Suraj Mal and others vs The State of Haryana and others

M.R. Sharma, J.—The petitioners are employed as teachers in the State of Haryana. They and their colleagues have formed Haryana Rajkiya Adhyapak Sangh (hereinafter referred to as the Union) It is stated that this Union has been struggling hard for the benefit of its members and raised various demands for better emoluments so as to ensure the minimum living conditions for the teaching personnel. After the bifurcation of the joint Punjab, the teachers serving in the new State of Punjab had been given better emolument will the State of Haryana an illegal and wrong policy was adopted to demoralise the teachers, which resulted in restricting their fundamental nights as guaranteed to them under Article 19(1)(a) and (b) of the Constitution The State of Haryana formulated a policy regarding the posting/transfer of teaching personnel in the Education Department Annexure ''A'' to the petition and communicated it to all the Education Officers serving in the State, This policy decision lays down that--

(i) The teachers could not be posted within 20 miles of their home town/village.

(ii) The teachers are to be transferred after the tenure of posting fixed at three years irrespective of the consideration that they are not working in their home districts or within 20 miles of their home town/village.

(iii) Previously a category of teachers could not be posted outside the district but it can be done.

In order to effectuate this polity, the Government ordered the preparation of the lists of various categories of teachers, i.e., those who were working in their home districts, those who were posted within 20 miles of their home town and those who were not working in their home districts but had completed three years stay at the present places of their posting. It is alleged that as a result of this policy decision, more than 30,000 teachers were being frequently transferred from one place to another and that annual mass transfers had become a routine with respondent No. 1 Reference is then made in the petition to the recomme nations of the Kothari Commission which were opposed to the Idea of frequent transfers in Government schools, and also the opinion of Shri P.B. Gajendragadkar, ex-Chief Justice of India, to the effect that mala fide transfers of employees should be included in the unfair practices employed by the employers and that teachers and health employees be included in the definition of ''workmen''. The Union is stated to have pressed the following demands:--

(a) The dearness allowance be paid equal to that of the other employees of the Haryana State.

(b) The present transfer policy of the teaching staff be scrapped.

(c) The victimisation of its leaders be ended.

(d) The Haryana State teaching staff be paid emoluments on Delhi pattern.

(e) That the benefit of pension be also allowed to the provincialised cadre.

It is then alleged that almost all the teaching staff employed in the State of Haryana wore black badges on December 7, 1972, in order to press these demands and it was also decided that if these demands were not conceded immediately, then demostrations would be held at district level on December 17, 1972. The respondents took retaliatory measures and, with a view to restrain the petitioners from joining the district level demonstrations, issued instructions to the District Education Officers which are incorporated in Annexure ''B'' to the petition. The salient features of these instructions are given below:--

(i) No teacher should be allowed station leave on 16th/17th December, 1972, except in very very emergent circumstances.

(ii) Heads of all schools be directed to remain at their respective headquarters on these dates and keen a close watch on all the teachers and ensure that they do not leave station.

(iii) The Heads of institutions should be asked to note the names of absentees and report these immediately to this Directorate endorsing the same copy to their S.D.E. Os. and D.E. Os.

(iv) Where ever any meetings, rallies or processions are held some reliable persons from your staff should be asked to be present at those and report as to who actively participate in these rallies and demonstrations etc.

(v) Daily report regarding the situation at your headquarters or elsewhere should be given to me on telephone.

December 17, 1972, fell on a Sunday and In spite of the above instructions, the teaching staff joined the proposed demonstrations and rallies Since these demonstrations and rallies did not have the desired effect, it was dicided by the teachers to hold a State level rally at Rohtak. On January 14, 1973. The respondents again issued instructions prohibiting the participation of the teaching staff by banning station leave for January 14, 1973, which also fell on a Sunday. In this connection, it would be necessary to make reference to letter dated January 25, 1973. Annexure ''C to the petition-issued by Dr. S.S. Gupta, Deputy Director (Colleges), Haryana, to all the District Elucidation Officers, the relevant portion of which runs as under:--

In this connection I am further desired to request you to immediately review the present posting of the active workers of the School Teachers Association in your district and propose their immediate transfer to some out of any unimportant places taking care that none of them after such transfer becomes the head even in an active capacity of the school be is posted in. Please bring these transfer proposals with you personally when you come to Chandigarh to attend the District Education Officers'' meeting to be held on 30th January, 1973.

In spite of the impediments put by the Government in the way of the teachers, about 3, 000 members of the Union held a huge demonstration on January 14. 1973, at Rohtak and presented their charter of demands to the Sub Divisional Officer because the Deputy Commissioner was not available at station on that date. As a result of the data collected pursuant to the above mentioned letter, Annexure ''C'' to the petition, respondent No. 1 ordered to review the present posting position of the active members of the Union and to transfer them to remote and unimportant places. It is alleged that these transfer orders are illegal, mala fide and designed to curb the democratic rights of the petitioners. The transfer orders of the petitioners incorporated in Annexure ''D'', ''E'' ''F'', ''G'' and ''H'' to the petition and the policy decision letter of respondent No. 1 on the subject, have been challenged, inter alia, on the grounds that the petitioners have a fundamental right to express their grievances by making demonstrations, that the transfer orders have been passed by the respondents in a mala fide manner and in contravention of the statutory rules promulgated under Article 309 of the Constitution

In the return, filed on behalf of the respondents by the Director of Public Instruction, it has been stated that the transfer orders were administrative in character and not justiciable in these proceedings, that the petitioners had no right to serve at a place of their own choice and that the right of the petitioners to assemble peaceably at the places of their postage had not been interfered with, nor have they been deprived of their right to freedom of speech and expression. The Union held a meeting of its Working Committee at Hissar on November 25, 1972, in which it was decided to observe a demands-day on December 7, 1972, and to stage rallies on December 17, 1972, at district level for the purposes of achieving their demands, which have been mentioned in detail above The demands-day was observed by the teachers at their various places of positing on December 17, 1972. On the same day the Union held rallies and demonstrations at all district headquarters and presented the memoranda of their demands to the district authorities. On January 14, 1973, the Union organised a rally attended by about 11000 teachers in the Ramlila Grounds, Rohtak. On a day earlier, a meeting of the Working Committee of the Union was held at Rohtak and is was decided therein that the Action Committee should meet at Chandigarh on January 21, 1978, and that chain hunger strikes in batches of two should be offered in front of the residence of the Chief Minister of Haryana at Chandigarh from January 23, 1973, on wards. It was also decided in this meeting that "pen-down strike" should be resorted to by the teachers from February 12, 1973, onwards. This programme was to be adhered to and any sort of sacrifice would be offered to get there demands accepted. Thereafter, a meeting of the Action Committee of the Union was bed in the office of the Harayana State Suboroinate Services Federation at Chandigarh on January 22, 1973. In this meeting it was decked once again that 48 hours chain hunger strikes in batches of two should be started at 1. 00 P.M. on January 23, 1973, in from of tie residence of the Chief Minister at Chandigarh. The other decisions taken in this meeting were as follows:--

(i) Liaison should established with the press to give wide publicity to the chain hunger strike.

(ii) Two persons from each district should sit on 48 hours'' chain hunger strike unto 8th February, 1973.

(iii) From 12th February, 1973 ''no education, no examination policy'' should be adopted

(iv) The agitation should be continued and be final come what nay.

(v) To mobilise public opinion and to create unity among the teachers, rallies should he held in the State and teachers should be asked to put salt into the pot.

In view of these decision arrived at by the Action Committee of the Union, the Government apprehended that the implementation of these dictations would, inter alia, lead to an inevitable situation wherein the education of the students will suffer seriously. Consequenaly, it decided that such of the teachers who were active workers and were inciting other teachers should be transferred from their present places of posting and stationed at places from where it may not be possible for them to carry out the improper activities mentioned in the decisions of the Action Committee. It has also been stated that under rule 5 of appendix 17 of the Civil Services Rules Volume I, Part II, no Government servant could leave his place of posting without prior permission of the competent authority. Station leave was ordered to be refused to the teachers on January 13/14, 1973, because the Government felt that any centralised rally or demonstration by the teachers was unwarranted and could be a threat to law and order situation. The decision so review the position of some postings was taken because of the threat of the pen-down strike in the schools. It was urged that it was no part of a democratic right of teachers to press their demands by undemocratic means to ignore their duty towards the students, defy the lawful orders of the Government and to create a situation in which danger to law and order was apprehended. It was submitted that if the demands of the teachers had been acceded to, it would have meant an additional burden of about Rs. 4 croers per annum on the State Exchequer which was not in a position to carry this burden.

From the pleadings of the parties, the following situation emerges. The teachers employed in the State of Haryana started an agitation to press their demands At the instance of the Union, they held rallies at their respective places of posting which were ignored by the Government. When the Union decided to hold rallies at the district level, the State Government decided not to grant station leave to mofussil teachers so that they may not be able to participate in the district level rallies. In spite of this, a large number of teachers did join these rallies and again no action was taken against them. When the Working Committee of the Union decided on January 13, 1973, that chain hunger strikes should be offered before the residence of the Chief Minister from January 23, 1973, on wards and pen-down strike be resorted to with effect from February 12, 1973, the Government took a policy decision to immediately review the position of postings of the active workers of the Union and to transfer them to some out of the way and unimportant places. It was conceded on behalf of the petitioners that in accordance with the decicions already taken, some of the teachers did resort to hunger strike outside the residence of the Chief Minister and they also adopted ''No Education, No Examination'' policy. Thus the advance information on the basis of which the Government was persuaded to take the impugned measures turned out to be correct. In the light of these facts, it has now to be determined whether the action of the Government has contravened any of the rights of the petitioners or not.

Under the ordinary law of ''master and servant'', a servant holds his appointment at the pleasure of the master and cannot Invoke such rights as are not available to him under the contract of his employment. In case of wrongful and capricious termination of services, the servant could claim damages under the ordinary law but the contract of personal service could not be enforced. Under our Constitution the doctrine of pleasure of the master is preserved in Article 310 and security of tenure has also been provided to the public servants. A public servant cannot be removed by an authority subordinate to that by which he was appointed nor can he be dismissed, removed or reduced in rank except after an enquiry in which he has been informed of the charges against him and given a reasonable opportunity of being heard in respect of those charges. Article 309 of the Constitution provides that subject to the other provisions of the Constitution, the appropriate Legislature may make a law regulating the recruitment and conditions of service of the persons appointed to public service Until such law is made by the Legislature, the Governor of the State is empowered to make rule in this behalf. The law made by the Legislature on this subject and the rules made by the Governor cannot over-ride the other provisions of the Constitution. In other words, the fundamental rights guaranteed to the public servants as citizens of this country cannot be whittled down or taken away by the rules relating to their conditions of service, though under these rules the master can place fetters on his own pleasure and also bind the public servants. The residue of rights flowing out of the doctrine of pleasure continues to vest in the Government.

The gravamen of the grievances of the petitioners is that they have been transferred to some cot of the way places so that they may not participate in the rallies at the district level and carry on their legitimate Union activities. It is not disputed that under the service rules applicable to the petitioners, it has been provided that the entire time of the public servant is at the disposal of the State Government and no such servant is at liberty to leave his headquarters even on gazetted holidays except with the permission of his immediate departmental superior. The allegation of the petitioners is that they were denied station leave on January 13/14, 1973, to participate in the district level rallies for the purpose of voicing their demands. According to them, this action of the Government was illegal I, however, find that this issue has become state in the circumstances of this case and need not be decided. It has been admitted in the petition that in spite of the refusal of station leave, a large number of teachers did attend the rallies at the district level. If and when the Government chooses to take action against them on this score, it would be open to them to agitate this issue at the time. The main question which calls for determination is whether the orders of the Government transferring the petitioners contravenes any of the petitioners'' rights guaranteed to them under Article 19 of the Constitution or not. The relevant portion of this Article runs as under:--

Protection of certain rights regarding freedom of speech etc.--

(1) All citizens shall have the right--

(a) to freedom of speech and expression ;

(b) to assemble peaceably and without arms;

(c) to form associations or unions ;

* * *

(4) Nothing in sub-clause (c) of the said clause shall affect the operation of any existing law In so far as it imposes, or prevent the State from making any law imposing, in the interests of (the sovereignty and integrity of India or) public order or morality, reasonable restrictions on the exercise of the right conferred by the said sub-clause.

A persu al of these provisions would show that the rights guaranteed under sub-Article (1) are not absolute in nature. They are subject to the provisions of the existing laws including the one which Is passed in the interests of public order. In short, a reasonable balance has to be struck between the rights of the citizens to form associations or unions and the duty of the State to maintain law and order. I need not emphasise that the individual rights, if any, have to give way to the rights of the public at large. This principle pervades the body of Article 19. If the citizens form associations or unions and assemble peaceably to voice their grievances, the executive Government cannot interfere in their activities, but once they transgress the limits of their fundamental rights and indulge in activities which contravene any law or indulge in some acts which hinder the lawful duties of the Government, than the interference by the executive with a view to maintaining law and order, cannot be questioned by them on the ground that their fundamental rights are being contravened. In Kameshwar Prasad and Others Vs. The State of Bihar and Another, it was observed thus--

The first question that falls to be considered is whether the right to make a ''demostration'' is covered by either or both of the two freedoms guaranteed by Article 19(1) (a) and 19(1) (b). A ''demonstration'' is defined in the Concise Oxford Dictionary as ''an outward exhibition of feeling, as an exhibition of opinion an political or other question especially a public meeting or procession.'' In Webster it is defined as ''a public exhibition by a party, sect or society.........as by a parade or mass-meeting''. Without going very much into the niceties of language it might be broadly stated that a demonstration is a visible manifestation of the feelings or sentiments of an individual or a group. It is thus a communication of one''s ideas to others to whom it is intended to be conveyed. It is in effect therefore a form of speech or of expression, because speech need not be vocal since signs made by a dumb person would also be a form of speech. It has, however, to be recognised that the argument before us is confined to the rule prohibiting demonstration which is a form of speech and expression or of a mere assembly and speeches therein and not other forms of demonstration which do not fall within the content of Article 19(1) (a) or 19(1) (b). A demonstration might take the form of an assembly and even then the intention is to convey to the person or authority to whom the communication is intended the feelings of the group which assembles. It necessarily follows that there are forms of demonstration which would fall within the freedoms guaranteed by Article 19(1)(a) and 19(1) (b). It is needless to add that from the very nature of things a demonstration may take various forms ; it may be noisy and disorderly, for instance stone-throwing by a crowd may be cited as an example of a voilent and disorderly demonstration and this would not obviously be within Article 19(1)(a) or (b). It can equally be peaceful and orderly such as happens when the members of the group merely wear some badge drawing attention to their grievances.

In O.K. Ghosh and Another Vs. E.X. Joseph, the Supreme Court while considering the right of the workmen to strike work observed thus--

The question about the validity of R. 4- A has been the subject-matter of a recent decision of this Court in Kameshwar Prasad and Others Vs. The State of Bihar and Another, . At the hearing of the said appeal, the appellants and the respondent had intervened and were beard by the Court. In that case, this Court has held that R. 4-A in the form in which it now stands prohibiting any form of demonstration is violative of the Government servants'' rights under Article 19(1)(a) and (b) and should, therefore, be struck down. In striking down the rule in this limited way, this Court made it clear that in so far as the said rule prohibits a strike, it cannot be struck down for the reason that there is no fundamental right to resort to a strike. In other words, if the rule was invalid against a Government servant on the ground that he had resorted to any form of strike specified by R. 4-A, the Government servant would not be able to contend that the rule was invalid in that behalf. In view of this decision, we must hold that the High Court was in error in coming to the conclusion that R. 4-A was valid as a whole.

It would, thus, be seen that only orderly demonstrations have been held to be governed by clauses 1(a) and 1(b) of Article 19 and a rule which prohibits the Government servants to go on strike has been upheld. When the action of the petitioners is viewed in the light of these principles, it becomes obvious that as soon as their Union decided to go on strike, which meant ''No Education, no Examination'' as also to hold chain hunger strikes before the residence of the Chief Minister, their activities fell outside the scope of the rights guaranteed to them under Article 19 of the Constitution The executive Government, which is answerable for its actions to the State Legislature was then duty-bound to step in and take remedial measures for curbing the activities of those whose actions bed placed almost the entire educational system in the State in jeopardy. I do not for a moment suggest that the State Government in these circumstances could take any action whether warranted by law or not. While dealing with the ordinary citizens, it could possibly act under Chapter XI of the Code of Criminal Procedure and while dealing with its own servants it could act under these provisions and also under its executive power vested in it under Article 162 of the Constitution apart from its powers under the service rules framed under Article 309. This is what precisely has been done in the instant case. There is considerable force in the contention of Mr. Kaushal when he submits that the Government, instead of taking any drastic action, has merely exercised its right to transfer the ring leaders to out of the way stations so that they may themselves become ineffective and also be unable to exert any influence on their colleagues. Again, it has nowhere been averred in the petition that the petitioners'' right to assemble peaceably and to carry on the agitation at the places of their respective posting has been infringed by the Government. On the other hand, in the return filed on behalf of the respondents, it has been categorically mentioned that no impediments have been put in the way of the teachers to hold demonstrations at their respective places of posting. The Constitution does not guarantee the petitioners to carry on an agitation at the place of their own choice which they may like to visit in contravention of their service rules. In my considered opinion, the transfer of the petitioners in the circumstances of this case does not invade any of their fundamental rights.

Indeed, it was not disputed by the learned counsel for the petitioners that in case the actions of the petitioners travelled beyond the scope of their fundamental rights guaranteed under Article 19 and if their consequent actions stood in the way of the avowed policy of the State Government, then the latter would be within its rights to place curbs on the activities of the petitioners. He has, however, submitted that the State Government should not have taken action in advance and should have proceeded against those whose activities were found prejudicial as a matter of fact. I am afraid, I am enable to subscribe to this view be cause if the existence of an evil is admitted, then it has to be nipped in the bud instead of allowing It to blossom-forth. It is often said that ''prevention is better than cure'' and I see no reason why the State Government should be debarred from acting on this age-old adage in dealing with the problems which it is concerned with. It is DO doubt true that while taking preventive action some innocent individuals are also proceeded against, but the remedy lies in making a representation to the State Government. The learned Advocate-General assures me that if any of the teachers who have been transferred pursuant to this policy makes a representation dissociating himself with the activities of the Action Committee of the Union regarding chain hunger strikes and ''no education, no examination'' policy, he would use his good offices with the Government and have his representation favourably considered.

In the face of the findig that the Government was competent to take remedial measures in the circumstances of this case, a consideration of the plea of mala fides becomes otiose. It is settled law that action of an authority cannot be said to be taken in had faith if it is taken to protect its own legitimate interests. A Minister who is answerable to the Legislature has to keep in view various factors while executing, the policy of the Government so that he may be able to effectively answer the criticism levelled against him. If a Government does not take timely action to thwart an evil a man of ordinary prudence may dub it as weak and vacillating. A timely action which has some semblance of justification and which can offer an answer to the criticism against the Government cannot be regarded to have been taken in a mala manner. None of the petitioners has alleged that either the Minister-in-charge of the Education Department or any other officer connected with this department bore any personal ill will or grudge against any one of them and for this reason also it cannot be said that the orders of transfer of the petitioners to various stations were passed in a mala fide manner.

For the reasons mentioned above, this petition fails and is dismissed.