Good Transfer order - Isme Court ne Transfer Me Legal Malice Paya aur Yachi ko Rahat Dee -
Yeh Order bhee ek Najeer bane Supeme Court ke Transfer Order ke aadhaar par nirneet hua hai:
In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:-
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."
-------------
However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-
Central Administrative Tribunal - Delhi
Kapil Mohan Sharma vs State Of Nct Of Delhi on 21 October, 2013
Central Administrative Tribunal
Principal Bench
OA No.1459/2013
Reserved on:31.07.2013
Pronounced on: 21.10.2013
Honble Dr.Birendra Kumar Sinha, Member (A)
Kapil Mohan Sharma,
S/o Shri Chander Bhanu Sharma,
R/o B-732, MIG Flats, East of Loni Road,
Shahdra, Delhi 93. Applicant
(By Advocate: Shri R.K.Sehrawat)
Versus
1. State of NCT of Delhi,
Through its Chief Secretary,
Secretariat, Players Building,
Indraprastha Estate, New Delhi.
2. Directorate of Education,
Through it Director,
Old Secretariat,
Delhi. Respondents
(By Advocate: Shri Vijaya Pandita)
ORDER
The instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against the order of the Respondent No.l dated 25.04.2013 transferring the applicant from Gokhle Marg-SBV (North) to Dhakka GBSSS (North West A).
2. The case of the applicant is that he was admittedly working as TGT (Natural Science) in Sarvodaya Bal Vidyalaya (SBV) No.1, Mori Gate, Delhi-110 006. It is the case of the applicant that there was one teacher namely Neeta Bahl, Lecturer (Physics), wanted that boy namely Pankaj, who had been found indulging in gross indiscipline to the extent of when having a can of beer in his hand on a particular occasion. One Braham Prakash, father of Pankaj, applied and was granted Transfer Certificate (TC) at his own volition. Now, he wanted re-admission of his ward in the same school. His case was espoused by Neeta Behl, who misbehaved with the applicant in presence of the Head of the School. The applicant further complained that earlier also he had filed complaints against said Neeta Behl, who exceeded her jurisdiction and insulted him on many occasions. The case of the applicant was supported by the Head of the Institution. The complaint of the applicant was twice enquired into, the first time by one Dr. Neeraj, Principal, Shaheed Amir Chand Govt. Sarvodaya Vidyalaya, Sham Nath Marg, Delhi and the secondly by two lady Principals/HOS who, after following the due procedures under the rule of natural justice, supported the version of the applicant.
3. In the meanwhile, the applicant was promoted to the post of Lecturer (Political Science) vide order dated 26.09.2012 and was transferred to Govt. Boys Senior Secondary School, ID No.1309009, Dhaka. However, the applicant was transferred from GBSS, Dhaka to SBV Gokhle Marg, New Delhi in partial modification of the office order dated 26.09.2012 by issuing a corrigendum dated 12.10.2012. On 18.10.2012, the applicant was relieved from Mori Gate No.1 SBV to take up his assignment at Gokhle Marg SBV. On 23.04.2013, said Neeta Bahl was also transferred on the administrative grounds from SBV No.1, Mori Gate to Roop Nagar, No.1-GGSSS (North). On 25.04.2013, the applicant was again transferred by the impugned order from SBV, Gokhle Marg North to Dhakka-GBSSS North-West-A.
4. The applicant has taken the plea that he was the injury party as said Neeta Bahl misbehaved with him on more than one occasion. His stand has been totally supported by the report of the Head of the School and also by the two Inquiry Reports, as mentioned earlier. However, instead of taking action against the said Neeta Bahl, who had used political influence, the Director of Education had to transfer the applicant on the basis of the report of the enquiry officer, who conducted the inquiry at the back of the applicant and without even having associated the applicant or the school teachers. It is the further case of the applicant that he was not furnished the report of the inquiry officer and was transferred out. In the second place, he also questioned the administrative propriety of the action. He had already been transferred out on the place of conflict that being SBV No.1, Mori Gate. Hence, there was no administrative purpose involved in transferring him out from his subsequent assignment at SBV (ID No.1207014-North). In the third place, the said Neeta Bahl had been working in the SBV No.1, Mori Gate for last 18 years and her transfer was fully justified on account of the complaints against her as established in the different inquiry report and also the report of the HOS. The applicant has, therefore, sought the following reliefs:-
(a) Quash/set aside the transfer order No.DE.2(8)(189)/E-2/2008/6108-12 dated 25.04.2013 passed by the Directorate of Education whereby the applicant is transferred from SBV, Ghokhle Marg (1207014) North to Dhakka-GBSSS (1309009) North-West-A;
allow the cost of litigation;
Pass any order or further order which this Honble Court may deem fit and proper in the facts and circumstances of this case.
5. The respondents have filed their counter affidavit wherein they have taken up the stand that who should be posted where is the prerogative of the employer and, in view of catena of judgments of Honble Supreme Court, the Tribunals/Courts should not normally interfere in such process. The submission of the respondents is that the transfer has been indicated on the basis of the inquiry report conducted by one Suman Kataria, Dy. Director of Education (West), who submitted her report on 14.12.2012 recommending that both the teachers be transferred. The instant Transfer has, therefore, been taken on administrative grounds in response thereof. In support of this, the respondents have relied upon the earlier cases of State of M.P. Vs. Sh. S.S.Kourav & Ors [1995 (3) SCC 270], S.C.Saxena Vs. Union of India [(2006) 9 SCC 583], Shilpi Bose (Mrs.) vs. State of Bihar, [1991 Supp (2) SCC 659], Union of India Vs. S.L.Abbas [1993, Vol.3, SCC 357], National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan, [2001 Vol. 8 SCC page 574], Union of India Vs. H.N.Kirtania [(1989) 3 SCC 445] and State of UP Vs. Goverdhan Lal [(2004 11 SCC 402)].
6. The sole issue in the instant case to be decided is that whether this transfer is justified on administrative grounds or is marred by procedural malice? It is well admitted that the applicant had served as TGT (Natural Science) SBV No.1, Mori Gate, Delhi 110 006 where he had strong differences with one Neeta Bahl. It further appears that the grievance is related to encroachment of the applicants rights by said Neeta Bahl in the form of encircling his attendance sheets. The issue appears to have risen over the matter of admission of one Pankaj, who had earlier taken TC following series of complaints against him. It is further admitted that the Head of the School appears to have supported the version of the applicant as would be apparent from his report to the TGT, North Lucknow Road, Delhi 6. He holds that the complaint of the said Neeta Bahl using unparliamentary language was not substantiated. To the contrary, the complaint of behaviour of Neeta Bahl against the applicant was unacceptable, which reads as under:-
4. Same day or the day after that Mr. Brahm Prakashs complaint come in light. Mr. Braham Prakashs ward Pankaj was a student of this school from 6th class and asked for SLC last year. Undersigned got so many complaints regarding bad behavior of Pankaj from his class colleagues and other students that he has been snatching money from other students, beating them and even on one occasion our school peon Mr. Surender saw him having a can of beer in his hand. Mr. Surender tried to capture him but he escaped from school premises by jumping over school boundary wall. Mr. Braham Prakash who was a PTA official too himself was worried of his ward activities and thus thought of shifting his ward to any of his relative and thus applied for SLC of his ward.
Till the time Mr. Braham Prakash applied for SLC of his ward he never complained of using any case based words or any type of bad behavior by any of my staff member neither in PTA meetings nor in personal to me. In the application for SLC in the column of reason he did not mentioned bad behavior of any of may teacher due to which he was forced to leave the school.
7. I took the suggestion from Kapil Mohan Sharma and Mr. Promod Kumar Sharma (Admission incharge) in this respect who after confirmation suggested me to request Mr. Braham Prakash and his sister to take approval of Honourable Director of Education as none up to the level of D.D.E. or R.D.have the power to make admission in the month of December.
I communicated the same to Mr. Braham Prakash and his sister and they further went to Mrs. Neeta Bahl for help. Mrs. Neeta Bahl promised me that she shall help Mr. Braham Prakash for seeking the permission from Director of Education using her political links and till then she requested to allow Pankaj to sit in the class and give him provisional admission.
8. Mrs. Neeta Bahl could not bring the permission from Director of Education and gave a letter from Honorable HRD minister Sh. Kapil Sibbal at the end of February. She threatened me that on behalf of that letter I have to allow Pankaj to sit in examination or me has to face the charge of spoiling career of a scheduled caste student.
9. A lawyer placed a RTI application in the end of March, 2012 asking questions regarding this admission as a result of which Mrs. Neeta Bahl and Mr. Braham Prakash made these complaints against Mr. Kapil Mohan Sharma, Mr. R.T.Sharma and Mr. Pramod Kumar Sharma (Admission In charge).
7. The Principal has given statement to the single effect to the S.H.O. Kashmiri Gate, Police Station. The applicant in his rejoinder has submitted the copy of the Inquiry Report by the Committee comprising of two lady Principals. The relevant para of the report is self-contained, which reads as under:-
In this connection, it is pertinent to mention that earlier a complaint was received from Shri Kapil Mohan Sharma also against Mrs. Neeta Bahl, PGT (Physics) with the following allegations:-
1. That Mrs, Neeta Bahl, PGT (Physics) herself and with the help of some parents have been making forged complaint in police against him and other staff members.
2. That Mrs. Neeta Bahl, PGT (Physics) made charge against him of using un parliamentary language in the presence of Principal and other staff members. Principal and staff members denied her allegations stating this allegation baseless and same report was send to the Police officials. Now she instigated Mr. Braham Prakash father of a student for making allegation against him and other staff members under SC/ST (Prevention of Atrocities) Act.
In the inquiry report, it has been concluded that :-
The Committee is of the firm opinion that the complaint of Shri Kapil Mohan Sharma is very genuine. Evidences clearly indicate that Mrs. Neeta Bahl misused her gender and misbehaved with Shir Kapil Mohan Sharma and manipulated and lodge the complaints in the police station contrary to general belief of harassed person being harassed. Not only that Mrs. Neeta Bahl is misguiding and instigating the students and parents to get cheap popularity. Here are much evidences to establish that Mrs. Neeta Bahl may go to any extent to maintain her supremacy and to pressurize the male staff members and principal of the school. She mingle with them and went to their colony as is evident from her threat as stated by Vice Chairman of PTA and supported by General Secretary of PTA who happens to be a female too.
From the above, it appears that there is some conflict going on between these two officials and due to personal feud they are making allegations and counter allegations against each other. In view of above, it may be in the fitness of the things that both the officials should be transferred from the School. Further, it is learnt from the bio-data of the official that Shri Kapil Mohan Sharma has already been transferred to SBV, Gokhle Marg, Delhi on promotion as PGT.
8. It is very true that in the matters of transfer, the Courts/Tribunals are not required to intervene. In normal circumstances, intervention of the court would be only confined to such cases where either malafide is alleged and proved or there is a violation of some statute or where the laws of natural justice have not been respected. It is fully considered that the courts are not to go into the issue like justification of the administrative orders. However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-
3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. In Somesh Tiwari Vs. Union of India & Others [AIR 2009 SC 1399], the Honble Supreme Court has held as under :-
19. Indsiputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds- one malice in fact and the second malice in law.
20.. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
9. It is for the Tribunal to ensure that the administrative authorities do not run contrary to the instructions and settle their scores with the employee by transferring them without any justification. It is also to be remembered that frequent transfers can also break the morals of an employee that is the reason norms of transfer have been set in two organizations. These norms are normally to be respected as such.
10. The facts narrated above clearly reveal that there were strong differences between the applicant and the said Neeta Bahl over the number of issues including the issue of admission of one Pankaj. The report of the Principal clearly initiated that the said Neeta Bahl pressurized the School Authority to admit Pankaj. Ultimately, the stand of the applicant and the school authority prevailed in as much as Pankaj could not procure admission after the stand of the applicant having been by the two successive Committees yet another Committee was set up. I am left wondering that even when the reports of the earlier two Committees were on record then where was the necessity to set up the third Committee. I also find that learned counsel for the respondents has nowhere in the counter affidavit covered the allegations of the applicant pertaining to violation of principles of natural justice and not involving him in the inquiry by Suman Kataria Committee.
11. I further take note of the fact that the applicant had already stood transferred out of the place of conflict on 18.10.2012 and not later on account of their promotion as soon as one of the conflicting parties was removed from the scene. The code of Administrative action was over. The administration has rightly transferred said Neeta Bahl from the school of Mori Gate as she has been serving there for 18 years.
11. It is admitted fact that the applicant has been transferred from present post SBV North to Dhakka-GBSSS prior to completion of ten years. It only indicates that somehow the authority was determined to find some kind of equity to conflicting party being the applicant and said Neeta Bahl. There cannot be an equity between the wrongdoer and his victim. Any system that is not able to differentiate between the two is basically unjust. Admittedly report submitted by the two lady Principals copy of which has been submitted by the respondents has followed the processes prescribed for inquiry. To the contrary the Suman Kataria Committee has not involved the applicant or the school authorities equating the injured with the wrongdoer. Therefore, to disregard this report and to rely upon the report of the said Suman Kataria is tantamount to the injury whatever conflict that might have existed stood resolved with the transfer of the applicant on promotion to Government Boys School, Dhakka on 26.09.2012. There is no administrative ground served by transferring the applicant from the SBV, Mori Gate.
12. In totality of facts and circumstances of the case, I am of the considered view that the impugned order is hit by legal malice and is not sustainable being bad in law. Therefore, the impugned transfer order dated 25.04.2013 is quashed and set aside. Resultantly, the instant OA stands allowed with no order as to costs.
( Dr. Birendra Kumar Sinha ) Member (A) uma
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Yeh Order bhee ek Najeer bane Supeme Court ke Transfer Order ke aadhaar par nirneet hua hai:
In Sarvesh Kumar Awasthi vs. U.P.Jal Nigam and others, (2003) 11 SCC 740, the Supreme Court held:-
"In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide on an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration."
-------------
However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-
Central Administrative Tribunal - Delhi
Kapil Mohan Sharma vs State Of Nct Of Delhi on 21 October, 2013
Central Administrative Tribunal
Principal Bench
OA No.1459/2013
Reserved on:31.07.2013
Pronounced on: 21.10.2013
Honble Dr.Birendra Kumar Sinha, Member (A)
Kapil Mohan Sharma,
S/o Shri Chander Bhanu Sharma,
R/o B-732, MIG Flats, East of Loni Road,
Shahdra, Delhi 93. Applicant
(By Advocate: Shri R.K.Sehrawat)
Versus
1. State of NCT of Delhi,
Through its Chief Secretary,
Secretariat, Players Building,
Indraprastha Estate, New Delhi.
2. Directorate of Education,
Through it Director,
Old Secretariat,
Delhi. Respondents
(By Advocate: Shri Vijaya Pandita)
ORDER
The instant OA filed under Section 19 of the Administrative Tribunals Act, 1985 is directed against the order of the Respondent No.l dated 25.04.2013 transferring the applicant from Gokhle Marg-SBV (North) to Dhakka GBSSS (North West A).
2. The case of the applicant is that he was admittedly working as TGT (Natural Science) in Sarvodaya Bal Vidyalaya (SBV) No.1, Mori Gate, Delhi-110 006. It is the case of the applicant that there was one teacher namely Neeta Bahl, Lecturer (Physics), wanted that boy namely Pankaj, who had been found indulging in gross indiscipline to the extent of when having a can of beer in his hand on a particular occasion. One Braham Prakash, father of Pankaj, applied and was granted Transfer Certificate (TC) at his own volition. Now, he wanted re-admission of his ward in the same school. His case was espoused by Neeta Behl, who misbehaved with the applicant in presence of the Head of the School. The applicant further complained that earlier also he had filed complaints against said Neeta Behl, who exceeded her jurisdiction and insulted him on many occasions. The case of the applicant was supported by the Head of the Institution. The complaint of the applicant was twice enquired into, the first time by one Dr. Neeraj, Principal, Shaheed Amir Chand Govt. Sarvodaya Vidyalaya, Sham Nath Marg, Delhi and the secondly by two lady Principals/HOS who, after following the due procedures under the rule of natural justice, supported the version of the applicant.
3. In the meanwhile, the applicant was promoted to the post of Lecturer (Political Science) vide order dated 26.09.2012 and was transferred to Govt. Boys Senior Secondary School, ID No.1309009, Dhaka. However, the applicant was transferred from GBSS, Dhaka to SBV Gokhle Marg, New Delhi in partial modification of the office order dated 26.09.2012 by issuing a corrigendum dated 12.10.2012. On 18.10.2012, the applicant was relieved from Mori Gate No.1 SBV to take up his assignment at Gokhle Marg SBV. On 23.04.2013, said Neeta Bahl was also transferred on the administrative grounds from SBV No.1, Mori Gate to Roop Nagar, No.1-GGSSS (North). On 25.04.2013, the applicant was again transferred by the impugned order from SBV, Gokhle Marg North to Dhakka-GBSSS North-West-A.
4. The applicant has taken the plea that he was the injury party as said Neeta Bahl misbehaved with him on more than one occasion. His stand has been totally supported by the report of the Head of the School and also by the two Inquiry Reports, as mentioned earlier. However, instead of taking action against the said Neeta Bahl, who had used political influence, the Director of Education had to transfer the applicant on the basis of the report of the enquiry officer, who conducted the inquiry at the back of the applicant and without even having associated the applicant or the school teachers. It is the further case of the applicant that he was not furnished the report of the inquiry officer and was transferred out. In the second place, he also questioned the administrative propriety of the action. He had already been transferred out on the place of conflict that being SBV No.1, Mori Gate. Hence, there was no administrative purpose involved in transferring him out from his subsequent assignment at SBV (ID No.1207014-North). In the third place, the said Neeta Bahl had been working in the SBV No.1, Mori Gate for last 18 years and her transfer was fully justified on account of the complaints against her as established in the different inquiry report and also the report of the HOS. The applicant has, therefore, sought the following reliefs:-
(a) Quash/set aside the transfer order No.DE.2(8)(189)/E-2/2008/6108-12 dated 25.04.2013 passed by the Directorate of Education whereby the applicant is transferred from SBV, Ghokhle Marg (1207014) North to Dhakka-GBSSS (1309009) North-West-A;
allow the cost of litigation;
Pass any order or further order which this Honble Court may deem fit and proper in the facts and circumstances of this case.
5. The respondents have filed their counter affidavit wherein they have taken up the stand that who should be posted where is the prerogative of the employer and, in view of catena of judgments of Honble Supreme Court, the Tribunals/Courts should not normally interfere in such process. The submission of the respondents is that the transfer has been indicated on the basis of the inquiry report conducted by one Suman Kataria, Dy. Director of Education (West), who submitted her report on 14.12.2012 recommending that both the teachers be transferred. The instant Transfer has, therefore, been taken on administrative grounds in response thereof. In support of this, the respondents have relied upon the earlier cases of State of M.P. Vs. Sh. S.S.Kourav & Ors [1995 (3) SCC 270], S.C.Saxena Vs. Union of India [(2006) 9 SCC 583], Shilpi Bose (Mrs.) vs. State of Bihar, [1991 Supp (2) SCC 659], Union of India Vs. S.L.Abbas [1993, Vol.3, SCC 357], National Hydroelectric Power Corpn. Ltd. Vs. Shri Bhagwan, [2001 Vol. 8 SCC page 574], Union of India Vs. H.N.Kirtania [(1989) 3 SCC 445] and State of UP Vs. Goverdhan Lal [(2004 11 SCC 402)].
6. The sole issue in the instant case to be decided is that whether this transfer is justified on administrative grounds or is marred by procedural malice? It is well admitted that the applicant had served as TGT (Natural Science) SBV No.1, Mori Gate, Delhi 110 006 where he had strong differences with one Neeta Bahl. It further appears that the grievance is related to encroachment of the applicants rights by said Neeta Bahl in the form of encircling his attendance sheets. The issue appears to have risen over the matter of admission of one Pankaj, who had earlier taken TC following series of complaints against him. It is further admitted that the Head of the School appears to have supported the version of the applicant as would be apparent from his report to the TGT, North Lucknow Road, Delhi 6. He holds that the complaint of the said Neeta Bahl using unparliamentary language was not substantiated. To the contrary, the complaint of behaviour of Neeta Bahl against the applicant was unacceptable, which reads as under:-
4. Same day or the day after that Mr. Brahm Prakashs complaint come in light. Mr. Braham Prakashs ward Pankaj was a student of this school from 6th class and asked for SLC last year. Undersigned got so many complaints regarding bad behavior of Pankaj from his class colleagues and other students that he has been snatching money from other students, beating them and even on one occasion our school peon Mr. Surender saw him having a can of beer in his hand. Mr. Surender tried to capture him but he escaped from school premises by jumping over school boundary wall. Mr. Braham Prakash who was a PTA official too himself was worried of his ward activities and thus thought of shifting his ward to any of his relative and thus applied for SLC of his ward.
Till the time Mr. Braham Prakash applied for SLC of his ward he never complained of using any case based words or any type of bad behavior by any of my staff member neither in PTA meetings nor in personal to me. In the application for SLC in the column of reason he did not mentioned bad behavior of any of may teacher due to which he was forced to leave the school.
7. I took the suggestion from Kapil Mohan Sharma and Mr. Promod Kumar Sharma (Admission incharge) in this respect who after confirmation suggested me to request Mr. Braham Prakash and his sister to take approval of Honourable Director of Education as none up to the level of D.D.E. or R.D.have the power to make admission in the month of December.
I communicated the same to Mr. Braham Prakash and his sister and they further went to Mrs. Neeta Bahl for help. Mrs. Neeta Bahl promised me that she shall help Mr. Braham Prakash for seeking the permission from Director of Education using her political links and till then she requested to allow Pankaj to sit in the class and give him provisional admission.
8. Mrs. Neeta Bahl could not bring the permission from Director of Education and gave a letter from Honorable HRD minister Sh. Kapil Sibbal at the end of February. She threatened me that on behalf of that letter I have to allow Pankaj to sit in examination or me has to face the charge of spoiling career of a scheduled caste student.
9. A lawyer placed a RTI application in the end of March, 2012 asking questions regarding this admission as a result of which Mrs. Neeta Bahl and Mr. Braham Prakash made these complaints against Mr. Kapil Mohan Sharma, Mr. R.T.Sharma and Mr. Pramod Kumar Sharma (Admission In charge).
7. The Principal has given statement to the single effect to the S.H.O. Kashmiri Gate, Police Station. The applicant in his rejoinder has submitted the copy of the Inquiry Report by the Committee comprising of two lady Principals. The relevant para of the report is self-contained, which reads as under:-
In this connection, it is pertinent to mention that earlier a complaint was received from Shri Kapil Mohan Sharma also against Mrs. Neeta Bahl, PGT (Physics) with the following allegations:-
1. That Mrs, Neeta Bahl, PGT (Physics) herself and with the help of some parents have been making forged complaint in police against him and other staff members.
2. That Mrs. Neeta Bahl, PGT (Physics) made charge against him of using un parliamentary language in the presence of Principal and other staff members. Principal and staff members denied her allegations stating this allegation baseless and same report was send to the Police officials. Now she instigated Mr. Braham Prakash father of a student for making allegation against him and other staff members under SC/ST (Prevention of Atrocities) Act.
In the inquiry report, it has been concluded that :-
The Committee is of the firm opinion that the complaint of Shri Kapil Mohan Sharma is very genuine. Evidences clearly indicate that Mrs. Neeta Bahl misused her gender and misbehaved with Shir Kapil Mohan Sharma and manipulated and lodge the complaints in the police station contrary to general belief of harassed person being harassed. Not only that Mrs. Neeta Bahl is misguiding and instigating the students and parents to get cheap popularity. Here are much evidences to establish that Mrs. Neeta Bahl may go to any extent to maintain her supremacy and to pressurize the male staff members and principal of the school. She mingle with them and went to their colony as is evident from her threat as stated by Vice Chairman of PTA and supported by General Secretary of PTA who happens to be a female too.
From the above, it appears that there is some conflict going on between these two officials and due to personal feud they are making allegations and counter allegations against each other. In view of above, it may be in the fitness of the things that both the officials should be transferred from the School. Further, it is learnt from the bio-data of the official that Shri Kapil Mohan Sharma has already been transferred to SBV, Gokhle Marg, Delhi on promotion as PGT.
8. It is very true that in the matters of transfer, the Courts/Tribunals are not required to intervene. In normal circumstances, intervention of the court would be only confined to such cases where either malafide is alleged and proved or there is a violation of some statute or where the laws of natural justice have not been respected. It is fully considered that the courts are not to go into the issue like justification of the administrative orders. However, it is definitely within the competence of the Tribunals/Courts to go into the transfer order where the transfer on administrative grounds is not justified of the scales that have been enumerated earlier. In Sarvesh Kumar Awasthi versus U.P. Jal Nigam and Others [2003(11)SCC 740] wherein the Honble Supreme Court has held as under:-
3. In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration. In Somesh Tiwari Vs. Union of India & Others [AIR 2009 SC 1399], the Honble Supreme Court has held as under :-
19. Indsiputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds- one malice in fact and the second malice in law.
20.. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies but it is another thing to say that the order of transfer in administrative exigencies but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.
9. It is for the Tribunal to ensure that the administrative authorities do not run contrary to the instructions and settle their scores with the employee by transferring them without any justification. It is also to be remembered that frequent transfers can also break the morals of an employee that is the reason norms of transfer have been set in two organizations. These norms are normally to be respected as such.
10. The facts narrated above clearly reveal that there were strong differences between the applicant and the said Neeta Bahl over the number of issues including the issue of admission of one Pankaj. The report of the Principal clearly initiated that the said Neeta Bahl pressurized the School Authority to admit Pankaj. Ultimately, the stand of the applicant and the school authority prevailed in as much as Pankaj could not procure admission after the stand of the applicant having been by the two successive Committees yet another Committee was set up. I am left wondering that even when the reports of the earlier two Committees were on record then where was the necessity to set up the third Committee. I also find that learned counsel for the respondents has nowhere in the counter affidavit covered the allegations of the applicant pertaining to violation of principles of natural justice and not involving him in the inquiry by Suman Kataria Committee.
11. I further take note of the fact that the applicant had already stood transferred out of the place of conflict on 18.10.2012 and not later on account of their promotion as soon as one of the conflicting parties was removed from the scene. The code of Administrative action was over. The administration has rightly transferred said Neeta Bahl from the school of Mori Gate as she has been serving there for 18 years.
11. It is admitted fact that the applicant has been transferred from present post SBV North to Dhakka-GBSSS prior to completion of ten years. It only indicates that somehow the authority was determined to find some kind of equity to conflicting party being the applicant and said Neeta Bahl. There cannot be an equity between the wrongdoer and his victim. Any system that is not able to differentiate between the two is basically unjust. Admittedly report submitted by the two lady Principals copy of which has been submitted by the respondents has followed the processes prescribed for inquiry. To the contrary the Suman Kataria Committee has not involved the applicant or the school authorities equating the injured with the wrongdoer. Therefore, to disregard this report and to rely upon the report of the said Suman Kataria is tantamount to the injury whatever conflict that might have existed stood resolved with the transfer of the applicant on promotion to Government Boys School, Dhakka on 26.09.2012. There is no administrative ground served by transferring the applicant from the SBV, Mori Gate.
12. In totality of facts and circumstances of the case, I am of the considered view that the impugned order is hit by legal malice and is not sustainable being bad in law. Therefore, the impugned transfer order dated 25.04.2013 is quashed and set aside. Resultantly, the instant OA stands allowed with no order as to costs.
( Dr. Birendra Kumar Sinha ) Member (A) uma
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