Central Administrative Tribunal - Hyderabad
G S R Bhaskar vs Navodya Vidyalaya Sanghathan on 17 October, 2017
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IN THE CENTRAL ADMINISTIIATIVE TRIBUNAL
HYDEIIABAD I,}ENCH ,.-=:
HYDEIIAIIi\l)
O.A. \o.01I tl0715 l0 ltr
D ate of CAV: 19.09.2017. Date of Order : 11 '10.20t1 .
Between : t]
G.S.R.Bhaskar, s/o GVLN SastrY,
aged about 50 yrs, Occ:TGT (Social Sciences), a
presently working at Jawahar NavodayaVidyalaya
Samithi, Karimnagar, Telangana State. AOtrg,
And
1. The Navodaya Vidyalaya Sarnithi
(An Autonomous Organization under
\zllo HRD), Govt' Of India' B-15,
Institutional Area, Sector-62, Noida,
District Gautam Budh Nagar,
Uttal Pradesh-201 309.
2. The Cor.nmissioner,
Navodaya VidyalaYa Samithi
(An Autonomous Organization under
M/o HRD), Govt' Of India, B-15,
lnstitutional Area, Sector-62,, Noida,
District Gautam Budh Nagar'
Uttar Pradesh-201 309.
3. TIie Deputy Commissioner,
Navodaya VidyalaYa Samithi
(Hyderabad Region), 1- 1-1 0/3.,
SP Road. Secunderabad-500 003.
4. The Principal, Jawahar Navodaya Vidyalaya,
Warangal.
5. M.Sandhya ILani, w/o N.S.ReddY,
aged about 50 yrs, Working as
TGT (Social Sciencies), East Godavari District,
Andhra Pradesh State, now transferred to
Jawahar Navodaya Vidyalaya, Medak. ... Respondents
Counsel for the Applicant ... Mr.T.PAcharya
Cor.rnsel for the Respondents ... Mr.N.Srinatha Rao, SC for NVS
... Mr.K.R.K.V.Prasad for R-5
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CORALI:
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THE HON'BLE MR.JUSTICE R.KANTIIA RAO, MEMBER (JUDL.)
THE HON'BLE MRS.MINNIE MATIIEW MEMBER (ADMN.)
ORDER
{ As per Hon'ble Mrs.Minnie lVlathew, Member (Admn.) } The applicant is aggrieved by the impugned orders dated 15.07.2016 and 19.07.2016 transferring him from Jawahar Navodaya Vidyalaya (JNV), Karimnagar to JNV WarqS3l Qs against his entitlement for transfer to JNV tt/edak as per the transfer policy. He prays for a directicr r to the respondents to transfer him to JNV lVedak.
2. The brief facts of the case are that the applicant was appointed as TGT (Social Sciences) on 30.10.1982. On 05.07.2002, he was transferred to JNV Karimnagar. His wife is a School Assistant at Zilla Parishad High School, Medipally, t\/edak District. They have been living separately for more than 1 5 years. The transfer policy issued by the first respondent provides for transfer on request on spouse grounds.
3. The applicant submits that as per the transfer policy issued by the respondents, an employee, who has completed 10 years of stay at a place, has to be compulsorily transferred. The vacancies available are displayed on the website of the respondent- Samithi and an opportunity is provided to the employees to submit their request for transfer to their choice places against the existing vacancies as well as deemed vacancies. On the aforesaid basis, a data sheet was prepared on 14.03.2016, and on 02.06.2016 the final list of employees transferred to their respective places was published. As per the said list, the applicant was shown at Serial No.29 and was to be transferred to JNV [\4edak, as per his entitlement on spouse grounds as his wife was working in a Government High School at Medak. The 5th respondent was 3 A 3 \S**{-, at shown at Serial No.100 and was to be transferred against the deemed vacancy JNV East Godavari District. The applicant contends that though the 5th respondent hadgivenJNVMedakasherchoicestationonSpousegrounds,herhusband,who was working as Assistant commissioner, Navodaya Vidyalaya samithi, Regional OfficeatHyderabad,retiredon3l.032016'Thus,thespousegroundwasnot available to the Sth respondent and hence she was transferred to JNV EastOGodavari issued the District against deemed vacancy. while so, the 2nd respondent suddenly impugnedordersdated'l5.OT.2Ol6transferringhimtoJNV'Warangal'andthe vacancy at JNV Medak, was sought to be given to the Sth respondent'
4.ltisthecaseoftheapplicantthattheimpugnedordersarecontrarytothelaw and the transfer policy as the Sth respondent is not entitled to a transfer on spouse per the final list of grounds as per Rule 2 (1) (d) of the Transfer policy and also as order amounts to a transfers published earlier on 02.06.2016. The impugned transfer benefit on the 51h colourable and malafide exercise of power to confer undue respondentwhiledenyinghimhislegitimateright.Hehasalsoallegedthathistransfer toJNVWarangal,hasbeendoneundertheinfluenceofthe5rhrespondentwhoisa retired Assistant Commissioner of the respondent-Samithi'
5.TheofficialrespondentshavefiledareplyStatementcontestingtheoA,They policy, which lays down the order of have stated that in pursuance of the transfer priorities,theapplicanthassubmittedanapplicationmentioningJNV,Medak,ashis firstplaceofchoiceandJNVWarangal,ashissecondplaceofchoice.Likewise,the 5threspondenthadoptedforJNVRangaReddy,asherfirstchoiceandJNVlVedak, as her second choice. Thus, the applicant as well as the sth respondent have applied
- lA rl ... ..4 ,i\-, 4 \ for transfer under spouse quota. However, due to lnadvertence and oversight, the 5th respondent was considered against deemed vacancy instead of spouse quota and therefore in the website of the respondent Organization her transfer was shown as East Godavari-ll. The 5th respondent thereupon submitted a representation on 03.06.2016 to the 2nd respondent and the 2nd respondent has modified her transfer to JNV fvledak and posted the applicant at JNV Warangal, which was his second place of choice ald also very near to his transferred place. Both the applicant and the 5th respondent were accommodated at the places of their second choice. This was done before the actual transfer orders were issued. They refuted the applicant's contention that the benefit of spouse quota was not available to the 5th respondent having regard to the fact that the data sought by the Samithi in respect of all employees was as on 01.01.20'16 and the 5,h respondent's husband retired from service only on 30.03.2016. Further, the 5th respondent's spouse was working in Regional Office, Shillong, prior to his joining at Regional Office at Hyderabad and the 5'h respondent was working in JNV, East Godavari-l for 16 112 years. Thus, the 5'h respondent and her spouse were far away from each other. They have also denied the contention of the applicant that the Sth respondent's place of transfer was changed from East Godavari to l\/edak under the influence of the Sth respondent's husband. They also submit that as on the date of her representation for re-consideration of her transfer, her husband had already retired from service. Hence, the question of his influencing the decision does not arise. lt is also submitted by the respondents that the Sth respondent's case had to be considered under spouse quota as her spouse was very much on the rolls of the Samithi at the time of submitting her application for transfer on spouse ground. They reiterate that the orders issued by the 2"d respondent transferring the 5'h respondent from JNV, East Godavari to JNV, Medak, is in terms of the transfer policy which lt C 5 \r protects the welfare of couples. The applicant was adjusted at his second place of choice and no illegality or undue favour has been shown by the respondent Samithi'
6. The 5th respondent has filed a separate reply statement stating that she had workedinJNVEastGodavari.lforl6l12yearsaSon0l.0l.20l6andWaSlivingaway from her spouse for 5 years as he had worked in North East from 21 .11 '2011 lo 17.05.2015 and thereafter from '19.05.2015 onwards at Regional Office, Hyderabad' She also submits that options to accommodate the choice postings ought to have been finalized by 01.01 .2016, on which date her husband was in service. Thus, her there was request for accommodation at Medak on spouse account was conceded as that no vacancy at Ranga Reddy District, which was her first choice. she also submits she has completed more than 16 lt}years of stay in East Godavari, which is more than the prescribed"l 0 years and that her request was considered based on the transfer count i.e., points awarded to her on different counts, which, inter alia includes to be spouse ground. she also submits that even if for any reason she is not entitled considered on spouse ground because her husband retired from service on 31.03.20'16, the points assigned to her are 32 after deducting 15 points on this count' whereas, the applicant even after adding 5 points towards spouse quota would have only 31 points. she also submits that her husband is presently working as vice Principal, MJPTBCWR Degree college, Pragnapur, after his retirement and that this lnstitution is under the direct control of the BC Welfare Department, Government of Telangana. She has also relied on the proceedings of the l\4JPTBCWR Society dated 05.12.2016 and 10.03.2017 to fo(ify her point that she is entitled to transfer on spouse ground and that her name was wrongly shown against the deemed vacancy in East Godavari-ll in the final list of transfers.
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7. The applicant has filed a rejoinder stating that the respondent's case was rightly considered against deemed vacancy as her case could not be considered under'Spouse Quota'since her husband had retired on 31.3.2016. Thus, the respondents had initially considered her case against deemed vacancy and the plea of inadvertence or oversight cannot be accepted. Further, the question of considering the 5th respondent's representation dated 03.06.2016 for transfer to JNV Medak does not arise as her husband had already retired from service on 31.03.2016 itself. He also submits that he has challenged the orders of transfer of the 5'h respondent as his transfer to Medak was modified only to accommodate the 5th respondent whose case could not be considered under spouse quota at all. He also submits that when he was working in NVS, Medak at the time of his marriage, his wife was working as teacher under the State Government in Prakasam District. After great effort, his wife got a transfer to Medak district taking the last place in the seniority list in lVledak district in January, 2002. However, six months after his wife joined him in Nledak district, he was transferred to Karimnagar district as per the policy and he has been there for"14 years separated from his family. lt was only in 20'16 that his case was considered under spouse quota and was posted to Medak to unite him with his wife. Thus the cancellation of this order in order to accommodate the 5th respondent is highly arbitrary and incorrect. The applicant also points out that the contention of the 5rn respondent that her husband is presently working as Vice Principal, MJPTBCWR Degree College, Wargal, has no relevance as this is an assignment given to him after his retirement which is not covered by the instructions contained in O.ttl. dated 30.09.2009.
8. The 5th respondent has also filed a reply reiterating that as on the cut off date i.e., 01.01.2016, her husband was in service thereby entitling her for consideration on 34, 7 t 7 \ spouse ground and that even if the points are assighed deleting this ground, she would still get more points than the applicant.
g. we have heard Mr. T.P. Acharya, learned counsel for the applicant, NIr. N. Srinatha Rao, learned Standing Counsel for the official respondents and lVlr. K R.K.V Prasad, learned counsel for the Sth respondent.
10. During the course of the arguments, learned counsel for the applicant relied on the orders of this Tribunal in O.A. No.697/2015 dated 21.09.2015 in which this Tribunal had interfered in the transfer order of the applicant from Yanam on the ground that the said transfer had been effected with a view to accommodating the 9th respondent in his place at Yanam. The order was challenged before the Hon',ble High court at Hyderabad in W.P. No.36639/2015 and the Hon'ble High Court had upheld the orders of this Tribunal. ln his case also his initial transfer to JNV lVledak was altered only to accommodate the 5'h respondent on a fictitious ground' 11 . The learned counsel for the Applicant argued that the vacancy position as on 3"1 .03.2016 only has to be taken and the 5th respondent's spouse had already retired on the said date. Hence, the decision of the Sth respondent's transfer to JNV' Medak, on spouse grounds is blatantly incorrect. He also drew our attention to the Para 2.2 of the Annexure.A-lll Transfer Policy, which states as follows:
,2.2 CASES NOT COVERED UNDER TRANSFER COUNTS W/IH REASONS
a) Transfer of differently abled employees (and employees having differently abted dependents) to be governed as per DOPT OM No.AB 14017/16/2002-Estt. (RR), dated 13th lVlarch, 2002 & OM No.42011/3/201 4-Estt. (Res.), dated 6th June, 2014 A ) ........ ..8 B . .",.
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b) Transfer of employees wha:|aie suffering from serious ailment/disease including fheir spouse and:children as mentioned in Transfer Policy {Essence of the provisifons of Transfer Policy under Para 2 (b) (k))
c) Employees working under Special Bond in hard & difficult station and completing the requisite tenure (Obligatory for the Samiti)
d) Transfer of husband/wife to one station for unification with spouse or nearby station {DOPT OM No.28034/9/2009-Estt. (A), dated 30th September, 2009)]"
It was his contention that from the above, it is clear that the transfer of husband/wife on spouse ground is not to be assessed on the basis of counts
12. The learned Standing Counsel argued tht there are no malafides in the impugned order as alleged by the applicant. He has produced a copy of the transfer count secured by the applicant and also a copy of the representation dated 03.06.2016 of the 5'r' respondent for transfer from JNV East Goclavari to JNV, Medak.
13. From the reply statement filed by the respondents it is seen that the transfer policy of the Navodaya Vidyalaya Samithi provides for transfer of husband/ wife to one station or to nearby station for unitlcation with spouse. Such a transfer is treated as a request transfer. Both the applicant as well as the 5'r'respondent applied for transfer under the spouse. quota. Admittedly the respondents had initially shown the transfer of the applicant to JNV Medak in the official website. However, later, the transfer of the applicant has been rnodified to JNV Warangal. The impugned order states that this modification has been done "to benefit another of,ficial's unification ofspouse". It is the contention of the respondents that it was due to inadveftence and oversight that the 5'r' respondent was considered against a deemed vacancy instead of Spouse quota and her place of transibr shown as East Godavari-ll. The respondents also submit that the 5'r'
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t respondent submitted a representation on 03.06.20t6$inst her transfer to JNY East Godavari-ll and on the basis of her representation, she was transferred to JNV Medak' It is conceded by the respondents that the 5'h respondent's husband had retired from service on 30.03.2016 and that on the date of her representation on 03'06'2016, her spouse was not in service. They have, however, taken the plea that the data sought by the Samithi in respect of all employees seeking transfer was reckoned from 01'01'2016' at which point of time, the 5ft respondent's husband was in service and the applicant was eligible for transfer on spouse grounds. The further ground taken was that the 5'r' joining at respondent's spouse was working in Regional Office, Shillong prior to his Regional Office, Hyderabad and at that point of time, 5'r' respondent was working in JNV East Godavari-I and that the 5't' respondent and her spouse have been away from justification each other for 16 yz years. Thus the conter.rtion of the offrcial respondent in of the impugned Office Order is that at the time of inviting applications for request transfer and collecting the data in respect of such employees, the 5'h respondent's to husband was in service and that in view ofthis, the benefit oftransfer ofhusband/wife one station under clause 2(1) (d) of the transfer policy was available to the 5'r' respondent.
14. The policy of transferring husband/ wife to one station or a nearby station is in terms of DOPT O.M. dated 30'09.2009 which states as follows:
"(vii) Where one spouse is employed under the Central Golt and the other spouse is employed under the State Govt.:-
The spouse employed under the Central Govt. may apply to the competent authority and the competent authority may post the said offtcer to tlre statior, or ifthere is no post in that itation to the State where the otlier spouse is posted'
(viii) The husband & wife, if working in the same Deparlment and if the i"qri..d level ofpost is available, shor.rld invariably be posted together in o.i.. to enabte them to lead a noln.ral family life and look after the welfare of their children especially till the children attain 18 years ofage' This will not apply oll appointment under the Centlal Stafhng Scheme' Where only *if" is u Govt. servant, the above coucessions would be applicable to the Govt. servant."
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15. A plain reading of the aforesaid clause ,r\-.$.1"* it tltat is when husband ant
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wife are working in the same department or where ott,r"t$irrt. is employed in the Central Government and the other spouse is employed in State Govemment, there will arise an entitlement for transfer on spouse ground for posting of husband and wife at the same station. In the instant case, the 5'r' respondent's husband had retired from service on 31.03.2016 and was, therefore, not employed under the Govemment at the time of issuance of the impugned order dated 15.07.2016. Hence, the 5s respondent's transfer to JNV, Medak, on spouse grounds is clearly erroneous. Although this aspect is not at all relevant, we may observe in passing, that even the orders of engagement of the 5d' respondent's husband by the MJPTBCWREI Society after his retirement is only on 05.12.2016. Thus, there can be no valid reason for the respondents to have modified the transfer of the appiicant shown in the website on the basis of the 5th respondent's representation dated 03.6.2016, as the transfer on spouse grounds was not available to the 5ih respondent as her husband ceased to be in service with effect from 31.03.2016 itself. Even though the data may have been collected w.e.f' 01.01.2016, the respondent Samithi could not have been oblivious of the fact that the 5tr' respondent's spouse was no more in service and that there was no justification for considering her representation under spouse quota.
16. Although the official respondents have not taken the ground that the 5'h respondent had secured more counts than the applicant, the 5'h respondent has argued that even without the spouse ground, she secured more points than the applicant. The 5'h respondent, however, has not produced any material evidence in support of her claim that she had more points' 17 . Further, the Annex.A-III proceedings of the 2'd Respondent dated 22.12.2015 has in Para 2.2 listed out the cases which are not covered undel transfer counts and the same has been extracted in Para 11 supra. From this it is clear that the transfer of the 1i]-
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husband/ wife to one station is not covered by the count system. Hence, the ground taken by the 5th respondent that she got more points than the applicant is not tenable.
18. It has also to be observed that the impugned order is categorically clear that the transfer of the applicant to JNV Medak, as displayed on the official website , was modified to benefit / accommodate the 5tr' respondent on an eroneous ground of "unification of spouse". In this view of the matter, we are inclined to agree with the applicant that he is covered by the orders of this Tribunal in O.A.No.69ll20l5, dated 21.09.2015, which has been upheld by the Hon'ble High Court at Hyderabad in W.P.No.36639 of 2015, dated 29.10.2015.
19. Having regard to the foregoing discussions, we set aside the impugned order transferring the applicant to JNY Warangal and direct the 2nd Respondent to transfer the applicant to JNV, Medak, in terms of the Annerure.A-Vl proceedings dated 02.06.2016. Two months tin.re is granted for compliance
20. The O.A. is allowed as above. No costs.
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