..IN: IHE ;HIQH CDURT OF JUDICM'UAEs AI JABALPUR. W.P. N0. ^l'5'^' /2000 BSSPOHDENtfS; 1. (^^ Dr. Rahul Kumar Singh S/o Shri Sifcsra Singh, aged aboat 34 years, by occupa tion Trained Graduate Computer Scienc Teacher, presently on saia roll at Dfs.'V Public Sdiool,Bilaspur. aeg.i.onal Director/Mdnager Local Managesnent Committee < E&V Pu'olic School, Hudco Bbilai District Durg. General Manager-Curn-Chairman, Iiocal ManageT.ent, Goiamittee* SEGIj Vishrampur District Sarguja O.P. Arora s/o late Anooplal Arora, aged about 62, Regional Birector, DA.V Public school Hudco Bhilai District Durg. • •PES1TJDK VWEi AR'TIGtiES 226/227 Off VHE (D iySIIIUIION onei ^•-i;»~ HIGH COURT OF JUDICATURE AT BILASPUR (CHHATTISGARH) Writ Petition No.4954 of 2000 Dr. Rahul Kumar Singh - Versus - Regional Director/Manager, Local Management Committee, D.A.V. Public School & Others ORDER Postfor^^'04-2004 (S? HIGH COURTOF JUDICATURE AT BILASPUR (CHHATTISGARH) WritPetition No.4954 of 2000 Dr. Rahut Kumar Singh - Versus - Regiona! Direetor/Manager, Local Management Committee, D.A.V. Public School & Others Present: - Dr; Rahuj KumarSingh, petitioner in person. Shri R.P. Agarwal, Senior Advocate with Shri Sanjay K. Agrawal, Advocate for the respondents. O R D E R (Passedon ^A. April, 2004) As per L.C. Bhadoo J. The petitioner has preferred this writ petition under Article 226/227 of the Constitution of India questioning his transfer order dated 12-3-99, Annexure- P/1, issued by respondent No.1 whereby the petitioner was transferred from D.A.V. School, Bishrampurto D.A.V. Schoo.l Bilaspur. (2) The petitioner's petition is that he was initialiy appointed as Trained •Graduate Teacher in Computer Sciecice in D.A.V., Bishrampur, after following the prpt.-edure under Recruitment Rules prepared by the D.A.V. Public School, Bishrampur. The post was sanctioned for Bishrampur School and his appointment was also for thatschool. The submission of the petitioner is that the job was not transferable as perAnnexure-P/3, agreem^nt behween^D.A.V; School ahd S.E.C.L. He was not aware about the alleged compliant against him and order Annexure- P/4 was passed against him that he should not enter in the school premises. This order was challenged beforethe High Court in W.P.No.5161/98 and during the pendency of that petition the order was withdrawn, therefore, the petition became infructuous and thesame was dispbsed of as infructuous. He was transferred back to Bishrampur. Before joining, the petitioner was harassed with malafide intention by respondent No.3, firstly he was called at Bilaspur, then at Bhilai and then at Bishrampur. He was not permitted tojoin his duties for a period of three months and ultimately the order was withdrawn and thesalary was paid and then againthe impugned orderwas issuedwithin aweek. (3) In compliance of the impugned order the petitioner has joined at Bilaspur, but subsequently another order was passed stating that since the transfer was made on his request, therefore, he is not entitled for transfer allowance. The same was challenged by the petitioner in W.P.No.4759/99. The petitioner was appointed at Bishrampur, as per the advertisement and serviee conditions free accommodation was provided to the petitioner, but on thecontrary ift return filed in earlier petition i.e. W.P. No.4759/99 it was stated thst no specific accommodation has been provided to him and the management is deducting the house rent of the quarter. (4) The petitioner's further case is that he was posted at Bishrampur. His salary was fixed in the grade of Trained Graduate Teacher inctuding the difference of gcade, but thesame has not been'paid to him. As per the agreement the post wsis sanctioned for Bishrampur School to teach the students of Class 11 and 12 , but same is not availabie at Bilaspur as there is no sanctioned post of Trained Graduate Teacher (Computer Science) at Bilaspur. The petitioner has been asked to teach the students of Class-1 & I! which is again creating a mental dissatisfaction to the petitioner and further they are not paying him deputation allcwance. His salary is still being paid from Bishrampur School, according to their administrative insfruction; Therefore, the petitioner is entitled for deputation allowance. (5) The service conditions are governed as per the norms fixed by the Central Board of Secondary Education, therefore,.the petitioner has prayed for qi.;ashing the impugned order (Annexyre-P/1) or in alternative the service condition of We petitioner may be directed to remain the same as it was during his tenure at Bishrampur and further for directing the r^spondents to give him all the monetary benefits and facilities which he was getting at Bishrampur. (6) Return has been filsd on behalf of respondents stating that the petitioner was appointed as Trained Graduate Teacher (Computer Science) by appointment letter dated 11 Juhe1994 and in the appointment letter a condition was imposed that the management shall have the right to transfer him to any of the schools under.DA.V. College Management Committee in any part of the country. The petitioner accepted the said appointment letter dated 11 June 1994 vide acceptance thereof on 16 June 1994. Copy of the appointment letter is Annexure-R/1. On 11' October 1998,vide Annexure-R/2, the petitioner was directednot to enter in the school premises and further asked to inform about the place of his convenience to which place he could be recommended for transfer. The petitioner wrote a tetter on 11 October 1S98 statingthat his leave without pay be cancelled, he was ready to hand over the charge on 12 October 1998 and vide Annexure-R/3 he gave the place of hischoice for posting, D.A.V. Public School, at Biiaspur. Thereafter he was transferred to D.A.V. Public School, Bilaspur. However, respondent No.1 vide order dated 14 December 1998 withdrew the transfer order dated 27 November 1998 whereby the petitioner was transferred from Bishrampur to Bilaspur. With reference to the letter dated 9 D^cember 1998 of the Principal, D.A.V. School, Bishrampur, respondent No.1 wrofe a letter dated 15 December 1998 giving reference to hTs earlier letter dated 14 December 1998 withdrawing the petitioner's order of transfer. (7) The petitioner was required to give his joining at Bishrampur by letter dated 4 Mareh 1999. However, the petitioner was again transferred from Bishrampur to Bilaspur by order dated' 12 March 1999 and he was relievedon 15'^'Jarch 1999. Sjnce the petitioner himself gave his choice for posting at Bilaspur, therefore, he was posted at Bilaspur. The petitioner had chalienged the order dated 11 October 1998 in W.P. No.5161/1998. inthe petition the petitioner filed letter dated 11th October 1998 (Annexure-R/3) by which he indicated his choice of posting at Bilaspur. But, the petitioner did notchallenge the impugned order in that writ petition by amending that petition. Even though the impugned order was fi!ed in that writ petition on 13 March 1999 and that petition was dismissed as having become infructuous. Since the petitioner had not challenged the impugned order in thatwrit petition, therefore.the petitioner is not entitled to challenge this order after more than 15 months. (8) The petitioner had also ^led another writ petition No.4759/99 for transrer allowance, but in that petition also he did not chaltenge the impugned order and in that writ petition the Court passed the order that "the petitioner to submit the bills in the prescribed proforma within four weeks from the said date and the answering respondents were required to declde such bills in accordance with the rules" and the paymentswere made. The agreement (Annexure-P/3) was between the D.A.V. College and S.E.C.L., therefore, the petitioner cannot invoke the same. The question of allotment of quarter to an employee depends upon its availability and there is no such obligation upon the management that itshall necessarily provide housing accommodation. Thepetitioher was in occupation of a shared accommodation since March 1999 till October 2000 and was paying a sum of Rs.130/- only per month, but now the petitioner is residing in a private accommodation. th (9) Since the petitioner is not required to teach the students of 11"' and 12m class, the question of payment ofthe difference between T.G.T. and P.G.T. r@) scale does not arise. The difference was only payable when a trained graduate teacher is required toteach 11 and12 classesand nototherwise; The payment of such diffsrence beftween the bn/o scales at that time was only provisional which has now been completely stopped. Therefore, There is no question of paying the difference between the two scales as alleged by the petitioner. It is wrong to contend that the petitioner's pay was fixed including the differential amount between the frn/o scales The petitioner was appointed in the year 1994and the system of payment of the difference amount between the two scales in the ease of T.G.T. who was required to teach 11 and 12 classes was introduced w.e.f. July 1995, which too has now been stopped w.e.f. April 1999. The petitioner was transferred to Bilaspur, therefore, the question of payment ofdeputation aliowance does not arise. ' ^ (10) As far as alternative relief is coneerned, the petitioner is trying to claim free accommodation facility at Bilaspur and payment of the difference, which was nothing but honorarium between the T.G.T. and the P.G.T. scale. The answering respondents further submittedthat both the claims aretotally untenable for the reasons already stated in the petition. tt has been mentioned in the letter of appointment that "normally no residence is provided to the staff. However, if the management provides residence to you, you will have to pay the house rent charged from other employees." This cleariy establishes that there was no obligation on the answering respondentsto provide free accommodation. The specific terms and conditions asper appointmeot letter will in fact govem the reiationship between the,petitioner and^the answering respondents. If the (t&tifcfser knowingly and consciously accepted the tenns and conditions of the appointment order now it is not open to him to claim any free accommodation. Therefore, the petition ofthe petitioner be dismissed. (11) I haveheard Dr. Rahul Kumar Singh, petitioner in person and Shri R.P, Agarwal, Senior Advocate with ShriSanjay K. Agrawal.Advocate for the respondents. (12) The petitioner argued that the service of the petitioner was not transferable, as the.postwas createdonly for the schopl at Bishrampur, where he was selected and appointed. Therefore, his services are not transferable. In the D.A.V, Schools the posts are being created for the particular schoot and against that the teacher is appointed.therefore, he cannot be transferred. He further argued that as per the agreement betweeh the respondents D.A.V. School Management and S.E.C.L. the petitioner is entitled for free accommodation. l-1e further argued that the difference of pay, which was being paid to him for teaching class 11 and12 at Bishrampur, is not being paid to him at Bilaspur. In support of his arguments he made references of certain provisions of Accounts Manual and Administrative Manual of D.A.V; School andhe also referred the affjliation byelaws of the Central Board of Secondary Education. He further argued that on account of his transfer his seniority may be affectedand he has been harassed like anything. Firstly he was transferred to Bilaspur where he was not allowed to jbin then he was asked to join at Bhilai. But there also he was not allowed to join "1 - '.'..' ' _ ' . •* arid then he was asked to report at Bishrampur. He was informed that no sanctioned post is available at Bilaspur and Bhilai then he was allowed to join at Bishrampur after 3 months and vide impugned order he was again transferred to Biiaspur. He further argued that he was appointed against the post at Bishrampur, but he has been transferred to Bilaspur and his satary is stitl being paid from Bist^tampur School, therefore, he is entitled for deputation allowance, which is not being paid to him. Therefore, his transfer order be quashed. (13) On the other hand, Shri R.P. Agarwal, Senior Advocate argued that the petitioner has argued beyond his writ petition. The only relief sought by him is to quash his fransfer and respondehts be directed to give himall facilities and allowances, which were available to him at Bishrampur, therefore, any other argument beyond pleadings are. not permissible. He further argued that as per the appointment letter (Annexure-R/1) he himselfaccepted theterms and conditions of the appointment letter vide his acceptance dated 16-6-94 and in that appointment tetter clause No.7specifically lays down that "normally no residence is provided to the staff, however, if the management provides residence to you, you will have to paythe<house rent atthe rate charged from other employees". And clause-8 lays down that "the management shall have the right totransfer you to any of the schools under the DAV College Managing Committee in any part of the country." He further argued that facilities, which are admissible to the employees of the D.A.V. Schools, the petitioner is getting and as far as the difference a!lowance claimed by the petitioner is concerned that was admissible if a post graduate trained teacher was required to teach class 11 and 12 . Moreover, that allowance wasadmissible up to year 1999 and that was not allowance, that was honorarium and that has been stopped by the management and nowhere it is being paid. Therefore, the petitioner cannot claim that amount. (14) He further argued that there were complaints against the petitioner and upon this the order (Annexure-R/2) dated 11-10-98 was issued in which it was specifically mentioned that the lady teachers, union leaders and the parents of children are complaining against the petitioner. Therefore, it was unanimously decided that in the interest ofthe institution and in the interest ofthe teacher concerned, he should be removed from DAV Public Schooi, Bishrampur. Accordingly in order to maintain the discipline Regional Director passed theabove order ahd the management was gracious enough toseek the convenience of the oetitioner about the place where he was interested to be transferred and in response to that the petitioner himself gave in his handwriting (Annexure-R/3), on whifih he was transferred on 27-11-98 by the order Annexure-R/4 against which the petitioner filed a writ petition which was yltimately dismissed as infructuous. During the pendency of that writ petition again impugned order was passed, but the petitioner did not amend ttat petition and the same was .dismissed as infructuous. Now, the petitioner has challenged this order after more than 15 months jn the year 2000, which is not maintainable. He further argued that DAV SchssF has not been made party, but only office bearer has been made party and O.P. Arora, Regional Director, DAV Public School has been made party by name, therefore, the writ petition is not maintainable. He further argued that respondent School is not State within the meaning of Articte 12 of the Constitution of India, therefore, the writ petition is not maintainable against the DAVSchool. He further argued that the petitioner, in his petition, has not teveled any malafide against the respondents, therefore, transfer cannot be challenged. (15) 'lt js settled law that transfer of an employee is an incident of service. No government sen/ant or employee of public undertaking has any legal right to be posted forever at anyone particularplace and in public interest and efRciency in the pyblic administration he can be trangferred. Uhless an order of transfer is showji t6 be an outcome of mala fide exercise of poweror stated to be in violation of statutory provisions prohibitjng any such transfer, the Court cannot interfere with such orders as a matter of routine.' This view has been taken by the Hon'ble Apex Court in the matter of National Hydroeleetric Power Corporation Ltd. V. (i) Shri Bhagwan (ii^ Shiv Prakash reported in JT 2001 (7) SC 515. In the matter of Union of India and othersv. S.L.Abbas reported in 1993 AIR SCW 1753 the Hon'ble Apex Court has held that "transfer is an ordinary and normal incident of service, and in the exigencies of public administration when transfer is made in the similar post and -cadre, no legitimate grievance can be raised as it is well-settled that an employee can challenge his transfer only when the order of transfer is vitiated by malafide or is in violation ofthe statutory provision." (16) In the light of the above settled principle, if we look into the facts of the present case, the petitioner was selected by DAV School on the post of Train^d Graduate Teacher in Computer Science and after his selection '~m appointment letter Annexure-R/1 was issued to him in which various terms and conditions were proposed to the petitioner and he was asked to give his acceptance and it was madeclear to him that if he accepts the terms and conditions contained in that letter then he would be allowed to join and vide acceptance letter dated 16-6-94 the petitioner accepted all terms and conditions and the clause-8 of the said letter (Annexure-R/1) clearly lays down that 'the ^nanagement shall have the right to transfer you to any of the sehools under thff DAV College Managing Committee in any part ofthe country? Therefore, now, the pstitioner cannot challenge this condition. He himself accepted all terms and conditions before joining theservice and he was offered the employment with those conditions. Now, therefore, the petitioner is estopped from challenging his transfer on the ground mentioned in the petition. In the appointmsnt ietter it has nowhere been mentioned that he is being appointed only for Bishrampur School and his services are not transferabte. Argument of the petitioner that as he was appointed against the sanctioned post for Bishrampur Schopl, therefore, he cannot be transferred is misconceived and not tenable. In terms of clause-8 of the appointment order his argument cannot be accepted. No mala fide has been leveled and established against any of the authority of the DAV School by the petitioner for his fransfer. On the contrary, as per Annexure-R/2 certain complaints were received against the conduct of the petitioner from the lady teachers, the parents of the children and local union leaders, therefore, in the interest of the institution and administration and also in the interest of the petitioner it was thought proper to transfer the petitioner. The respondent was gracious enoyghcto ask for his convenience for the place of posting and accordingly the petitioner gave his option for Bilaspur and the respondent by acceding request of the petitioner posted him at Bilaspur. However.that orderwas cancelled, butagain he was transferred to Bilaspur vide impugned order at his choice place. (17) A teacher plays a pivotal roie in moulding the career, character and moral fibers and aptitude foreducational excellence in impressive young children. The teacher is adorned as "Gurudevobhava" next after parents, as he is a principai instrument to awakeningthechild to the cultural ethos, intellectual excellence and discipline." This view has been taken by the Hon'ble Apex Court in the matter of State of Maharashtra v. Vikas Sahebrao reported in 1992 AIR SCW2182. The Court further held that "The excellence of the instruments provided by an institution would depend directly on the excellence of the teaching staff, and, in turn, that would depend on the quality and the contentment of the teachers." (18) In the school the discipline is of paramount consideration for maintaining high standard of education. Therefore, in view of this, both the petitioner and D.A.V. Public School are required to maintain their standard and status. (19) When there were complaints againstthe petitioner.therefors, he was ssked for his transfer, as such the transfer was made in the administrative ^igencies and in public interest. Neither in the advertisement nor in the appointment order it was proposed by respondents that the post is not transferable. Therefore, no statutory provisions or no anycontractual obligation has been violated inthis case. (20) Now, coming to the question of free accommodation, in the first instsnce in the appointment letter (Annexure-R/1) as perthe condition No.7 it was specifically made known to the petitioner that 'normally no residence is provided to the staff, however, ifthe management provides residence toyou, you will have to pay the house rent at the rate charged from otheremployees' and this condition was accepted by the petitioner as mentioned above. Therefore, as of right, he is not entitled for free accommodation and it is replied by the DAVSchool that wherever free accommodation is provided by the management of the SECL, the same is provided to the teachers. At Bishrampur that was available, therefore, it was provided to the petitioner too. Whatever accommodation is provided by the SECL at Bilaspur, same is being made available tp teachers and staff members. Thierefore, in view of this fact that the petitioner himself accepted the terms and v-. • - • ^ condjtisfts contained in his appointment letter, as such.now cannot insistfor any offer made in advertisement Annexure P/2. (21) As far as the agreement (Annexure-P/3) entered into between the DAV College Society and the SECL, it ha^been mentioned in Annexure-P/3 that free accommodation will be provided. In the first instance the petitioner was not party to that agreement and in his appointmentletter no condition was prescribed that he will be entitted for free accommodation and jttias been very specificatly mentioned in the fetyrn and stet^ t^ tl^^resf)ond^nts;thatas ^ accommc)tlatic)n is EiEovidect;t%i<t!|i:SE^|..; |ltg!saim^?js|i|lette<}tcittieteachersand "^ '•^•^ l:staff.^mjemBere^oF;i:t|igs[^^|^^|)Cil^ !eg m^:griewancet^f^^t^nmi ^^r^^!a^S^^^^ thelaigumentsthep^tion^|^ise|;grf^iCT|Jt|ii^the||iach^ of BHaspur School, who h^;jbin|4afleK|Hijojning^ffi had been alfotted accQmmo(jatibn]j but the ipgtj{ioner(3|asLnot -been aUotted. If it is true then the same requires; serious consjderations by|the Fesporidents and this grievance of the petitioner is legitimate. Therefore, DAV School Management, Bilaspur, to look into his grievance. As andwhen the residential aecommodation is fall vacant or provided by the SECL for the staff members and teachers at Bilaspur then as per their seni&rity i.e. from the date of joining at Bilaspur that residential accommodation must be offered to the teachers and staff members and accordingly to the petitioner. But, when the school was opened at the request of S.^.C.L. for the benefit of the chjldren of their employees and as per agreement (Annexure-P/3) S.E.C.L. is duty bound to provide the accommodation. In this petition S.E.C.L. is party/respondent and same counsel is representing the S.E.C.L. then why the School Management Committee is not insisting the S.E.C.L. for providing sufficient number of quarters. In fact, D.A.V. Management should insist upon for the same, and if the S.E.C.L. is not providing as agreed by them in agre^nent Annexure P/3, then they can think in terms of closing the school. (22) Now, coming to the question of payment of difference of payas al!eged by the petitioner that the graduate trained teachers who were teaching Ctass 11 and 12' were being paid excess difference pay and after his transferto Bilaspur that is not being paid to him. The reply of the respondents is that that was not a difference pay, that was an honorarium and that has been stopped all over the country by the management since 1999. Now, nowhere it is being paid. If it is sothen the petitioner cannot raise any grievance, as he is receiving the equal treatment, which is being given to the other teachers ofthe DAVSchool. No other specific point has been raised by the petitioner.regarding monetary benefits anA facilities which he was getting at Bishrampur and not getting at Bilaspur, theref6re, respondentS have also not been able to reply that as such, in this connection, no reliefcan begrantedto him. Moreover, unlessand until anyfaci!ity or monetary benefit is being given to other equaily placed teachers the petitioner cannot make a legitimate grievance. (23) Since no other specific points has been raised in this petition by the petitioner that on account of his transfer his servicecondition orfuturecareer like seniority will be effected, as such that cannot be considered in this petition. However, if the petitioner's genuine grievance is not attended to by the DAV School Authorities then he will be at liberty to agitate those points before appropriate Forum in appropriate manner. (24) Some case laws were cited by the petitioner and the counsel for respondents, but they are not relevantto be mentioned in this case. As far as the point raised by the learned counsel for respondents that in this writ petition DAV SGhibol has not been arrayed as party, and DAV is not State within the meaning of 10 ?4 Article 12 of the Constitution of India, therefore, the petition is not maintainable. Since these points were not specifically raised by the respondents