Central Administrative Tribunal - Delhi
Deepshikha vs M/O Human Resource Development on 4 April, 2016
OA 3444-15 1 Smt. Deepshikha Vs. UOI & Anr.
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A.NO.3444 OF 2015
New Delhi, this the 4th day of April, 2016
CORAM:
HON'BLE SHRI RAJ VIR SHARMA, JUDICIAL MEMBER
.............
Smt. Deepshikha,
Aged 31,
W/o Shri Anil Dabas,
R/o Village Rasulpur,
P.O-Rani Khera,
Delhi 110081 ...... Applicant
(By Advocate: Mr.Anil Dabas)
Vs.
1. Union of India,
through Ministry of Human Resource & Development,
Govt. of India,
Shastri Bhawan,
New Delhi,
through its Secretary.
2. Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi 110016 .... Respondents
(By Advocate: Mr.U.N.Singh)
........
ORDER
The applicant, who is presently working as a Primary Teacher in Kendriya Vidyalaya, Mungaoli, District-Ashok Nagar, Region Bhopal (State of Madhya Pradesh), has filed the present O.A. seeking the following reliefs:
"(a) to direct the respondents to consider and allow the application of the applicant for her transfer from Kendriya Vidyalaya Page 1 of 12 OA 3444-15 2 Smt. Deepshikha Vs. UOI & Anr.
Mungaoli, District Ashok Nagar, Region Bhopal, Madhya Pradesh to Delhi Region.
(b) to direct the respondents not to adopt biased, unfair and partial attitude towards the applicant and allow her to discharge her duties as Primary Teacher in KVS.
(c) And to grant any other or further relief/s this Hon'ble Court may deem fit and proper under the circumstances of the case."
2. The brief facts of the applicant's case are that on her appointment as a Primary Teacher by the Kendriya Vidyalaya Sangathan (hereinafter referred to as the 'KVS'), she was posted to Kendriya Vidyalaya, Mungaoli, District-Ashok Nagar, Region Bhopal (Madhya Pradesh) in January 2011. At the time of her aforesaid posting, respondent no.2 assured that she would be transferred to Delhi on completion of one year of her service there. But the request made by her was not acceded to by respondent no.2, although 9 Primary Teachers have been allowed to continue in Delhi Region for more than 25 years and are liable to be transferred from Delhi Region, and 42 Primary Teachers have been transferred from different stations within three years of their initial posting. In response to the notification issued by respondent no.2, indicating tentative vacancy position for annual request transfer for the year 2014-15, she made an application requesting for her transfer to Delhi Region. Although there were four vacancies in the grade of Primary Teacher, two each in Kendriya Vidyalaya, Sector-22, Rohini, and Kendriya Vidyalaya, Sector 25, Rohini, the respondent no.2 did not consider her request for transfer against any of the said four vacancies. The respondent no.2 also did not issue any order of transfer of any of the Primary Teachers against the aforesaid vacancies. In Page 2 of 12 OA 3444-15 3 Smt. Deepshikha Vs. UOI & Anr.
response to the applicant's legal notice, dated 28.8.2014, respondent no.2, vide its letter dated 20.10.2014, assured to consider her request for transfer, if she would apply for annual transfer request for the year 2015-16. Accordingly, in response to the notification issued by respondent no.2, the applicant applied for her transfer during the year 2015-16. Although the notice dated 29.6.2015 mentioned, inter alia, that employees having 08 and above transfer counts (C2) with completion of one year of service at the present KV/Station for Inter-Station Transfer were considered for request transfer against vacancies, and the applicant having 4 ½ years of service at the KV, Mungaoli, which is a hard station, was entitled to be transferred to Delhi Region by way of Inter-Station Transfer, the respondent no.2 did not allow her application for request transfer. Therefore, she again served a legal notice dated 3.7.2015 calling upon respondent no.2 to consider and allow her application for request transfer, but to no effect. However, when the notice dated 21.7.2015 was issued by respondent no.2 stating that the employees having highest transfer counts not below C-1, who could not get transfer against vacancies, were transferred by creating vacancies in terms of the KVS transfer guidelines by displacing the employees who were having highest displacement count not below D-1, and that employees having 50 and above transfer counts (C-1) with completion of one year service at the present station were considered for inter-station request transfers, and to accommodate such employees, 10 and above displacement counts (D-1) were fixed for displacement, the applicant made a representation dated Page 3 of 12 OA 3444-15 4 Smt. Deepshikha Vs. UOI & Anr.
27.7.2015 requesting the respondent no.2 to transfer her to either Delhi Region or Gurgaon Region, but the respondent no.2 failed to consider her representation dated 27.7.2015. Thus, it is contended by the applicant that the respondents have acted illegally and arbitrarily in not allowing her request for transfer to either Delhi Region or Gurgaon Region.
3. In their counter reply, the respondents have stated, inter alia, that the applicant's request was duly considered by them at the time of Annual Request Transfer for the year 2014-15 as per the Transfer Guidelines, but could not be acceded to, because of her having only 12 Transfer Counts. Her Priority No.191 for transfer to Delhi Region was very low. The Teachers up to Priority No.91 got the request transfers to the places of their choice. The Teachers, who were transferred to the places of their choice, were having more transfer counts than that of the applicant. The applicant's request for transfer, along with other cases, was also considered by them at the time of Annual Request Transfer for the year 2015-16, but she could not get the request transfer to the place of her choice, due to her having lower transfer counts, i.e., 14 Transfer Counts, as indicated in the following tabular form:
Choice Choice Priority No. of the Teachers transferred up station code station name applicant to Priority no. 550 Narela 22 (Transfer 02 (Transfer Count-73) Count-14) 543 Bawana 25 (Transfer 04 (Transfer Count-64) Count-14) 239 Delhi 113 (Transfer 79 (Transfer Count-18) Count-14) Page 4 of 12 OA 3444-15 5 Smt. Deepshikha Vs. UOI & Anr.
The respondents have also stated that the applicant's case will be considered for her transfer to the place of her choice, along with others, as per the Transfer Guidelines at the time of Annual Request Transfer for the year 2016-17, if she applies for the same at the appropriate time. In the above view of the matter, the respondents have submitted no illegality and arbitrariness have been meted out to the applicant, and, therefore, the O.A. is devoid of any merit and liable to be dismissed.
4. The applicant has filed a rejoinder reply, wherein, besides reiterating more or less the same averments and contentions as in her O.A., she has refuted the stand taken by the respondents.
5. I have heard Mr.Anil Dabas, the learned counsel appearing for the applicant, and Mr.U.N.Singh, the learned counsel appearing for the respondents.
6. In support of the case of the applicant, Mr.Anil Dabas, the learned counsel appearing for her, has placed reliance on the decisions of the Tribunal in B.S.Valsala Nair Vs. Commissioner, Kendriya Vidyalaya Sangathan & Anr., 2015(2) SLJ 438 (CAT), and Sukhbir Singh Vs. Union of India & Ors, 2014(3) SLJ 317 (CAT).
6.1 In B.S.Valsala Nair Vs. Commissioner, Kendriya Vidyalaya Sangathan & Anr. (supra), it has been held by the Tribunal that to invoke the defence of administrative exigency/requirement or its various synonyms, like, "in the interest of the organization" or "in public interest", the "pressing need", or the "critical situation", etc., must be demonstrated in the Page 5 of 12 OA 3444-15 6 Smt. Deepshikha Vs. UOI & Anr.
pleadings of the respondents duly supported by the office files on the basis of which such counter affidavits are prepared, and that in the absence of any pleadings containing details of pressing needs, urgent or difficult situation necessitating a deviation from the professed norms, the defence of administrative exigency and its various synonyms would not be available to the respondents.
6.2 In Sukhbir Singh Vs. Union of India and Ors (supra), it has been held by the Tribunal that malice in law can be stated to exist when an action is taken or power is exercised without just and reasonable cause or a purpose alien to the statute. After examining the materials available on record, the Tribunal found that the impugned transfer order was not based on any material, although it was stated by the respondent-Department to be so, and, held that the impugned transfer order having been issued without any reasonable cause is liable to be interfered with. Accordingly, the Tribunal quashed the impugned transfer order.
7. On the other hand, Mr.U.N.Singh, the learned counsel appearing for the respondents, has placed reliance the decisions of the Hon'ble Supreme Court in Shilpi Bose Vs. State of Bihar, 1991 Supp.(2) SCC 659; Union of India Vs. S.L.Abbas, (1993) 4 SCC 357; Major General J.K.Bansal Vs. Union of India and others, (2005) 7 SCC 227; State of M.P. and another Vs. S.S.Kourav and others, 1995(2) SLJ 109(SC)=(1995) 3 SCC 20; State of U.P. & Another Vs. Siya Ram and another, 2005(1) SLJ 54(SC) = (2004) 7 SCC 405; and State of U.P. Vs. Gobardhan Lal, 2004(3) Page 6 of 12 OA 3444-15 7 Smt. Deepshikha Vs. UOI & Anr.
SLJ 244(SC) = (2004) 11 SCC 402; and the decision of the Tribunal in Smt.Manju Sharma Vs. Ministry of Human Resources Development and another, OA No.3053 of 2014, decided on 28.9.2015.
7.1 In Shilpi Bose v. State of Bihar, 1991 Supp.(2) SCC 659, the Hon'ble Supreme Court, at page 661, para 4, has observed thus:
"4. In our opinion, the Courts should not interfere with a transfer order which is made in public interest and for administrative reasons unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to the other. Transfer orders issued by the Competent Authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order..."
7.2 In Union of India v. S.L.Abbas, (1993) 4 SCC 357, at page 359, Para 7, the Hon'ble Supreme Court has observed thus:
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration."
7.3 A three-Judge Bench of the Hon'ble Supreme Court in Major General J.K.Bansal v. Unon of India and others, (2005) 7 SCC 227, has also adopted the aforesaid view.
Page 7 of 12
OA 3444-15 8 Smt. Deepshikha Vs. UOI & Anr.
7.4 In State of M.P. and another v. S.S.Kourav and others, 1995(2)
SLJ 109 (SC) = (1995) 3 SCC 20, the Hon'ble Supreme Court has
observed:
"The Courts or Tribunals are not the appellate forums to decide on transfer of officers on administrative grounds; the wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places; it is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fide or by extraneous consideration without any factual background foundation." 7.5 Again, the Hon'ble Supreme Court in State of U.P. and Another v. Siya Ram and another, 2005 (1) SLJ 54 (SC): (2004) 7 SCC 405, where the respondents were transferred on administrative grounds, the Hon'ble Supreme Court has observed thus:
"5. The High Court while exercising jurisdiction under Articles 226 and 22 of the Constitution of India had gone into the question as to whether the transfer was in the interest of public service. That would essentially require factual adjudication and invariably depend upon peculiar facts and circumstances of the case concerned. No Government servant or employee of a public undertaking has any legal right to be posted for ever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to the other is not only incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or Tribunals normally cannot interfere with such orders as a matter of routine, as though they were Appellate Authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the Page 8 of 12 OA 3444-15 9 Smt. Deepshikha Vs. UOI & Anr.
service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. V. Shri Bhagwan.
6. The above position was recently highlighted in Union of India v. Janardhan Debanath. It has to be noted that the High Court proceeded on the basis as if the transfer was connected with the departmental proceedings. There was not an iota of material to arrive at the conclusion. No mala fides could be attributed as the order was purely on administrative grounds and in public interest."
7.6 Again, the Hon'ble Supreme Court in State of U.P. v. Gobardhan Lal, 2004 (3) SLJ 244(SC): (2004) 11 SCC 402, in paragraphs 7 and 8, has observed thus:
"7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. 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 interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the Competent Authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable Page 9 of 12 OA 3444-15 10 Smt. Deepshikha Vs. UOI & Anr.
rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision.
8. A challenge to an order of transfer should normally be eschewed and should not be countenanced by the Courts or Tribunals as though they are Appellate Authorities over such orders, which could assess the niceties of the administrative needs and requirements of the situation concerned. This is for the reason that Courts or Tribunals cannot substitute their own decisions in the matter of transfer for that of Competent Authorities of the state and even allegations of mala fides when made must be as to inspire confidence in the Court or are based on concrete materials and ought not to be entertained on the mere making of it or on consideration borne out of conjectures or surmises and except for strong and convincing reasons, no interference could ordinarily be made with an order of transfer."
7.7 In Smt. Manju Sharma Vs. Ministry of Human Resources Development and another (supra), the applicant was serving as a Post Graduate Teacher under the KVS. In the O.A., she not only challenged her transfer, but also prayed for a direction to the respondent-KVS to post her back to Kendriya Vidyalaya, New Friends Centre, Delhi or to any other Kendriya Vidyalaya nearer thereto. After considering the facts and circumstances of the case, and the rival contentions of the parties, in the light of the aforesaid decisions of the Hon'ble Supreme Court, the Tribunal dismissed the O.A.
8. Admittedly, the applicant, who is serving as a Primary Teacher under the respondent-KVS, has all India transfer liability. Her requests for transfer from Bhopal Region to Delhi Region were duly considered by the respondent-KVS at the time of Annual Request Transfers for the years 2014- 15 and 2015-16, but could not be acceded to by the respondent-KVS, Page 10 of 12 OA 3444-15 11 Smt. Deepshikha Vs. UOI & Anr.
because of her priority being low, and because other Primary Teachers having more Transfer Counts than the Transfer Counts of the applicant were granted transfers on request. The applicant has not produced before this Tribunal any material to show that any Primary Teacher, whose priority was lower than that of her, and who was having lesser Transfer Counts than that of her, was transferred at the time of Annual Request Transfers for the years 2014-15 and 2015-16, while her request was not acceded to by the respondent-KVS. Though the respondent-KVS has not refuted the statements made by the applicant that 9(nine) Primary Teachers have been allowed to continue in Delhi Region for more than 25 years and are liable to be transferred from Delhi Region as per the Transfer Guidelines, and that 42 Primary Teachers have been transferred within three years of their initial posting at different stations, yet it would not be proper for the Tribunal to issue a direction to the respondent-KVS to transfer the applicant to Delhi Region. Firstly, because the applicant has not placed before this Tribunal any material showing that there exists a clear vacancy in the post of Primary Teacher at any KV of Delhi Region. Secondly, because the respondent-KVS is the appropriate authority which has to consider the aforesaid points urged by the applicant in support of her request for transfer to Delhi Region and to take a view as to whether any of the Primary Teachers can be transferred from Delhi Region, and the applicant can be transferred in his/her place in accordance with the Transfer Guidelines. Instead of making a detailed representation and urging the aforesaid points therein in support of her Page 11 of 12 OA 3444-15 12 Smt. Deepshikha Vs. UOI & Anr.
request for transfer to Delhi Region and requesting the respondent-KVS to allow her transfer to Delhi Region by creating a vacancy for her in accordance with the transfer guidelines, the applicant had served two legal notices calling upon the respondent-KVS to transfer her to Delhi Region/Gurgaon Region. In her representation dated 27.7.2015 (Annexure H), the applicant has not whispered about continuance of 9 (nine) Primary Teachers in Delhi Region for more than 25 years, and also about transfer of 42 Primary Teachers to the places of their choice within three years of their initial posting. Considering the totality of the facts and circumstances of the case, I feel that the ends of justice would be met if the O.A. is disposed of with the direction that in the event the applicant makes a detailed representation urging all the points, as raised by her in the present O.A., and also applies for her transfer to Delhi Region/Gurgaon Region at the time of Annual Request Transfer for the year 2016-17, the respondent-KVS shall consider the same and take a decision thereon, in accordance with the Transfer Guidelines, by passing a speaking and reasoned order. Ordered accordingly.
9. With the above observation and direction, the O.A. is disposed of. No costs.
(RAJ VIR SHARMA) JUDICIAL MEMBER AN Page 12 of 12