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Judgment
This order shall also govern the disposal of connected writ writ petitions bearing W.P. Nos.21793/2019, 21795/2019, 21798/2019, 21801/2019, 21804/2019, 21809/2019, 21847/2019, 21862/2019, 21870/2019, 21884/2019, 22068/2019, 22699/2019, 22705/2019, 22746/2019, 23063/2019, 25378/2019, 21843/2019, 21794/2019, 21866/2019, 22282/2019, 22707/2019, 23150/2019 and 3192/2020.
Regard being had to the similitude in the controversy involved in the present case, all the aforesaid writ petitions were analogously heard and by a common order, they are being disposed of by this Court. For the sake of convenience, the facts are being narrated from W.P. No.21790/2019.
The petitioner has filed the present petition challenging the order dated 3/10/2019, passed by the respondent No.2 thereby, cancelling the already executed order of transfer dated 9/08/2019 issued in favour of petitioner through affair and transparent online process for some extraneous consideration citing non-availability of post at the transferred place/unwillingness of the petitioner to join at the transferred place.
That pursuant to transfer order dated 9/08/2019, the petitioner was transferred from GPS Kachikhedi, Tehsil Sarangpur, District Rajgarh(Biaora) to GGPS No.37, Musakhedi, Indore as her husband Shri Akal Singh Uikey was serving as Sub-Inspector, PTC, Indore and her children were studying at Indore.
That, the aforesaid order of transfer was duly executed by the petitioner vide relieving order dated 16/08/2019 and her consequential joining on 19/08/2019 before respondent No.3.
That, despite availability of vacancies in Indore District in various Primary Schools which is evident from the bare perusal of information available on the education portal (on account of vacancies caused due to retirement of Assistant Teachers (LDT) from August, 2019 till February, 2020, the respondent No.3 did not allow the petitioner to join her duties and vide letter dated 26/08/2019, directed all the Principals and Sankul In-Charge of Indore Districts to submit information of vacancies, list of teachers whose joining was put on hold with a further direction to intimate all the teachers to appear for Offline Counselling to be held on 27/08/2019 at Govt. Higher Secondary School, Chimanbag, Indore whereas, the direction was issued by respondent No.2 for holding Online Counselling to maintain transparency in the posting.
Accordingly, without obtaining entire information as regards the vacancies available in Indore District which is evident from order dated 30/08/2019 where the respondent No.3 is asking from the Sankul Principals information in prescribed format with regard to Teachers whose joining was kept on hold like the petitioner, a sham process of offline counselling was held on 27/08/2019 and 28/08/2019 wherein, only some of the teachers were called and in the instant case alleged option dated 28/08/2019 was put before the petitioner wherein she clearly written "Asahmat" and also put her initial against the same, but later on it appears that some has written "Nirast" by striking off the word "Asahmat" written by the petitioner and the word "Nirast is not in handwriting of the petitioner. Even otherwise, the process for cancellation of transfer order has been clearly spelt out in the letter dated 27/08/2019 which involves login by the petitioner through her unique Id and password on education portal and, thereafter, registering online request for cancellation of transfer order after making necessary entries and after saving the options therefrom on the available link which was open only from 27/08/2019 to 30/08/2029. None of the petitioners has ever submitted such online request for cancellation of their transfer orders.
That, thereafter, pursuant to the instructions issued by the respondent No.2 on 9/09/2019 during video conferceing, the Joint Director of Publci Instructions, Indore Division, Indore by his order dated 21/09/2019 has constituted a three member Committee consisting of Shri Narendra Jain, ADPC (RMSA), Indore, Shri Ajay Singh Rathore, DPC, District Education Centre, Indore and Shri Heeralal Khushal, In-charge, BEO, Indore to submit the information as regards the availability of vacancies in the same Sankul or in the nearby Sankul where such transferred teachers were posted and where the posts are lying vacant so that such teachers could be accommodated in the same Sankul or nearby Sankul, but this Committee was never allowed to function by respondent No.3 for some extraneous considerations.
That, despite the aforesaid fact, the already executed order of transfer has been cancelled by the respondent No.2 by the impugned order dated 3/10/2019 on the false and frivolous ground that the petitioner has shown her unwillingness to join at the transferred place whereas, as averred earlier, the petitioner has never expressed her unwillingness and has also submitted a joint representation dated 5/10/2019 alongwith other teachers citing the aforesaid fact. Not only this, the impugned order is also contrary to well settled principle of service jurisprudence that an executed order of transfer can neither be cancelled nor be modified. To this effect, learned counsel for the petitioner has relied on the judgment passed by the Division Bench of this Court in the case of Himanshu Dixit v. State of M.P. & Others [W.P.(S). No.1786/2005, decided on 12/04/2005].
The respondent for some extraneous considerations have effected as many as 30 to 40 transfers after cancellation of petitioner's transfer order in the month of October-December, 2019, vide of some transfer transfer orders and news item published in daily newspaper Patrika, Indore Edition.
That, on one hand respondents were effecting transfers in Indore District through an opaque offline process and on the other hand despite clear interim order passed by this Court dated 18/10/2019, the petitioner was not initially allowed to resume her duties and after sometime, though she was allowed to resume her duties, but salary and allowances were not being paid to her despite clear interim orders passed by this Court on 10/02/2020 in W.P. No.21804/2019 and 20/02/2020 in the instant writ petition. Even till today not a single penny has been paid towards salary and allowances which goes to show the highhanded and hostile attitude of the respondent No.3 towards the petitioner.
In the light of the aforesaid submissions, learned counsel for the petitioner submits that the impugned action on the part of the respondents is manifestly illegal, unconstitutional and he, therefore, submits that the impugned order be quashed.
Learned Govt. Advocate appearing on behalf of the respondents submits that they have filed their reply and in the said reply, the respondents have stated that the petitioner's transfer is carried out on the basis of online application filed by the petitioner. The entire process of transfer was carried out through M.P. Education Web Portal on online basis. That, on the basis of application, the petitioner was transferred from Government Primary School Kachikhedi, District - Rajgarh to Girls Primary School Musakhedi, District - Indore.
The petitioner was relieved and, thereafter, she joined in Indore and on account of non-availability of the post, the case of the petitioner was placed on hold and later on, the Commissioner Public Instruction issued directions to carry out Counselling at District Level. The Online cousnelling at District level was held on 27/08/2019. On the basis of the availability of the post, some of the transferred teachers, who exercised their options according to their seniority, they were given posting on the available vacant post in Indore District on the basis of options exercised by them. That, some of the teachers including petitioner on account of non-availability of the post could not be posted and their matter was kept on hold. Petitioner after remaining present at the venue of the Counselling submitted option. It has been presumed that petitioner has exercised his option and necessary intimation was sent to the Commissioner Public Instruction by the District Education Officer, Indore. The Commissioner Public Instruction in view of the information sent, cancelled the previous transfer order through order dated 4/10/2019 assigning administrative reasons for cancellation of such transfer. Learned counsel for the respondents further submits that in accordance with their seniority which were 77 in numbers out of which 44 were posted still 34 transferred teachers could not be posted due to administrative reasons on account of non-availability of the vacant posts in respective schools. The petitioner at the venue of cousnelling exercised and submitted option and it can well be presumed that the petitioner was not interested in pursuing matter, hence, treating it as dissent order of cancellation of transfer dated 4/10/2019 was issued.
The petitioner has filed rejoinder to the reply filed by the respondents and in the said rejoinder, the petitioner has stated that at the time when the applications were being filled up by them through online process, the official web portal of respondent No.1 department was clearly showing vacancies which were opted by the petitioner for her own cost transfer, in the month of July, 2019 which is clearly mentioned in the online application form of the petitioner which has already been brought on record by her. It is also pertinent to note that, had the vacancies and the application form submitted by the petitioner opting for particular place of posting would not have been accepted. The petitioner further submitted that after cancellation of order of the petitioner, the respondent Nos.2 and 3 in active collusion with each other, for some extraneous consideration have passed as many as 30 to 40 transfer orders offline as reliable learnt by by the petitioner transferring the teachers in Indore District. This act of respondent No.3 speaks volumes of their highhandedness in the matter which deserves severe depreciation by this Court. He further submits that as regards the documents(Annexure-R/3) by the respondents in their return, a bare perusal of the same manifestly reveals that the petition has clearly written "Asahmat" and also put her initial against the same, but later on it appears that some persons has written "Nirast" by striking off the word "Asahmat" written by the petitioner and the word "Nirast" is not in handwriting of the petitioner. Thus, the respondent No.3 has filed a forged and fabricated document(s) before this Court. The petitioner in the rejoinder has further stated that large number of vacancies in the cadre of Assistant Teacher (LDT) are lying vacant in several schools of District Indore on account of retirement of incumbent where the Pradhamik Shikshaks like the petitioner could easily be accommodated. It is pertinent to note that all the post of Assistant Teacher (LDT) which are getting vacant on account of retirement of the incumbent Assistant Teachers(LDT) shall not be filled up from newly appointed Assistant Teacher (LDT) in as much as the same as declared as dying cadre and Pradhamik Shikshak shall be appointed in the vacancies caused on account of retirement/death of incumbent Assistant Teacher(LDT). Thus, inspite of availability of vacancies, the respondents have not appointed the petitioner and posted her at Indore.
Heard learned counsel for the parties at length and perused the record.
In the present case, the petitioner is working on the post of Assistant Teacher(Pradhamik Shikshak). She has filed the present petition challenging the order dated 3/10/2019 by which her already executed order of transfer has been cancelled. The respondents have invited online applications for their posting against the vacancies in the department on Official Web Portal. The petitioner has submitted her option for Indore District on her own cost as her husband is also working on the post of Sub-Inspector in Indore District. The respondents have accepted the request made by the petitioner and vide order dated 9/08/2019 issued by the respondent No.2, the petitioner has been transferred from Govt. Primary School, Kachikhedi, Tehsil Sarangpur, District - Rajgarh(Biaora) to Govt. Girls' Primary School No.37, Musakhedi, Indore(M.P.).
In pursuant to the aforesaid transfer order, the petitioner was relieved by her earlier Principal for the transferred place vide relieving order dated 16/08/2019. Accordingly, the petitioner has submitted her joining before respondent No.3 on 19/08/2019. That, the petitioner's joining at the transferred place was kept on hold by the respondent No.4 and, accordingly, upon the instructions from respondent No.2, the respondent No.3 directed all the Principals/Sankuls In-charges, including respondent No.4 to inform each of such teachers like the petitioner, to remain present on 27/08/2019 in the Government Higher Secondary School, Chimanbagh for counselling for the purpose of allotment of vacant posts of Pradhamik Adhyapak in the schools in Indore District and they were also directed to bring alongwith them list of vacant post, list of teachers, whose joining was put on hold. They were also directed to inform how many vacancies are available at the place. The petitioner has stated that as per her knowledge four posts of Pradhamik Shikshak are lying vacant in Govt. Primary School No.43, Musakhedi. Thereafter, a three members Committee was constituted by the Joint Director of Public Instructions, Indore Division, Indore for determination of the vacancies available and for the purpose of posting of those teachers, whose joining at the transferred place has been put on hold on account of non-availability of the vacancies in the particular schools. That, thereafter, the petitioner was directed to appear for counselling before respondent No.3 on 27/08/2019, but no counselling has been held by the respondent No.3 on 27/08/2019 by including the vacancies in the cadre of Pradhamik Shikshak in the various Sankuls under his jurisdiction and by order dated 3/10/2019, the already executed order of transfer of the petitioner has been cancelled by the respondent on false and frivolous ground of expressing unwillingness by the petitioner for her posting on the available vacant posts in District Indore.
Learned counsel for the petitioner emphatically submitted that the petitioner has never expressed her unwillingness for the option which has been given to her for posting. He further submits that the respondents, in the entire reply has stated that the transfer order of the petitioner was cancelled due to the non-availability of the post. It has been specifically averred by the petitioner that after the cancellation of the option of the petitioner, the respondents have transferred number of persons against the vacancies which are available and the respondents failed to give any reply to those averments by filing additional return. However, in the impugned order, no such reasons have been assigned. Thus, the respondents cannot supplement any reason in the return which is not available in the impugned order, as per the settled law.
In view of the aforesaid discussions, I allow this writ petition. The impugned order dated 3/10/2019 is, hereby, quashed and the respondent No.3 is directed to conduct the Counselling, within a period of two months and to post the petitioner at appropriate place on the post of Pradhamik Shikshak and, further, the respondents are directed to pay regular monthly salary to the petitioner from the date of interim order passed by this Court, within a period of two months from the date of receipt of certified copy of the order.
A copy of this order be placed in the record of connected writ petitions bearing W.P. Nos.21793/2019, 21795/2019, 21798/2019, 21801/2019, 21804/2019, 21809/2019, 21847/2019, 21862/2019, 21870/2019, 21884/2019, 22068/2019, 22699/2019, 22705/2019, 22746/2019, 23063/2019, 25378/2019, 21843/2019, 21794/2019, 21866/2019, 22282/2019, 22707/2019, 23150/2019 and 3192/2020.