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Dhirendra Mishra, J.—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. Savita Nair in which Smt. Jharna Acharya is respondent No. 5 are being disposed of by this common order as petitioner-Smt. Jharna 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 Headmistress, Middle School, Bade-Hadmamunda in place of Middle School, Kodenar No. 2, Block Kuankonda and Smt. Savita Nair has been posted in her place. Whereas, petitioner Smt. Savita Nair is aggrieved by the order dated 20.5.2008 (Annexure P-7) whereby above-referred order dated 11.3.2008 (Annexure P-3) has been amended in compliance 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 now been posted at Middle School, Bade-Hadmamunda, Block Kuankonda.
Undisputed facts in both the petitions are that vide order dated 21.2.2008 petitioner Smt. Savita Nair was promoted to the post of Headmistress and posted at Middle School, Bade-Hadmamunda. Smt. S. Borkar, who was working as Headmistress in the Middle School, Kodenar-2 died on 25.2.2008 and thus, the post of Headmistress fell vacant in the Middle School, Kodenar-2. Petitioner - Smt. Jharna Acharya was promoted to the post of Headmistress vide order dated 27.2.2008 and was posted at Middle School, Kodenar-2 on the basis of her preference. Smt. Jharna Acharya submitted her joining on 4.3.2008 in the office of Block Education Officer after she was relieved on 3.3.2008 from the Middle School, Bacehli. After the death of Smt. S. Borkar, petitioner Smt. Savita Nair submitted representation to the Collector, Dantewada against her posting at Middle School, Bade-Hadmamunda and requested to modify the order dated 21.2.2008 and post her as Headmistress of Middle School, Kodenar-2. The Collector, Dantewada, after receipt of representation from the petitioner Smt. Savita Nair, called Smt. Savita Nair & Smt. Jharna Acharya both for counseling on 4.3.2008 and thereafter amended the posting order dated 21.2.2008 and also order dated 27.2.2008 vide order dated 11.3.2008 on the ground that Smt. Savita Nair is Senior Upper Division Teacher and in promotion to Headmistress also she is senior to Smt. Jharna Acharya. Smt. Jharna Acharya, being aggrieved by the above amendment in her transfer order, filed W.P. (s) No. 1708/08 and this Court vide order dated 25.4.2008 stayed the execution of the order dated 11.3.2008 in respect of the petitioner Smt. Jharna Acharya, if not executed. The Collector, South Bastar vide order dated 20.5.2008 (Annexure P-7) in compliance of order dated 25.4.2008 amended the earlier posting order dated 11.3.2008 of both the petitioners and now posted Smt. Jharna Acharya at Middle School, Kodenar-2 and Smt. Savita Nair at Middle School, Bade-Hadmamunda.
Learned Counsel for the petitioner Smt. Jharna Acharya vehemently argued that Smt. Savita Nair was transferred vide order dated 21.2.2008 of Annexure P-6 to Middle School, Bade- Hadmamunda. The order specifically mentions that teachers were to take their charge at their place of posting by 7.3.2008 failing which their promotion shall stand cancelled. Whereas, the petitioner was promoted vide order dated 27.2.2008 (Annexure P-2) and thereafter posted at Middle School, Kodenar- 2. Complying the order of posting, the petitioner was relieved on 3.3.2008 from Middle School, Bacheli and she had given joining on 4.3.2008 vide Annexure P-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 and she has now been posted at Middle School, Bade-hadmamunda in place of Smt. Savita Nair. Relying on the judgment of the Hon''ble Supreme Court in the matter of Tejshree Ghag etc. v. Prakash Parashuram Patil and Ors. reported in AIR 2007 SCW 3673 it was argued that the petitioner was already posted at 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 complying the order dated 21.2.2008 preferred to make a representation after the death of Headmistress of Middle School, Kodenar-2 on 25.2.2008 for amendment in her transfer order and to post her at Middle School, Kodenar-2. The Collector, Dantewada allowed her representation only on the ground that Smt. Savita Nair is senior to her as Upper Division Teacher as also on the basis of promotion. Smt. Savita Nair was already posted in the said place as Upper Division Teacher since long and therefore, the reasons assigned by the Collector to accept her representation, amend her transfer order and post her in the same place as Headmistress is without any legal basis as seniority cannot be a criteria for posting of a teacher in a particular Section of her choice.
On the other hand, learned Counsel for the petitioner Smt. Savita Nair contended that though she was promoted on 21.2.2008 and posted at Middle School, Bade-hadmamunda as Headmistress, however, after the death of Headmistress of Middle School, Kodenar-2, she submitted representation before the Collector, Dantewada for amending her posting order as vacancy was now available in the same school where she was posted as Upper Division Teacher. However, since Smt. Jharna Acharya was already posted in the said school, the Collector, Dantewada called both of them for counseling on 4.3.2008 and 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 Rajendra Roy Vs. Union of India (UOI) and Another, it was argued that there is nothing on record to show that order dated 11.3.2008 was passed malafidely for an oblique purpose or for wreaking vengeance. The Collector amended the posting orders of Smt. Jharna Acharya and 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, relying on the latest judgment of Hon''ble Supreme Court delivered in the matter of Mohd. Masood Ahmad Vs. State of U.P. and Others, it is contended that ordinarily the courts have no jurisdiction to interfere with the order of 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.
I have heard learned Counsel for the parties. I have perused the documents annexed by both the petitioners along with their petitions.
The scope of judicial review in the transfer matters has been considered time and again by the Hon''ble Apex Court and in the latest judgment i.e. Mohd. Masood Ahmad (supra) relied upon by Mr. Koshy, learned Counsel for petitioner Smt. Savita Nair, the Hon''ble Apex Court, referring to its earlier judgments, considered the scope of judicial review of transfer under Article 226, thus;
The scope of judicial review of transfer under Article 226 of the Constitution of India has been settled by the Supreme Court in Rajendra Roy v. Union of India, National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan, State Bank of India V. Anjan Sanyal. Following the aforesaid principles laid down by the Supreme Court, the Allahabad High Court in Vijay Pal Singh v. State of U.P. and Onkar Nath Tiwari v. Chief Engineer, Minor Irrigation Deptt. has held that the principle of law laid down in the aforesaid decisions is that an order of transfer is a part of the service conditions of an employee which should not be interfered with ordinarily by a court of law in exercise of its discretionary 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 authorities who issued the orders, were not competent to pass the orders.
It is true that Smt. Savita Nair was firstly posted at Middle School, Bade-hadmamunda vide order dated 21.2.2008, whereas, Smt. Jharna Acharya was posted at Middle School, Kodenar-2 vide order dated 27.2.2008. However, after the death of Smt. S. Borkar, Headmistress of Middle School, Kodenar-2, Smt. Savita Nair submitted her representation to the Collector, who on receipt of the representation called both the petitioners i.e. Smt. Jharna Acharya & Smt. Savita Nair for counseling on 4.3.2008 and thereafter vide order dated 11.3.2008 allowed the representation of petitioner Smt. Savita Nair, amended their posting orders and posted Smt. Savita Nair in place of Smt. Jharna Acharya and vice-versa. It is also not in dispute that after Smt. Jharna Acharya 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 petitioner Smt. Savita Nair gave her joining report on 13.3.2008 and thereafter she also took charge on 18.3.2008 vide Annexure P-5 in W.P. (c) No. 3400/08. However, the Collector South Bastar, Dantewada on the basis of stay order passed by this Court passed yet another order dated 20.5.2008 (Annexure P-7) whereby the position of both the petitioners'' inter-se has been further exchanged.
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 petitioner Smt. Jharna Acharya in case it was not already executed. However, from the documents available with 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 subsequent order dated 20.5.2008 purportedly passed on the basis of the stay order is of no consequence.
Therefore, relying upon the judgments cited above and circumstances in which the impugned order dated 11.3.2008 was passed by the Collector, South Bastar, Dantewada whereby posting orders of both the petitioners were amended and considering that aforesaid order was passed after counseling with the affected persons, for the reasons assigned 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 stay order passed by this Court, is liable to be set aside.
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. 1708/08 filed by Smt. Jharna Acharya is hereby dismissed. However, she will 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.
No order as to costs.