Madras High Court
The Union Of India vs V.Suresh Babu on 29 January, 2008
Author: Elipe Dharma Rao
Bench: Elipe Dharma Rao, S.R.Singharavelu
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED: 29.1.2008 CORAM: THE HONOURABLE MR.JUSTICE ELIPE DHARMA RAO AND THE HONOURABLE MR.JUSTICE S.R.SINGHARAVELU Writ Petition No.741 of 2007, M.P.No.1 of 2007 and M.P.No.2 of 2007 1.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. ... Petitioners Vs. 1.V.Suresh Babu 2.Mrs.R.Chitra ... Respondents * * * Writ Petition filed under Article 226 of the Constitution of India, praying to issue a Writ of Certiorari to call for the records relating to the order dated 26.9.2006 made in O.A.No.589 of 2006 by the Central Administrative Tribunal, Madras Bench and quash the same. * * * For petitioners : Mr.M.Vaidyanathan For R.1 : Mrs.J.Anandavalli For R.2 : No appearance * * * O R D E R
ELIPE DHARMA RAO, J.
The first respondent was appointed as Work Experience Teacher in the Kendriya Vidyalaya (in short 'KV'), Ooty on 2.7.1988 and thereafter he was transferred to KV, Sulur in Coimbatore, from where he was transferred to Pondicherry and at his request, he was transferred to KV, Meenambakkam, Chennai on 28.6.2003, but within 1= years, he was transferred to KV, Karaikudi, on ground of surplus, by order dated 31.8.2004. Thereafter, the first respondent submitted a representation for his transfer on 26.10.2005 and after a vacancy had arisen in KV, Ashok Nagar, Chennai, he had submitted another representation on 27.2.2006 and also submitted an application, in the prescribed format, on 5.5.2006, seeking transfer to KV, Ashok Nagar, Chennai, explaining his family circumstances. But, since his claim was not considered by the officials and since the second respondent 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 before the Central Administrative Tribunal, Chennai, praying to set aside the said transfer order of the second respondent, dated 14.7.2006 and to direct the respondents therein to post him in KV, Ashok Nagar, Chennai.
2. The case of the first respondent herein, who is the applicant before the Tribunal is that even at the time when he was declared surplus in KV, Meenambakkam, a vacancy was existing in KV, Pondicherry-II and instead of transferring him to KV, Pondicherry-II, he was posted at Karaikudi, contrary to Rule 6(b)(1)(a) of the Transfer Guidelines of the year 2004. The applicant would rely on Rule 7(3) of the Transfer Guidelines of the year 2006, which provide that when a teacher is transferred from one KV to another KV on surplus grounds, the said teacher shall be reposted against a vacancy on superannuation from the place where he was transferred. In spite of such specific Transfer Guidelines, his claim was not considered. Instead, a teacher by name Mrs.Kalpana was posted to Kendriya Vidyalaya, Pondicherry-II on her request from KV, Kalpakkam, even though she had very less priority for KV, Pondicherry-II, however, the applicant has not challenged the said order as a principle of not approaching the Court for any type of cases, which cannot be taken advantage by the officials. The applicant would attribute malafides to the officials on ground that they are destined to deny his claim even at the cost of the transfer guidelines.
3. The claim of the applicant was opposed by the respondents therein, by filing a counter, wherein they have stated that since the applicant was declared surplus to the requirement of KV, Meenambakkam, he was transferred to Karaikudi, which is not a far off place and was adjusted/redeployed in the nearest available vacancy within the same region viz. KV, Karaikudi. It is also stated that the applicant is liable for transfer anywhere in India, in terms of Article 71(1) of the Education Code and as per the basic principles stated in the transfer guidelines in Para No.1.1. It is further contended that the vacancy arose in KV-II, Pondicherry was filled by one Mrs.Kalpana, Work Experience Teacher, KV, Kalpakkam in terms of clause 18(b) of the then transfer guidelines and as per the provisions of clause 18(b), Commissioner, KVS was fully empowered to order for a transfer of any teacher in deviation from the transfer guidelines with the approval of the Chairman, KVS and therefore, the vacancy arose in KV-II, Pondicherry was not filled by the applicant, but however, the applicant was transferred to a place, which is not far away from Pondicherry.
4. It is further stated in the counter that the vacancy in KV, Ashok Nagar arose with effect from 1.12.2005 consequent upon the superannuation of a regular incumbent, but the said superannuated Teacher continued in service till the end of the academic session i.e. 31.3.2006 as per the provisions of extension of service to the teachers of Kendriya Vidyalaya Sangathan, who are retiring in middle of the academic session and therefore, the actual vacancy arose only with effect from 1.4.2006; that the applicant is relying on Rule 7(3) of the transfer guidelines effective from 14.3.2006 issued by Kendriya Vidyalaya Sangathan which are not applicable to his case since he was redeployed/transferred during August 2004 and therefore, he cannot get any relief in the light of this Rule.
5. The Tribunal, considering the facts and circumstances of the case and tracing the Rules governing the transfers and following the judgments of various upper forums of law, including that of the Honourable Apex Court, has allowed the Original Application, further directing the respondents therein to consider the request of the applicant for transfer under the surplus category stated in Rule 7.3 of the transfer guidelines dated 14.3.2006. Aggrieved, the respondents therein, have come forward to file this writ petition.
6. The fact that the applicant was declared surplus at KV, 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 the Transfer Guidelines, dated 14.3.2006, which provides that the teachers transferred on surplus grounds shall be re-posted in the same station when a vacancy arises on account of superannuation of an employee, the writ petitioners would contend that the applicant cannot rely on the said Transfer Guidelines since they came into force much after the transfer of the applicant. It has been brought to fore by the writ petitioners that the transfer guidelines are issued almost every year such as on 7.7.2004, 19.1.2005 and 14.3.2006. This contention of the writ petitioners was refuted by the applicant contending that the post in KV, Ashok Nagar fell vacant only on 1.4.2006 and since the new Transfer Guidelines came into force on 14.3.2006, the same are very well applicable to his case.
7. If it is held that the new transfer guidelines are applicable to the case of the applicant, he would be entitled to get transfer to the earlier station, wherefrom he was declared surplus, in terms of Rule 7.3 of the transfer guidelines of the year 2006. To claim benefit under this Rule 7.3 of the transfer guidelines of the year 2006 only, the applicant is stressing that since the vacancy arose at KV, Ashok Nagar only on 1.4.2006, the new transfer guideline should alone be applicable in his case.
8. In view of the above, now we have to see as to what guidelines would be applicable to the case of the applicable, whether guidelines of the year 2004 or the guidelines of the year 2006.
9. In the case on hand, admittedly, the applicant was transferred, having declared surplus at KV, Meenambakkam to Karaikudi on 31.8.2004, as on which date the Transfer Guidelines of the year 2004 alone were in vogue. Much thereupon, Transfer Guidelines of the year 2005 came into force on 19.1.2005, which were replaced by the new transfer guidelines on 14.3.2006. Since as on the date of declaring the applicant surplus at KV., Meenambakkam only the guidelines dated 7.7.2004, were in vogue, the same could only be applicable to his case, insofar as his transfer to Karaikudi is concerned. Therefore, we find force in the arguments advanced on the part of the writ petitioners that the applicant cannot place reliance on new transfer guidelines of the year 2006. The findings rendered contra by the Tribunal, in this regard, further setting aside the transfer of the second respondent to KV., Ashok Nagar on this ground, are, therefore, set aside. But, it is to be pointed out that though the Transfer Guidelines of the year 2006 are not applicable to the case of the applicant as on the date of his transfer to Karaikudi in the year 2004, since a favourable Rule in the form of Rule 7.3, has been inducted into them, keeping in view the welfare of the employees who are transferred on surplus grounds, the purport of the same has to be made applicable even to the cases of the employees who were transferred earlier, from the date of coming into being of the new Transfer Guidelines of the year 2006. Therefore, there is no embargo on the writ petitioners in considering the claim of the applicant at present based on the Transfer Guidelines of the year 2006. In view of our above findings, now it is to be seen whether the transfer of the applicant to Karaikudi is legally sustainable.
10. There can never be any doubt that transfer is an incidence of service and transfer to a particular place is not a right of any employee and the employer is at liberty to make best use of his employees, for the betterment of the Society at large, and in the case of this type, in the best interest of the students in particular. Thus, a discretion always vests with the employer to transfer the employees, for the best interest of the Society. This does not mean that the employer could give a deaf ear to the genuine grievances of the employees, since an employee, unreasonably put to serve in odd conditions, is susceptible to get bleak, being unable to deliver his best, thus impairing the very purpose of his transfer viz. the best interest of the society. The employer, is therefore expected to use his discretion always in a transparent manner, striking a balance between the interest of the public and also the employee, to the extent possible and if there are grounds to believe that such discretion has been used in a wrong manner, rather than in a transparent manner, as is apparent in the case on hand, such an action of the employer, when proved to be wrong on being tested on the touch-stone of reasonableness and fairness, is liable to be quashed, to achieve the ultimate goal of justice.
11. The transfer rules are thus being framed by various organisations to bring transparency in the field of transfers and they cannot, just be remained as a show-case pieces, without being implemented by the very framers of such rules, though they do not confer any right on the employees. For the reason that such Rules do not confer any right on the employee, they cannot be given a simple go-bye by the employer, who is expected to follow the said Rules and act in a fair, reasonable and transparent manner, keeping in mind the welfare of both the Society and the employee by considering the genuine grievances of the employee.
12. Rule 6(B)(i)(b) of the Transfer Guidelines, dated 7.7.2004, on which reliance has been placed by the applicant reads as follows:
"6(B)(i): The teacher/staff of the particular category who has the least stay in a Kendriya Vidyalaya in terms of length of service will be identified as excess to the requirement (surplus) on the basis of the staff sanction order for that Kendriya Vidyalaya for a particular year. The teacher/staff thus identified as excess to the requirement at Kendriya Vidyalaya level will be adjusted as follows:
(a) ...
(b) against vacancies in that category in the nearest Vidyalaya."
13. At this juncture, it is to be pointed out that the applicant has contended that even on the date when he was declared surplus at Meenambakkam, a post was lying vacant at Pondicherry-II and without accommodating him in the said vacancy, he was, unreasonably, transferred to Karaikudi, a far-off place and one Mrs.Kalpana was transferred to Pondicherry-II, though she got less priority and the above action of the writ petitioners is contrary to Rule 6(B)(i)(b) of the Transfer Guidelines of the year 2004, which provides that a candidate who was identified as excess to the requirement of a KV, should be adjusted against vacancies in that category in the nearest Vidyala. This contention of the applicant was denied by the writ petitioners, placing reliance on Rule 18(b) of the Transfer Guidelines of the year 2004, which contemplates that:
"18. Notwithstanding anything contained in these guidelines:
(a) ...
(b) the Commissioner will be competent to make such departure from the guidelines as he may consider necessary with the prior approval of the Chairman."
14. The learned counsel appearing for the writ petitioners mainly relied on this Rule 18 to justify their action, in not considering the claim of the applicant. But, as could be seen from the above Rule 18(b), the Commissioner 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 power under this Rule 18(b) to transfer Mrs.Kalpana, the Commissioner has obtained prior approval of the Chairman. As has already been pointed out supra, it is well settled principle of law that any discretionary power vested on any authority should be exercised only inconsonance with the rules or guidelines in force and in a fair, reasonable and transparent manner. Except relying on the said Rule, no reason 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 that the said post was very well vacant at the time of his transfer to Karaikudi and only to take vengeance against him, he was shunted to Karaikudi instead of accommodating him at Pondicherry-II.
15. Regarding the contention of the applicant that his case was not considered even when a vacancy arose at KV, Ashok Nagar, Chennai, it was contended on the part of the learned counsel for the petitioners that the second respondent who was working in a hard place was posted in KV, Ashok Nagar, Chennai. When even in the new Transfer Guidelines of the year 2006, the oddities faced by the Teachers transferred on surplus grounds were recognised and a favourable Rule 7.3 has been inducted to protect the interest of the teachers transferred on ground of surplus, providing that such teachers will have priority in the matter of re-transfer, following the purport of such a favourable legislation, the applicant should have been considered when a vacancy arose at KV, Ashok Nagar, since he will have priority over a candidate working in hard places, like the second respondent. But, anyhow, as has already been adverted to supra, we do not support the order of the Tribunal insofar as setting aside the transfer of the second respondent is concerned, particularly at this distant point of time.
16. Thus, it must be held that a Teacher who was transferred from a place on surplus grounds, will have a right for retransfer over the discretionary power conferred on the authority under Rule 18(b) and also against the candidates who served in hard places. Therefore, only after accommodating the persons who were transferred from a place on ground of surplus, the question of considering the cases of others by the Commissioner under Rule 18(b) would arise.
17. A perusal of the representation of the first respondent/applicant dated 26.10.2005 would make it clear that his octogenarian parents were undergoing regular medical treatment at JIPMER Hospital in Pondicherry and in spite of a specific vacancy available at KV, Pondicherry-II, his request was not considered by the authorities and therefore, he requested the authorities to consider him to post either in Pondicherry, Chennai, Tambaram, Avadi or in Kalpakkam in the near future, further bringing to the notice of the authorities that there going to arise a vacancy in KV, Ashok Nagar, Chennai w.e.f. 1.12.2005. But, his request was not considered and at the time of admission of this writ petition, on 8.1.2007, it has been brought to the notice of this Court by the learned counsel for the writ petitioners that the first respondent was transferred to Trichy, after the passing of the order by the Tribunal. But, it is to be pointed out that the order of the Tribunal is dated 26.9.2006 and the said order of transfer is dated 25.9.2006. Therefore, it is contended on the part of the first respondent/applicant that the writ petitioners were aware of the order passed by the Tribunal and with malafide intention, by ante-dating the order of transfer as 25.9.2006, he was relieved by fax on 27.9.2006 at 9.30 a.m., when he was on medical leave for two days. It is also submitted by the first respondent/applicant that when a teacher is transferred, the practice is to hand-over the charges of stocks by that Teacher to another Teacher and then only relieving order will be passed, but, in his case, even without obtaining stocks from him and taking into consideration the interest of the students and without following any procedure, he was relieved in absentia and the writ petitioners have not given any opportunity to him to hand over stocks even after joining at Trichy, which forced him to take leave at Trichy and hand over the stocks at Karaikudi.
18. These disturbing features, which need to be condemned, have not at all been explained by the writ petitioners. What made them to unjustly transfer the applicant, who was already agitating his transfer to Karaikudi before the Tribunal, that too when the case is awaiting judgment, has been conveniently omitted to be answered by the writ petitioners. It is also submitted on the part of the first respondent/applicant that during the course of hearing, the Tribunal has directed the writ petitioners to go for a compromise by opting the future vacancy at Pondicherry which arises due to the fact of transfer by consent to Avadi by a teacher in Pondicherry or to post the first respondent at Avadi. But, the writ petitioners were not willing to accommodate the first respondent either at Pondicherry or at Avadi with the sole aim of wreaking vengeance against him. All the above stated acts of the writ petitioners clearly bring to fore that they are acting in vendetta, not in the interest of the organisation, but to sweetly take revenge on an employee, who is fighting for his just cause before a Court of Law. Even if it is presumed that the order of transfer of the applicant to Trichy is not ante-dated, but was genuinely issued on 25.9.2006, after the passing of the order by the Tribunal, upholding the plea of the applicant, the writ petitioners should have cancelled such transfer order to prove their bonafides. Instead, they relieved the applicant in absentia since he was undisputedly on Medical Leave, by fax and did not permit him even to hand over the stocks. In all fairness, the writ petitioners should have awaited the orders of the Tribunal or should have at least brought to the notice of the Tribunal the need to transfer the first respondent/applicant again to a different place.
19. The non-consideration of the case of the applicant to place him in the nearest vacancy namely Pondicherry-II, as required under Rule 6(B)(i)(b) of the Transfer Guidelines and thereafter transferring him again to Trichy, pendente lite, without waiting for the order of the Tribunal, that too just a day before the passing of the order by the Tribunal, and further not considering his claim when a vacancy arose at KV, Ashok Nagar, brings to fore, in more than one way, the malafide intention of the writ petitioners, to act against him, at any cost, i.e. even at the cost of their own Transfer Guidelines, further trying to justify their action on the ground that the applicant has opted for Trichy as his 5th option, ignoring his representations dated 26.10.2005 and 27.2.2006.
For all the above discussions and reasons, we see no ground to entertain this writ petition. It is, accordingly, dismissed with a direction to the writ petitioners to post the first respondent/applicant in the Chennai city zone within a period of 12 weeks from the date of receipt of a copy of this order. No costs. Consequently, connected Miscellaneous Petitions are closed.
Rao To The Registrar, Central Administrative Tribunal, Chennai 104.