJH POST POR ORDER ON 18t OCTOBER,; 2008 ^.^' •-•'.c1 11 ^^I ^s-i1 B'^1 Bll 11 BU SSI ^SiiSXS ,,;;^^1^^ ^;^^^E[i^^) HI6H GOUKT OF CHMATTIS6ARM AT BILA5PUR Petitioner Resbondents PetTtioner W. P. Fsl No. 1708 of 2008 Smt. Jhdrna Achdrya, W/o Shdshank Achai-ya; Aged about 49 yedrs, R/o Bacheli, Tahsil t>antewada, Oistrjct South Bastdr (C6) Vs :.; . : : . 1. State of Chhattisgarh,__Through Secr'etary, Tribal Welfar'e Department; D.K.S. Bhawan, bistrict Raipur (C6) 2. The Collector (Tribal Welfare), South Bustar, Dantewada, Oistrict South Bastar (C&) 3. Commissioner, Tribal Welfare Departmeht, ChhattiSgarh, Raipur, District Raipur(C(5) 4. Assistant Cofflt'nissioner, Tribal Welfare, &antewada, C>istrict South Bastar (C6) 5.Smt. Savita Nair, Head Master, Middle School Bade Madmamunda, Block Kuakpnda (dqavkdksamk), District South Bastar (CG) <& W.P. rs1 No.3400 of 2008 Smt. Savita Nair, W/o V.D.S. Nair, aged about 40 years, R/6 Type-4/9, N.AA.D.C. Kirandul, Distt. Ddhtewada (C6). . '... .':. . ! ^ .- ; 1 Vs ResBondents ^f.- South Bastar, (Tribal Bastar, 1. State of Chhattisgarh, Through its Secretary Tribal Welfare Department, C>.K.S. Bhawan, Raipur C6. 2.Gollector, Distt. Dantewada (C£) S.ASst. Commissioner, Welfare), South bdntewadd (C6). 4.Block Educatoin Officer, Block Kuankdnda, Distt. Dantewdda. 5.5mt. Jhdrna AcHal-ya, W/o Shashank Acharya, Aged about 49 years, R/o Bacheli, Tahsil Dantewada, bist. SoutlT Bastar (c6):. ... : - ^r Present: : • • , .: . ::: ';/,:;'1':...';,-:' Mr. M. Paranjpe, Advocate for petitioner in W.P. (S)Nb.1708708 Mr. P.S.Koshy, Advocatefor petitioner inW.P. (s) No.3400/08 Mr. Y.S. Thakur, beputy (SovernmentAdvocate for'theStdte. O R b E R (Passed on ^1.^.2008) Per Dhirendra Mishra. J; 1. W.P. (s)No.1708/08 filed by petitioner Smt. Jharna Acharya in which Smt. Savita Nair is respondent No.5 and W.P. (s) No.3400/08 filed by petitioner Smt. Savitd Nair in which Smt. Jhar'na Acharya is respohdent Nb.5 are being disposed of by this cpmmon order as petitioner-Smt. Jhai-na Acharya's transfer order dated 27.2.2008 (Annexure P-2) has been amended vide order dated 11.3.2008 and she has been posted as Meadmistr'ess, Middle School, Bttde-Hadmamuhda in place of Middle School, Kbdenar No.2, BlockKudnkonda and Smt. Savita Nair has been posted iri her place. Whereas, petitioner Smt. Savita Nair is aggrieved by theorderdated 20.5.2008 (Annexure P-7) whereby above-referred order ddted 11.3.2008 (Annexure P-3) has been amended in complidnce of stay order dated 25.4.2008 (Annexure P-6) passed by this Court in W.P. (s) No.1708/08 and Smt. Jharna Acharya has been posted at Middle School, Kodenar-2, Block Kuankonda in place of Smt. Savita Nair, who is how been posted at Mid31e School, Bade- l-1admamunda, Block Kuankonda. 2. ^Undisputed facts in both the petitions are that vide order' dated 21.2.2008 petitioner Smt. Savita Nair was promoted to the post of 1-leadmistress and posted at Middle School, Bade- Hadmamunda. Smt. S. Borkdr, who Wds wor'kihg as Headmistress in the Middle School, Kodenar-2 died on 25.2.2008 andthus, the post of 1-leadmistress fell vacant in the Middle School, Kodenar-2. Petitioner-Smt. Jharna Acharya was promote.d to the post of 1-leadinistreSsvideorderddted 27.2.2008 dny:wias^ ( . • •-.' posted dt Middle School, Kodenar-2 on the basis of her pr'eference. Smt. Jharria Acharya SubmJtted her joining on 4.3.2008 in the office of Block Eclucation Officer after s e was relieved on 3.3.2008 from the Middle School, Bacehli. After the death of Snit. S. Borkar/petitioner Smt. Savitd Ndir' submitted representdtion to the Co|lector, DantewcTda against her posting at Middle School/ Bdde-Hddmamunda and requesTed^ to modifythe orderdated 21.2.2008 and post her as Headmistress of Middle School, Kodenar-2. The Collector, Dantewada, after receipt of r'epfesentatibh from the petitioner Smt. Sdvita Nair, cdlled Smt. SaviTa Nttir <& Smt. Jharna Acharyd both for .counSeling oh 4.3.2008 and thereafter amended the posting order dated 21.2.2008 and also order dated 27.2.2008 videorder dated 11.3.20080n the ground thdt Smt. Savita Nair is Seriior Upper Division Teacher and in promotion to Headrnistress also she is senior to Smt. jharna Acharya. Smt. Jharna Achdryd, being aggrieved by the above amendment in her fransfer dr'der', fi|edW.P.(s)No.1708/08 and thisCourt videorderclatecl 25.4.2008 stayed the execution of the order ddted 11.3.2008 inr'espectof the petitioher Smt. Jharna Achdrya, if not executed. The Collector, South Bastar vide orderdated 20.5.2008 (Annexure P-7) in compliance of order dated 25.4.2008 dmehded the earlier postingorder-dated 11.3.2008 of both the petitioners •^.- . • •' • •• • •• • • •'•••." •:•-•• .•'•'..•"'''.:';^.'. ..'.'. '.. •' './': " •• '"'.::.• :'.^.. :".—.".'..'•.•-::' ••'.'•.'.. . .- and 'now posted Smt. Jhdrna~-Acharya at Middle SchOol, Kodenar-2 and Smt. Savita Nair dt Middle School, Bade- Hadmamunda. 3. Learned counsel for the petitioner Smt. Jharna Acliarya vehemently argued thdf Smt. Savitci Nair was tr'ahSferred vide order dated 21.2.2008 of Annexure P-6 to Middte School, tlU: v.—: •ssiWe^.i''- ^ :<.,-:. Bade-Hadmamunda. The order specifically mentions that teachers were to take their charge dt their pldce bf posting by 7.3.2008 failing which their promofioh shall stand cancelled. Whereas, the petitioner was piromoted videor'der dated 27.2.2008 (Annexure P-2) and thereafter posted at Middle School, Kodendr'-Z. Complying the or'der of posting,the petitioner was relievedori 3.3.2008 from Middle School, Bacheli and she hadgivenJoiningon4.3.2008videAnnexureP- 5 in the office of Block Education Officer. However, the Collector on the basis of counseling dated 4.3.2008 has amended her posting order' drid she has riow been posted at Middle School, Bade-hadniamunda in pldce of Smt. Savita Nair. Relying on the judgmentof the 1-lon'ble Supreme Court in the matterof Tejshree 6hag etc. Vs. Prdkash Parashurdm Patil & ors reported in 2007 AIR SCW 3673 it was argued that the petitioner was already postedat Middle School, Kodenar-2 vide order dated 27.2.2008 and she had joined her services, whereas, Smt. Savita Nair was transferred to Middle School, Bade-hadmamunda on 21.2.2008 and she instead of cotnplying the order dated 21.2.2008 preferred to make a representation after the death of HeadmistreSS of Middle School, Kodehar-2 on 25.2.2008 for amendnient in her transfer or'der and to post her at Middle Schobl, Kodenar-2. The Collectbr, Dantewadd allowed her representation only on the ground thatSmt. Savita Nair is senior to her as Upper Division Teacher ds also bn the basis of promotion. Smt. Savita Nair wasdlready posted in the Said place qs Upper Division Teacher since long and therefore, the reasons assigned by the Collector t6 accept her representation, amend her tran3fer order ahd post her in the same place as 1-leadmistress is without any legal basis as seniority cannot be a criterid for posting of a teacher in a particular section of her choice. •s» '-7^ 4. On the other hand, learned counsel for the petitioner Smf. Savita Nair contended that though she was promoted oh 21.2.2008 and posted at Middle School, Bade-hadmamunda as Headmistress,however, after the death of 1-leadmistr'ess of Middle School, 'Kodenar-2, she submitted representation before the Collector, Oantewada for amending her posting order as vacancy was now available in the same School whe.re she was posted as Upper bivision Teacher. However, since Smt. Jharna Acharya was already posted in the said school; the Collector, &antewada called both of them for counseling on 4.3.2008and on the basis of counseling amended the posting orders of both the petitioners vide order dated 11.3.2008 (Annexure P-7). Aforesaid order has been paSSed after hearing both the affected persons during counseling considering seniority of the petitioner Smt. Savita Nair. Relying upon the judgment in the matter of Rdjendra Rby Vs. Union of India and dnother reported in 1993 (1) SCC 148 it wasargued that there isnothing onrecord to show that order dated 11.3.2008 was passedmalafidely for an oblique purposeor for wreaking vengeance; The ColleGtor dmended the posting orders of Smt. Jharna Acharya dhd Smt. Savita Nair by assigning reasons that Smt. Savita Nair was senior to Smt. Jharna Acharya and the same was passed after counseling with both the petitioners. Further, relyingon thelatest judgment of Hon'ble Supreme Court delivered in the matter of Mohd. Masood Ahmad Vs. State of U.P. and others reported in (2007) 8 SCC 150 it is contended that ordinarily thecourts have no jurisdiction to inter'fere with the orderof transfer as it is entirely for the employer to decide when, where and at what point of time a public servant is to transfer from his present posting. '7' p s 5. I haVe hedrd ledr'ned couhsel for the parties. I have perusetl the documents annexed by bofh the petitioners dlorig with their petitidns. 6. The scope of judieidl review in the fransfer matterS has been considered time dnd agatn by the 1-lonble Apex Court and in the Idtest Judgment i.e. Mohd. Masood Ah(nad (supra) retied upon by Mr. Koshy,, learhed counsel for petitioner Smt. Savita Nair, the l-lbn'ble Apex Court, referl-ing to its earlier judgments, Cohsider'ecl the scope of judicial r'eview of transfer under Article 226, thus; "The seope of judicidl review of transfer uhder Article 226 of the ConStitution of India has been settled by the Supreme Court in Rajendra Roy Vs. Union of India , National Mydroelectric Power Corpn Ltd. Vs. Shri Bhagwdh9, State Bank of India V. Anjan Sanydl . Following the aforesdicl principles laid d6wn by the Supreme Court, the Allahabad High Court irt Vijay Pal Singh V. State of U.P." and Onkar Nath Tiwari V. Chief Ehgineer, Minor Irrigdtion beptt. has held that The ^rinciple of law laid in tKe aforesaid decisions is that dn order of trahsfer is a part 6f the sei-vic& coriditioris of an employee wliich should not be interfered with or'dindrily by a court of law in exerGiseof its diScretiondry jurisdiction under Article 226 unless the court finds that either the ^ order iS mala fide or that the service rules prohibit such transfer, or that the duthorities who issued the orders, were not coftipetent to pass the qrders." 7. It is true that Smt. Savitd Nair wds firstly posted qt Middle School, Bade-hadmamunda vide ordpr ddted 21.2.2008, whereas.Smt. Jharna Achdrya was posted at Middle Schbol, Ko<lenar-2 vide order ddted 27.2.2008. However, dffer the Ni death of Smt. S. Borkar, Headmistress of Middle Schaol, Kodenar-2, Smt, Savita Nair submitted her representation to theGollector, who on receipt of the representationcalled both the petitioners i.e. Smt. Jharha Acharya <& Smt. Savita Nair for counseling on 4.3.2008 andthereaftervideorder'dated 11.3.2008 allowedthe representationof petitioner Smt. Savita Nair, amended their posting orders and posted Smt. Savita Nair in placeof Smt. Jharna Acharya and vice-ver'sa. It is dlso not in dispute that after' Smt. Jharna Achdrya was transferred to Middle School, Kodenar-2, she had joined at her place of posting on 4.3.2008. Whereas, in compliance of the order dated 11.3.2008 petitionerSmt.Savita Nair gave her joining repor'ton 13.3.2008 and thereafter she also took charge on 18.3.2008 vide AnnexureP-5 in W.P. (c) No.3400/08, However, the Collector South Bastar, Dantewadd on the basis of stay order passed by this Court passed yet dnother order' dated 20.5.2008 (AnneXure P-7) whereby the position of both the petitioners' inter-se has! been furtherexchanged. 8. From perusal of the stay order passed by this Court, it is evident that the transfer order was to be stayed with respect to the pefitioner' Sint. Jhar'na Acharya in case it was not already executed. However, from the doCuments availablewith W.P. (s) No.3400/08, which have not been controverted by Smt. Jharna Acharya, on the date of passing of the stay order dated 25.4.2008, the order dated 11,3.2008 was already executed and therefore, in the opinion of this Court ^.- ' . ' ' • ' • ~ • ' '• . .' '•'•••'•'.".' .'.: .".. '.. . .'• .-... ••; :'".'- '" "• - •. . Subsequentorderdated 20.5.2008 pur'portedlypassedon the basis of the stay order is of no consequence. 9. Therefore, relying upon the judgments cited above and circumstances in which the impugned order dated 1|1.3.2008 was passed by the Collector, Sbuth Bastdr, Dantewadalwhereby posting orders of both fhe petitioners Were dmended ahd i»..s.tfta, 'X ft .^stt. i ^»-// ~%.^y considering that aforesaid order was passed after counselihg with the affected persons, forfhereasonsdssigned in the said order, I am of the opinion that so far as it relates to petitioner Smt. Savita Nair, the same does not call for any interference and in that view of the matter, subsequent posting order dated 20.5.2008,so far it relates to Smt. Savita Nair whereby she has again been posted at Middle School, Bade-Hadmamunda purportedly passed in compliance of stayorder passed by this Court, is liableto beset aside. 10.In the result;- • W.P. (s)No.3400/08 filed by Smt. Savita Nair is allowed and the impugned order dated 20.5.2008, so far it relates to posting of Smt. Savita Nair, is hereby set aside. • W.P. (s) No.1708/08filed by Smt. Jharna Acharya ishereby dismissed. Mowever, shewill be free to make representation to the Collector, Dantewada about her personal difficulties in view of the order dated 11.3.2008 and in case such representation is made, the Collector shall consider the same and decide it expeditiously. 11. No order as to costs. Sd/- DhirendraMishra Judge T~-—' ^.- s^.'if'fSsSa