Central Administrative Tribunal - Delhi
Smt. Rekha Pascricha vs Kendriya Vidyalaya Sangathan on 20 February, 2015
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A. No.2099/2014
Order reserved on: 03.02.2015
Order pronounced on: 20.02.2015
Honble Mr. G.George Paracken, Member (J)
Smt. Rekha Pascricha,
w/o Sh. Vibek Pascricha,
working as PGT (Commerce), in
KV No.1, Delhi Cantt. (Sadar Bazar)
r/o B-2/2219, Vasant Kunj,
New Delhi. -Applicant
(By Advocate: Shri Yogesh Sharma)
Versus
1. Kendriya Vidyalaya Sangathan
Through its Commissioner,
18, Institutional Area, Shahid Jeet Singh Marg,
New Delhi.
2. The Administrative Officer (Estt.),
Kendriya Vidyalaya Sangathan
18, Institutional Area, Shahid Jeet Singh Marg,
New Delhi.
-Respondents
(By Advocate: Shri K.M. Singh)
O R D E R
The applicant in this case is aggrieved by the impugned order of the respondent No.2 dated 19.06.2014 transferring her from the present place of posting at Kendriya Vidyalaya (KV, for short) No.1, Delhi Cantt (Sadar Bazar) to K.V. No.2, Hussainpur (RCF) to accommodate Smt. Nidhi Matta in her place by way of her displacement.
2. The brief facts of the case are that the applicant was initially appointed in Kendriya Vidyalaya Sangathan (KVS) on 13.01.1994 as a Post Graduate Teacher (Commerce) and her initial posting was in KV, Amritsar. From there, she was transferred to KV Sector-2, R.K. Puram, New Delhi on 20.07.1995. KV No.2, Agra Cantt in May, 2010 and lastly back to KV No.1, Delhi Cantt. (Sadar Bazar) 17.08.2012. Since then she has been working there in the same school.
3. According to the applicant, the impugned transfer order is wrong and illegal as the respondents instead of taking into account her last date of posting in Delhi Station with effect from 17.08. 2012, they have taken into account the first date of posting in Delhi Station w.e.f. 20.07.1995. The other submission of the applicant is that she has been transferred from KV No.1 Delhi Cantt. to KV No.2 Hussain Pur only to accommodate another teacher in her place whereas the following teachers who have already been working in Delhi Station prior to her posting on 17.08.2012 were available:-
Name School in which posted Date of Posting at Delhi Station.
Ms. Mamta Rani R.K. Puram Sector 2 18.5.2010 Sh. Deepak Kr. Sharma R.K. Puram Sector 2 18.5.2010 Ms. Shobha Chug Badarpur 26.5.2010 Sh. Ram Naresh Singh Andrews Ganj 9.6.11 Ms. Poornima Khanna Janakpuri 11.10.11 Sh. Ravinder Singh Gole Market 6.6.12 Ms. Anisha Dubey.
Faridabad No.2 15.8.12.
4. The applicant has also stated that the respondents have wrongly applied para-7 of the Transfer guidelines in her case. According to the said paragraph, while displacing an employee in such manner an effort would be made to post such an employee to a least inconvenient location against a clear vacancy. But in her case, she has been transferred to a place in Punjab. She has also stated that transferring teachers frequently without any fixed tenure that too, to adjust some other teacher, is unjust and such policy being adopted by the respondents is illegal and arbitrary in the eyes of law. Further, according to her, as per the transfer policy itself, all employees were requested to submit their application for transfer every year and under the aforesaid provision, she had also submitted her application for transfer to any of the four schools namely, (i) Gurgaon, (ii) Manesar (iii) Chhawla Camp and (iv) Noida. But the respondents ignored her request and arbitrarily transferred her to KV No.2 Hussainpur, in Punjab. Further, according to her, while she had the displacement counts of 24, another senior teacher namely, Ms. Manju Sharma having the displacement counts of 38 was posted from KV MFC, Vigyan Vihar to KV Gurgaon even though she has never opted for such posting. The said provision of the transfer policy is reproduced as under:-
7. METHOD FOR ADMINISTRATIVE TRANSFER Administrative transfer under clause 5 (a) shall be effected in the decreasing order of displacement count of employees holding a post at station to eliminate surplus staff and such staff shall be accommodated against clear vacancies. Administrative transfer under 5(b) shall be effected in decreasing order of the displacement count of employees holding a post to fill up anticipated vacancies in hard/ very hard/NER/ other desired stations to a desired extent. As regards 5(c), to transfer a needy employee, as defined in clause 11(a), to a desired station(s) mentioned in his/her request application form, an employee holding the same post with the highest displacement count, subject to not being below D1 as prescribed herein below at the relevant station(s) in the order of preference indicated by the needy employee, shall be liable to be displaced in the event there is no clear vacancy at the station(s). However, an employee seeking request transfer within same station can apply for KVs choice but such transfer will be considered only against vacancy and this will not affect station seniority of the employee and will be liable to be transferred/ displaced in public interest (Amended on 21/12/2011). While displacing an employee in such manner an effort would be made to post such an employee to a least inconvenient location against a clear vacancy. In case of a tie in the displacement count of employees the male employee shall be displaced. In case of a tie between the employees of the same gender the employee with earlier date of joining in present station in present post shall be displaced and in case date of joining also coincides for two or more employees then the youngest employee shall be displaced.
a) Provided, a cut off mark D1 on Displacement Count may be prescribed on year to year basis below which an employee shall not be displaced in a particular year except under clause 5(a).
b) Provided, more factors can be added /deleted and points allocated for different factors can be altered on year to year basis to remediate any imbalance resulting in transfers. Changes shall be notified well in advance before inviting transfer applications.
c) Provided, an employee with a higher displacement count can be retained if the employees services are absolutely crucial in the organizational interest. In such eventuality an employee with next lower displacement count shall be liable to be displaced.
d) Provided, exemption can be given to an employee or group of employees from displacement for such period owing to circumstances or such other administrative exigencies justifying such exemption.
5. The applicant has also submitted that she has got two children studying in the Class 9th & 11th in Private School Delhi. She has also got responsibility to look after her mother-in-law who is old and suffering from paralytic stroke and undergone two respective bipolar surgeries (hip replacement). As a result, she is completely bed ridden and still under treatment. Therefore, it is not possible for her to join at KV No.2 Hussainpur at present. She has, therefore, submitted representations dated 20.06.2014 followed by another one on 22.06.2014 to the Commissioner, KVS requesting him to cancel her aforesaid transfer order.
6. Respondents filed their reply stating that the applicant was transferred to KV No. 2 Hussainpur in public interest under para 9 & 11 (a) of the new transfer guidelines, which are as under:-
9. REQUEST TRANSFER OF EMPLOYEES Request transfer shall be effected as per the prescribed calendar of activities. Transfer on request shall be effected on the basis of Transfer Count of an employee computed by assigning appropriate points to factors considered relevant for transfer. An employee on initial posting on recruitment is normally barred from applying for request transfer for three years in terms of the appointment order. An employee will not be eligible for request transfer twice in one academic year.
10. xxxxxx xxxxxxx xxxxxx
11. METHOD FOR REQUEST TRANSFER Request transfer for a post will be considered at a station only except for request of intra-station transfer and (Amended on 21/12/2011) shall be accommodated in decreasing order of Transfer Count computed on the basis of clause10 of competing employees. In case of a tie in the transfer count of two or more employees competing for a location/station the female employee shall be preferred first. In case of tie in two or more employees of the same gender an employee with an earlier date of joining in present post in present station shall be accommodated and in case, if the date of joining in present post in present station also coincides then the older employee shall be first accommodated. Transfer counts of all request transfer applications shall be displaced on KVS website and the transfer count so displayed shall remain valid till 31st of July of the relevant year and request transfer may be considered for vacancies arising due to retirement or any other reason during the period of validity for which no fresh application shall be invited or considered. Applications shall automatically become infructuous after the expiry of 31st July.
a) Provided, a cut off mark C 1 on transfer count may be prescribed on year to year basis in such a way that an employee whose transfer count is equal to C1 or more may be transferred in one of the desired station(s) even by way of displacement of an employee as per clause 5(c) in the event there is no clear vacancy at the desired station(s). In such cases an employee having the highest displacement count subject to not being below D1 shall be liable to be displaced from within the choice station(s) in order of preference indicated by the needy employee. If no employee holding the same post and having a displacement count D1 or more is found in all the choice station(s) going in order of preference indicated by the needy employee the request of such a needy employee may not be acceded to. (Amended on 21/12/2011).
They have also stated that in terms of the clarification mentioned in para 6.1 of the transfer guidelines, the applicant cannot raise any objection against her transfer. According to the said provision, if an employee returns to the same station on request from where he was transferred within three years (two years for very hard station), then in that case, the stay of the employee at that station shall be number of years before transfer plus number of years after coming to that station. As such, the applicant cannot claim her posting to be treated as fresh in Delhi and to be counted from 17.08.2012. The said provision is reproduced as under:-
6. Factors, Points and Calculation of displacement count of an employee for displacement transfer (Revised on 21/12/2011) Displacement Count of an employee shall be computed by assigning appropriate points to such appropriate factors considered material for displacement as per the following:
S.No. Factors Existing allotted points for 2011-2012 Altered points to be allotted for 2012-13
1.
Stay at a station in the same post as on 31st March (30th June for hard / very hard/ NE Station in complete years.
Clarification:
* Period of absence on any account shall also be counted for this purpose.
* If an employee returns to a station X on request after being transferred from X within three years (two years for very hard station), the stay of such an employee at X shall be no. of years spent at X before being transferred plus no. of years spent after coming at X. However, if an employee returns to station after a period of three years (two years for very hard station) the stay shall be counted afresh.
+ 2 for each completed year + 2 for each completed year.
7. They have also stated that the KVS employees are liable for transfer anywhere in India under Para 1.1 of Article 71 of the Education Code (Revised Edition) for Kendriya Vidyalayas which is a documentary text for governance of Kendriya Vidyalayas as per terms and conditions of offer of appointment. In this regard, they have relied upon the judgment of Honble Apex Court in S.C. Saxena vs. Union of India & Anr. 2006 (9) SCC 583, a relevant part of the said judgment reads as under:-
6. We have perused the record with the help of the learned counsel and heard the learned counsel very patiently. We find that no case for our interference whatsoever has been made out. In the first place, 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. Apart therefrom, if the appellant really had some genuine difficulty in reporting for work at Tezpur, he could have reported for duty at Amritsar where he was so posted. We too decline to believe the story of his remaining sick. Assuming there was some sickness, we are not satisfied that it prevented him from joining duty either at Tezpur or at Amritsar. The medical certificate issued by Dr. Ram Manohar Lohia Hospital proves this point. In the circumstances, we too are of the opinion that the appellant was guilty of the misconduct of unauthorisedly' remaining absent from duty.
8. As far as displacement counts of the 7 teachers of the same subjects mentioned by the applicant are concerned, they have stated that the applicant has less displacement counts as per transfer guidelines. She was also not the senior most teacher in Delhi. Smt. Manju Sharma had more number of displacement counts (42) than the applicant (24). Therefore, her transfer to KV Gurgaon was as per provisions to Para-7 of the transfer guidelines.
9. I have heard Shri Yogesh Sharma, learned counsel for the applicant and Shri K.M. Singh, learned counsel for the respondents. It is seen that the applicant was transferred vide order dated 19.06.2014. Irrespective of the arguments whether the applicants transfer was in accordance with the transfer policy or not, it is well settled principle that the transfer and posting of employee cannot be ordered during the academic session of his/her children except in exigency of service or public interest which cannot be avoided. The applicant has made a representation stating that her children are studying and in the middle of session it is not possible for her to shift them. The respondents have not considered the aforesaid request. Further, it is seen that the applicant was posted at KV No.1 Delhi Cantt. only on 01.08.2012. She has again been transferred on 19.06.2014 without allowing her to stay there at least three years time. Such frequent transfers are not only inconvenient to the teachers but also to the detriment of the students. After all, the interests of the students are paramount for any educational Institution. The students should have, as far as possible, the service of the same teacher for the academic year, unless the transfer was necessitated due to the inefficiency of the teacher or for any other emergency situations.
12. In the above facts and circumstances of the case, I allow this OA and quash and set aside the impugned order dated 19.06.2014 passed by the Respondent No.2. However, as the applicant has no objection if she is transferred to the nearby KVS at Gurgaon, Manesar, Chhawla Camp and Noida etc., the respondents may consider posting her to any of those schools after the current academic session is over. There shall be no order as to costs.
(G. George Paracken) Member (J) cc.