Central Administrative Tribunal - Patna
Ranjit Kumar Singh vs Kendriya Vidyalaya Sanghthan on 24 November, 2020
-1 OA/050/00307/2020
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
OA/050/00307/2020
Reserved on: 11/11/2020
Pronounced on: 24/11/20200
CORAM
HON'BLE MR. M.C. VERMA, JUDICIAL MEMBER
HON'BLE MR. SUNIL KUMAR SINHA, ADMINISTRATIVE MEMBER
Ranjit Kumar Singh, aged about 46 years, S/o Shatrughan Singh, R/o House
No. 05, Tulsi, Surya Highland City, Karmatand, P.O. Karmatand
(Damodarpur), P.S.
P.S.-Seraidhela, District- Dhanbad, PIN-
PIN 828201, Jharkhand.
.... Applicant.
By Advocate: - Ms. Sonali Acharya
-Versus
Versus-
1. Union of India through Secretary, Ministry of Education,
Government of India, Department of School Education and Literacy
at Shastri Bhavan, New Delhi- 110001.
2. Kendriya Vidyalaya Sangathan through its Commissioner having his
office at 18 Institutional Area, Shaheed Jeet Singh Marg, P.O.
Katwaria Sarai, P.S. Kishangarh Police Post, District-
District New Delhi, PIN--
110016.
3. Assistant Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Ranchi having office at KV Namkum Campus, P.O. and P.S.
Namkum, District- Ranchi, PIN- 834010.
4. Deputy Commissioner, Kendriya Vidyalaya Sangathan, Region
Office, Ranchi having office at KV Namkum Campus, P.O. and P.S.
Namkum, District- Ranchi, PIN- 834010.
5. Kendriya Vidyalaya No. 1 Dhanbad through its Principal having his
office at Kendriya Vidyalaya No. 1, Binodnagar, P.O. & P.S. and
District- Dhanbad- 826001.
.... Respondents.
By Advocate(s): - Mr. G.K. Agarwal
-2 OA/050/00307/2020
ORDER
[ Heard through Video Conferencing ] Per S.K. Sinha, A.M:
A.M:-The instant OA has been filed against the order dated 14th July, 2020 of Kendriya Vidyalaya Sangathan (KVS),, Regional Office, Ranchi transferring the applicant from Kend Kendriya ya Vidyalaya (KV) No. 1 Dhanbad to KV, Maithan Maithan Dam on administrative ground (Annexure- A/ 8) and the order dated 15.07.2020 of KV 1 Dhanbad relieving the applicant from the forenoon of 15th July,2020 (Annexure A/10). The applicant has prayed for following reliefs at Para 8 of the OA:-
i. For quashing the transfer order dated 14.07.2020 and subsequent relieving order dated 15.07.2020 whereby the applicant has been transferred from KV No. 1 Dhanbad to K.V. Maithan Dam. It is submitted that there are two KV in Dhanbad and the applicant is willing to accept his transfer to other KV in Jagjivan Nagar, Dhanbad.
ii. For direction upon the respondents to either allow the applicant to continue on his current place of posting at KV No. 1 considering his health problems and physical disability or to transfer if necessary to other KV No. 2 Dhanbad.
iii. During the pendency of this application an appropriate interim order staying the operation ion and execution of the transfer and relieving orders dated 14.07.2020 and 15.07.2020, restraining the respondents from relieving the applicant and directing the respondents to allow the applicant to continue from his current place of work.
iv. To grant any ny other relief or reliefs as may be deemed fit and proper under the circumstances of the case.
2.1 The applicant, according to the pleadings in OA, had joined KVS on 05.12.2002 and had been serving at KV 1 Dhanbad as Trained Graduate Teacher (SST) since July, 2016. He suffers from 45% permanen permanent physical disability on account of degenerative disk
-3 OA/050/00307/2020 disease of spine which hinder his mobility and because of which he requires regular medical care and assistance of his family members.
nsfer order on 14th July 2020 (Annexure Before the issuance of transfer A/8), a departmental inquiry was initiated against him for alleged sexual harassment of a lady colleague in the same school. Charge memo emorandum randum for the departmental inquiry was served on May 7, 2020 and Inquiry Officer was appointed on June 22nd, 2020. Despite initiation of a departmental inquiry, inquiry the applicant was transferred KV1, Dhanbad to KV Maithan Dam on 14th July, 2020 on from KV1 administrative grounds (Annexure A/8) and the transfer order was communicat communicated to him through WhatsApp Whats the same day. The Principal rincipal KV 1 Dhanbad in response to the aforesaid transfer order issued another order on 15.07.2020 relieving the applicant with immediate effect effect. The applicant represented against the transfer order before the KVS authorities on 14.07.2020 on the grounds of his physical disability and the ongoing Covid pandemic. The applicant also filed a writ petition no. 1985 of 2020 before the Hon'ble Jharkhand High Court which was dismissed on 05.08.2020 (Annexure A/12) ggranting him liberty to move before the Central Administrative Tribunal and join the transferred place of posting within 15 days. 2.2 The applicant has pleaded in the OA that KV, Maithan Dam is 40 Kms. from Dhanbad and does not have proper medical faci facility.
lity.
The KV building at Maithan Dam has three thr floors but no lift facility..
-4 OA/050/00307/2020 he applicant will find it hard to reach the classrooms on 1st and 2nd The floors becaus because of his physical handicap. Further, the applicant has school going children and old p parents arents suffering from age related problems. Shifting the family members from Dhanabd to Maithan Dam during the ongoing Covid pandemic will risk their life and wellbeing.
2.3 The applicant has referred to some judicial pronouncements including that of Hon'ble Supreme Court judgment in E.P. Royappa Vs. State of Tamil Nadu reported in 1974(4) SCC 3 in which Supreme Court stressed that the power to transfer an official must be exercised honestly and in public interest. The applicant also referred to the judgment of Hon'ble Supreme court in Somesh Tiwari Vs. UOI & Ors.. reported in (2009) 2 SCC 592 in which the Apex Court has held that when an order of transfer is passed in lieu of punishment the same is liable to be set aside being wholly illegal. In the ccase ase of Novartis India Ltd. Vs. State of West Bengal reported in (2009) 3 SCC 124 the Honble Supreme Court has held that there can be exceptions to an employee joining a transferred place place.. The applicant has pleaded that in the present case the disability of the applicant and the current pandemic are the just exceptions for non non-joining joining at the place of transfer.
3.1 Respondents have contested the OA on grounds of maintainability and filed Written Statement in which they have held
-5 OA/050/00307/2020 that KVS employees have all India dia transfer liability and there are 1241 Kendriya Vidyalayas and 25 Regional Offices across the country where they can be transferred .The The applicant has been transferred on administrative grounds and his physical disability was kept in view while deciding the place of his transfer. The applicant has not yet joined the place of transfer though he was relieved from KV 1 Dhanbad on 15.07.2020 and the 15 days extension for joining the place of transfer granted by Hon'ble Jharkhand High Court vide their order dated 24.08.2020 has already expired . Prior to the transfer order, a departmental proceeding under Rule 14 of CCS (CCA) Rules, 1965 was initiated against the applicant to inquire into the allegations of sexual harassment of a female teacher at KV 1, Dhanbad Dhanbad. The he applicant has been transferred to KV, Maithan Dam on administrative grounds as per Para 7(e) of the KVS guidelines on transfer with a view to maintain the sanctity and integrity of the departmental inquiry initiated against him. The transfer order has been issued by the Officiating Deputy Commissioner (Respondent No. 3) with the approval of Competent Authority. 3.2 The respondents have further pleaded that the applicant,, since his appointment in KVS in 2002, has served at several places in the country in including cluding more than 2 years at KV, KV Maithan Dam am without making any complaint relating to mobility issues. KV, Maithan Dam has 100% accommodation and good medical facilities for staff. This is
-6 OA/050/00307/2020 also the nearest KV to KV1 Dhanbad Dhanbad, only 40 kms away, where vacancy was available at the time of transfer. The applicant is familiar with KV Maithan Dam as he served there for more than two years in the past. After issuance of the transfer order, besides the applicant's representation, tthe applicant's pplicant's wife had also sent a petition for cancellation of her husband's transfer - a fact which the applicant did not mention in the OA. The representation of applicant dated 14.07.2020 and that of his wife (Smt. (Smt Sudha Kumari) dated 17.07.2020 have been jointly disposed of by Respondent No.3 vide the KVS communication dated 24.08.2020 rejecting the request and the same has been made available to the applicant applicant.
3.3 Respondents have averred that it i is a well settled law that the transfer is an incident of service and an employee has no right to demand for posting to a particular place or office.. If an employee is aggrieved by the transfer order he should first join at the place of transfer and then make a representation representation. The respondents have cited the decisions of the Hon'ble Supreme Court in the cases of State of UP Vs. GovardhanLal (2004 Vol. 11 SCC 402) and S.C. Saxena Vs. Union of India (2006 Vol. 9 SCC 583) in support of their averment.
4. After admission, we heard the learned counsel for rival parties at length and perused the records records.
5.1 Ms. Sonali Acharya, learned counsel forapplicant mentioned that applicant had joined KVS on December 5, 2002 and served at
-7 OA/050/00307/2020 KV, Aizwal till July 2006. He was thereafter transferred to KV 2 Dhanbad where he continued till June 25th 2014. On 26th June, 2014 the applicant was shifted to KV, Maithan Dam where he served till July 3, 2016 and was then posted to Dhanbad KV 1 where he has been serving since 24th July, 2016. While posted at Aizwal, the he applicant had met with a road accident in 2003 and developed permanent physical disability. A medical certificate certif cate reveals that he sufferss with 45% disability (Annexure A/2).
A/2). While he was serving KV, Maithan Dam between June, 2014 to o July, 2015 his physical problems had aggravated. The KV, Maithan has 3 floors without lift facility and the classro classroom m are located at different floors. The staff room is at the 1st floor at Dhanbad. The applicant submitted his physical disability certific certificate 4 times in past for inclusion in the service records but it is not known whether the same has been recorded recorded.. He was dispensed from election duty in past because of physical disability. While issuing the transfer order the competent authority did not ta take ke the fact of his physical disability into consideration. A government circular of 2002 (dated 13.3.2002) directs different offices in Govt. of India to give preference to handicapped persons in posting near their homes. The applicant is a 'person with d disability' isability' under the Rights of Persons with Disabilities Act, 2016. The Act requires the government establishments to provide reasonable accommodation and barrier free environment to employees with disability and to frame appropriate policies for posting and transfer of employees with
-8 OA/050/00307/2020 disabilities. The respondents have completely overlooked the provisions of the Act Act. She prayed for quashing the transfer order on account of his physical handicap.
5.2. The ld counsel ounsel further mentioned that the transfer has been made on administrative ground that his presence may hamper the conduct of departmental proceeding at KV No. 1 Dhanbad. However, it is a fact that the p preliminary enquiry into the applicant's alleged sexual exual misbehavior had been continuing for the last two and half years and there was no complaint that his continuation was prejudicial to the interest of the organization. The fact that the applicant was relieved within a day of the transfer order reflects flects vindict vindictive attitude of the authorities. 5.3. The ld counsel further mentioned that various government departments have issued general guidelines to restrict unnecessary movements of employees during ongoing Covid pandemic. Shifting the family m members embers during this pandemic will unnecessarily expose them, particularly the old parents, to corona virus which may even risk their lives .
6.1. The learned counsel for respondents Shri G.K. Agrawal opposed the OA and mentioned that the applicant's transfer was made on administrative ground to ensure that the conduct of departmental proceeding initiated against him does not get vitiated by his presence at KV No. 1 Dhanbad. Before filing the OA, the he
-9 OA/050/00307/2020 applicant had filed a Writ Petition before Jharkhand High Court which was dismissed on 05.08.2020 (Annexure A/12) with direction to the applicant to join the transferred place of posting within 15 days. Representation of the applicant against the transfer order dated 14.07.2020 was decided by the competent authority on 24.08.2020 rejecting his request (Annexure R/3). Respondent no.3 while disposing of the applicant's representation mentioned that KV, Maithan Dam was the nearest KV to KV No. 1 Dhanbad where vacancy was available at that time. However, the applicant has not yet joined the place of transfer.
6.2. The learned counsel further submitted that the applicant was not appointed to KVS under the quota for physically handicap person persons.. The applicant suffers from 45% physically disability which ich is just 5% higher than the minimum physical handicap level for which any benefit can be given. The applicant served at KV, Maithan Dam for more than ttwo wo years between 2014 and 2016. KV, Maithan Dam has 100% accommodation and good medical facilities and his family members may move to the place of transfer as there is no restriction on movement between Dhanbad and Maithan Dam. The learned counsel further submitted that the transfer of the applicant has been made under para 7(e) on administrative ground and the applicant has not challenged the KVS transfer guidelines guidelines, which confirms the legal validity of the impugned order.
-10 OA/050/00307/2020
7. In rebuttal, the learned counsel for the applicant Ms. Sonali Acharya mentioned that while serving at KV, Maithan Dam the physical problems of the applicant had aggravated and he had to visit Kolkata for health check up. She referred to a medical prescription annexed in the Rejoinder ejoinder at page 21. However, she could not provide any other material/document in support of the applicant's deterioration of physical condition at KV, Maithan Dam. The learned counsel also referred to the case of Sudhanshu Tripathy Vs. Bank of India decided by Madhya Pradesh High Court on 27.04.2018 in WP 148/2017 in which Hon'ble High Court quashed the order transferring a bank employee with 45% physical disability to a village branch on administrative grounds. .
8. The law on transfer as per various pronouncements of the Hon'ble Supreme Court is now well settled. It is an established fact that transfer is an incident of service and an employee has no right to demand posting to a particular place. It is for the employer to decide how and where to employ and employee. In the case of State of U.P. Vs. Govardhan Lal reported in AIR (2004) SC 2165, Hon'ble Supreme Court observed that unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be in interfered terfered with. The Hon'ble Supreme Court in the case of S.C. Saxena Vs.
-11 OA/050/00307/2020 Union of India & Others reported in (2006) 9 SCC 583 has held as under:
under:-
" ....a Government servant cannot disobey a transfer order by not reporting at the place of posting and then go to a court to ventilate his grievances. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed..."
While the law on transfer just mentioned above is well settled, the fact remains that transfer order has to be in conformity with the government's policies and not contrary to tthe he notifications issued by GoII or other authorities.
9. In instant OA, the transfer order has been assailed by the applicant on the grounds of the protection provided to a physically disabled person under the Right of Persons with Disabilities Act, 2016 and other related government notifications.
10. The impugned transfer ransfer order (Annexure A/8) mentions that the applicant is transferred on 'administrative ground, under para 7(e) of KVS Transfer Guidelines with immediate effect to maintain the sanctity and integrity of the Inquiry.' Para 7 (e) KVS of the Transfer guid guidelines reads as under:-
"e) Provided,, an employee can be transferred from a location if the employee's stay has become prejudicial to the interest of the organization at any point of time."
-12 OA/050/00307/2020 The KVS transfer guideline under which the applicant has been transferred nsferred, though non-statutory, has itself not been challenged.
Also, competence of authority issuing the order i.e. Respondent No. 3 (officiating Deputy Commissioner) with the approval of Competent Authority has not been questioned. Also, the applicant has not alleged any mala fide against the Respondents in issuing the transfer order. Hence, the impugned order does not suffer on account of competence of the issuing authority authority,, mala fide or contravention of the KVS policy on transfer and nd the transfer order appears to be on administrative grounds grounds.
11. It is a fact that a departmental inquiry against the applicant for alleged sexual misbehavior of the applicant with a lady teacher under Rule 14 of the CCS (CCA) Rules, 1965 is being conducted conducted at KV 1 Dhanbad and the he applicant has been explicitly transferred to KV,, Maithan to maintain the sanctity and integrity of the ongoing Inquiry.. Hence, the impugned transfer order cannot be said to be in lieu of the punishment.
12. Main issue in the OA is tenability of the impugned transfer order in view of the physical disability of the applicant. The Applicant with 45% physical disability is a "person with disability" as defined under Section 2(r) and 2(s) of the Rights of Persons with Disabilities Disabilities Act, 2016 2016. Section 20 (2) of the Act lays down that :
-13 OA/050/00307/2020 "Every Government establishment shall provide reasonable accommodation and appropriate barrier free and conducive environment to employees with disability."
13. DoP&T, T, Ministry of Personnel, Public Public Grievances & Pensions vide OM dated 13th March 2002 reiterated their earlier guidelines on "Posting of Physically Handicapped Candidates" issued vide OM dated 10.05.1990 which reads as under :
"The undersigned is directed to say that a suggestion has been made that physically handicapped candidates appointed under the Government should preferably be posted in their native places or at least in their native district. The matter has been examined carefully. It may not be possible or desirable to lay down that physically handicapped employees belonging to Group-A or Group-B B who have all India transfer liability should be posted near their native places. However, in the case of holders or Group-C or Group-D D posts who have been recruited on regional basis and d who are physically handicapped, handicapped such uch persons may be given posting, as far as possible, subject to administrative constraints, near their native places within the region."
14. The Ministry of Finance,, Department of Economic Affairs (Banking Banking Division Division), New Delhi vide their letter dated 15.02.1988 had issued a guideline on posting and transfer of Physically Handicapped employed in public sector banks/financial institutions. TThe he Government circular reads as under:
under:-
"Sir, Sir, Representations have been received that that in view of their physical disability bank employees who are physically handicapped may be exempted from routine periodical transfers from places of their original postings/appointment. Earlier the Government had issued instructions vide letter No. 302/33/2/87-SCT(B) SCT(B) dated 31st August, 1987 that BSRBs should endeavor as far as possible to allot the selected physically
-14 OA/050/00307/2020 handicapped candidates to banks having branches located in or near their home town or village. The question of their posting/transfer has also also been considered in the same context and it has been decided that subject to the administrative exigencies, the physically handicapped persons employed in public sector banks in all cadres should normally but exempted from the routine periodical transfers.
transfe It has been decided that such persons should not normally be transferred even an promotion if a vacancy exists in the same branch/office, town/city. When the transfer of a physically handicapped employee becomes inevitable on promotion to a place other than his original place of appointment due to non-
non-
availability of vacancy, it should be ensured that such employees are kept nearest to their original place of posting and in any case are not transferred to far off/remote places. This concession would not not be available to such of the physically handicapped employees of the banks who are transferred on grounds of disciplinary action or are involved in fraudulent transactions, etc. The receipt of this letter may be acknowledged."(Underlined d portion for emphasis)
15. Broadly, following three facts emerge out of the Rights of Persons with Disabilities Act, 2016 and the government notifications relating posting and transfer of physically handicapped employees:
a. An employee with physical disability should be provided with reasonable accommodation and appropriate barrier free and conducive environment at the place of work.
b. They should be posted close to their native places and should be exempted from routine periodic perio transfers including on promotions.
c. The above concessions to persons with physical disability are subject to administrative exigencies and disciplinary requirements of the organizations.
-15 OA/050/00307/2020
16. In the instant case, it has been averred by respondents that KV, Maitha Maithan Dam has 100% accommodation for its employees and also good medical facility. Applicant has not contested this fact. It has been stressed by the applicant that KV, Maitham Dam has three storey building but no lift facility and the classrooms classrooms are located on different floors. The applicant would face serious difficulty in moving to various class rooms because of physical disability. However, it is a fact that Applicant pplicant served at KV, Maithan Maitha Dam for more than two years between2014 between2014-2016 but raised ised no grievance relating mobility issues.. Also KV, Maitham Dam is located only 40 Kilometers from Dhanbad and there is no restriction on movement between the two places. The respondents have clarified that at the time of issuance of transfer order KV, Maithan Dam was the nearest KV where vacancy was available. The applicant can shift his family members to KV, Maithan without any difficulty. As KVS employees have all India transfer liability liability,, the applicant has been shifted within the same region and clo close se to his native place. Also the Government guidelines lay down that the facilities and benefits stipulated for the employees with physical disability are subject to disciplinary requirements and administrative exigencies. In the present case, the applican applicantt has been shifted on account of administrative grounds to ensure the integrity and sanctity of disciplinary proceeding being conducted against him.
Thus, the impugned transfer order is in conformity with the government of India guidelines on posting posting/transfer ng/transfer of
-16 OA/050/00307/2020 persons with physical disability and the Rights of Persons with Disability Act, 2016.
17. The restrictions on transfer during Covid period was lifted by the Central Government in June,, 2020 and different government Departments have been issuing transfer orders in accordance with their requirement requirements subject to local conditions. In the instant case, it has been averred, without challenge, that there is no restriction on movement between Dhanbad and Maithan Dam.
18. Based on the above bove observations, submissions at Bar and pleadings on record, we are not inclined to interfere with the transfer order. The impugned order has been issued on administrative grounds taking the applicant's physical disability and related facts into cons consideration. Hence, the OA is devoid of merit and is accordingly dismissed. The he respondents may consider sympathetically the period between the date of relieving and the date of joining the place of transfer if the applicant promptly joins after this order. No order as to costs.
[ Sunil Kumar Sinha] [ M.C. Verma ] Administrative Member Judicial Member Srk.