Central Administrative Tribunal - Lucknow
Smt Vimi Handa vs Kvs on 19 May, 2023
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH, LUCKNOW
This, the 19th day of May, 2023
Hon'ble Mr. Justice Anil Kumar Ojha, Member-J
Original Application No. 332/00048/2023
Smt. Vimi Handa, aged about 55 years, W/o Brigadier Vinay
Handa, resident of B-1105, R.G. Euphoria, Sector -12 Vrindavan Yojna,
Lucknow- 226029.
.....APPLICANT
By Advocate: Sri D. K. Tandon.
VERSUS
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18-
Institutional Area, Shaheed Jeet Singh Marg, New Delhi- 110016.
2. The Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Sector- J, Aliganj, Lucknow- 226024.
3. The Assistant Commissioner (Estt-2/3), Kendriya Vidyalaya
Sangathan, 18-Institutional Area, Shaheed Jeet Singh Marg, New
Delhi- 110016
4. The Principal, Kendriya Vidyalaya, SGPGI, Lucknow.
............ Respondents
Advocate: Ms. Pushpila Bisht.
C.W.
Original Application No. 332/00171/2023
Smt. Vimi Handa, aged about 55 years, W/o Brigadier Vinay
Handa, resident of B-1105, R.G. Euphoria, Sector -12 Vrindavan Yojna,
Lucknow- 226029.
.....APPLICANT
By Advocate: Sri D. K. Tandon.
VERSUS
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18-
Institutional Area, Shaheed Jeet Singh Marg, New Delhi- 110016.
2. The Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Sector- J, Aliganj, Lucknow- 226024.
3. The Assistant Commissioner (Estt-2/3), Kendriya Vidyalaya
Sangathan, 18-Institutional Area, Shaheed Jeet Singh Marg, New
Delhi- 110016
4. The Principal, Kendriya Vidyalaya, SGPGI, Lucknow.
............ Respondents
Advocate: Ms. Pushpila Bisht.
Page 1 of 5
ORDER
Heard learned counsel for the applicant, learned counsel for the respondents and perused the records.
2. Original Application (OA) No. 48 of 2023 and OA No. 171 of 2023 are connected with each other, therefore, both O.As. are being disposed of by way of a common order.
3. In OA No. 48 of 2023, applicant has prayed the following relief(s)
(i) quash the impugned transfer order dated 16.09.2022 in respect of the applicant and relieving order dated 17.01.2023 and Memorandum dated 20.12.2022 received with letter dated 17.01.2023 as contained in Annexure No. A-1, A-2 and A-4 to the original application.
(ii) quash the notice dated 12.09.2022 vide which the provisions of para 6 has been kept in abeyance as contained in Annexure No. A-3 to the OA.
(iii) may also pass any order(s) or further order(s) or direction(s) as be deemed just and proper to meet the end of justice.
(iv) To allow the original application with cost of application."
4. In OA No. 171 of 2023, applicant has claimed the following relief(S):
(i) quash the impugned Memorandum dated 29.03.2023 and relieving order dated 01.04.2023 as contained in Annexure No. A-1 & A-2 to the Original Application.
(ii) issue order or direction to stay the operation and implementation of Memorandum dated 29.03.2023 and relieving order dated 01.04.2023 as contained in Annexure No. A-1 & A-2 to the Original Application till the finalization of Original Application.
(iii) may also pass any order(s) or further order(s) or direction(s) as be deemed just and proper to meet the end of justice.
(iv) To Allow the original application with cost of application."
5. Tersely put, the case of the applicant is that the applicant- Smt. Vimi Handa is a teacher in Kendriya Vidyalaya Sangthan and was posted at Kendriya Vidyalaya, SGPGI, Lucknow. She had joined Kendriya Vidyalaya, Gomtinagar, Lucknow on 05.09.2004 and remain posted at Lucknow till the impugned transfer and relieving order dated 17.01.2023.
6. Applicant was heard on interim relief on 22.02.2023 and on the basis of law laid down by the Hon'ble Apex Court in the matter of SK Nausad Rahaman v. Union of India, 2022 SCC OnLine SC 297, decided on 10.03.2022 and facts of the case, interim relief for staying the transfer order was rejected.
7. Aggrieved by the rejection order, applicant Smt. Vimi Handa preferred a writ petition before Hon'ble High Court- Writ A No. 2083 of 2023- Smt. Vimi Handa vs. The Commissioner, KVS and Ors. which Page 2 of 5 was disposed of vide order dated 03.03.2023 with the following observations:-
"We have been informed that there is a policy of Kendriya Vidyalaya Sangathan under which the transfer on personal request can be considered within a region and accordingly having regard to the oral facts and circumstances of the case, we are of the opinion that in the interest of justice, it would be appropriate to permit the petitioner to approach the competent authority seeking her transfer within a region where she has been working on personal grounds including the grounds of ailments. We thus provide that the petitioner will make a fresh representation with the aforesaid prayer to the competent authority within 10 days from today and in case any such request is made, the same shall be considered sympathetically by the competent authority. We further provide that until a reasoned order is passed on the representation to be preferred by the petitioner under this order, by the competent authority, the transfer order dated 16.09.2022 in relation to the petitioner shall be kept in abeyance."
8. In compliance of the aforesaid order of the Hon'ble High Court passed in Writ A No. 2083 of 2023- Smt. Vimi Handa vs. The Commissioner, KVS and Ors., applicant- Smt. Vimi Handa filed a representation before the competent authority, which was rejected on 29.03.2023.
9. Thereafter, applicant again approached the Hon'ble High Court by filing CMA No. 03 of 2023 for recall of the order dated 03.03.2023 which was rejected by the Hon'ble High Court vide order dated 20.04.2023.
10. Submission of the learned counsel for the applicant is that impugned transfer order dated 16.09.2022 and relieving order dated 17.01.2023 and notice dated 12.09.2022 are arbitrary and illegal, hence, deserves to be quashed.
11. Per contra, learned counsel for the respondents vehemently opposed the aforesaid prayer and submitted that the case of the applicant is not covered in the TRANSFER GUIDELINES - 2021 FOR TEACHERS UP TO PGTS & OTHERS UP TO ASSISTANT SECTION OFFICER which are from page 82 to 93 of the paper-book.
12. In the case of SK Nausad Rahaman v. Union of India, 2022 SCC OnLine SC 297, decided on 10.03.2022, the Hon'ble Apex court held that 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. It has been further held that 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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guidelines, however, Page 3 of 5 does not confer upon the Government employee a legally enforceable right.
13. Applying the aforesaid principle to the facts of the present case, it is manifest that Applicant- Smt. Vimi Handa is a part of All India Service and transfer in an All India Service is an incident of service. Whether, and if so where, an employee should be posted are matters which are governed by the exigencies of service. An employee has no fundamental right or, for that matter, a vested right to claim a transfer or posting of his/her choice. From the records, the case of malafides or violation of statutory rules is not made out.
14. It is further evident that applicant has been transferred on administrative grounds for the purpose of rationalisation and redistribution of existing staff and in order to ensure that at least 50% of the regular teaching staffs are available in all KVs all across the country.
15. Thus, the impugned transfer order neither suffers from mala fides nor violation of statutory rules, hence, OA lacks merit and is liable to be dismissed.
16. From the record, it is also evident that in compliance of the Hon'ble High Court order passed in Writ A No. 2083 of 2023- Smt. Vimi Handa vs. The Commissioner, KVS and Ors. dated 03.03.2023, applicant Vimi Handa was permitted to join the duty but thereafter her representation was rejected and fresh relieving order dated 01.04.2023 has been passed, thus, OA No. 48 of 2023 has become infructuous also.
17. As regard the OA No. 171 of 2023, the representation filed by the applicant in compliance of the order in Writ A No. 2083 of 2023- Smt. Vimi Handa vs. The Commissioner, KVS and Ors. passed by Hon'ble High Court, the respondents considered the representation of the applicant and rejected the same vide order dated 29.03.2023 with following observations:
"It is also submitted that the Annual Transfer Process of KVS has been suspended for the academic session 2022-23.
Keeping in view the facts and circumstances as given supra, the request of the applicant for cancellation of transfer order is not feasible at this juncture. However, her request will be given due consideration at the time of Annual Request Transfer when it will be effected, as per the transfer guidelines, if she applies for the same.
Thus, the representation dated 14.03.2023 of Smt. Vimi Handa, PRT has been disposed of in compliance of the order dated 03.03.2023 in the Writ Petition No. 2083/2023 passed by the Hon'ble High Court, Lucknow Bench, Lucknow".
18. After rejection of the representation, applicant has been relieved to join at the new place of posting vide order dated 01.04.2023. As already Page 4 of 5 held that the impugned transfer order is neither hit by malafides nor violation of statutory rules, hence in view of the settled law laid down by the Hon'ble Apex Court in the case of SK Nausad Rahman (supra), case for quashing the representation rejection order dated 29.03.2023 and relieving order dated 01.04.2023 is devoid of merits. The case of the applicant is not covered under TRANSFER GUIDELINES - 2021 FOR TEACHERS UP TO PGTS & OTHERS UP TO ASSISTANT SECTION OFFICER, therefore, it is cannot be said to be discriminatory.
19. It is also pertinent to note that in the representation rejection memorandum dated 29.03.2023 it has been provided that applicant's request will be given due consideration at the time of Annual Request Transfer when it will be effected, as per the transfer guidelines, if she applies for the same.
20. In view of above, I am considered opinion that OA No. 48 of 2023 and 171 of 2023 deserve to be dismissed and are dismissed.
21. No order as to costs.
22. Pending MAs, if any, also stand disposed of.
(Justice Anil Kumar Ojha) Member (J) JNS Page 5 of 5