1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH : NAGPUR. WRIT PETITION NO.2980/2009 Vijay Lalaji Janbandhu, Aged about 45 years, Occupation – Assistant Teacher, Ratnadeep Vidyalaya, Chikhali, Tahsil – Sadak Arjuni, District – Gondia. .. Petitioner .. Versus .. 1. Pradnya Shikshan Sanstha, Yerandi (Deolgaon), Tahsil – Arjuni Morgaon, District – Gondia, through its Secretary, Shri Sukhdeokumar Dahiwale. 2. Shri Sukhdeokumar Nakatuji Dahiwale, Aged about 61 years, Occupation – Retired Clerk, Ratnadeep Vidyalaya Chikhali, Tahsil – Sadak Arjuni, District – Gondia. 3. Head Master, Ratnadeep Vidyalaya, Chikhali, Tahsil – Sadak Arjuni, District – Gondia. 4. Shri Nandkishore Deoram Shende, Assistant Teacher, Dr. Babasaheb Ambedkar Vidyalaya, Chichal Barvha, Tahsil-Lakhandur, District – Bhandara. .. Respondents 2 CORAM : A.P.LAVANDE & P.D. KODE, JJ. Date of reserving the order : 24th August, 2009. Date of pronouncing the order : 27th August, 2009. ORDER (Per : P.D. Kode, J.) 1. Heard Mr. A.Z. Jibhkate, learned counsel for the petitioner and Mr. H.A. Deshpande, learned counsel for respondent nos.1 to 3. None for respondent no.4 though served. 2. By present petition under Articles 226 and 227 of the Constitution, petitioner working as an Assistant Teacher in school run by respondent no.1 and posted in school at Ratnadeep Vidyalaya, Chikhali District – Gondia has challenged order of transfer issued by respondent no.1 transferring him to school at Barvha, Tahsil – Lakhandur, District – Bhandara and has prayed for quashing and setting aside said order of transfer with incidental prayer of staying same during pendency of petition. The challenge is thrown on the count of respondent no.1 having issued order of transfer with mala-fide intent for victimizing the petitioner 3 3. Learned counsel for the petitioner has urged that : A) Respondent no.2 is controlling managing committee of respondent no.1 Institution as all the members of the same are from his family; B) The petitioner has opposed the demand made by respondent no.2 from employees of schools, hostels run by respondent no.1 of giving two months salary for construction of school building, made in a meeting dated 6.5.2009 of such employees called by respondent no.2 in a school in which petitioner was working; C) Respondent no.2 was annoyed by the same and had threatened the petitioner to transfer; D) Even earlier to the same the petitioner has opposed similar demand made by respondent no.2 of employees paying one month salary for celebration of Silver Jubilee function of respondent no.1 Institution made by respondent no.2 vide written communication dated 4 10.12.2008; E) Petitioner has even not attended the meeting dated 10.12.2008 held in pursuance of same for such purpose by the Head Master at the behast of respondent no.2; F) due to such opposition made by petitioner impugned order of transfer was issued and served upon petitioner on 22.6.2009; G) Respondent no.3 had even refused to give acknowledgment of representation made by petitioner against order of transfer i.e. addressed to respondent no.2 and sent through respondent no.3; H) Respondent nos.2 and his son had failed to take into account matters explained by petitioner in the representation i.e. : i) post of Head Master in school at Bhandara being occupied by teacher who was junior by five years, as the petitioner and other senior teachers had given no objection for filling the same from the employees from the said unaided school; 5 ii) said school being about 60 KM away from the school at which petitioner was working; iii) additionally the same being in another district – Bhandara; I) and on the contrary respondent no.2 not only refused request of petitioner but had specifically told him that transfer was lesser punishment than dismissal and in event of cancellation of his transfer no employee would contribute the amount; J) making demand of one month and two months salary itself denotes that the same was not request for making voluntary contribution, but was for making payment compulsorily as required/desired by respondent no.2. 4. Learned counsel for the petitioner has thus contended that all the facets clearly reveal that the transfer is not ordered on administrative ground as alleged by the respondents and the same has emerged out of mala fide intent of respondent no.2 for victimizing and punishing petitioner who was an obstacle for the 6 respondents for collecting amounts compulsorily from the employees at their sweet will and hence such order cannot be sustained and the same is liable to be quashed and set aside by allowing the petition. 5. Learned counsel for respondent nos.1 to 3 has countered the aforesaid submissions by urging that : A) by letter dated 27.11.2008 some of office bearers of the schools, hostels had requested to organize Silver Jubilee function of respondent no.1 and permission to collect contribution for same from villagers and employees working in the schools and hostels run by respondent no.1; B) vide letter dated 11.12.2008 acceptance of the said proposal by respondent no.2 Secretary was communicated to them; C) since respondent no.2 had thereafter changed his decision office bearers of schools, hostels etc. vide letter dated 15.12.2008 were informed that instead of organizing Silver Jubilee function of respondent no.1, the 7 same should be organized for respective schools and/or for students coming in merits; D) they were further informed to refund the contributions collected, if any, and hence there was no question of giving amounts as alleged by the petitioner; E) the entire story of the petitioner about collection of funds from employees for construction of school building being false as even alleged account of which extract is produced by petitioner does not stand in the name of school and the same stands in the name of petitioner and one more teacher and hence is insufficient to infer any nexus of respondents or of the institution with the said account; F) the letter dated 25.11.2008 produced on behalf of petitioner being forged and fabricated document and respondents dispute the same bears signatures of the employees as claimed by petitioner; G) petitioner during his entire service career of 19 years i.e. since his appointment has been working in 8 Ratnadeep Vidalaya and by order impugned for first time he was transferred; H) the said order of transfer was not necessitated due to respondents having any grievance against the petitioner as his teaching ability are excellent; I) the same were necessitated due to administrative exigency of the respondent requiring to transfer four employees namely Shri G.S. Perwate (A.T.), Shri N.D. Shende (A.T.), Shri Raut (Clerk) and Shri Meshram (Peon) working at Dr. Babasaheb Ambedkar Vidyalaya Chinchal Barvha due to themselves having formed group creating differences/disharmony in between the staff working at the said school spoiling atmosphere in the said school adversely affecting efficiency of teacher working at the said school; J) the transfer was warranted for smooth functioning of school and the order of transfer was served upon the petitioner on 22.5.2009 and not on 22.6.2009 as falsely claimed by petitioner; 9 K) the transfer of petitioner being ordered once after service of 19 years and the same being ordered for administrative exigency and hardly there being any room to infer mala fide on part of respondent nos.1 to 3; L) the aspect of petitioner residing with his family at Sakoli and his children taking studies in school at said place which is only 32 km away from place at which petitioner is transferred and since same is situated on state highway and petitioner can conveniently attend the school at Chinchal (Barvha) even by residing at Sakoli clearly reveals of respondents having taken into consideration aspect of inconvenience to petitioner and his family while transferring him for administrative reasons; 6. Learned counsel for respondent nos.1 to 3 thus contended that all the aforesaid reveals of the transfer being ordered for administrative exigencies and same being not effected with mala fide intention for victimizing petitioner as alleged, the petition de hors merits be dismissed. 10 7. Having considered the submissions advanced and having perused the record, we are of considered opinion of there being no merit in the petition in view of there being hardly any material produced sufficient enough to infer impugned order of transfer being issued by respondent no.1 either with mala fide intention or for victimizing petitioner and the circumstances pointed out by respondent no.1 supporting their contention of the same being issued due to administrative exigencies. 8. We are of such opinion as letter dated 7.4.2009 (written much prior to issuance of transfer order) by Head Master of Dr. Babasaheb Ambedkar Vidyalaya, Chichal (Barvha) at Annexure-III duly supports contentions of respondent nos.1 to 3 of four employees from said school having formed groups and having caused hindrance for smooth working of the said school and Head Master of the school having requested to respondent no.2 for taking action about the same. Three employees out of the said four persons and one more and petitioner being transferred vide common order of transfer clearly supports the contention of respondents of transfer order being issued due to 11 administrative exigency as claimed by them. Such conclusion is apparent after taking into consideration the place at which respective employees were transferred by the said order. 9. Similarly considering the fact of petitioner being not transferred during his entire career of 19 years and having not refuted the contention of the respondents that he is residing with his family at Sakoli and his children are taking studies at the said school and said place is only 32 km away from the place at which petitioner is transferred and same is situated on state highway and thus he can conveniently attend the school at Chinchal (Barvha) even by residing at Sakoli and thus themselves having taken into consideration aspect of inconvenience to petitioner and his family while transferring him on administrative reasons, also takes away all the sting in the allegations of the petitioner of himself being transferred by way of victimization. 10. Now with regard to the allegation of petitioner of the respondents demanding compulsory contribution from the employees, the matters stated in letter dated 12 27.11.2008 at Annexure-A does not support the said allegation as the same as canvassed by learned counsel for respondent nos.1 to 3 reveals of the request being made by some of the office bearers of various schools/ hostels run by respondent no.1 for holding silver jubilee function of respondent no.1 and themselves intending to raise funds by collecting the contributions from villagers and employees. 11. Similarly as canvassed by learned counsel for respondent nos.1 to 3, matters from ultimate letter dated 15.12.2008 written by respondent no.2 also amongst other reveals of his earlier decision of holding Silver Jubilee function of respondent no.1 being cancelled and concerns being informed to refund contributions, if any, collected. 12. Furthermore, the perusal of the extract of bank account produced by the petitioner also supports submission of learned counsel for respondent nos.1 to 3 that said account does not stand either in the name of the school or in the name of respondent no.2 and on the contrary the same stands in the name of petitioner and 13 one more teacher. In aforesaid state of affairs and respondent no.1 to 3 having disputed about letter dated 25.11.2008 produced by the petitioner and particularly the signatures upon the same and petitioner having not produced any evidence for repealing the contention of said letter being forged and fabricated document would also lead to no other conclusion of petitioner having failed to establish that respondent no.2 was demanding compulsory contributions from the employees. Needless to add that in same contingency it will be difficult to accept his further allegation of respondent nos.1 to 3 having acted mala fide due to himself having opposed their such demand. 13. Thus having regard to all aforesaid facets and particularly the common transfer order being issued, the same being issued for first time during 19 years of the career of the petitioner, the reason for issuing the same as contended by the respondents being found supported by the evidence produced by them and respondent no.4 having duly joined the place at which the petitioner was working prior to the transfer, makes us extremely difficult to accept the petitioner having established of 14 there being the mala fide on part of respondent nos.1 and 2 for issuing order of transfer. 14. In the premises aforesaid, we find no merits in the petition and dismissed the same. JUDGE JUDGE halwai