Vyas Dev Misra, C.J.@mdashThe Petitioner, who is a Principal of a Government Higher Secondary School, challenges his transfer from Subathu to Arki off the ground of mala fides.
2. The Petitioner joined Higher Secondary School, Subathu, on 24th November, 1977. His wife Devi Rani Sharma, is also working as a Headmistress of Government Girls High School Subathu. It is alleged that the Petitioner has been transferred not on the administrative ground and public interest but in order to adjust Shri L.D. Sharma, Respondent No. 4, Principal Government Higher Secondary School, Arki, at the instance of Shri Chaman Lal, M.L.A., Respondent No. 5. It is stated that Subathu falls in the constituency represented by Shri Chaman Lal.
3. Shri Chaman Lal was elected in the 1977 elections on the Janta Party ticket from Kasauli Assembly constituency which includes Subathu. In 1980 he defected and joined Congress (I). He was thereafter appointed Chairman of the Himachal Pradesh State Small Industries and Export Corporation Ltd. Previously, when the Janta Party was in power in this State, he was the Parliamentary Secretary.
4. Shri L.D. Sharma, Respondent No. 4, is a cousin of one Paras Ram of village Shangri (Solan) who is not only the President of the Gram Panchayat but also is the President of Kasauli Assembly constituency of Congress (I). It is alleged that in his constituency Shri Chaman Lal was afraid of the Petitioner who also had unsuccessfully sought Janta ticket in 1977 elections. This fear is stated to be based on the fact that because of the defection of Shri Chaman Lal to Congress (I) the Petitioner was likely to be unhelpful during the coming elections, and Shri L.D. Sharma being cousin of Paras Ram (stated to be the right hand man of Shri Chaman Lal), was thus sought to be brought to Subathu. The Petitioner states the following facts in support of his contention:
(i) In June, 1980 Shri Chaman Lal visited a number of schools and asked the teachers of his liking whether they would like to be posted at the stations of their choice. Other teachers are said to have resented this attitude of Shri Chaman Lal and the public is said to have made various representations against the conduct of Shri Chaman Lal to various Ministers and others.
(ii) On 13th June, 1980 Shri Chaman Lal at Maurice Hotel, Subathu, in the presence of various persons stated that Shri L.D. Sharma, brother of Paras Ram, is to be adjusted at Subathu in place of the Petitioner because the Petitioner may not be helpful to him. On the same day Shri Chaman Lal alongwith other Congress (I) workers went to Government Girls High School, Subathu, and had a meeting with the teaching staff and hinted that the Petitioner was likely to be transferred. The Petitioner''s wife, who is the Headmistress, requested Shri Chaman Lal that the Petitioner may not be disturbed since after a long time they had been posted at Subathu.
(iii) On 26th July, 1980 Shri Chaman Lal was with the Education Minister Shri Shiv Kumar when Narinder Kumar Singla, President of Congress (I), Subathu, gave a written memorandum to the Education Minister requesting that the Petitioner''s transfer should be cancelled. It is stated that Shri Chaman Lal at that time told the Education Minister that the Petitioner''s transfer should not be cancelled since Shri Chaman Lal had to nurse his constituency and he would like to have persons of his choice who would support him.
(iv) The transfer order shows that Shri L.D. Sharma, Respondent No. 4, has been denied travelling allowance in respect of this transfer on the ground that it was a case of transfer on request, which shows that Shri Chaman Lal must have got him transferred.
(v) On 14th August, 1980 the Petitioner met Shri Chaman Lal in the shop of Gainda Mull Hem Raj at Simla and latter on met him at the letter''s house when Shri Chaman Lal is stated to have told the Petitioner that his transfer could not be cancelled.
5. The Petitioner filed affidavits of S/Shri Narinder Kumar Singla, President of Congress (I), Subathu, Suresh Chand Sharma, member of Congress (I), Subathu, and Rattan Lal, anotaer member of Congress (I), Subathu, in addition to his own affidavit in support of his allegations.
6. Shri Chaman Lal has sworn affidavit in reply to the allegations made by the Petitioner. While denying the allegations generally he has admitted that he had been meeting the teachers and other staff of the schools at Kasauli. He categorically states: "I do not in any way come in the matter of posting and transfers of teachers employed by the Himachal Pradesh Government." He goes on to say that he might have gone to the schools in his constituency in the month of June, 1980 though he denies asking the teachers about the stations where they would like to be posted. He states: "the postings and transfers of teachers is not in my hands." Though he admits going to Subathu on 30th June, 1980 and taking tea in Maurice Hotel, Subathu, he denies talking with any one as alleged by the Petitioner. Similarly, while admitting that he did see the Education Minister in the P.W.D. Rest House on 26th July, 1980 at Subathu, he denies saying anything to the Minister in respect of the Petitioner''s transfer. He again states: "since I did not have any connection with the posting and transfer of any teacher, I am not in a position to tell the Petitioner that I would not allow his transfer to be cancelled.
(emphasis supplied).
7. The Director of Education has also sworn an affidavit to say that the Petitioner''s transfer has been made on administrative grounds and not at the instance of Shri Chaman Lal M.L.A. though it is admitted that a note dated 8th August, 1980 was received from the office of the Hon''ble Chief Minister directing him to transfer the Petitioner from Subathu but nothing could be done since the Petitioner had already been transferred.
8. Before I proceed further I would record some of the developments which took place during the course of hearing of this writ petition. On the day the petition was admitted Shri Inder Singh, learned Advocate General, accepted notice not only on behalf of the State and other officials but also on behalf of Shri Chaman Lal, M.L.A. (Respondent No. 5) and Shri L.D. Sharma (Respondent No. 4). The reply affidavits on behalf of the State as well as on behalf of Shri Chaman Lal Respondent were filed by him. On one of the dates of hearing (12-12-1980) Shri L.S. Panta, Deputy Advocate General, represented the State and officials (Respondents 1 to 3) while the Advocate General got his appearance recorded only for Shri Chaman Lal (Respondent No. 5). On January 8, 1981, Shri Inder Singh filed three affidavits of Narinder Kumar Singla, Suresh Chand Sharma, and Rattan Lal. These were one line affidavit stating: "That in September, 1980, I never visited Simla." Since their affidavits filed by the Petitioner were sworn in Simla, I decided to find out whether these three persons had given these affidavits. I, therefore, directed presence of these persons on 12th March, 1981. Now on 11th March, 1981 the Advocate General filed three more affidavits dated 9th January, 1981 of these three persons. Incidently it may be noticed that it was done without seeking the permission of the court to file further affidavits. On 12th March, 1981 none of these three persons appeared in court despite their having been served. At 12.15 P.M. that day bailable warrants of arrest in the sum of Rs. 500 in respect of each of them were issued for 9th April, 1981. Show cause notice of contempt of court was also issued. On 27th March, 1981 an application was made by the Advocate General on behalf of Shri Chaman Lal on the ground that he would be out of the Country and since he would like to be present in the court on the day these three persons appear, the matter be adjourned. The case was, therefore, adjourned to 1st May, 1981. The Advocate General had agreed to have the (sic) served on these three persons for 1st May, 1981 and so the bailable warrants already issued were countermanded. On 1st May, 1981 the reasons given by Suresh Chand, Narinder Kumar Singla, and Rattan Lal for their non-appearance were noted and the matter was adjourned to 21st May, 1981. It was then adjourned to 22nd May, 1981. Now Shri P.A. Sharma, Advocate, pat in his appearance on behalf of Respondents Nos. 1 to 4 and Shri Om Prakash Sharma, Advocate, for Shri Chaman Lal, Respondent No. 5. Shri Inder Singh, Advocate General, sought permission to withdraw which was granted.
9. In view of the contradictory affidavits of Narinder Kumar Singla, Suresh Chand Sharma, and Rattan Lal, I called Shri Shanti Swarup, Advocate, who was an Oath Commissioner and had attested the affidavits of these persons on 9th September, 1980 at Simla. Since he was not in the habit of maintaining any register and was not in a position to identify the persons who had sworn the affidavits attested by him, it was decided not to record his statement (lateron it was recorded on 17th July, 1981). However, the statements of these three persons were recorded by me and they were allowed to be cross-examined by the learned Counsel for all the parties. I may record that later-on during the course of proceedings it was stated by Shri Inder Singh, Advocate General, that he never represented Respondent No. 4, Shri L.D. Sharma, and that indeed it was an over-statement by him that he was representing Respondent No. 4. A notice was, therefore, served on Respondent No. 4 and he filed a separate reply through Shri Kapil Dev Sood, Advocate.
10. First of all I will deal with the affidavits and statements of Narinder Kumar Singla, Suresh Chand Sharma, and Rattan Lal.
11. Narinder Kumar Singla, as already noticed, is President of Congress (I) Subathu. He is the owner of Maurice Hotel, Subathu, and also runs a sweetmeat shop which is attached to a Dharamsala. Suresh Chand Sharma, a member of Congress (I) and a contractor, is a great friend of Singla. The statements made by them in the court demonstrate that they were telling blatant lies. It appears that after giving their affidavits in support of the Petitioner they wanted to wriggle out of them because of political pressure. This pressure is evident also from the fact that Shri Chaman Lal wanted to be present in court when their statements were to be recorded and for this purpose he had asked for an adjournment. The method adopted by them was indeed unique. All of them filed one line affidavit just to deny their presence in Simla on the day their affidavits are purported to have been attested at Simla by the Oath Commissioner. Since I had specifically noted in my order that in their affidavits dated 5th January, 1981 they had only denied their presence in Simla, they later on gave further three affidavits dated 9th January, 1981 to the Advocate General. These affidavits now reproduced verbatim their affidavits filed by the Petitioner and each of them stated that this statement was never made by him. A new fact was now stated for the first time. It was this. The Petitioner had got the signatures of each one of them on blank papers at Subathu "for the purpose of filing an application," on behalf of each of them to procure cement bags.
12. During the course of their statements made before me Narinder'' Kumar Singla, and Suresh Chand Sharma admitted that their affidavits filed by the Petitioner contained their signatures It may be noticed that these signatures show their full names whereas the latter affidavits were signed only as ''N.K. Singla'' and ''S.C. Sharma''. They were asked the reasons for the sudden change of their signatures but they had no explanation. Both of them admitted that they were very good friends and most of the time moved together, Both of them stated that it was sometime in the last week of August, 1980 that they had decided to go to Solan to apply for a few bags of cement for repairs. They were looking for a motor cycle but in the meantime the bus arrived. They will have me believe that since the Petitioner happened to come there he told them that he was going to Solan and so it was not necessary for them to go there and, therefore, both of them signed in a hurry on two blank papers and gave them to the Petitioner which seem to have been converted into affidavits.
13. Narinder Kumar Singla would have me believe that he did ask the Petitioner for the return of this paper in August or September, 1980. In the same breath he goes on to say that for the first time he came to know in December, 1980 or January, 1981 about the Petitioner not having given the application for cement. When confronted with the apparent contradiction he had no reply. When asked how he came to know about his signatures being used for the purpose of an affidavit, he stated that in fact Shri Chaman Lal had shown him the papers purporting to be a copy of his affidavit at Dharampur. He would have me believe that Shri Chaman Lal never asked him to give an affidavit and that he himself had given the affidavit. He could not explain as to why his first affidavit of 5th January, 1981 was of one line only and why he gave a full affidavit after four days. He could not even explain how the full contents of the affidavit filed with the petition came to be repeated verbatim. He insisted that Shri Chaman Lal never gave any copy of his (Singla''s) affidavit filed with the petition nor did any one else. At one stage he said that the draft of his first affidavit was prepared at Dharampur which was later on typed and sworn at Solan whereas the draft of the second affidavit was prepared at Solan where it was typed and sworn by him. Again he stated that indeed both the drafts were prepared simultaneously on the same day. He admitted that printed forms for application of getting cement were indeed available, and though applications could be made on other papers also, it was not necessary to use a judicial paper.
14. I am satisfied that Singla was telling a tissue of lies. Having given an affidavit in favour of the Petitioner, he seems to have been cornered by Shri Chaman Lal. To be gain with he agreed to give only one line affidavit to show that he was not present at Simla where the affidavit purports to have been sworn. By saying this he was only assailing the fact that his statement did not amount to an affidavit. Later on he had been cornered to give a detailed affidavit because of the facts which took place in the court behind his back. I have already reproduced the fact that both these affidavits were filed by Shri Inder Singh who was appearing on behalf of Shri Chaman Lal. Both these affidavits apparently had been drafted and sent to the witness for his signatures and for being sworn before an Oath Commissioner at Solan.
15. Simlar is the statement of Suresh Chand Sharma who claims himself to be a member of Congress (I) Subathu and a close friend of Narinder Kumar Singla. His statement, which was recorded on the days following the recording of the statement of Singla, is practically on the same lines. He had the audacity to say that he came to know in September about the Petitioner having not filed the application on his behalf for cement because he had met Shri Chaman Lal at Dharampur in September and within five minutes thereafter stated that he did not say earlier that Shri Chaman Lal had met him in September and that what he stated was the month of December. Still he insisted that he came to know in September about the application not having been filed by the Petitioner but he could not give any reason as to how he came to know about it. When the contradiction was pointed out he kept quiet despite repeated questioning. Like Singla, he could not explain the reasons for giving two affidavits in favour of Shri Chaman Lal. He admittedly never even applied for cement lateron. He owns a truck and is a contractor supplying firewood to the military.
16. Less said about Rattan Lal the better. He is a tailor by profession. In the court he took another somersault and deposed that he had been made to drink and his signatures were obtained on two papers by Shri Chaman Lal at Maurice Hotel, Subathu, which were lateron made use as his two affidavits filed by Shri Chaman Lal.
17. After recording the statements of all the above named papers, I decided to record the statement of Shri Shanti Swarup, Advocate, Oath Commissioner. He deposes that the four affidavits, that is of the Petitioner, Narinder Kumar Singla, Suresh Chand Sharma, and Rattan Lal dated 9th September, 1980 were attested by him. As far as he could remember the clerk of Shri Madan Gopal Chitkara, Advocate, for the Petitioner, who filed the writ petition, had brought these papers and he had attested them. Though he could not recognise the deponents, he was sure that they were present at the time he attested these affidavits. Explaining his mode of working he stated that he sits in the District Bar Room during the court hours. Sometimes the lawyers and sometimes their clerks bring the affidavits to him for attestation. He stated that it is his practice to automatically write the name of the lawyer, who has drafted the writ petition, as the person who identified the deponent. He had no practice even to get the signatures of the deponents on any register since he did not maintain any.
18. I am satisfied that Narinder Kumar Singla, Suresh Chand Sharma, and Rattan Lal had given their affidavits to the Petitioner voluntarily containing the true facts, and their later affidavits and the statements made in the court that they had not done so were absolutely false.
19. I will now refer to the stand taken by Shri Chaman Lal in his affidavit. As already stated he does not deny either going to Maurice Hotel or visiting the schools or meeting the Education Minister in the P.W.D. Rest House on the dates concerned. It is apparent that he is in the habit of going to the schools in his constituency and talking to the teachers and other members of the staff. Daring the course of arguments I was told by the learned Counsel for the parties that this is nothing new or strange. I was given to understand that practically most of the members of the Legislative Assembly are in the habit of entering the schools during the school hours and meeting the school teachers as well as the members of the staff. This is stated to be done in order to find out if any one had any difficulty or problem. However, Shri Chaman Lal tells a lie when he says: "I do not in any way come in the matter of posting the transiers of teachers employed by the Himachal Pradesh Government", and again when he says: "Since I did not have any connection with the posting and transfer of any teacher...." (emphasis supplied). The records placed before me by the Education Department show that Shri Chaman Lal had, in good many cases, written to the department for the transfer of various teachers. His letter dated 17th May, 1980, addressed by him to the Director of Education reads thus:
Dear Shri Handa jee,
Please find enclosed herewith a list of teachers for transfer in your department.
Kindly effect the transfers at the earliest under intimation to me and oblige.
With deep regards,
Yours Sincerely,
Chaman Lal.
20. Again there is another letter dated 3rd June, 1980 written by him to the Director of Education asking the latter to transfer one Smt. Shashi Prabha from Habhau, District Sirmur, to Dharampur since this was a couple case. Transfer of Smt. Bindu Jindal from Kehlog, Solan, to Parwanoo and of Pyara Singh from Sultanpur to Dharampur had also been asked for. The record further shows that the Director of Education very faithfully ordered all these transfers as directed by Shri Chaman Lal.
21. The practice of effecting transfers of teachers at the behest of every M.L.A. and other influential persons seems to be rampant in the Department of Education in the Mate. The record is full of it. Indeed when the transfer proposals are prepared there is a column No. 8 which is to show "recommended/ proposed by". I find that a transfer has been made even at the instance of the President Youth Congress (I) Subathu of a teacher Alaxender from Kanda to Subathu. It appears that no transfer is made except at the instance of somebody. Why was Shri Chaman Lal reluctant to admit his role, and why did he depose that he had nothing to do with the posting and transfer of any teacher? What was he trying to hide? His role in the present transfer? I had expected him to come out openly and frankly. He is not only a member of the Legislative Assembly but at the moment owns a responsible position as Chairman of a public corporation.
22. Apparently Shri Chaman Lal and the Petitioner are not getting on well. It may be that Shri Chaman Lal suspects the Petitioner not to support him in the coming elections. At this stage I may record that during the course of arguments I was informed that in this State the teachers play quite an important part in the elections and so there is an effort to have favourable teacher in one''s constituency. The Assembly elections are fast approaching. Shri L.D. Sharma, Principal Government Higher Secondary School Arki, is a cousin or brother of one Paras Ram of village Shangri (Solan), who is not only the President of the Gram Panchayat but also is the President of Kasauli Assembly constituency of Congress (I). Shri Chaman Lal could not have a more trusted person than Shri L.D. Sharma at Subathu. He at least considered Sharma''s credentials above board and better than the Petitioner who having at one time asked for Janta Party ticket in 1977 had perhaps done nothing to show that his political alignment had since changed.
23. It was contended before me that the Petitioner''s transfer was not the solitary transfer and indeed his transfer was part of a general transfer ordered vide transfer order dated 15th July, 1980. It is no doubt true that as many as 61 Principals/Headmasters were transferred by this order. But then the transfer order shows that practically half of them have been transferred without the usual transfer travelling allowance. I may at this stage record that during the course of proceedings I had summoned the Director of Education and with the consent of the learned Counsel for the parties his statement was not reduced into writing since he had stated nothing new. He stated that it was the practice with his department to carry out the wishes of every M.L.A. and other persons in authority. It was also the practice to treat the directions of the M.L. As. and others as requests made by the persons concerned, and, therefore, no transfer travelling allowance was paid to them. He admitted that as far as possible where husband and wives are both employed with the department they are kept together at one station. It is thus evident that all the transfers ordered on 15th July, 1980 were at the instance of one person or the other and that is why half of the transferees were refused travelling allowance. It is in this context that the transfer of Shri L.D. Sharma from Arki to Subathu and of the Petitioner from Subathu to Arki has to be seen. Whereas Shri L.D. Sharma has been denied the usual travelling allowance which in other words means that transfer is at his request, the Petitioner has been allowed the transfer travelling allowance. At this stage it may be noticed that Shri L.D. Sharma has sworn an affidavit that he never requested for his transfer from Arki to Subathu and indeed he is entitled to the travelling allowance. In his affidavit he tells us that whereas the Petitioner is Gazetted Officer his wife is Headmistress and a Non Gazetted Officer. He also denies that his transfer was made at the instance of Shri Chaman Lal. He deposes that he had made no request for his transfer. The only request be had made for his transfer was in November, 1977 and that was for a place where he could get medical facilities since he is a patient of blood pressure and hypertension, and on that request he was transferred to Arki. He goes on to say that he had indeed asked the Director of Education to give him transfer travelling allowance. However, on this point the Director of Education is completely silent.
24. The record produced by the department further shows that a note was sent to the Director of Education by the Private Secretary to the Chief Minister on 15th July, 1980 that Shri L.D. Sharma, Principal Government Higher Secondary School, Arki, may be transferred to Government Higher Secondary school, Subathu. There is still another note dated 8th August, 1980 directing the Director of Education not to transfer the Petitioner from Subathu. The signature of the Under-Secretary on this note is of 2nd August, 1980. This note supports the allegations made by the Petitioner that various representations were made to the Chief Minister by the Petitioner and other persons for not transferring the Petitioner from Subathu. When the matter was brought to the notice of the office of the Chief Minister that indeed two contradictory notes were sent by his office inasmuch as Shri L.D. Sharma was to be transferred to Subathu and that the Petitioner was not to be transferred from Subathu it was explained by the department that the transfer had already taken place. The Private Secretary to the Chief Minister vide his note dated 25th August, 1980 informed the Director of Education that since the transfer had already taken place, no further action was required to be taken. The records also reveal that the affidavit filed by the Director of Education was whetted by the office of the Advocate General who was representing not only the State but Shri Chaman Lal as well.
25. Now, the department of Education is not with the Chief Minister. Another Hon''ble Minister is incharge of it. There is nothing on record to show why the Chief Minister desired the transfer of Shri L.D. Sharma to Subathu though he did not want the Petitioner''s transfer from Subathu. All this could not be in the public interest and administrative reasons It is trite to say that the interest of a political person is not public interest. Apparently it was because of somebody''s recommendation and insistence that Shri L.D. Sharma, a brother of important political person, was directed to be transferred from Arki to Subathu. There is enough material on record to show that it was Shri Chaman Lal who was interested in having Shri L.D. Sharma at Subathu in order to nurse his constituency.
26. Shri P.A. Sharma, learned Counsel for the State, frankly admitted that if any transfer is politically motivated then it cannot be upheld and has to be struck down. He, in the same breath, argued that if any M.L.A. suggests to any officer to transfer someone in order to remove the grievance of his constituency, it is for the officer concerned to see if such a request can be put into practice. He, of course, insisted that the transfer of the Petitioner was not due to any political reason.
27. It is by now well settled that transfer except on the grounds of administrative reasons and public interest can be struck down. I will only refer to some of the decisions. The Patna High Court in Ramanek Choudhary v. State of Bihar and Ors. 1975 (2) S.L.R. 67 , struck down the transfer of an assistant teacher which was ordered to accommodate another assistant teacher who was the wife of the brother-in-law of the local M.L.A. and the Chairman of the Bihar State Road Transport Corporation. The Punjab High Court in
We hereby record our strong disapproval of such type of interference from outsidere in day-to-day administration of the State. If such interference is to be allowed, it would only mean that the Government servants should run after those who are taking part in public life and in politics for getting better terms of service and a better place for their postings, and should do everything to please them and not to please the department by their ability, honesty and integrity. It need not be emphasised that such interference of outsiders in day-to-day administration of the State is highly detrimental to the public interest as it would result in nepotism and corruption wherein only those who can wield influence and purse, can succeed. Therefore, we want by this judgment to bring it to the notice of all concerned that sooner this type of interference is discouraged and stopped, the better for the administration and the people of this State.
In that case the Petitioner, who was a teacher, had approached the court with the grievance that though his transfer was ordered it was not implemented by the concerned authorities. The record revealed that this teacher had approached a Member of the Legislative Assembly who had requested the Education Minister and who in turn had directed the office "this be done". Even the Chief Parliamentary Secretary had put pressure, and the Director of Education had agreed to implement the directions.
28. It is unfortunate indeed that despite the aforementioned pronouncement by this Court the malady of the politicians interfering in the administration of the Education Department is as rampant as before if not worse. Apparently no one is bothered about any discipline in this department and the teachers and others are perhaps encouraged by this method to be beholden to the political persons instead of relying on the honesty and the integrity of the Director of Education and other officers for administering the department and ordering transfers.
29. In the instant case the State has miserably failed to show that the Petitioner''s transfer was ordered for administrative reasons and public interest.
30. I would allow the writ petition with costs and strike down the impugned order directing the transfer of the Petitioner to Arki. The State, including the Director of Education, shall implement the orders forthwith and direct retransfer of the Petitioner to Subathu as Principal of Government Higher Secondary School, Subathu. Needless to add that Shri L.D. Sharma, Respondent No. 4, will have to be transferred from Subathu. Lawyer''s fee of Rs. 300 to be paid by the State.
