Syed Sahid Ali vs Director Secondary Education Rajastnan and Others

Alok Sharma, J.

This petition has been filed challenging the order dated 9-1-2015 passed by the Rajasthan Civil Services Appellate Tribunal Jaipur (hereinafter the Tribunal) dismissing the petitioners challenge to his transfer on 15-10-2014 from Government Senior Secondary School Bajoriya, Shastri Nagar, Jaipur to Government Senior Secondary School Ramnagar, Jamwa Ramgarh District Jaipur about 75 Kms. away. The Tribunal also negated the challenge to the transfer of respondent No. 3 Gajraj Singh Shekhawat vis-�-vis the petitioner.

Counsel for the petitioner has submitted that the transfer of petitioner substantively holding the post of Senior Teacher mathematics but also additionally working as Booth Level Officer (BLO) with the State Election Authority under its order dated 4-10-2010, could not have been effected without the prior permission of the District Election Authority in view of Section 13CC of the Representation of People Act, 1951 as also the Block Booth Officer''s Booklet. He submitted that even otherwise the petitioner''s transfer is malafide, inasmuch as other Booth Level Officers have been exempted from transfers under different orders by the Deputy Director, Secondary Education all passed a day prior on 14-10-2014. It has been further submitted that the respondent No. 3 Gajraj Singh Shekhawat did not join as Senior Teacher Mathematics at the Government Secondary/school Ramnagar, Jamwa Ramgarh and in terms of the policy of the Government as reflected in transfer orders dated 15-10-2014 as also 14-10-2014 evidencing inter alia that teachers who were on unauthorised leave would not be relieved, yet the respondent No. 3, albeit absent from his earlier posting was relieved and allowed to join vis-�-vis the petitioner. He submits mat the Tribunal overlooked all the above aspects and its judgment under challenge was hence vitiated and liable to be set aside.

Per contra, Mr. Sanjay Sharma, counsel for the State submits that the issue with regard to legality of petitioner''s transfer has been addressed by the Tribunal by a reasoned order and it has been found that the transfer order does not suffer from any legal lacunae. Transfers are an incident of service and matter of exercise of administrative discretion in public interest. The petitioner was serving as Senior Teacher of mathematics at the Government Senior Secondary School Bajoriya, Shastri Nagar, Jaipur since 2010. Vide order dated 4-10-2010 he was given additional work of BLO in respect of the Hawamahal Assembly constituency for revising the electoral rolls, required to complete the work assigned upto 23-11-2010 and submit the report on 24-11-2010. It is another matter that the petitioner continued to work as BLO till his transfer on 15-10-2014. It has been submitted as an aside, that as Senior Teacher Mathematics, the petitioner did not do justice to his duties as during his tenure students with mathematics in class X examination continued to show deteriorating results. Counsel submitted that while the petitioner was working as Senior Teacher at Government Senior Secondary School Bajoriya, Shastri Nagar, Jaipur the result of students of class X in the subject of mathematics in the year 2010-11 was 77.41%, then only 41.17% in 201-12 and further in the academic year 2012-13 only 20.73%. Counsel has further submitted that the respondent No. 3 Gajraj Singh Shekhawat was on sanctioned leave for about four months, because of a medical condition and he is Cancer survivor. In the exercise of its discretion the employer can also and does take into account the medical condition of its employees and sometimes even their family members and no illegality of a transfer on this count can be attributed. He submitted that the petitioner''s place of posting under the impugned transfer order dated 15-10-2014 is only about 75 Kms. away from Jaipur. It was submitted that continuing with some booth level offices and not with the others was a conscious decision and an order of transfer taking into consideration all relevant fact cannot be impugned as discriminatory as each case turns on its own facts.

Heard counsel for the parties and perused the material available on record.

Transfer of an employee is an incident of service and can be made on period basis in the exercise of administrative discretion and in public interest. As held by the Hon''ble Apex court, unless a transfer is vitiated for reason of malafide or statutory contravention it cannot be interfered with. None of the two grounds are made out by the petitioner. I do not find any force in the contention of the petitioner''s counsel that the transfer dated 15-10-2014 is vitiated for failure of the Deputy Director (Secondary) Education to obtain the prior permission of the District Election Authority. Section 13CC of the Act of 1951 does not attract to the facts of the case. As per the booklet for Booth Level Officers-extracts of which have been annexed to the petition, it is clear that the Booth Level Officers only discharge their duties as such in addition to their fundamental duties on the posts substantively held and continue to remain in the administrative control of their respective departments. Administrative control without doubt includes the power to transfer. In the instant case vide order dated 4-10-2010 the Election Registration Authority assigned the additional work of a booth level to the petitioner for the revision of Electoral Rolls of the Hawamahal Assembly Constituency, which was to be completed upto 23-11-2010. The petitioner however continued as BLO thereafter. On his transfer vide order dated 14-10-2014, vide order dated 12-3-2015 the Electoral Registration Authority noted that since elections to Jaipur Municipality had been completed, requisite action as deemed fit by the administrative department as per law may be taken. The concurrence of the Electoral Registration Authority to the petitioner''s transfer is thus evident, even though it was not required with reference to any provision of the Act of 1951. In any event it cannot be possibly argued that even during periods when no specific revision of electoral rolls is assigned to an employee by the Electoral Registration Authority while working on a substantive basis with the parent department and when no elections are underway, the administrative control of such employee would stand vested with the state Election Authority. No such view has been taken on the Electoral Registration Authority in its letter dated 12-3-2015.

I find no force in the transfer dated 15-10-2014 qua the petitioner being impugned on the ground of malafide. The mere fact that some BLOs were retained on their substantive posts while others were transferred is matter dependent on facts of each case. Lack of uniformity in approach in the course of exercise of administrative discretion without averments of similarities on relevant facts cannot entail the inevitable conclusion of malafides. In the instant case, transferring another mathematics teacher to shore up class X results appears to have also been a motivating factor aside of the fact of petitioner''s stay on the present post for about four years. Nothing malafide can be attributed to the petitioner''s transfer. Nor any statutory contravention has been made out for it to be impugned successfully.

Even while the writ petition deserves dismissal, and it is so dismissed, yet it is in place to add that standards of education in the core subjects of mathematics and languages in government school is universally acknowledged and reports indicate that a student of class-V is even unable to solve sums of class II or read texts of class- II. This is unacceptable if the demographic dividend which the country hopes to exploit is not to be converted into a demographic disaster. Teachers in mathematics/languages should not except in additional work other than teaching. Rather they should be put through training sessions to upgrade their knowledge of emerging trends in their subjects. It is for the state to consider the importance of teachers especially in subjects of mathematics, science and languages and take requisite steps to ensure that they should focus on their teaching skills and upgradation. This court has noted with concern from the reply filed to the writ petition that at the secondary school level result of the students of the government Senior Secondary School Bajoriya, Shastri Nagar Jaipur in the core subject of mathematics has deteriorated from 77.41% in 2010-11 to 41.17% in 2011-12 to 20.73% in 2012-13. Corrective steps lie on the obligation of the State Government and a matter primarily within its jurisdiction until consistent failure to exercise it bring it into focus and contention before the courts on varied judicially recognised grounds. The State Government should consider the matter and evolve a policy after due deliberation which ensures that the teachers, in the subjects of mathematics, science and languages are assigned as far as possible only teaching work such that results of the students in government school in the aforesaid subjects are bettered to give them a real chance in life and avoid an otherwise looming demographic disaster.

The writ petition is dismissed accordingly.