Judgment · High Court · 2009

We have heard Mr KN Choudhury, Senior Advocate assisted by Ms RS Choudhu ry, Advocate for the petitioners and Mr MG Sinha, learned counsel for the respon dent No.1 who has entered appearance through a caveat. The caveat stands discharged. As at the motion hearing the contesting parties have offered exhaustive exchanges on the factual and legal aspects, having regard to the issues involved , we are inclined to dispose of the instant proceedings without issuing formal n otice to the proforma respondent No.2. The facts in brief are that the respondent No.1 had been serving as a Tr ained Graduate Teacher (Manipuri) with the Navodaya Vidyalaya Samiti (for short, hereinafter referred to as ’NVS’) and had been posted in that capacity on regul ar basis at Jawahar Navodaya Vidyalaya, Yaralpat, Imphal East with effect from 1 0.6.2006. Vide order dated 6.9.2011, he was transferred to Jawahar Navodaya Vidy alaya, Bishnupur. At that point of time, a request by the proforma respondent No .2 for his transfer under the unification of couple scheme was pending. Following the transfer of the respondent No.1 vide Office Order No. F.2-8/NVS(SH R)/Pers/ 2233 dated 6.9.2011, the proforma respondent No.2 who was then posted a s TGT (Manipuri), Jawahar Navodaya Vidyalaya, Bishnupur Manipur was transferred to Jawahar Navodaya Vidyalaya, East Imphal, Manipur under the said scheme. Subse quent thereto, by Office Order No.5-21/2011-2012/JNVIE/124 dated 9.9.2011, the r espondent No.1 was relieved from Jawahar Navodaya Vidyalaya, Yaralpat, Imphal E ast consequent upon his transfer aforestated. Being aggrieved, the respondent No.1 approached the learned Tribunal wit h O.A. No. 195/2011 and by order dated 14.9.2011, in the interim, his transfer w as kept in abeyance. On a Misc. Petition being M.A. 141/2011 having been filed b y the petitioners herein, the interim restraint was vacated on 29.9.2011, wherea fter, admittedly, the respondent No.1 joined his place of posting at Bishnupur. Eventually by the judgment and order impugned herein the respondent No.1’s order of transfer has been interfered with. The rival pleadings of the parties would in substance reveal that the re spondent No.1assailed his transfer inter alia on the ground that it had been eff ected in the midst of the on-going academic session and in gross violation of th e Draft Transfer Guidelines dated 18.12.2009 applicable to the employees of the Samiti. Incompetence of the Deputy Commissioner, NVS, Shillong (petitioner No.2 herein), the author of the order of transfer was also asserted. According to the respondent No.1, the arrangement had been occasioned to accommodate the proform a respondent No.2. In reply, the petitioners pleaded to the contrary. According to them, th e respondent No.1 had been stationed at Jawahar Navodaya Vidyalaya, Yaralpat, I mphal East on regular basis with effect from 10.6.2006 and that following his tr ansfer therefrom the proforma respondent No.2 was transferred at that station un der the unification of couple scheme. They maintained that the Draft Guidelines dated 18.12.2009 had neither been finalized nor given effect to and that in term s of the Circular No. F.No.6-1/96-NVS (ADMN.) dated 20.8.2011 issued by the Sami ti Headquarters, the Deputy Commissioner, Regional Office was duly authorized to issue transfer orders and assign duties of the staff upto the level of P.G. Tea chers/ Office Superintendent within the region. They clarified that the post of Deputy Commissioner was earlier designated as Deputy Director and that the petit ioner No.2 was thus competent to issue the order of transfer. The learned Tribunal having regard to the sequence of the orders of tra nsfer of the respondent No.1 and the proforma respondent No.2 in quick successio n concluded that the same was only to accommodate the latter and could not be co nstrued to have been made in administrative exigencies. Referring to the Circula r dated 20.8.2011, it returned a finding that the same did not delegate any powe r to the Deputy Commissioner, Regional Office to issue the orders of transfer as made. The fact that the Draft Guidelines dated 18.12.2009 whereunder the Commis sioner was competent to effect intra-regional transfer of employees upto the lev el of Principals were in circulation was noticed as well. It adverted also to t he circular dated 18.3.2010 on the subject of counselling for request transfer o f the Vidayalays’ staff to hold that the transfer of the proforma respondent No. 2 could not have been made in terms thereof by displacing the respondent No.1. The learned senior counsel for the petitioners emphatically urged that t he respondent No.1 having been posted at Jawahar Navodaya Vidyalaya Yaralpat, Im phal East for over five years on the date on which he was transferred out theref rom he being admittedly under all India transfer liability, his challenge ought to have been rejected in limine by the learned Tribunal. Referring to the circu lar embodying the schedule of delegation of administrative and financial powers to the various authorities of the NVS, Mr Choudury has underlined that in terms thereof the Deputy Director, Regional Office (now designated as Deputy Commissio ner) was competent to transfer and assign duties to the employees upto the level of Post Graduate Teachers/ OS within the same region. As the transfer involved was intra-regional, the plea of want of authority of the petitioner No.2 is thu s wholly misplaced, he contended. Vis-à-vis the circular dated 18.3.2010 on counselling for request transf er of Vidyalaya staff, the learned senior counsel maintained that as on the date of transfer of the proforma respondent No.2 a vacancy at Jawahar Navodaya Vidya laya, Bishnupur did exist, no breach thereof in any view of the matter had occur red. Without prejudice to these, Mr Choudhury has urged placing reliance on the decision of the Apex Court in Union of India -vs- Janardan Debnath, (2004) 4 SCC 245 that in absence of any violation of the statutory norms/ provisions or prov ed allegation of malafide, the learned Tribunal ought not to have interfered wit h the transfers and, thus, the impugned judgment and order is liable to be set a side. Mr Singh has contended per contra that as would be apparent on the face of the record, the transfer of the respondent No.1 had been made to accommodate the proforma respondent No.2 on collateral considerations the impugned action wa s obviously malafide. Referring to the circular on counselling for request trans fer, the learned counsel has urged that the existence and the publication of a v acancy on the website of the Samiti being an essential precondition therefor, th e orders of transfer are apparently in violation thereof and, thus, were rightly interfered with by the learned Tribunal. According to Mr Singh, there was no ad ministrative exigency and the arrangement was put in place only to accommodate t he proforma respondent No.2. To reinforce the plea of malafide in particular, the learned counsel has placed reliance on the decision of this Court in Dilip K r. Saikia- vs- State of Assam & Ors., 2005 (4) GLT 371. The pleadings of the parties and the arguments stemming therefrom have r eceived our due consideration. That the respondent No.1 is under all India trans fer liability as one of the conditions of his service is an admitted fact. It is not disputed as well that he had been posted as TGT (Manipuri) at Jawahar Navod aya Vidyalaya, Yaralpat, Imphal East, Manipur on regular basis with effect from 10.6.2006. Though according to his learned counsel, in terms of the Draft Guide lines for transfer dated 18.12.2009 the normal tenure of posting at a station is 7 years, the learned counsel for the petitioners on being queried by us has sub mitted that pending finalization thereof (Draft Guidelines), it is, for the pres ent, 3 years. Be that as it may, on the date of issuance of the order of his transfer the respondent No.1 had been posted at Jawahar Navodaya Vidyalaya, Yaralpat, Imp hal East for over five years. There is no wrangle at the Bar that the Transfer Guidelines dated 18.12. 2009 have not been finalized and given effect to. In that view of the matter, th e relevance and significance of the circular dated 20.8.2011 on the schedule of delegation of administrative and financial powers of the Samiti is of decisive b earing. Admittedly, thereunder the Deputy Director, Regional Office/ Deputy Dire ctor (A) Hqs. is authorized to transfer and assign duties to PGT/ OS at Vidyalay s within the region. There is no demur that the transfers involved herein are in tra-regional. The plea that the post of Deputy Director, Regional Office has bee n redesignated as Deputy Commissioner has not been repudiated by the respondent No.1. In that view of the matter, having regard to the nature of the transfers m ade and the posts of the incumbents, the petitioner No.2’s power to effect the s ame by the orders impugned is unassailable. True it is that the proforma respondent No.2 had been transferred to the post that had fallen vacant on the posting out of the respondent No.1 and that the orders to that effect had been passed in immediate succession on the very sa me date. Noticeably, however, the order of transfer of the respondent No.1 was p rior to that of the proforma respondent No.2. Literally speaking, therefore, on the date on which the proforma respondent No.2 was transferred as TGT, Jawahar N avodaya Vidyalaya, Imphal East, Manipur, a vacancy thereat in fact was available . That his transfer had been under the unification of couple scheme is also not in dispute. Such a scheme understandably had been drawn up by the authorities co ncerned to cater to the requests of the incumbents to facilitate smooth, hassle free family life which in certain eventualities do address and further administr ative as well as institutional weal. Such a transfer even on request per se unde r all circumstances cannot thus be repudiated to be bereft of administrative nec essity. The plea of non-publication of the vacancy to which the proforma respond ent No.2 had been transferred in this backdrop thus cannot be assigned such a pa ramountcy to render the impugned order irreversively infirm. The imputation of m alafide is also predominantly fleeting sans convincing factual reinforcements an d, thus, cannot be readily sustained. Noticeably, the respondent No.1, after the interim restraint was vacated on 29.9.2011, had joined at Jawahar Navodaya Vidyalaya, Bishnupur, Manipur and had been serving thereat since then till date. On a cumulative consideration of all above, we are of the unhesitant opi nion that the impugned decision of the learned Tribunal cannot be sustained in l aw and on facts. The orders of transfer do not suffer from the legally acknowled ged infirmities as, amongst others, recalled in Union of India -vs- Janardan Deb nath (supra). In the attendant facts and circumstances, the decision of this Cou rt in Dilip Kr. Saikia (supra) is of no avail to the respondent No.1. The judgment and order dated 29.6.2012 passed by the learned Tribunal in O.A. No. 195/2011 is, therefore, set aside.