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2003 Supreme(J&K) 231
IN THE HIGH COURT OF JAMMU AND KASHMIR AT SRINAGAR
V.K. Jhanji,S.K. Gupta, JJ.
Tahira & Ors. (Sgr.) - Appellant
Versus
State & Ors. - Respondent
SWP No. 895/2003
Decided On : 05 August, 2003
Advocate For Appellant: A.H. Naik
Advocate For Appellant: K.S. Johal
Advocate For Respondent: Jehangir Iqbal Ganai
The State Government has the power to order inter-district and inter-divisional transfers in the public interest and that the impugned order was issued in the interest of the public at large and the disadvantaged school-going children in the remote and difficult areas of the State.
Headnote:
The impugned order of the Government revoking all intra-district/inter-district attachments/transfers of teachers and intra-district/inter-district attachments of Masters and Lecturers was challenged by the teachers on the grounds of violation of their fundamental rights, mala fide exercise of power, and non-application of mind. The Court upheld the impugned order, holding that the State Government has the power to order inter-district and inter-divisional transfers in the public interest and that the impugned order was issued in the interest of the public at large and the disadvantaged school-going children in the remote and difficult areas of the State. The Court also held that the impugned order did not violate the teachers' fundamental rights, was not mala fide, and was not issued without application of mind.
Fact of the Case:
The impugned order of the Government revoked all intra-district/inter-district attachments/transfers of teachers and intra-district/inter-district attachments of Masters and Lecturers. The teachers challenged the impugned order on the grounds of violation of their fundamental rights, mala fide exercise of power, and non-application of mind.
Finding of the Court:
The Court upheld the impugned order, holding that the State Government has the power to order inter-district and inter-divisional transfers in the public interest and that the impugned order was issued in the interest of the public at large and the disadvantaged school-going children in the remote and difficult areas of the State. The Court also held that the impugned order did not violate the teachers' fundamental rights, was not mala fide, and was not issued without application of mind.
Issues: 1. Whether the impugned order of the Government revoking all intra-district/inter-district attachments/transfers of teachers and intra-district/inter-district attachments of Masters and Lecturers was valid? 2. Whether the impugned order violated the teachers' fundamental rights? 3. Whether the impugned order was mala fide? 4. Whether the impugned order was issued without application of mind?
Ratio Decidendi: 1. The Court held that the State Government has the power to order inter-district and inter-divisional transfers in the public interest and that the impugned order was issued in the interest of the public at large and the disadvantaged school-going children in the remote and difficult areas of the State. 2. The Court held that the impugned order did not violate the teachers' fundamental rights, as the right to education is not an absolute right and is subject to the directives of the State Government to provide for free and compulsory education for children upto the level of class eighth. 3. The Court held that the impugned order was not mala fide, as the State Government had taken all necessary steps to protect the lives of the people and that the threat perceived by the petitioners was not imminent. 4. The Court held that the impugned order was not issued without application of mind, as the State Government had considered the relevant factors and had acted in the public interest.
Final Decision: The Court upheld the impugned order of the Government revoking all intra-district/inter-district attachments/transfers of teachers and intra-district/inter-district attachments of Masters and Lecturers.
Education is fundamental and pivotal, rather the cornerstone, to the social welfare and nation building. Looking back through history, it is found that the aspiration to have a literate society was deeply rooted in our struggle for independence, somuch so that resolutions were passed much earlier to independence by the mainstream political parties spearheading the freedom movement, for providing free and compulsory elementary education through out the country. The visionary founders of our Constitution enshrined this ideal dream of our forefathers in Articles 41 and 45 of the Constitution. The State of Jammu and Kashmir did not lag behind. The State Constituent Assembly set-out identical goals for the State in Section 20 of the Constitution of Jammu and Kashmir. The Government of Jammu and Kashmir, in order to foster the social revolution, and with a view to practically implementing the constitutional directives, as aforesaid, framed law and established elementary schools through the length and breadth of the State. The social revolution was in the process of transformation and realisation when the State was caught in quagmire of the turmoil. In or around the year 1990, a section of the society migrated from the Valley on account of which the education system in the Valley was badly affected. However, with a view to saving the system from derailment, the State took immediate steps and filled up all such vacancies by substitute arrangements so that the children, receiving education in these Schools, did not suffer for want of teaching staff. It appears that, in and after mid-nineties, though there are few cases earlier to that, until recently, the Government has effected one-way at-the-request inter and intra district and inter provincial transfers and attachments of teachers / masters / lecturers, mostly ladies, (generally, hereinafter referred to as "teachers"). Identical transfers and attachments were made from other Districts to the Districts of Srinagar, Jammu and Budgam. Budgam is a District abreast the city of Srinagar and its district headquarters are located just at a distance of 14 to 15 kilometers from the city of Srinagar. These inter and intra District and provincial transfers and attachments were sought on the basis of threat perception, medical grounds and / or on the ground of the privilege to live together as husband and wife, the husband being a Government servant and posted either at Srinagar or at Jammu. On the one hand, this led to concentration of such teaching staff particularly in the Districts of Srinagar, Budgam and Jammu, mostly in the urban areas, on the other the Schools in rural areas,
for which these teachers were appointed, were left bereft of teaching staff. Realising the deviant feature and the chaotic situation this trend had culminated into, the State Government in the Education Department issued Order No. 661-Edu of 2003 on 21st June, 2003, ordering, with immediate effect, the revocation of all intra-district / inter-district attachments / transfers of teachers and intra-district / inter-district attachments of Masters and Lecturers. Since the order had taken "immediate effect" all these teachers were relieved by the concerned Heads of the educational institutions with direction to report back at their respective parent places of postings.
2. Numerous writ petitions came to be filed by these teachers before this Court, both at Jammu and Srinagar, challenging the legality of the aforesaid Government order dated 21st June, 2003. In the Srinagar wing of the Court alone, till the matter came up for hearing before us, 188 writ petitions were filed. In usual course, these petitions came up for consideration of admission, both at Jammu and Srinagar, before the learned Single Benches and, in most of the cases, interim directions for maintenance of status-quo, or orders staying the operation of relieving letters, were passed. Against the order of status-quo passed
