High Court · 2008

IN THE HIGH COURT OF JUDICATURE AT MADRASDATED: 29.1.2008CORAM:THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAOANDTHE HONOURABLE MR.JUSTICE S.R.SINGHARAVELUWrit Petition No.741 of 2007,M.P.No.1 of 2007and M.P.No.2 of 20071.The Union of India, rep.by The Secretary, Government of India, Ministry of Human Resources and Development New Delhi.2.The Commissioner, Kendriya Vidyalaya Sangathan, No.18, Institutional Area, Shahid Jeet Siongh Marg, New Delhi-110016.3.The Education Officer, Kendriya Vidyalaya, No.18, Institutional Area, Shahid Jeet Singh Mawrg, New Delhi-110016.4.The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, IIT Campus, Chennai-600036.5.The Assistant Commissioner, Kendriya Vidyalaya Sangathan, CECRI Campus, Karaikudi, Tamilnadu.... PetitionersVs.1.V.Suresh Babu2.Mrs.R.Chitra... Respondents https://hcservices.ecourts.gov.in/hcservices/ * * *Writ Petition filed under Article 226 of theConstitution of India, praying to issue a Writ ofCertiorari to call for the records relating to the orderdated 26.9.2006 made in O.A.No.589 of 2006 by the CentralAdministrative Tribunal, Madras Bench and quash the same.* * *For petitioners : Mr.M.VaidyanathanFor R.1: Mrs.J.AnandavalliFor R.2: No appearance* * *O R D E RELIPE DHARMA RAO, J.The first respondent was appointed as Work ExperienceTeacher in the Kendriya Vidyalaya (in short 'KV'), Ooty on2.7.1988 and thereafter he was transferred to KV, Sulur inCoimbatore, from where he was transferred to Pondicherryand at his request, he was transferred to KV,Meenambakkam, Chennai on 28.6.2003, but within 1½ years, hewas transferred to KV, Karaikudi, on ground of surplus, byorder dated 31.8.2004. Thereafter, the first respondentsubmitted a representation for his transfer on 26.10.2005and after a vacancy had arisen in KV, Ashok Nagar, Chennai,he had submitted another representation on 27.2.2006 andalso submitted an application, in the prescribed format, on5.5.2006, seeking transfer to KV, Ashok Nagar, Chennai,explaining his family circumstances. But, since his claimwas not considered by the officials and since the secondrespondent was transferred from KV, Dhonimalai to KV,Ashok Nagar, Chennai by the proceedings dated 14.7.2006,the first respondent has filed O.A.No.589 of 2006 beforethe Central Administrative Tribunal, Chennai, praying toset aside the said transfer order of the second respondent,dated 14.7.2006 and to direct the respondents therein topost him in KV, Ashok Nagar, Chennai.2. The case of the first respondent herein, who is theapplicant before the Tribunal is that even at the time whenhe was declared surplus in KV, Meenambakkam, a vacancy wasexisting in KV, Pondicherry-II and instead of transferringhim to KV, Pondicherry-II, he was posted at Karaikudi,contrary to Rule 6(b)(1)(a) of the Transfer Guidelines ofthe year 2004. The applicant would rely on Rule 7(3) ofthe Transfer Guidelines of the year 2006, which providethat when a teacher is transferred from one KV to anotherKV on surplus grounds, the said teacher shall be repostedagainst a vacancy on superannuation from the place where he https://hcservices.ecourts.gov.in/hcservices/ was transferred. In spite of such specific TransferGuidelines, his claim was not considered. Instead, ateacher by name Mrs.Kalpana was posted to KendriyaVidyalaya, Pondicherry-II on her request from KV,Kalpakkam, even though she had very less priority for KV,Pondicherry-II, however, the applicant has not challengedthe said order as a principle of not approaching the Courtfor any type of cases, which cannot be taken advantage bythe officials. The applicant would attribute malafides tothe officials on ground that they are destined to deny hisclaim even at the cost of the transfer guidelines. 3. The claim of the applicant was opposed by therespondents therein, by filing a counter, wherein they havestated that since the applicant was declared surplus to therequirement of KV, Meenambakkam, he was transferred toKaraikudi, which is not a far off place and wasadjusted/redeployed in the nearest available vacancy withinthe same region viz. KV, Karaikudi. It is also stated thatthe applicant is liable for transfer anywhere in India, interms of Article 71(1) of the Education Code and as per thebasic principles stated in the transfer guidelines in ParaNo.1.1. It is further contended that the vacancy arose inKV-II, Pondicherry was filled by one Mrs.Kalpana, WorkExperience Teacher, KV, Kalpakkam in terms of clause 18(b)of the then transfer guidelines and as per the provisionsof clause 18(b), Commissioner, KVS was fully empowered toorder for a transfer of any teacher in deviation from thetransfer guidelines with the approval of the Chairman, KVSand therefore, the vacancy arose in KV-II, Pondicherry wasnot filled by the applicant, but however, the applicant wastransferred to a place, which is not far away fromPondicherry.4. It is further stated in the counter that thevacancy in KV, Ashok Nagar arose with effect from 1.12.2005consequent upon the superannuation of a regular incumbent,but the said superannuated Teacher continued in servicetill the end of the academic session i.e. 31.3.2006 as perthe provisions of extension of service to the teachers ofKendriya Vidyalaya Sangathan, who are retiring in middle ofthe academic session and therefore, the actual vacancyarose only with effect from 1.4.2006; that the applicant isrelying on Rule 7(3) of the transfer guidelines effectivefrom 14.3.2006 issued by Kendriya Vidyalaya Sangathan whichare not applicable to his case since he wasredeployed/transferred during August 2004 and therefore, hecannot get any relief in the light of this Rule. https://hcservices.ecourts.gov.in/hcservices/

5. The Tribunal, considering the facts andcircumstances of the case and tracing the Rules governingthe transfers and following the judgments of various upperforums of law, including that of the Honourable Apex Court,has allowed the Original Application, further directing therespondents therein to consider the request of theapplicant for transfer under the surplus category stated inRule 7.3 of the transfer guidelines dated 14.3.2006.Aggrieved, the respondents therein, have come forward tofile this writ petition.6. The fact that the applicant was declared surplus atKV, Meenambakkam, Chennai and was transferred to KV,Karaikudi, by order dated 31.8.2004 is not in dispute.While the applicant placed reliance on Rule 7.3 of theTransfer Guidelines, dated 14.3.2006, which provides thatthe teachers transferred on surplus grounds shall be re-posted in the same station when a vacancy arises on accountof superannuation of an employee, the writ petitionerswould contend that the applicant cannot rely on the saidTransfer Guidelines since they came into force much afterthe transfer of the applicant. It has been brought tofore by the writ petitioners that the transfer guidelinesare issued almost every year such as on 7.7.2004, 19.1.2005and 14.3.2006. This contention of the writ petitioners wasrefuted by the applicant contending that the post in KV,Ashok Nagar fell vacant only on 1.4.2006 and since the newTransfer Guidelines came into force on 14.3.2006, the sameare very well applicable to his case. 7. If it is held that the new transfer guidelines areapplicable to the case of the applicant, he would beentitled to get transfer to the earlier station, wherefromhe was declared surplus, in terms of Rule 7.3 of thetransfer guidelines of the year 2006. To claim benefitunder this Rule 7.3 of the transfer guidelines of the year2006 only, the applicant is stressing that since thevacancy arose at KV, Ashok Nagar only on 1.4.2006, the newtransfer guideline should alone be applicable in his case.8. In view of the above, now we have to see as to whatguidelines would be applicable to the case of theapplicable, whether guidelines of the year 2004 or theguidelines of the year 2006.9. In the case on hand, admittedly, the applicant wastransferred, having declared surplus at KV, Meenambakkam toKaraikudi on 31.8.2004, as on which date the TransferGuidelines of the year 2004 alone were in vogue. Muchthereupon, Transfer Guidelines of the year 2005 came into https://hcservices.ecourts.gov.in/hcservices/ force on 19.1.2005, which were replaced by the new transferguidelines on 14.3.2006. Since as on the date of declaringthe applicant surplus at KV., Meenambakkam only theguidelines dated 7.7.2004, were in vogue, the same couldonly be applicable to his case, insofar as his transfer toKaraikudi is concerned. Therefore, we find force in thearguments advanced on the part of the writ petitioners thatthe applicant cannot place reliance on new transferguidelines of the year 2006. The findings rendered contraby the Tribunal, in this regard, further setting aside thetransfer of the second respondent to KV., Ashok Nagar onthis ground, are, therefore, set aside. But, it is to bepointed out that though the Transfer Guidelines of the year2006 are not applicable to the case of the applicant as onthe date of his transfer to Karaikudi in the year 2004,since a favourable Rule in the form of Rule 7.3, has beeninducted into them, keeping in view the welfare of theemployees who are transferred on surplus grounds, thepurport of the same has to be made applicable even to thecases of the employees who were transferred earlier, fromthe date of coming into being of the new TransferGuidelines of the year 2006. Therefore, there is noembargo on the writ petitioners in considering the claim ofthe applicant at present based on the Transfer Guidelinesof the year 2006. In view of our above findings, now itis to be seen whether the transfer of the applicant toKaraikudi is legally sustainable.10. There can never be any doubt that transfer is anincidence of service and transfer to a particular place isnot a right of any employee and the employer is at libertyto make best use of his employees, for the betterment ofthe Society at large, and in the case of this type, in thebest interest of the students in particular. Thus, adiscretion always vests with the employer to transfer theemployees, for the best interest of the Society. This doesnot mean that the employer could give a deaf ear to thegenuine grievances of the employees, since an employee,unreasonably put to serve in odd conditions, is susceptibleto get bleak, being unable to deliver his best, thusimpairing the very purpose of his transfer viz. the bestinterest of the society. The employer, is thereforeexpected to use his discretion always in a transparentmanner, striking a balance between the interest of thepublic and also the employee, to the extent possible and ifthere are grounds to believe that such discretion has beenused in a wrong manner, rather than in a transparentmanner, as is apparent in the case on hand, such an actionof the employer, when proved to be wrong on being tested on https://hcservices.ecourts.gov.in/hcservices/ the touch-stone of reasonableness and fairness, is liableto be quashed, to achieve the ultimate goal of justice.11. The transfer rules are thus being framed byvarious organisations to bring transparency in the field oftransfers and they cannot, just be remained as a show-casepieces, without being implemented by the very framers ofsuch rules, though they do not confer any right on theemployees. For the reason that such Rules do not conferany right on the employee, they cannot be given a simplego-bye by the employer, who is expected to follow the saidRules and act in a fair, reasonable and transparent manner,keeping in mind the welfare of both the Society and theemployee by considering the genuine grievances of theemployee.12. Rule 6(B)(i)(b) of the Transfer Guidelines, dated7.7.2004, on which reliance has been placed by theapplicant reads as follows:"6(B)(i): The teacher/staff of the particularcategory who has the least stay in a KendriyaVidyalaya in terms of length of service will beidentified as excess to the requirement (surplus)on the basis of the staff sanction order for thatKendriya Vidyalaya for a particular year. Theteacher/staff thus identified as excess to therequirement at Kendriya Vidyalaya level will beadjusted as follows:(a) ...(b) against vacancies in that category in thenearest Vidyalaya."13. At this juncture, it is to be pointed out that theapplicant has contended that even on the date when he wasdeclared surplus at Meenambakkam, a post was lying vacantat Pondicherry-II and without accommodating him in the saidvacancy, he was, unreasonably, transferred to Karaikudi, afar-off place and one Mrs.Kalpana was transferred toPondicherry-II, though she got less priority and the aboveaction of the writ petitioners is contrary to Rule 6(B)(i)(b) of the Transfer Guidelines of the year 2004, whichprovides that a candidate who was identified as excess tothe requirement of a KV, should be adjusted againstvacancies in that category in the nearest Vidyala. Thiscontention of the applicant was denied by the writpetitioners, placing reliance on Rule 18(b) of the TransferGuidelines of the year 2004, which contemplates that: "18. Notwithstanding anything contained in theseguidelines:(a) ...(b) the Commissioner will be competent to makesuch departure from the guidelines as he may https://hcservices.ecourts.gov.in/hcservices/ consider necessary with the prior approval of theChairman." 14. The learned counsel appearing for the writpetitioners mainly relied on this Rule 18 to justify theiraction, in not considering the claim of the applicant.But, as could be seen from the above Rule 18(b), theCommissioner shall get prior approval of the Chairman,while departing from the guidelines. In the case on hand,it is not stated anywhere that while exercising the powerunder this Rule 18(b) to transfer Mrs.Kalpana, theCommissioner has obtained prior approval of the Chairman.As has already been pointed out supra, it is well settledprinciple of law that any discretionary power vested on anyauthority should be exercised only inconsonance with therules or guidelines in force and in a fair, reasonable andtransparent manner. Except relying on the said Rule, noreason has been given by the writ petitioners as to why,the applicant was not considered for K.V., Pondicherry-II,in spite of the specific allegation of the applicant thatthe said post was very well vacant at the time of histransfer to Karaikudi and only to take vengeance againsthim, he was shunted to Karaikudi instead of accommodatinghim at Pondicherry-II. 15. Regarding the contention of the applicant that hiscase was not considered even when a vacancy arose at KV,Ashok Nagar, Chennai, it was contended on the part of thelearned counsel for the petitioners that the secondrespondent who was working in a hard place was posted inKV, Ashok Nagar, Chennai. When even in the new TransferGuidelines of the year 2006, the oddities faced by theTeachers transferred on surplus grounds were recognised anda favourable Rule 7.3 has been inducted to protect theinterest of the teachers transferred on ground of surplus,providing that such teachers will have priority in thematter of re-transfer, following the purport of such afavourable legislation, the applicant should have beenconsidered when a vacancy arose at KV, Ashok Nagar, sincehe will have priority over a candidate working in hardplaces, like the second respondent. But, anyhow, as hasalready been adverted to supra, we do not support the orderof the Tribunal insofar as setting aside the transfer ofthe second respondent is concerned, particularly at thisdistant point of time. 16. Thus, it must be held that a Teacher who wastransferred from a place on surplus grounds, will have aright for retransfer over the discretionary power conferredon the authority under Rule 18(b) and also against the https://hcservices.ecourts.gov.in/hcservices/ candidates who served in hard places. Therefore, onlyafter accommodating the persons who were transferred from aplace on ground of surplus, the question of considering thecases of others by the Commissioner under Rule 18(b) wouldarise.17. A perusal of the representation of the firstrespondent/applicant dated 26.10.2005 would make it clearthat his octogenarian parents were undergoing regularmedical treatment at JIPMER Hospital in Pondicherry and inspite of a specific vacancy available at KV, Pondicherry-II, his request was not considered by the authorities andtherefore, he requested the authorities to consider him topost either in Pondicherry, Chennai, Tambaram, Avadi or inKalpakkam in the near future, further bringing to thenotice of the authorities that there going to arise avacancy in KV, Ashok Nagar, Chennai w.e.f. 1.12.2005. But,his request was not considered and at the time of admissionof this writ petition, on 8.1.2007, it has been brought tothe notice of this Court by the learned counsel for thewrit petitioners that the first respondent was transferredto Trichy, after the passing of the order by the Tribunal.But, it is to be pointed out that the order of the Tribunalis dated 26.9.2006 and the said order of transfer is dated25.9.2006. Therefore, it is contended on the part of thefirst respondent/applicant that the writ petitioners wereaware of the order passed by the Tribunal and with malafideintention, by ante-dating the order of transfer as25.9.2006, he was relieved by fax on 27.9.2006 at 9.30a.m., when he was on medical leave for two days. It isalso submitted by the first respondent/applicant that whena teacher is transferred, the practice is to hand-over thecharges of stocks by that Teacher to another Teacher andthen only relieving order will be passed, but, in his case,even without obtaining stocks from him and taking intoconsideration the interest of the students and withoutfollowing any procedure, he was relieved in absentia andthe writ petitioners have not given any opportunity to himto hand over stocks even after joining at Trichy, whichforced him to take leave at Trichy and hand over the stocksat Karaikudi. 18. These disturbing features, which need to becondemned, have not at all been explained by the writpetitioners. What made them to unjustly transfer theapplicant, who was already agitating his transfer toKaraikudi before the Tribunal, that too when the case isawaiting judgment, has been conveniently omitted to beanswered by the writ petitioners. It is also submitted onthe part of the first respondent/applicant that during the https://hcservices.ecourts.gov.in/hcservices/ course of hearing, the Tribunal has directed the writpetitioners to go for a compromise by opting the futurevacancy at Pondicherry which arises due to the fact oftransfer by consent to Avadi by a teacher in Pondicherry orto post the first respondent at Avadi. But, the writpetitioners were not willing to accommodate the firstrespondent either at Pondicherry or at Avadi with the soleaim of wreaking vengeance against him. All the abovestated acts of the writ petitioners clearly bring to forethat they are acting in vendetta, not in the interest ofthe organisation, but to sweetly take revenge on anemployee, who is fighting for his just cause before a Courtof Law. Even if it is presumed that the order of transferof the applicant to Trichy is not ante-dated, but wasgenuinely issued on 25.9.2006, after the passing of theorder by the Tribunal, upholding the plea of the applicant,the writ petitioners should have cancelled such transferorder to prove their bonafides. Instead, they relieved theapplicant in absentia since he was undisputedly on MedicalLeave, by fax and did not permit him even to hand over thestocks. In all fairness, the writ petitioners should haveawaited the orders of the Tribunal or should have at leastbrought to the notice of the Tribunal the need to transferthe first respondent/applicant again to a different place. 19. The non-consideration of the case of the applicantto place him in the nearest vacancy namely Pondicherry-II,as required under Rule 6(B)(i)(b) of the TransferGuidelines and thereafter transferring him again to Trichy,pendente lite, without waiting for the order of theTribunal, that too just a day before the passing of theorder by the Tribunal, and further not considering hisclaim when a vacancy arose at KV, Ashok Nagar, brings tofore, in more than one way, the malafide intention of thewrit petitioners, to act against him, at any cost, i.e.even at the cost of their own Transfer Guidelines, furthertrying to justify their action on the ground that theapplicant has opted for Trichy as his 5th option, ignoringhis representations dated 26.10.2005 and 27.2.2006.For all the above discussions and reasons, we see noground to entertain this writ petition. It is,accordingly, dismissed with a direction to the writpetitioners to post the first respondent/applicant in the https://hcservices.ecourts.gov.in/hcservices/ Chennai city zone within a period of 12 weeks from the dateof receipt of a copy of this order. No costs.Consequently, connected Miscellaneous Petitions are closed.RaoSd/Asst. Registrar/true copy/Sub Asst.RegistrarTo1. The Registrar, Central Administrative Tribunal, Chennai-104.2.The Secretary, Union of India, Government of India, Ministry of Human Resources and Development New Delhi.3.The Commissioner, Kendriya Vidyalaya Sangathan, No.18, Institutional Area, Shahid Jeet Siongh Marg, New Delhi-110016.4.The Education Officer, Kendriya Vidyalaya, No.18, Institutional Area, Shahid Jeet Singh Mawrg, New Delhi-110016.5.The Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional Office, IIT Campus, Chennai-600036. https://hcservices.ecourts.gov.in/hcservices/

6.The Assistant Commissioner, Kendriya Vidyalaya Sangathan, CECRI Campus, Karaikudi, Tamilnadu.•One cc to Mr. J. Aandhavalli, advcoate sR 3832•One cc to Mr. M. Vaidyanathan, Advocte sR 3878•KSJ (co)sg 04/02/08 Pre-delivery Order in W.P.No.741 of 200729.1.2008