SK. ZAFRULLAH Vs. STATE OF ORISSA

JUDGEMENT

(1.) All the above writ petitions except W.P.(C) No. 11436 of 2012 have been filed with similar prayer and ground of challenge, in W.P.(C) No. 11436 of 2012 in addition to prayer and grounds made/taken in other writ petitions, the petitioner being a Gana Sikshyak has taken some additional grounds. For the purpose of convenience, case of the petitioner in W.P.(C) No. 11313 of 2012 is taken for deciding the common issue involved in the above writ petitions.

(2.) The petitioner was initially appointed as Sikhya Sahayak on 02.01.2008 in Mirzapur Primary School, Mirzapur under Basudevpur Block in the district of Bhadrak and continued in the said post without any interruption for three years. After three years, the petitioner became a Junior Teacher and at present is continuing as Sikhya Sahayak (Junior Teacher). The Right of Children to Free and Compulsory Education Act, 2009 (for short, "Act, 2009") has come into force with effect from 01.04.2010. The said Act envisages that appropriate Government and local authority shall ensure maintenance of the Pupil Teacher Ratio (for short, "P.T.R.") as per the norms and standard prescribed. The Government, in the Department of School and Mass Education on 21.04.2010 issued a letter to the Collector about rationalization of Elementary Teachers/Zilla Parishad Teacher/Sikhya Sahayaks for the year 2010-2011. Similarly, the Government of Orissa, School and Mass Education Department issued a guideline for nationalization of elementary teachers/Zilla Parishad, Teacher/Sikhya Sahayaks/Gana Sikhayaks in Government Primary and Upper Primary School during the academic session 2012-2013 vide order dated 15.05.2012 (Annexure-2).. In the said letter, it was stated that in order to arrive at a school wise P.T.R. of 30:01 at the Primary level and 35:01 at the Upper primary level with minimum 2 teachers per school rationalization of all category of teachers is required to be undertaken. To ensure fulfillment of requirement of the school-wise P.T.R. in education districts, transfer of all categories of teachers and Sikhya Sahayaks wherever necessary is required to be undertaken. So far P.T.R. of Mirzapur Primary School is concerned, in which the petitioner is continuing, the staffing pattern of the said School and the Roll strength clearly stipulate that the School is not coming within the Rationalization Scheme as much as Government guideline dated 15.05.2012. Apart from that, the petitioner is not the senior most teacher of the School. Therefore, if at alt rationalization Scheme is applicable, then the petitioner is not entitled to be transferred. The purpose of making rationalization was to arrive at a School-wise P.T.R. which is based on roll strength of the School vis--vis existing strength of teachers. In the present case, 90 students are there in the school for whom 3 teachers are required as per rationalization policy. Since there are three existing staff, there was no necessity to transfer any staff from Mirzapur Primary School but opposite party No. 4 without any reason has transferred the petitioner.

(3.) Mr. A.K. Pandey, learned Addl. Standing Counsel appearing on behalf of the School and Mass Education Department submitted that the impugned Notification dated 15.05.2012 is in the nature of executive instruction, which cannot be challenged by the petitioner. In support of his contention, he relied upon the judgment of the Hon'ble Supreme Court in the case of Chief Commercial Manager, South Central Railway v. G. Ratnam, 2007 8 SCC 212. Mr. Pandey further submitted that the higher authority may take action against the subordinate authorities if they have not abided by the executive instructions of the higher authority as per the impugned Guideline. The Government is yet to take a decision in the matter. Guideline dated 15.05.2012 is an interim arrangement of transfer and transfer is a condition of service. Therefore, there is no need to assign any reason in the transfer order.