1996 JTR(SC) 1415
1997 AIR(SC) 251 ; 1996 AIR(SCW) 4425 ; 1996 9 JT 283 ; 1997 LIC 157 ; 1997 1 RSJ 279 ; 1996 7 Scale 286 ; 1996 10 SCC 567 ; 1997 SCC(L&S) 332 ; 1996 Supp5 SCR 688 ; 1996 6 SLR 721 ; 1997 1 UJ 38 ; 1996 KHC 1306 ; 1996 7 Supreme 337
1996(7) Supreme 337
SUPREME COURT OF INDIA
K. Ramaswamy and G.B. Pattanaik, JJ.
Sreedam Chandra Ghosh -Petitioner
versus
The State of Assam & Ors. -Respondents
Special Leave Petition (C) No. 16986 of 1996
Decided on 9-9-1996
Counsel for the Parties :
For the Petitioner : N.N. Karmakar, S.C. Ghosh and Somnath Mukherjee, Advocates.
Act
Referred
:CONSTITUTION OF INDIA : Art.226
SERVICE LAW : .
(A) The special leave petition arises from the interplay of Service Law and the constitutional jurisdiction under Article 226 of the Constitution of India, specifically concerning the enforcement of transfer orders and the protection of statutory rights in public service matters. The case examines the validity of a High Court order directing the enforcement of a transfer of a regular headmaster, where the petitioner was only an officiating incumbent without a formal appointment to the permanent post. The provisions of Rule 9 and Rule 10(a) of the Secondary Education (Provincialised Service) Rules, 1982, govern the procedure for promotion and appointment to the post of Headmaster, requiring a formal list and recommendation for promotion before regular appointment, which was absent in this scenario. The High Courts direction under Article 226 was invoked to enforce the competent authoritys transfer order, addressing the non-compliance that impeded the transfer of a regular headmaster.
(B) Key legal principles include the non-justiciability of promotion lists until formally completed, the distinction between officiating and regular appointments, the procedural requirements for permanent posts, the inability to claim a right in a post without formal appointment, and the High Courts power to enforce transfer orders under Article 226 when public authority non-compliance is challenged.
Facts of the case:
The petitioner was working as an Assistant Graduate Teacher in Kahilipara High School and was asked to officiate as headmaster following the retirement of a regular incumbent. Later, a transfer order was issued to relocate a regular headmaster from another school to the petitioners officiating post, directing the petitioner to hand over charge. The petitioner challenged this transfer in the High Court, arguing that he was promoted to headmaster on a regular basis and therefore could not be displaced. Both the single Judge and the Division Bench rejected this argument, finding no order of regular appointment existed and that the petitioner was only officiating; the High Court then directed disciplinary action for non-compliance, prompting this special leave petition.
Findings of Court:
The court found that Rule 9 applies only to regular recruitment by promotion and that Rule 10(a) is a procedural rule for considering claims after a list is drawn; the petitioner had no right to continue post-interim since no formal appointment was made. It held that the transfer of the regular headmaster was valid, the petitioners removal from the post was neither demotion nor punishment, the order was a transfer enforceable under the competent authoritys direction, and the High Court correctly directed enforcement against the erring officers.
Issues:
Whether the petitioner, as an officiating headmaster, has a legal right to continue after a regular headmaster is transferred to the same post. Whether the transfer order is valid and enforceable by the High Court under Article 226. Whether non-implementation of the transfer constitutes contempt or indiscipline justifying court intervention.
Ratio Decidendi:
The court determined that without a formal appointment order promoting the petitioner to headmaster, he held the post only on an officiating basis and had no vested right to it; consequently, the transfer of the regular headmaster was lawful and enforceable, and the High Court was justified in directing compliance under Article 226 to ensure effective public service administration.
Result:
The special leave petition is dismissed with no order as to costs.
(A) The special leave petition arises from the interplay of Service Law and the constitutional jurisdiction under Article 226 of the Constitution of India, specifically concerning the enforcement of transfer orders and the protection of statutory rights in public service matters. The case examines the validity of a High Court order directing the enforcement of a transfer of a regular headmaster, where the petitioner was only an officiating incumbent without a formal appointment to the permanent post. The provisions of Rule 9 and Rule 10(a) of the Secondary Education (Provincialised Service) Rules, 1982, govern the procedure for promotion and appointment to the post of Headmaster, requiring a formal list and recommendation for promotion before regular appointment, which was absent in this scenario. The High Courts direction under Article 226 was invoked to enforce the competent authoritys transfer order, addressing the non-compliance that impeded the transfer of a regular headmaster.
(B) Key legal principles include the non-justiciability of promotion lists until formally completed, the distinction between officiating and regular appointments, the procedural requirements for permanent posts, the inability to claim a right in a post without formal appointment, and the High Courts power to enforce transfer orders under Article 226 when public authority non-compliance is challenged.
Facts of the case:
The petitioner was working as an Assistant Graduate Teacher in Kahilipara High School and was asked to officiate as headmaster following the retirement of a regular incumbent. Later, a transfer order was issued to relocate a regular headmaster from another school to the petitioners officiating post, directing the petitioner to hand over charge. The petitioner challenged this transfer in the High Court, arguing that he was promoted to headmaster on a regular basis and therefore could not be displaced. Both the single Judge and the Division Bench rejected this argument, finding no order of regular appointment existed and that the petitioner was only officiating; the High Court then directed disciplinary action for non-compliance, prompting this special leave petition.
Findings of Court:
The court found that Rule 9 applies only to regular recruitment by promotion and that Rule 10(a) is a procedural rule for considering claims after a list is drawn; the petitioner had no right to continue post-interim since no formal appointment was made. It held that the transfer of the regular headmaster was valid, the petitioners removal from the post was neither demotion nor punishment, the order was a transfer enforceable under the competent authoritys direction, and the High Court correctly directed enforcement against the erring officers.
Issues:
Whether the petitioner, as an officiating headmaster, has a legal right to continue after a regular headmaster is transferred to the same post. Whether the transfer order is valid and enforceable by the High Court under Article 226. Whether non-implementation of the transfer constitutes contempt or indiscipline justifying court intervention.
Ratio Decidendi:
The court determined that without a formal appointment order promoting the petitioner to headmaster, he held the post only on an officiating basis and had no vested right to it; consequently, the transfer of the regular headmaster was lawful and enforceable, and the High Court was justified in directing compliance under Article 226 to ensure effective public service administration.
Result:
The special leave petition is dismissed with no order as to costs.
ORDER
This special leave petition has been filed against the judgment and order of the Gauhati High Court made on May 29, 1996 in W.A. No. 165/96 confirming the order of the learned single Judge. While the petitioner was working as an Assistant Graduate Teacher in Kahilipara High School, a regular incumbent of the high school one Keshablal Kanjilal had retired from service on 11.1.1995. The petitioner being the senior-most Assistant Graduate Teacher was asked to officiate in the post till a new incumbent takes charge. The Inspector of Schools, Kamrup District circle, Gauhati by his proceedings dated 18.1.1995 asked the petitioner to discharge the additional duties as headmaster in addition to his duty as a school Assistant Graduate Teacher authorising to draw and disbursement of the salaries. One Mukul Chandra Roy, a regular headmaster working in Pranab Bidyapity High School at Lumding of Nagaon district has been transferred by order dated 15.2.1996 to the incumbent post in which the petitioner is officiating. This transfer order came to be challenged by the petitioner in the High Court contending that he was promoted as headmaster on regular basis, therefore, Mukul Chandra Roy cannot be transferred in his place. The learned single Judge and the Division Bench had held that there was no order of appointment to the petitioner promoting him on regular basis as headmaster; he was continuing as an officiating headmaster; the petitioner, therefore, has no right to the post as headmaster and that the transfer order, therefore, was held to be implementable. Since the order of transfer was not being complied with, the High Court had directed the Director of Education to take disciplinary action against the persons responsible for non-compliance thereof. Calling that order in question, this special leave petition has been filed.
2. Shri N.N. Kumar, learned counsel for the petitioner has contended that the Division Bench of the High Court was wrong in placing reliance on Rule 9 of the Secondary Education (Provincialised Service) Rules, 1982. It would apply only in a case where regular recruitment by promotion is to be made. Rule 10(a) would be applicable to the petitioner. The post was upgraded by asking the petitioner to officiate and that, therefore, he is entitled to continue in the post. We find no force in the contention. The learned counsel has read out Rule 10(a) with all the conditions prescribed therein. It is only a procedural part for consideration of the claims of the eligible candidates for promotion to the post of headmaster. The list is to be drawn by the competent authority, with a recommendation to the Public Service Commission or the Committee, as the case may be, was to consider the respective claims. After receipt of such list, the claims are to be considered by the Public Service Commission or the Committee, as the case may be, within one month from the date of the receipt of the list and then recommendation is to be made for appointment on regular basis. Thereafter appointment requires to be made in accordance with the rules.
3. Rule 9 prescribes the qualifications and the procedure for appointment by promotion to the post of Headmaster out of the select list of Vice-Principal, Assistant Headmaster and Post-Graduate Teachers having 15 years continuous teaching experience in the service. Admittedly, there is no order of appointment made to the petitioner. He having been seen from the record, it was only a stop gap arrangement made of the petitioner to officiate as headmaster till the regular incumbent assumes office as Headmaster. Therefore, he does not have any right to the post to hang on after the regular incumbent has been transferred to the post.
4. It is then contended that the ousting of the petitioner from the post amounts to punishment. The procedure prescribed under the Assam Civil Service (Discipline and Appeal) Rules has not been applied; it amount to demotion of the petitioner from the service of the headmaster to the post of Assistant Graduate Teacher, therefore, the High Court has overlooked the statutory provision. The learned counsel is wholly misconceived in his conception of the law. The Assam Civil Service (Discipline and Appeal) Rules apply only in a case where disciplinary action is sought to be taken against a Government servant in accordance with the principles. In this case, since the petitioner was officiating and regular incumbent has to assume the office and the petitioner has to handover the charge to the new regular incumbent, it is neither demotion nor a punishment.
5. It is then contended that the impugned order is not a transfer order and it does not contain any direction to Mukul Chandra Roy to take charge or the petitioner has not been served with a notice that he should be demoted. This contention also is wholly misconceived. A reading of the order do indicate that Mukul Chandra Roy was posted in place of retired headmaster and the petitioner who was officiating as headmaster was directed to handover the charge. Therefore, it is a clear case of transfer of Mukul Chandra Ray who is a regular headmaster. It is then contended that the transfer order does not create any right in favour of Mukul Chandra Roy and it cannot be enforced. He read out judgments of this Court as to exercise of the power of the High Court under Article 226. We fail to appreciate the contention of the learned counsel. This Court has amplified the exercise of power and the self-imposed limitation of the exercise of the power in the given circumstances. In this case, since the petitioner stood in the way of enforcement of transfer order passed by the competent authority, the High Court has given appropriate direction to the Director to enforce the orders and take suitable action against the erring officers.
6. It is then contended that the transfer orders are to be enforced by the Government as per the rules in vogue and the High Court cannot interfere with these orders. We are unable to appreciate this contention also. When the Government views non-compliance of the transfer order as a serious indiscipline on the part of the erring officer and when the person complains of the non-compliance to the court, the court necessarily has to give effect to the orders and give directions for enforcement thereof. Under these circumstances, we do not find any merit in the petition.
7. The petition is dismissed with no order as to costs.
Petition dismissed.
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Parallel Citations of other Journals :
Sreedam Chandra Ghosh v. State of Assam & Ors., 1996(7) Supreme 337 : JT 1996(9) SC 283
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