PRIYANGANI V. NANAYAKKARA AND OTHERS

032-SLLR-SLLR-1996-1-PRIYANGANI-V.-NANAYAKKARA-AND-OTHERS.pdf


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Priyangani v. Nanayakkara and Others
399
PRIYANGANI
V.
NANAYAKKARA AND OTHERS
SUPREME COURT.
FERNANDO, J.
DHEERARATNE, J. ANDWIJETUNGA, J.
S.C. APPLICATION NO. 3398/95.
AUGUST 21, 1996.
Fundamental Rights – Sudden and arbitrary transfer – Constitution, Article12 (1) – Service at difficult school – Re-transfer to difficult school.
Petitioner, a Primary school teacher completed a five year period at a schoolclassified as a difficult school and applied for and obtained a transfer to aschool close to her husband's home in February 1995. On 29.06.95 shereceived a letter dated 13.06.95 issued by the 2nd Respondent the Directorof Education of the Puttalam Zone of the North Western Province (NWP)transferring her back to the old difficult school with immediate effect. Alsono travelling expenses were to be paid. Transfers within the NWP weregoverned by a Circular dated 16.03.95 (the Transfer Circular) sent by the1st Respondent the Provincial Director of Education of the NWP to allPrincipals in the Province. By a Circular issued by the 1st Respondent inMarch 1995 captioned "Selection of Excess Teachers" 1st Respondentdirected all Principals in the Province to identify excess teachers. In yetanother Circular captioned "Transfer of Excess Teachers" dated 04.05.95
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the 1st Respondent stated that teachers who had already completed "difficult"service' should not be named as excess teachers.
Held:
There was no justification for treating the Petitioner as not having servedin a difficult" school or otherwise disregarding that service because herparents' home was in the vicinity of the 'difficult' school.
The Court is not concerned with contractual rights but with safeguardsbased on the Rule of Law which Article 12 provided against arbitrary andunreasonable exercise of discretionary powers.
Per Fernando, J.:
"Discretionary powers can never be treated as absolute and unfettered
unless there is compelling language; when reposed in publicfunctionaries such powers are held in trust, to be used for the benefitof the public, and for the purpose for which they have been conferred
not at the whim and fancy of officials, for political advantage orpersonal gain. Education, as the Transfer Circular exphasises,concerns the child; the power to transfer teachers exists to promotethe education of the child; a fair and reasonable system of teachertransfers, inplemented according to established principles and criteria,will promote the education of the child; and the absence of such asystem will undermine good education".
The primary teachers, from whom one or more had to be identified asexcess, constituted a class. Whether mandatory or not there were establishedguidelines for the identification of excess teachers. It was only fair andreasonable, but necessary – if equal treatment and fair play were to beensured – that there should be guidelines, dealing with matters such asthose to be exempted, and the order of priority for selection from among therest. The selection of a teacher who was exempted by those guidelines wasclearly arbitrary and unreasonable.
The Petitioner's right to equality was violated: she was identified asexcess, although exempted, while others who apparently were not exempt,were not identified as excess.
Per Fernando, J.
"… powers have been exercised with scant regard for the rights of theindividual, and so I cannot but recall that "it is excellent to have giant's
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power, but it is tyrannous to use it like a giant" (Measure for Measure11 ,ii, 107) especially when the ultimate victim is the nation's children".
APPLICATION for relief in respect of violation of fundamental rightsguaranteed by Article 12 of the Constitution.
N.M. Idroos for Petitioner.
Y.J.W. Wijayatilleke, S.S.C.for the 1st to 5th and 7th Respondents.
Cur.adv.vult.
August 30, 1996.
FERNANDO, J.
The Petitioner is a Primary SchoolTeacher who joined the servicein January 1990. She complains that her fundamental right under Arti-cle 12(1) has been violated by reason of a sudden and arbitrary trans-fer. She served at Kottucachchiya MV ("KMV"), which was classifiedas a “difficult" school. She later married from Anamaduwa and movedto her husband's home. Having completed five years service at KMV,she requested and obtained a transfer to Anamaduwa Adarsha KanishtaVidyalaya ("AAKV") with effect from February 1995. On 29.6.95 shereceived a letter dated 13.6.95 issued by the 2nd Respondent, theDirector of Education of the Puttalam Zone of the North Western Prov-ince (NWP), transferring her back to KMV with immediate effect. Noreason was given and she was told that travelling expenses would notbe paid.
Transfers within the NWP are governed by a Circular dated 18.3.95("the Transfer Circular") sent by the 1st Respondent, the ProvincialDirector of Education of the NWP, to all Principals in the Province.This Circular recited that it had been formulated by the NWP TeacherTransfer Board in order to fulfil the need for a more systematic transferprocedure, after giving due consideration to the Establishments Code,National Policy, pronouncements and circulars, by the Ministry, theEducation Services Committee, and the Governor.
In respect of the transfer of excess teachers, the following is asummary of the relevant provisions of the Transfer Circular:
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Paragraph 2: No teacher transfer should be made in a mannerprejudicial to the educational needs of the students. Since fre-quent transfers in the course of the year are a hindrance to theeducational activities of the students, transfers on applicationshould only be at the beginning of the year. Except upon trans-fers of excess teachers, on no account should a transfer be ef-fected without a suitable replacement. An application for a trans-fer by a new teacher should only be made after at least four yearsin a "difficult" school, or three years in a "very difficult" school, orin the area to which that school belongs.
However the Provincial Director of Education has the power tomake any transfer on account of the exigencies of the service ordiscipline. The Director of Education in charge of the Zone maymake such transfers with the prior approval of the Provincial Di-rector of Education, or in case of emergency, with his coveringapproval.
Paragraphs 7 and 8: The following criteria were proposed in re-gard to the selection (identification) of "excess" teachers:
Except at their own request, teachers should not be identified as"excess" if they are over 53 years of age; or are handicapped; orare ill and have been undergoing continuous medical treatmentfor a long time; or have over three years of "very difficult" servicein the zone or outside; or four years of "difficult" service; etc.
After excluding the foregoing, "excess" teachers should beidentified in the following order of priority: those who have no"difficult" service; those having less than one year of "difficult"service; those having less than two years of such service; andless than four years of such service. Further, within each of thesecategories, the order of priority was: unmarried males, unmarriedfemales, married males, and married females.
That Circular went on to make other provisions to cover situationsin which all the teachers considered had over three/four years of "diffi-cult" service.
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By a circular issued by the 1st Respondent in March 1995, cap-tioned “Selection of Excess Teachers", the 1st Respondent directedall Principals in the Province to identify excess teachers. He directedthat this should be done strictly according to the criteria laid down inparagraph 7 of the Transfer Circular, and impartially without regard totheir personal likes or dislikes. In yet another circular captioned “Trans-fer of Excess Teachers" dated 04.05.95, the 1st Respondent drew at-tention to the Transfer Circular and stated that teachers who had al-ready completed “difficult” service should not be named as excessteachers. Thus in respect of AAKV, it was the 5th Respondent, as thePrincipal, who had the authority and the duty to identify excess teach-ers.
It appears that after receiving the circular dated 4.5.95 the 5thRespondent by letter dated 5.6.95 had named the Petitioner and an-other teacher as excess teachers. (The other teacher also filed a fun-damental rights application and this Court held that in any event shewas not liable to be transferred as being an excess teacher, since shehad already served for seven years in an “difficult" school, for theguidelines required teachers who had served in such schools not to bedesignated as excess teachers; holding that she had been transferredarbitrarily in violation of Article 12(1), the transfer was cancelled, andthe 1st Respondent was directed to pay Rs.5,000/- as compensationand Rs.2,000/- as costs: SC 339A/95 SCM 29.3.96). By letter dated8.6.95; the 2nd Respondent requested the 1 st Respondent for permis-sion to transfer the Petitioner to KMV. This was received on 13.6.95;and on the same day the 1 st Respondent granted permission, and the2nd Respondent issued transfer orders to the Petitioner.
The Petitioner's case is that in determining her to be an excessteacher, the provisions of theTransfer Circular were violated. The Pe-titioner contends that because she had previously served five years ina "difficult" school, when it had to be determined which teachers wereexcess, paragraph 7 of the Transfer Circular required that she be ex-cluded from consideration.
The Respondent's reply that although KMV was, technically, a "dif-ficult" school, yet for the Petitioner it was not: because during herperiod of service in that school, she was living in her parental homewhich was in close proximity to the school; that in any event KMV had
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been taken off the list of "difficult" schools by January 1994 (relyingon an assertion in the 1st Respondent's affidavit, unsupported by anydocument); that paragraph 2 of the Transfer Circular conferred on the2nd Respondent the power to transfer a teacher on account of theexigencies of service notwithstanding other provisions of that Circular;that the impugned transfer was on account of the exigencies of serv-ice, and was therefore valid; that this power was not subject to para-graphs 7 and 8, but that even if it was, these provisions were notmandatory but "only guidelines"; and that disregard of these guide-lines could not constitute a violation of fundamental rights.
We were not referred to any provision in the Transfer Circular, orany other rule or regulation, suggesting that a school designated as"difficult" would cease to be so in relation to a particular teacher, if forthe time being she was resident in the vicinity. Nor was it suggestedthat difficulty in securing accommodation was the only criterion fordetermining whether a school was "difficult”. I hold that there was nojustification for treating the Petitioner as not having served in a "diffi-cult" school, or otherwise disregarding that service.
As for the assertion that KMV had ceased to be "difficult" in Janu-ary 1994, all that need be said is that the Petitioner had served therefor four years prior to that – when, admittedly, it was "difficult", and thatthe Respondents failed to produce the relevant official order, circularor other document which would have recorded any such decision, ifthere was one, that it was no longer "difficult". On the evidence placedbefore us, KMV was, during the entirety of the relevant period from1990 to January 1995, a "difficult" school. (I must note that two de-grees of "difficulty" appear to be recognised – "difficult" and “verydifficult"; while it is not clear how "difficult" KMV was, there is nodoubt that it was at least "difficult", and that is sufficient for the pur-poses of this case).
It is unnecessary to decide whether paragraphs 7 and 8 of theTransfer Circular embodied mere "guidelines", or mandatory require-ments. We are not concerned with contractual rights, but with thesafeguards based on the Rule of Law which Article 12 provide againstthe arbitrary and unreasonable exercise of discretionary powers. Dis-cretionary powers can never be treated as absolute and unfettered –
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Priyangani v. Nartayakkara and Others (Fernando, J.)
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unless there is compelling language; when reposed in public function-aries, such powers are held in trust, to be used for the benefit of thepublic, and for the purpose for which they have been conferred • not atthe whim and fancy of officials, for political advantage or personalgain. Education, as the Transfer Circular emphasises, concerns thechild; the power to transfer teachers exists to promote the educationof the child; a fair and reasonable system of teacher transfers, imple-mented according to established principles and criteria, will promotethe education of the child; and the absence of such a system willundermine good education.
The primary teachers, from among whom one or more had to beidentified as excess, constituted a class. Whether mandatory or not,there were established guidelines for the identification of excess teach-ers. It was not only fair and reasonable, but necessary • if equal treat-ment and fair play were to be ensured – that there should be guidelines,dealing with matters such as those to be exempted, and the order ofpriority for selection from among the rest. The selection of a teacherwho was exempted by those guidelines was clearly arbitrary and un-reasonable. Selection should have been from among the others, andeven if all the others had also been found to be exempt – and that isnot the Respondent's case – nevertheless the Petitioner should nothave been selected, and the other procedure laid down in paragraph 8of the Transfer Circular should have been followed. The Petitioner'sright to equality was therefore violated – she was identified as excess,although exempted, while others who apparently were not exempt, werenot identified as excess.
Learned Senior State Counsel contended that disregard of para-graph 7 was immaterial, because paragraph 2 of theTransfer Circularsuperseded paras 7 and 8; because, he claimed, it was an exemptionnot only to the preceding part of paragraph 2, but to the entirety of theTransfer Circular. I cannot presume that the NWPTeacherTransfer Boardtook so much trouble to prescribe such detailed guidelines, with theintention that they could so lightly be ignored. The last provision ofparagraph 2 appears to be only an exception to its preceding provi-sions. However, it is unnecessary to decide that question, becauseparagraph 2 does not deal with the powers of the Principal, and thedecision impugned in this case depends wholly on the validity of the
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5th Respondent's act. When he was called upon to identify excessteachers, theTransfer Circular required him to apply paragraphs 7 and8; and, indeed, that is what he was specifically asked to do, by theCirculars sent in March and May 1995. Even assuming that the 1stand/or the 2nd Respondent was entitled to ignore paragraphs 7 and 9,the 5th Respondent, as Principal, could not ignore them. His decisionwas therefore flawed. The 2nd Respondent did not take an independ-ent decision, after examining the facts; instead he simply adopted thePrincipal's decision. It was therefore vitiated by that same flaw..Like-wise the 1st Respondent gave approval without independent consid-eration. The entire process was thus flawed. Even if the 1st Respond-ent or 2nd Respondent could have ignored paragraphs 7 and 8 – whichI doubt – they wouid have had to ascertain the facts (in regard to theservice record and relevant personal circumstances of each teacher)and determine, on a rational basis, which teachers were excess; itwas not claimed that anything of that kind had been done.
Learned Counsel for the Petitioner commented on other unsatis-factory features of the entire process; the rapidity with which it wasdone; no reasons were stated, and no notice was given; payment oftravelling expenses was denied; and the lack of date stamps or folionumbers on some of the documents allegedly produced from the offi-cial files. It is unnecessary to probe those matters because, anyway,the impugned decision cannot stand for other and more substantialreasons.
Learned Senior State Counsel submitted that the Petitioner hadnot been treated unfairly, because the Respondents had transferredher from KMV to AAKV at herown request, and therefore sending herback to where her parental home was, did not prejudice her. This isirrelevant. The Petitioner was entitled to ask for a transfer, after fiveyears in a "difficult" school. Having given her that transfer, it was notopen, four months later, to claim that transferring her to AAKV wassome sort of favour. That transfer did not in any way justify or mitigatethe subsequent transfer.
I hold that the Petitioner's fundamental right under Article 12(1)has been violated by the 1st, 2nd and 5th Respondents, and quash thetransfer order dated 13.6.95. The Petitioner will be entitled to resume
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work at AAKV immediately. She is entitled to compensation. In as-sessing the compensation, I must note that malice or other impropermotives have not been proved. However, powers have been exercisedwith scant regard for the rights of the individual, and so I cannot butrecall that "it is excellent to have a giant's power, but it is tyrannous touse it like a giant" (Measure for Measure, ll,ii,l 07) especially when theultimate victim is the nation's children. It was not argued that theProvincial Administration, rather than the State, was liable. Accord-ingly I direct the State to pay the Petitioner compensation in a sum ofRs. 15,000/-. I further direct the 1st, 2nd and 5th Respondents to payher a sum of Rs.6,000/- as costs (at the rate of Rs.2,000/- each).
DHEERARATNE, J. -1 agree.
WIJETUNGA, J. -1 agree.
Order of transfer dated 13.6.95 quashed.
Relief granted.