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Gujarat High Court
Judgename :N.J.Pandya
GUJARAT RAJYA PRATHMIK SHIKSHAK SANGHA - Appellant
Versus
STATE - Respondent
S.C.A. 3328 of 1997
Decided On : 06/20/1997
No doubt, in the latter part of Sub-sec. (1) of Sec. 24, there is power reserved for the Director to issue instruction with regard to transfer, promotion and disciplinary action. As already noted above in connection with Sec. 54 read with Sec. 13 of the said Primary Education Act, it will be for the purpose of setting out norms and evolving policy. The impugned order of forming a committee, whose decision along shall have to be carried out by Administrative Officer, as envisaged therein is nothing else but overstepping in the exercise of the power on the part of the Director under Sec. 24 (1) and this has been held by an earlier decision of this Court rendered in the aforesaid SCA No. 990 of 1997.
[Para 7]
In the said exhaustive, well considered and elaborate judgment, the learned Judge has noted at page 8 running page 47 that the Dirctor of Education is given authority to issue general instructions in respect of promotion, transfer, etc., which has been construed to mean to lay down principles or guidelines as to how the Administrative Officer will exercise his power in the matter of promotion, transfer etc. The learned Judge has pointed out that the Director cannot issue special instructions with regard to promotion transfer etc. in respect of a particular individual or in a particular case. The actual power of transfer has been given by the Statute to the Administrative Officer only. This statutory power given by the legislature to the Administrative Officer cannot be interfered with by the Director of Education in face of the clear words of the Section. His doing so, would amount to an exercise in legislative enactment and therefore, the action was struck down.
[Para 8]
( 1 ) THESE two petitions are filed in a sequence as in the year 1992 the State Government issued a G. R. through the Section Officer, Education department that the Administrative Officer shall exercise his power of transfer under s. 24 (1) of the Bombay Primary Education Act, 1947 in consultation with a committee constituted thereunder. This G. R. is dated 30th July 1992, Annexure F, page 51 of Special Civil Application No. 3328 of 1997. That G. R. is the subjectmatter of challenge in the earlier petition No. 5556 of 1993. Thereafter, the State government came out with circular dated 13-2-1997 issued by the Deputy Secretary, education Department, whereby instructions are to the effect that the Administrative officer, who is the only authority under the said Act to make transfer orders of primary teachers, shall do so after taking in confidence the members of the committee as set out in the said circular.
( 2 ) THIS is not the first exercise of this kind indulged into either by the Director of Primary Education or by State Government. As noted above, in the year 1992 the State Government has already done it once which is the subject-matter of earlier petition of 1993 and the subsequent action of 1997 which is the subject-matter of 1997 petition. This exercise was preceded by an exercise of power under S. 24 (1) of the said Act by the Director of Primary Education when he issued a circular dated 21-6-1974 which came to be decided on 1-9-1977.
( 3 ) ALL along, the view taken by this Court in respect of the so-called powers either of the Director of Primary Education or by the State Government is that the powers so set out in the said Primary Education Act is of a general nature and therefore, when in exercise of this statutory power, an attempt is made either through g. R. or by a circular, issues specific direction in respect of a subject like transfer, it is excessive exercise of power not contemplated by the Act.
( 4 ) THERE is a decision in the case of Laxmangiri Shivgiri Gosai v. State of Gujarat, [reported in (1978) XIX GLR 747] under S. 54 of the said Primary education Act dealing with a direction issued by the State Government in connection with a particular District School Board, namely, that of Baroda District. When the directions issued under S. 54 were found to be in relation to a particular instance of transfer, no doubt, involving more than one teacher, it was found by a learned judge of this Court to be excessive use of power not contemplated by S. 54 of the Primary Education Act. The State Government either through the Director or by itself seems to be fascinated by the subject of transfer and therefore, periodically keeps on issuing instructions in purported exercise of S. 24 (1) when the Director issues it or S. 54 of the said Act when the State Government issues it. There are instances where even sections are not mentioned but directions are issued by either of these authorities. Looking to the authority that has issued the direction, the case may have to be argued with reference to either S. 24 (1) or S. 54 as it happens in the instant case.
( 5 ) THE impugned circular in S. C. A. No. 3328 of 1997 does not refer to any particular section. However, as it is issued by the State Government, it could have been done only under S. 54, when the subject-matter is that of primary education. If this be the submission of the respondent- State it has to be taken as an argument of desperation because power under S. 54 can be exercised only in respect of district School Board and not in relation to Administrative Officer. This position becomes clear when S. 54 of the said Act is read. S. 54 reads as under :"directions by State Government :- Notwithstanding anything contained in this Act, the State Government shall have power to give to a District School Board all such directions as it may consider necessary in regard to any matter connected with primary education and the District School Board shall comply w
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