High Court · 2012

The instant proceeding under Article 226 of the Constitution of India wi tnesses a challenge to the judgment and order dated 11.3.2011 passed by the lear ned Central Administrative Tribunal, Gauhati Bench, Guwahati (for short, hereina fter referred to as ’the Tribunal’) in O.A. No. 230/2010 thereby interfering wit h the order dated 6.8.2010 of the Deputy Commissioner I/C, Navodaya Vidyalaya Sa miti, Regional Office, Shillong transferring the respondent herein to JNV, West Tripura (Tripura). We have heard Mr KN Choudhury, Senior Advocate assisted by Ms R S Choudh ury, Advocate for the petitioner and Mr G Baishya, Advocate for the respondent. An abridged version of the pleadings of the parties is essential to bett er comprehend the arguments advanced. The respondent was initially appointed as a Post Graduate Teacher in Jawahar Navodaya Vidyalaya, Chandel, Manipur by order dated 24.9.97 to that effect. He was transferred thereafter to Diphu on his own request. In the year 2008, he applied to the Navodaya Vidyalaya Samity under th e Direct Recruitment Quota for the post of Principal and on being selected was a ppointed and posted as Principal, JNV, Dibrugarh by order dated 28.4.2008. The l etter dated 29.4.2008 offering him the said appointment inter alia mentioned tha t he would be on probation for a period of two years extendable at the discretio n of the competent authority. It was clarified as well that failure to complete the period of probation to the satisfaction of the competent authority or his un suitability for the post during the probation period would entail his discharge from service or termination of his appointment at any time without any notice or without assigning any reason. The appointment letter further mentioned that his present place of posting would be as Principal at Jawahar Navodaya Vidyalaya, D ibrugarh District and that subject to exigencies of work he would be liable to b e posted anywhere in India. The respondent accordingly joined the post as Princi pal at JNV, Dibrugarh and while as such by Office order dated 30.10.2009 he was attached to JNV, Saiha, Mizoram with immediate effect. It is submitted at the Ba r that the respondent submitted a representation against this transfer, whereaft er, by order dated 9.11.2009, he was attached at JNV, Goalpara until further ord ers. According to the respondent, in compliance of this order he had joined at G oalpara and has been discharging his duties as Principal, JNV, Goalpara since th en. While the matter was lying at that stage, by the Office Order dated 6.8.2010 , he having been transferred to West Tripura (Tripura), he approached the learne d Tribunal seeking the annulment thereof. The respondent Nos. 2 and 3, namely, the Commissioner, Navodaya Vidyalay a Samity, Delhi and the Deputy Commissioner, Navodaya Vidyalaya Samity, Shillong in their written statement in substance asserted that the respondent was not fi t as Principal at JNV, Dibrugarh and that as he was (cid:28)not aware of his duties and performance of staff (cid:29), a fraudulent encashment of an amount of Rs. 65,000/- occ asioned thereat for which action was being contemplated. The answering responden ts in the proceeding before the learned Tribunal asserted that he was temporaril y attached to JNV, Goalpara and on administrative grounds has been transferred t o West Tripura as his regular posting. Denying the allegation of malafide on the part of the authorities concerned, it was stated further in the written stateme nt that the incumbent was entitled to keep his wards in the hostel at JNV, Goalp ara or for their admission at JNV, West Tripura. The learned Tribunal by the decision impugned in the instant writ petiti on, interfered with the transfer of the respondent principally on two grounds, n amely, that the same was- i) ii) punitive; and violative of the transfer guidelines. Mr Choudhury has insistently urged that as the findings of the learned Tribunal are without any factual foundation, those are patently unsustainable in law and on facts and are liable to be interfered with. Underlining that the respondent a s on date continues to be on probation, the learned senior counsel has drawn the attention of this Court to the relevant official records containing the proxima te reason highlighting administrative exigency warranting the impugned order of transfer of the respondent to West Tripura. Pointing out that the petitioners he rein had candidly disclosed the institutional compulsion of transferring the res pondent as disclosed by them in their written statement, Mr Choudhury has mainta ined that the learned Tribunal had grossly erred in law and on facts in setting at naught the order dated 6.8.2010 to that effect. On being queried by this Court, the learned senior counsel has submitted that as on date there is no well defined norms/ guidelines governing transfer of the st aff and employees of the Navodaya Vidyalaya Samity and that, therefore, the plea of frequency of transfer as raised by the respondent is utterly frivolous. Acc ording to the learned senior counsel, as admittedly the respondent is in a trans ferable service, it was well within the competence of the concerned authority t o issue the impugned order of transfer on the grounds justifying the same and th at interference therewith is obviously illegal and is liable to be adjudged as s uch. In support of his arguments, Mr Choudhury has placed reliance on the decis ion of the Apex Court in Union of India & Ors. -vs- Janardhan Debanath & Anr., ( 2004) 4 SCC 245. Per contra, Mr Baishya has argued that it being apparent on the face of the reco rd that the impugned order of transfer is strikingly penal, it is impermissible in law and that, therefore, the ultimate conclusion of the learned Tribunal to t hat effect being unassailable, no interference therewith is called for. Referrin g to the service profile of the respondent, Mr Baishya has argued that not only the impugned order of transfer is vitiated by frequency of the movement of the r espondent since after his initial appointment, thus, exhibiting a whimsical atti tude of the competent authority vis-à-vis him, it is also violative of the relev ant rules/ norms/ guidelines regarding transfer adopted by the Navodaya Vidyalay a Samity. According to him, as the respondent had been transferred and posted at Goalpara on and from 9.11.2009, the impugned order dated 6.8.2010 moving him ou t to West Tripura before the expiry of three years is clearly in violation there of and, thus, is non-est in law. That the impugned order of transfer, if given e ffect to, would also dislocate the studies of his children has been emphasized. Mr Baishya has, therefore, urged that the deductions made by the learned Tribuna l being valid in all respects, the instant petition ought to fail. We have analyzed the pleadings of the parties as well as the arguments advanced on the basis thereof. That the respondent was appointed as a Principal under the Navodaya Vidyalaya Samity on direct recruitment basis on 28/29.4.2008 is a matt er of records. Admittedly, he is in a transferable service. That he is presently on probation is also an undeniable fact. The respondent has admitted that his a ppointment as Principal on direct recruitment basis is a fresh appointment. It i s a matter of records that after the said appointment he was on 30.10.2009 attac hed to JNV, Saiha, Mizoram where eventually he did not have to join. In fact, he had submitted a representation against the said arrangement, whereafter, by ord er dated 9.11.2009 he was attached at JNV, Goalpara where he claims he is presen tly posted. The official records of the Navodaya Vidyalaya Samity No. F. 11-203/NVS(SHR)/Adm /08 contains inter alia the proceedings of the meeting of the concerned Committ ee to consider cases of administrative transfers of Principals. The minutes of t he said meeting reveal that the cases of each Principal within the zone of consi deration was examined in details, whereafter, the Committee comprising of high r anking authorities recommended inter alia the transfer of the respondent to JNV, West Tripura. In substance, in making such recommendation the Committee was of the view that during the respondent’s incumbency as Principal of JNV, Dibrugarh there had been a lot of indisciplined activities for which the parents were not happy of his style of functioning. It was observed as well that as a Principal h e was not aware of his duties and the performance of the staff which led to frau dulent encashment of an amount of Rs. 65,000/-. The respondent was, thus, adjudg ed to be unfit for the post of Principal at Dibrugarh. Noticeably, the reasons that weighed with the Committee in recommending the respondent’s transfer to Wes t Tripura find reflection in their written statement before the learned Tribunal . Inferably, the Tribunal therefore, concluded therefrom that the order of trans fer impugned before it had overwhelmingly a penal flavour. Though the comments available in the official records eventuating the transfer o f the respondent can by no means to said to be complimentary, in absence of any disciplinary action as on date stemming therefrom, we are not persuaded to accep t that the same constitute a punitive factor vis-à-vis his transfer by the order dated 6.8.2010. Having regard to the fact that the respondent is still a probat ioner, it was undeniably open for the authorities concerned to make an assessmen t of his performance at his place of posting and record their views on the basis of the events and happenings thereat. The observations made by the Committee wh ich resulted in the transfer of the respondent, according to us, can at best amo unt to a motive for his transfer and not the foundation thereof. Administrative authorities being the best judge of the exigencies of an institution, in the exe rcise of a Court’s jurisdiction of judicial review, in our view, interference th erewith, as readily done by the learned Tribunal, is unwarranted. Admittedly, on the respondent’s transfer to West Tripura none of his existing se rvice conditions has been adversely affected. The Apex Court in Janardhan Debana th (supra) while dwelling on the contours marking the manner, nature and extent of an exercise to be undertaken by the Courts/ Tribunals to judge as to whether an order of transfer casts a stigma or constitutes punishment held that interfer ence would be justified depending on the consequences flowing from the action im pugned as well as if the service conditions-status and service prospects financi ally is/ are adversely affected. Their Lordships ruled that transfers unless th ey involve any such adverse impact or visit the persons concerned with any penal consequence, are not required to be subjected to same type of scrutiny, approac h and assessment as in the case of dismissal, discharge, reversion or terminatio n and that utmost latitude should be left with the department concerned to enfor ce discipline, decency and decorum in public service which are indisputably esse ntial to maintain the quality thereof and to meet untoward administrative exigen cies to ensure smooth functioning of the administration. In our view, the above factual premise draws the impugned order of trans fer well within the aforestated parameters laid down by the Apex Court. The ple a of invalidation of the impugned order of transfer on the ground that it is pun itive, thus, does not weigh with us. We respectfully differ from the conclusion recorded by the learned Tribunal to this effect. Vis-à-vis the affliction of violation of administrative norms/ guideline s as recorded by the learned Tribunal, with utmost respect, we see no material o n record to either warrant or justify the same. Though Mr Baishya had drawn our attention in course of the arguments to the Notification dated 20.12.93 to the e ffect that the Executive Committee of the Samity had approved the adoption of th e Central Government’s Rules and Regulations in service matters for its employee s mutatis mutandis till such time the Samity frames its own rules and regulation s as well as the connected Office Memoranda of the Central Government, amongst o thers, relatable to tenure of posting/ deputation, we are of the view that havin g regard to the circumstances under which the respondent had to be transferred o ut to West Tripura, the same are of no avail. Though one of the Office Memorandu m records that there would be a fixed tenure of posting of 3 years at a time for officers with service of 10 years or less of which the respondent seeks to avai l the benefit of, to reiterate, having regard to the observation of the Committe e impelling it to recommend his transfer resulting in the impugned order dated 6 .8.2010, we do not feel persuaded to accept the findings of the learned Tribunal to this effect as well. On being queried by us, Mr Baishya has submitted that the respondent’s c hildren are presently studying in Class X and Class VIII in JNV, Goalpara and th at their final examinations would be over by the end of March, 2012. He has furt her submitted that his wife is also unwell and that, therefore, his presence at Goalpara for the present is a compelling necessity. In the above view of the matter, though as indicated hereinabove, we rej ect the challenge to the transfer order dated 6.8.2010 on the above mentioned gr ounds, we are inclined, having regard to the practical difficulties urged before us, to marginally relax the time limit for him to join the new place of posting at West Tripura. Bearing in mind the rough time schedule provided for completio n of the examinations of his children, we hereby direct while allowing this peti tion, that the respondent would join the new place of posting as indicated in th e aforementioned order dated 6.8.2010 positively and without fail on and from 1. 4.2012. The judgment and order dated 11.3.2011 passed by the learned Tribunal in O.A. No. 230/2010 is set aside.