Central Administrative Tribunal - Ernakulam
All India Kendriya Vidyalaya Non ... vs The Kendriya Vidyalaya Sangathan on 5 December, 2016
Author: P.Gopinath
Bench: P.Gopinath
CENTRAL ADMINISTRATIVE TRIBUNAL
ERNAKULAM BENCH
Original Application No.180/00214/2015
Tuesday, this the 5th day of December, 2016
CORAM:
HON'BLE Mr.JUSTICE N.K.BALAKRISHNAN, JUDICIAL MEMBER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER
1. All India Kendriya Vidyalaya Non Teaching Staff Association,
represented by its General Secretary,
Shri.Sandeep Kanta Biswas,
S/o.late Sukumar Kanta Biswas,
Upper Division Clerk,
Kendriya Vidyalaya No.I,
Kanchrapara, West Bengal - 743 193.
Residing at Flat No.B-1, Anandadeep Apartments,
H Road, Anandapuri, Barrackporre,
PO NCP, Kolkata - 700 122. West Bengal.
2. Jose Thomas,
S/o.late K.M.Thomas,
Lower Division Clerk,
Kendriya Vidyalaya, Kadavanthra, Kochi - 20.
Residing at Kudilil House, Piravom P.O.,
Ernakulam District - 686 664.
3. Karthikeyan P.T.,
S/o.late P.V.Thankappan,
Lower Division Clerk,
Kendriya Vidyalaya No.1,
Naval Base, Kochi - 4.
Residing at Pokkalil House,
Naduath Nagar, Cherthala Taluk,
Alappuzha District - 685 559. . . . Applicants
(By Advocate Mr.T.C.Govindaswamy)
Versus
1. The Kendriya Vidyalaya Sangathan,
No.18, Institutional Area, Shaheed Jeet Singh Marg,
New Delhi - 110 602, represented by its Secretary.
2. The Commissioner,
Kendriya Vidyalaya Sangathan,
No.18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi - 110 602.
3. The Finance Committee of the Kendriya Vidyalaya Sangathan,
No.18, Institutional Area,
Shaheed Jeet Singh Marg,
New Delhi - 110 602,
represented by its Member Secretary. . . . Respondents
(By Advocates Mr.V.V.Asokan,Sr. & Mr.KI Mayankutty Mather)
This application having been heard on 16 th November 2016, the
Tribunal on 5th December 2016 delivered the following :
ORDER
HON'BLE Ms.P.GOPINATH, ADMINISTRATIVE MEMBER The first applicant herein is the All India Kendriya Vidyalaya Non Teaching Staff Association, an Association recognized by the 1 st respondent, Kendriya Vidyalaya Sangathan (KVS for brevity). The applicants 2 and 3 who are presently working as Lower Division Clerks are aggrieved persons. In this application, the applicants represent the Non Teaching Staff, up to and inclusive of the level of Assistants in the Kendriya Vidyalaya Sangathan who are the members of the 1st applicant Association.
2. The grievance of the applicants in this OA is against the proposed amendment to the existing transfer guidelines of the Non Teaching Staff up to and inclusive of the level of Assistants to the extent it provides for compulsory transfer of these group of employees on completion of a tenure of 5/7/10 years in an office of Kendriya Vidyalaya Sangathan/Station. The proposed amendment and the proposed consideration of the amendment by the Board of Governors of the 1 st respondent, Kendriya Vidyalaya Sangathan, without consulting the 1 st applicant Association and without allowing the 1st applicant Association to participate in the deliberations is contested as opposed to the scheme of Joint Consultative Machinery and also the directions of this Tribunal in an earlier round of litigation, ie., in O.A.No.264/2011. Annexure A-1 order of this Tribunal was issued when certain provisions of earlier transfer guidelines were challenged. In Annexure A-1 this Tribunal has observed that as a transfer policy affects all the staff members, it would be appropriate that sufficient opportunity is given to the 1st applicant to participate in the deliberations so that a consensus could be arrived at, while formulating a transfer policy.
3. Paragraph 7 of Annexure A-2 transfer guidelines deals with the guidelines for effecting the administrative ground transfers referred to in paragraph 5 of Annexure A-2. After the recommendations of the 6 th Central Pay Commission all the erstwhile Group D staff have now been re-classified as Group C and except for such re-classification on paper, there is no fundamental change in the fact that they are the lowest paid employees of the Central Government. Most of these officials are residing in the quarters/residential accommodation provided by the Kendriya Vidyalaya Sangathan. This Group C staff also consist of the Lower Division Clerks and Upper Division Clerks. The Assistants constitute the Group B Non Gazetted category.
4. In purported obedience to the directions of this Tribunal the 1 st applicant Association submitted Annexure A-3 representation dated 20 th December 2011 addressed to the 2 nd respondent. In Annexure A-3 certain suggestions were submitted by the 1st applicant Association, practically balancing the interest of the administration and also that of the Non Teaching Staff of the Kendriya Vidyalaya Sangathan. Despite the specific directions in Annexure A-1 that the 1 st applicant Association also be permitted to participate in the deliberations, no deliberations took place and Annexure A-4 orders were issued. The applicants submit that ever since the Kendriya Vidyalaya Sangathan was constituted in the early 60s (as per the recommendations of the 2nd Central Pay Commission), there was no provision for compulsory transfer of Non Teaching Staff on completion of any fixed tenure. The reliefs sought by the applicants are to quash Annexure A-6 to the extent it deals with the issue of transfers of Non Teaching Staff as Item No.4(3) and to restrain the 1 st respondent from taking a final decision on the recommendations of the Finance Committee in the matter of transfer of Non Teaching Staff without allowing the 1 st applicant Association to participate in the deliberations, and without placing the issue before the Departmental JCM.
5. The respondent in their reply statement submit that Kendriya Vidyalaya Sangathan is an autonomous organization registered under the Societies Registration Act XXI of 1860 and fully financed by the Ministry of Human Resources Development (HRD), Government of India with the objective (i) to cater the educational needs of children of transferable Central Government employees including defence personnel by providing a common programme of education (ii) to develop Vidyalaya as a model school in the context of national goal of Indian Education (iii) to initiate/promote innovations and experimentations in the field of education in collaboration with other bodies like, CBSE and NCERT etc; and (iv) to promote the spirit of national integration. It runs a chain of approximately 1115 Kendriya Vidyalayas, 05 Zonal Institutes and 25 Regional Offices spread across the country. The policy decisions of this wide spread Kendriya Vidyalaya Sangathan are taken by the Board of Governors consisting of eminent educationists and administrators from all over the country.
6. The service conditions of the Kendriya Vidaylaya Sangathan employees are governed by the Education Code of Kendriya Vidyalayas. The employees appointed in Kendriya Vidyalaya Sangathan (KVS) are liable to be transferred anywhere in India at any point of time and transfer to a desired location cannot be claimed as a matter of right. The applicants have filed this OA against the proposed amendment to the existing transfer guidelines on the non teaching staff up to Assistant in Kendriya Vidyalayas and other offices of Kendriya Vidyalaya Sangathan on completion of 5 years in a Kendriya Vidyalaya and/or 10 years continuously on a station in the same post subject to the condition that not more than 1/3 rd of such total employees shall be transferred in a year and that the longest serving employee against this norm would be transferred first. The amendment in the transfer guidelines has been proposed, keeping in view the interest of the organization. Amendment in the transfer guidelines is a policy decision which has been taken up after due examination of pros and cons at various levels of the organization. The policy has been framed as per the administrative requirements of the Kendriya Vidyalaya Sangathan. The role of Finance Committee is recommendatory. The final decision will be that of the Board of Governors of Kendriya Vidyalaya Sangathan. Kendriya Vidyalaya Sangathan is an all India institution and staff are liable to be transferred anywhere in India.
7. Heard the learned counsel for the parties and considered the written submissions made. It is brought to our attention that the transfer guidelines were challenged by the applicants in O.A.No.264/2011 and this Tribunal in its order of 14th October 2011 had disposed of the matter with the following directions :
'4. In view of the above this OA is closed with liberty sought for by the 1st applicant to move a representation before the 1st respondent (KVS) and if such representation is received the 1 st respondent may consider the same in accordance with law and intimate the decision thereof to the 1st applicant within a period of two months from the date of receipt of such representation. We make it clear that as transfer policy affects all the staff members it will be appropriate that sufficient opportunity is given to the 1st applicant to participate in the deliberations so that a concensus may be arrived at.' (emphasis provided)
8. Two important directions were given in the above order of the Tribunal. First that the representation received from the Association be considered in accordance with law. Second direction was that sufficient opportunity be given to the Association to participate in the deliberations on transfer policy.
9. The Association submitted a representation on 20.12.2011 in pursuance of above Tribunal's order wherein a number of issues were raised. The Tribunal notes that item 3 of the representation is regarding tenure. The Association had requested that :
'Non teaching staff can be permitted to be retained at a particular station or school for a period of at least ten years, after which he/she should be compulsorily transferred to a place of his/her choice or otherwise based on the priority maintained for the purpose. For such a transfer, transfer from one school to another within the same station can also be treated as sufficient, so as to avoid inconvenience to the members of the family, when there is no demand for the said place or school of posting.'
10. The Finance Committee of the Kendriya Vidyalaya Sangathan in its meeting of 24.12.2014 had discussed the matter and made the following recommendations :
Proposed amendment in KVS Recommendations of Finance Transfer Guidelines Committee 3(5d) Transfer of non teaching staff Finance Committee recommended (i) up to Assistants in KVS and other 5 years instead of 7 years proposed officers of KVS after completion of in a KV (ii) not more than 1/3rd of a tenure of 07 years in a KV and/or such employees should be 10 years continuously in a station in transferred in one year (iii) that the same post. longest serving employees against this norm should be transferred first.
11. The Finance Committee had therefore recommended a reduction of 7 year tenure to 5 years. The other two suggestions were in favour of employees and justice demanded and it was appropriately suggested that longest serving member be moved first when 1/3 rd employees were transferred.
12. Vide Annexure A-7 dated 6.2.2015 addressed to Chairperson, KVS KEVINTSA responded to the Finance Committee's 24.12.2014 recommendations on transfer. Para 1 of Page 2 is reproduced as under :
' The newly proposed clause 5 (d) which has been finalized during the Finance Committee meeting held on 24.12.2014 is just inversely proportionate to the decision taken during the JCM under your kind Chairmanship. As your honour is well aware of the fact that non teaching cadre is the lowest paid cadre amongst the three cadres - Teaching Cadre, Officer Cadre and Non teaching Cadre in KVS. So from humanitarian point of view concern has been raised during the JCM under your Chairmanship where Commissioner KVS has assurred that the lowest paid section would be exempted from transfer . . . .
13. The fact that emerges from above is that KEVINTSA has participated in the Joint Consultative Machinery meeting held under the Chairmanship of Minister of Human Resource Development. So it is not a case that KEVINTSA has not been heard or made a part of the deliberations on the subject. Second issue that emerges from above is that an assurance appears to have emerged from the Commissioner KVS that the non teaching staff would be exempted from transfer. We also note that the respondents have not countered this plea raised by the applicants.
14. Annexure A-9 produced by applicants outlines the scope and functions of JCM which is reproduced below :
'SCOPE AND FUNCTIONS of JCM also called Council :
7. The scope of the Council will include all matters relating to the conditions of service and work, welfare of employees, improvement of efficiency and standard of work, provided however that (i) in regard to recruitment, promotion and discipline consultation will be limited to matters of general principles (ii) individual cases will not be considered.
8. The official side will conclude matteers at the meeting of the Council and will not reserve them for later decisions by the KVS.
9. The Council may appoint Committee(s) to study and report on any matters falling within its scope.
10. Subject to the final authority of the Board of Governors of KVS agreements reached between the two sides of the Council will become operative.
11. If there is no agreement between the two sides, the matter may be transmitted to a Committee of the Council for further examination and report. But if a final disagreement is recorded in the Council and the matter is one for which compulsory arbitration is provided it shall be referred to arbitration if either side so desires and the Board of Governors will take action according to its own judgment.
12. A matter disposed of by the Council in any manner will not be placed on the agenda during the following 12 months, unless for any special reason the Chairman of the Council directs otherwise.'
15. KEVINTSA in its Annexure A-7 letter dated 6.2.2015 makes a reference to a JCM meeting. Neither date of meeting or minutes of meeting which would have been issued to KEVINTSA is indicated or produced. As on date it is more than 12 months since the matter was last discussed. We note that there is a detailed laid down JCM procedure for consultations between Management and Staff in the form of JCM. The counsel for the respondent argues that applicants despite producing the JCM document as Annexure A-7 and Annexure A-9 have not averred that they have availed and used the full scope of the JCM Machinery for resolution of differences. Hence it appears that this is not a case where the JCM Machinery for consultation was not made available to the applicants. However what emerges is that a satisfactory conclusion could not be drawn. Hence there is a need to give one more opportunity for discussion on the matter.
16. Conditions of service and work is a matter which comes under the scope of JCM. Hence applicants are directed to submit within 30 days an agenda item on the matter of transfer of non teaching staff for discussion in JCM meeting. The respondents are directed to hold the JCM meeting within 60 days of receiving the agenda note and discuss and arrive at a mutually agreeable decision on the matter. This would be the best way in which both parties can state their case and arrive at a decision.
17. While doing so we would like to recall to the applicants the observations of the Supreme Court in Rajendra Singh Vs. State of UP (2009) 15 SCC 178 :
' A Government servant has no vested right to remain posted at a place of his choice nor can he insist that he must be posted at one place or the other. He is liable to be transferred in the administrative exigencies from one place to the other. 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 contrary. No Government can function if the Government servant insists that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. (see State of UP Vs. Gobardhan Lal)'
18. The Apex Court in above judgment had also held that Courts are normally reluctant to interfere in transfer matters unless it is hit by malafide or violates any statutory provisions. Transfer orders issued by the competent authority do not violate any of applicant's legal rights. The Apex Court recalled its observations made in N.K.Singh Vs. Union of India & others (1994) 6 SCC 98 that :
'6. b�&.the scope of judicial review in matters of transfer of a Government servant to an equivalent post without any adverse consequence on the service or career prospects is very limited being confined only to the grounds of mala fides and violation of any specific provision.'
19. The suggestion of transfer after 10 years tenure in a station will in fact mean that a person is required to move 3 times in a career span of 30 years.
This is not a harsh proposition considering the fact that Government has now made the conditions of transfer reasonably good by introducing disturbance allowance in the form of one months additional pay, in addition to cost of travel of transferee and family and movement of goods and personal effects to the new station. It is also averred that KVS provides residential accommodation to its staff. Transfer is not only an incident but a condition of service necessary in public interest and efficiency of an organization. Since this is a case of drawing up the transfer policy the directions in para 16 above be followed.
20. The OA is disposed of accordingly. No costs.
(Dated this the 5th day of December 2016)
(P.GOPINATH) (N.K. BALAKRISHNAN)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
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