KULATUNGA AND OTHERS
G.P.S. DE SILVA, C.J.,
RAMANATHAN, J. ANDWADUGODAPITIYA, J.
S.C. APPLICATION 206/95.
20TH SEPTEMBER, 1996.
Fundamental rights-Article 12(1) of the Constitution-selective hostile discrimina-tion-transfer of a school teacher.
The Petitioner, a trained teacher 'complained that he was transferred fromPuttalam Regional Education Office to the Nikaweratiya Regional EducationOffice, in the middle of the year, with only 6 days notice, 'without valid reasonsor cause and in an arbitrary, malicious and capricious manner, subjecting himto selective hostile discrimination*. The Petitioner averred that no other teacherin North – Western Provincial Council had been transferred in this manner. The3rd Respondent (North – Western Provincial Director of Education) claimed thatthe transfer was on disciplinary grounds, with the Petitioner's consent, but thedocumentary evidence contradicted this claim.
No acceptable or valid reason existed for the transfer of the Petitioner, this wasunreasonable and arbitrary; and hence violative of Article 12(1) of the Constitu-tion and is void.
APPLICATION for relief for violation of Fundamental rights.
Dulinda Weerasuriya for Petitioner.
Surath Piyasena D.S.G. for Respondents.
3rd October, 1996.
G.P.S. DE SILVA, C.J.
The Petitioner, a trained teacher in "physical education”, complainsthat his transfer from the Puttalam Regional Education Office to the
Nikaweratiya Regional Education Office is violative of Articles 12(1),12(2) and 14(1)(d) of IJrie Constitution. The transfer was effected byletter dated 24.5.95 (PI) addressed to the Petitioner by the 3rdRespondent, the Director of Education, Ministry of Education of theNorthwestern Provincial Council.The transfer was to take effect from01.6.95. In his petition he avers, inter alia, that the transfer was effectedat the instance of the 6th Respondent, a Member of Parliament of thePuttalam District; that he was an active member of the Jathika AdyapanaSangamaya which is a trade union affiliated to the United NationalParty; that he holds office in the trade union; that he was a member ofthe Puttalam Regional Teachers'Transfer Board; that the transfer wasmade in the middle of the year and with only 6 days notice; that noother officer in the educational services of the Provincial Council ofthe North Western Province has been transferred in this manner; thatthe transfer had been made "without valid reasons or cause and in anarbitrary, malicious and capricious manner subjecting him to selectivehostile discrimination."
The 3rd Respondent (Director of Education, Ministry of Educationof the North Western Provincial Council, Kurunegala) in his affidavithas taken up the position .(a) that there were several complaints ofmisconduct against the Petitioner and that the Petitioner himselfsuggested("that he be transferred to the Nikaweratiya regional educationoffice"; (b) that the Petitioner was transferred" on disciplinary groundsand with his consent" (para. 17 of the affidavit). He has annexed to hisaffidavit complaints against the Petitioner alleging misconduct.Thesecomplaints were made in March and April, 1995.
The Petitioner in his counter-affidavit dated 20.11.95 has specificallydenied the position of the 3rd Respondent that the transfer was ondisciplinary grounds and was made with his consent.Together with his .counter-affidavit the Petitioner has filed two important documentswhich, in my view, completely contradict the claim of the 3rd Respondentthat the transfer was on disciplinary grounds and was made with theconsent of the Petitioner. The first document is P15 which is a letterdated 18.8.95 written by the Secretary to the Ministry of Education,Cultural and Rural Development of the North Western Provinceaddressed to the Regional Director of Education, Puttalam, wherein itis specifically stated that the Petitioner is entitled to the travellingallowances and the 'settling-in allowances' as the transfer which Asthe subject matter of these proceedings was not on disciplinary groundsand was not at the request of the Petitioner. *The other document isP13 dated 24.8.95 addressed to the Petitioner by the 3rd Respondentwherein it is stated that the Petitioner was transferred owing to theexigencies of service. It is to be noted that the ground of transferalleged in P13 also contradicts the position taken up by the 3rdRespondent.
Apart from the fact that the documentary evidence is clearlyinconsistent and contradictory of the claim of the 3rd Respondent thatthe transfer was on disciplinary grounds, there is also the importantfact that the transfer was effected in the middle of the year and withonly 6 days notice to the Petitioner.
On a consideration of the matters set out above I hold (a) that noacceptable or valid reason existed for the transfer of the Petitioner; (b)that the impugned transfer was unreasonable and arbitrary. I accordinglygrant a declaration that the order of transfer (P1) is violative of Article12(1) of the Constitution and is void. The Director of Education, Ministryof Education of the Northwestern Provincial Council, Kurunegala, mustpay. the Petitioner a sum of Rs.750/- (Seven hundred and fifty) as costs.
RAMANATHAN, J. -1 agree
WADUGODAPITIYA, J. -1 agree