High Court · 2009

IN THE HIGH COURT OF JUDICATURE AT MADRASDated : 22.06.2010CoramThe Honourable Mrs.Justice PRABHA SRIDEVANandThe Honourable Mr.Justice G.M.AKBAR ALIWP.No.7994 of 2010 and MP.Nos. 1 & 2 of 20101. The Commissioner Kendriya Vidyalaya Sangathan No. 18, Institutional Area Shaheed Jit Singh Marg New Delhi 110 016. 2. The Asst. Commissioner Kendriya Vidyalaya Sangathan Chennai Region, IIT Campus Chennai 600 036. 3. Dr.E.Prabhakar The Asst. Commissioner Kendriya Vidyalaya Sangathan Chennai Region, IIT Campus Chennai 600 036. ...Petitioners-vs-1. Mamata Manjari Panda2. Union of India rep. by its Secretary Department of Secondary Education and Literacy Ministry of Human Resource Development North Block, Delhi. 3. The Registrar, Central Administrative Tribunal Chennai ...RespondentsPetition under Article 226 of the Constitution of India prayingto issue a writ of certiorari to call for the records of the CentralAdministrative Tribunal culminating with its Order dated 31.7.2009passed in O.A.No. 540 of 2009 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners :Mr.M.VaidyanathanFor Respondents :Mr.Godson Swaminath for R1ORDER(The Order of the Court was delivered by PRABHA SRIDEVAN,J)The first respondent was aggrieved by an order of transfer andher case in brief is as follows: 2.She joined Kendriya Vidyala Island grounds, Chennai on2.12.1995 as a Physical Education Teacher. She was transferred toDGQA Complex, Chennai on 3.6.2005. She joined on 10.6.2005. Withinseven days thereafter, she was transferred to Kendriya Vidyalaya,Army Area, Pune by order dated 17.6.2005. One year later, by orderdated 14.7.2006 she was again transferred to Island grounds, Chennai.Before she had completed the period of three years and in violationof the transfer policy, she was transferred to Coimbatore by theproceedings dated 18.6.2009 to accommodate one Mr.Palanisamy, whocomes under the Priority Category for the Grant of Request transfer(PCGR). The CAT set aside the order of transfer.3. The Tribunal had observed that since the first respondenthad not completed three years of tenure and since the prescribed timelimit was not adhered to, the transfer order should be quashed. TheTribunal further observed that the applicant was not called forcounseling, for which the time limit is 28th May 2009. For all thesegrounds, the Tribunal quashed the order of transfer. Against that,this writ petition has been filed.4. According to the petitioners herein, the order of transferwas in conformity with the transfer policy. Learned counsel for thepetitioners made submissions giving reasons why the first respondentwas transferred and that the transfer policy was strictly followed.Learned counsel appearing for the writ petitioners submitted thatthere was absolutely no violation of the transfer policy. The onlyreason why the transfer proposals had to be postponed from the datefixed in the calender of events was because of the general electionsthrough out the country and the directions issued by the ElectionCommissioner, so there was a delay in passing orders on or before 20thApril. This fact was circulated through KVS Circular dated 16.4.2009.5. Learned counsel for the petitioners submitted that in thetransfer guidelines, the term 'PCGR' is defined. The transfer orderwas issued to the first respondent to accommodate one Palanisamy, whohad less than three years of service for retirement as on 31st March.According to the learned counsel for the petitioners, the teachersbelonging to this category are given utmost priority and the Rules https://hcservices.ecourts.gov.in/hcservices/ enjoin that their request for transfer to a place of their choiceshould be complied with even if it necessitates the displacement of ateacher of the Vidyalaya. As regards the displacement of teachers, itwas submitted that the person who had the longest tenure in thepreferred station was identified and it was the first respondent.According to the learned counsel, therefore there was no violation oftransfer policy and the order of the Tribunal must be set aside. 6. Learned counsel also submitted that it is well settled thattransfer is an incident of service and Courts shall not normallyinterfere with such orders, except where the order is malafide or forother extreme reasons. 7.Learned counsel for the first respondent reiterated thatthe order of transfer was contrary to policy. The first respondentwas not called for counselling. The first respondent's husband andchildren are in Chennai and therefore, this too should be taken intoconsideration. 8. We directed the learned counsel for the petitioners toproduce the necessary files. The transfer guidelines with effect from14.3.2006 have been enclosed in the typed set of papers. The prioritycategory for grant of request of transfer has already been explainedby us. Category 15.1 reads as follows:-"Where transfer is sought by a teacher comingunder PCGR and no vacancy is available at thestation of his choice, required vacancy will becreated by displacing a teacher of the samecategory (post/ subject) with longest stay at thesaid station, and not belonging to CDA. [Categorywhose Dislocation should be Avoided]. However,nobody shall be displaced in this manner, as far aspossible, before completing a tenure of threeyears. If no non-CDA category employee with morethan three years tenure is not available at thestation of first choice of a PCGR categoryemployee, the exercise will be done for locatingsuch a person at stations of his second, third andlower choices, in that order. If no non-CDAemployee with more than 3 years tenure is availableat any of the stations of choice, the non- CDAemployee with longest tenure out of all thepreferred stations taken together, will bedisplaced. The displaced teacher will beaccommodated against available nearby vacancy asfar as possible within the region. The resultantvacancies arising out of transfers orders as perfirst priority list, will be used to accommodatenon – PCGR category requests, who could not be https://hcservices.ecourts.gov.in/hcservices/ accommodated in the first priority list to theextent possible. Further, a teacher who has completed tenure inpriority area and wants to come to his/her choiceplace in the priority area, may be transferred onrequest by displacing the senior most teacher (inthe manner as stated above) at the station in caseof non availability of vacancy at his/ her choicestation. This will be applicable to both intra andinter region transfers. The request of thedisplacee for modification to the choice placeswill be considered against the vacancies arisingupto 30th November of the year (Amended on24.11.2006). However, the stay of displacee whocomes back/ called back to the station from wheredisplaced before completion of three months ofactive service will remain uninterrupted (Amendedon 15.11.2007).9. The petitioners themselves have given reasons why thecounseling could not be done in May and that is because of thedirections of the Election Commissioner. This reason is accepted. Wesee from the records that the Regional Transfer Committee was held on26.5.2009 and the matter that was placed for consideration inter aliawas the transfer of Palanisamy, who comes under PCGR category bydisplacing the first respondent. The Committee had ordered that thosewho have been identified for displacement may be called forcounseling on or before 5th June 2009. It is seen from the recordsthat transfer proposals were also uploaded on the KVS website with arequest to meet the competent authority in person for change of placeif any in the available vacancies within the region. Then the firstrespondent met the Assistant Commissioner on 8.6.2009. A personalhearing was given to the first respondent and she was informed whyher transfer was inevitable and it is only thereafter, the transferorder was issued on 18.6.2009. The first respondent was identified asthe senior most among non – CDA category with longest tenure out ofall the preferred stations and accordingly she was displaced toKendriya Vidyalaya, Coimbatore.10. One of the reasons cited by the learned counsel for thefirst respondent is that the first respondent's husband is working inIIT, which is a non transferrable one and children are studying inChennai. As far as practicable the petitioner may consider this factbut it cannot be disputed that this service makes her liable to betransferred anywhere in India. She has given a representation statingthat she was disturbed thrice within a span of four years. But thisis not strictly accurate. From 1995 till 2006, i.e. for ten years shehas been in Chennai though in different stations. Therefore, we areable to see that the petitioners had taken note of the specific https://hcservices.ecourts.gov.in/hcservices/ situation and that is why she has been accommodated in and aroundChennai. When she was transferred to Pune on public Interest, shecame back to Chennai within one year and she has been here eversince. From the narration of the events above and on examination ofrecords, we do not see that the transfer policy has been violated andespecially when the person, for whom she has been displaced comesunder PCGR Category. He has less than three years of service only andtherefore, his wish that he should be accommodated in the place ofhis choice is given high priority. We also cannot find fault with thetransfer policy and this is passed in the interest of a person who isnearing the age of superannuation. 11. In 2004 (12) SCC 299 – KENDRIYA VIDYALAYA SANGATHAN vsDAMODAR PRASAD PANDEY, the same petitioner was involved. There theteacher who was transferred from Madhya Pradesh to Jammu and Kashmirquestioned the transfer. The Supreme Court held that, ".........................Plea of the presentRespondent 1 that he and wife should be posted atsame place was also held to be not acceptable. Itwas observed that the situation where the husbandand the wife can be kept together would alwaysdepend upon the availability of vacancies andadministrative exigencies. It was noted thatpresent Respondent 1 and his wife had workedtogether for nearly 17 years at a particularplace. It was noticed that Respondent 5 had workedin J&K for about 15 years and she was being givena posting to come back to M.P. i.e. to heroriginal place of posting. ................. TheHigh Court noted that there was no reason todisturb the transfer of the 5th respondent andalso held that there was no illegality in theorder of transfer so far as Respondent 1 isconcerned. After having come to such a conclusion,the High Court gave a direction that presentRespondent 1 shall be given a posting in the Stateof M.P. It is this part of the direction given bythe High Court which is assailed by the appellantKendriya Vidyalaya Sangathan. ..................4. Transfer which is an incidence of service isnot to be interfered with by courts unless it isshown to be clearly arbitrary or visited by malafide or infraction of any prescribed norms ofprinciples governing the transfer (see Abani KantaRay v. State of Orissa. Unless the order oftransfer is visited by mala fide or is made inviolation of operative guidelines, the courtcannot interfere with it (see Union of India v. https://hcservices.ecourts.gov.in/hcservices/ S.L. Abbas). Who should be transferred and postedwhere is a matter for the administrative authorityto decide. Unless the order of transfer isvitiated by mala fides or is made in violation ofany operative guidelines or rules the courtsshould not ordinarily interfere with it. In Unionof India v. Janardhan Debanath it was observed asfollows: (SCC p.250, para 9).“No government servant or employee of apublic undertaking has any legal right to beposted forever at any one particular place orplace of his choice since transfer of a particularemployee appointed to the class or category oftransferable posts from one place to another isnot only an incident, but a condition of service,necessary too in public interest and efficiency inthe public administration. Unless an order oftransfer is shown to be an outcome of mala fideexercise or stated to be in violation of statutoryprovisions prohibiting any such transfer, thecourts or the tribunals normally cannot interferewith such orders as a matter of routine, as thoughthey were the appellate authorities substitutingtheir own decision for that of theemployer/management, as against such orders passedin the interest of administrative exigencies ofthe service concerned. This position washighlighted by this Court in NationalHydroelectric Power Corpn. Ltd. v. Shri Bhagwan.”5. In the present case, the Tribunalcategorically came to hold that mala fides werenot involved and the High Court did not disturbthat finding. That being so, the High Court’sfurther direction that Respondent 1 shall beposted somewhere in M.P. is clearly notsustainable. No reason has been indicated tojustify the direction. That part of the order ofthe High Court is vacated.12. We do not see any malafides in the order of transfer. Theallegation regarding violation of transfer for policy guidelines isbaseless. So, the writ petition is allowed. No costs. Consequently,connected MPs are closed. 13. However, learned counsel for the first respondent submitsthat the first respondent has joined in Coimbatore but on 31.7.2010vacancy would arise in Avadi and she may be posted there. We cannotissue such a direction because there may be other requests and other https://hcservices.ecourts.gov.in/hcservices/ factors to be taken into account. As and when the vacancy arises, thepetitioner shall pass appropriate orders. Sd/-Asst.Registrar/True Copy/Sub.Asst.Registrarbg/glp To1. The Secretary Union of India Department of Secondary Education and Literacy Ministry of Human Resource Development North Block, Delhi. 2. The Registrar, Central Administrative Tribunal Chennai + 1 CC to M/s.Isaac Mohanlal,Advocate,SR.44336 WP.No.7994 of 2010KJI(CO)EM/20.7.10