Central Administrative Tribunal - Patna
Nancy Isranti Soren vs Education on 1 July, 2024
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OA 401/2024/CAT/PATNA BENCH
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00401/2024
Date of order: 01.07.2024
CORAM
HON'BLE MR. AJAY PRATAP SINGH, MEMBER [J]
Nancy Isranti Soren Wife Of Sri Satish Kumar, Staff Nurse, Jawahar Navodaya
Vidyalaya, Sonvarshaghat, Khagaria- 851201, Resident Of Bajitpur, Po/Ps-
Barh, District-Patna-803213 (Bihar)
.......... Applicant.
-Versus-
1. The Union Of India Through The Secretary, Ministry Of Human Resources
Development, Department Of Education, Government Of India, New- Delhi-
110001.
2. The Commissioner, Navodaya Vidyalaya Samiti, Department Of School
Education And Literacy, Ministry Of Education, Government Of India, B-15,
Institutional Area, Sector-62, Noida, District- Gautam Budh Nagar -201309
(UP).
3. The Deputy Commissioner (Personnel), Navodaya Vidyalaya Samiti,
Department Of School Education And Literacy, Ministry Of Education,
Government Of India, B-15, Institutional Area, Sector- 62, Noida, District-
Gautam Budh Nagar - 201309 (UP)
4. The Deputy Commisioner, Navodaya Vidyalaya Samiti, Department Of
School Education And Literacy, Ministry Of Education, Government Of
India, Regional Office, Karpuri Thakur Sadan, Kendriya Karalay Parisar,
Block-A & B, 5th Floor, Ashiyana Digha Road, Patna- 800025 (Bihar).
5. The Principal, Jawahar Navodaya Vidyalaya, Sonvarshaghat, Khagaria-
851201 (Bihar).
6. Mrs Pratima Sinha, Staff Nurse, JNV, Gopalganj-841438 (Bihar).
........Respondents
For Applicant:- Shri M.P. Dixit, Advocate
For Respondents:- Shri H.P. Singh, Ld. Sr. Central Government Standing
Counsel.
ORDER
Per Ajay Pratap Singh, Member [J]
1. Applicant has filed present O.A. under section 19 of the Administrative Tribunals Act, 1985, challenging order dated 09.03.2024, 12.03.2024 and 14/18.06.2024, Annexure-A/1, A-1(a) and A-1 (b) so far relates to present applicant, whereby applicant has been ordered to be transferred from JNV, Khagaria (Bihar) to JNV, Palamu-1 (Jharkhand) and private respondent no. 6 has been posted in place of applicant at JNV, Khagaria (Bihar). So ::2::
OA 401/2024/CAT/PATNA BENCH also on direction of this Tribunal order dated 31.05.2024 in OA No. 144/2024, Mrs. Nancy Isranti Soren Vs. UOI & Ors., the competent authority has considered representation dt. 05.04.2024 and rejected vide impugned order dated 14.06.2024 [Annexure-A/1(b)] and applicant seeking setting aside of impugned orders dt. 09.03.2024, 12.03.2024 and 14/18.06.2024 and direction to respondents to allow to continue at present place of posting i.e. JNV Khagaria (Bihar).
PRAYER
2. The applicant has sought main relief (s) in present OA (as extracted from the OA) reads as:-
"1 That Your Lordships may graciously be pleased to quash and set aside the order dated 09.03.2024, 12.03.2024 and 14/18.06.2024 as contained in Annexure A/1, A/1 (a) and A/1 (b) qua applicant whereby she has been ordered to be transferred from JNV, Khagaria (Bihar) to JNV, Palamu-1 (Jharkhand) and Respondent No.6 has been ordered to be posted vice applicant.
2 That Your Lordships may graciously be pleased to direct/command the Respondents to allow the applicant to continue at JNV, Khagaria in view of Para-4 (viii) of DOPT OM dated 30.09.2009 in the same manner, she has been allowed to continue against ATD-2022-23 vide order dated 22.08.2022.
3 That Your Lordships may graciously be pleased to hold and declare para-4.10 of Transfer Policy dated 28.01.2022 as contained in Annexure A/3 (a) as null, void and cannot supersede over mandatory direction laid down in para-4 (viii) of DOPT OM dated 30.09.2009 in respect of posting of spouse.
4 Any other relief or reliefs as may deem fit and proper by this Hon'ble Tribunal including the cost of the proceeding may be allowed in favor of the Applicants."
FACTS IN BRIEF
3. Shorn of unnecessary details the briefly stated facts as stated in present OA is that she is employed as staff nurse in Jawahar Navoday Vidyalaya (for brevity hereinafter referred as JNV) at Sonvarshaghat, Khagaria and her husband in the same JNV, Sonvarshaghat, Khagaria, TGT (Arts) due for superannuation on 31.08.2024. She was initially appointed on 13.08.1995 and posted as Staff Nurse at JNV Sonvarshaghat, Khagaria, at present twin child aged about 10 years are students of Class-II of JPS Central School, Sonvarshaghat, Khagaria, Govt. of India, issued O.M. dated 30.09.2009 on posting of husband and wife at the same station and as per para 4 (viii), if required level of post is available in order both ::3::
OA 401/2024/CAT/PATNA BENCH husband and wife can be posted together for normal family life. NVS Transfer Policy 2021 for annual transfer drive 2021-2022 classified, deemed, protected deemed and employees covered under valid spouse category for 15 years at one station, whereas DoPT, O.M. dated 30.09.2009 provides till children are 18 years age and OM dt. 30.09.2009 shall prevail over the NVS Transfer Policy dated 28.01.2022 (Annexure-
A/3). It is the case of applicant that on 22.04.2022 submitted request for keeping post under Protected Deemed (Annexure-A/4) as working spouse and on portal shown posts at JNV, Sonvarshaghat, Khagaria has been kept under deemed, whereas it should have been shown as protected deemed and said mistake caused prejudice to applicant and contrary to OM dt. 30.09.2009, on filing of OA No. 336 of 2022, respondents corrected and placed her husband under protected deemed on ground of children under 18 years and applicant transferred from present place of posting, Khagaria to JNV, Alipurdwar in West Bengal.
4. The applicant also made averments in the OA that respondents issued second transfer order dated 09.03.2024, ATD-2024 ordered from JNV, Khagaria (Bihar) to JNV, Palamu (Jharkhand) and in place of applicant contrary to para 4 (viii) of said DoPT, OM dt. 30.09.2009 related to issue of spouse and children below 18 years and on same ground OM dt. 30.09.2009 cancelled transfer order of JNV, Alipurdwar in West Bengal. OA No. 336/2022 is pending after notices and should not have been transferred as per order dt. 09.03.2024. Applicant raised grievance for cancellation of order dt. 09.03.2024 to West Bengal and spouse column was kept blank by respondent no. 5 and now applicant again been transferred from JNV, Khagaria to JNV, Palamu vide order dt. 12.03.2024 w.e.f. 31.05.2024 impugned as Annexure-A/1 (b). This Tribunal in OA No. 144/2024 directed on 31.05.2024 to respondents (arising out of impugned order dt. 12.03.2024 & 09.03.2024) but applicant ground of not showing her spouse status not considered as agitated in representation dated 05.04.2024. The impugned order dt. 14.06.2024 is without authority not passed by respondent no. 2 and rejected representation dated 05.04.2004, whereas same is to accommodate respondent no. 6.
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OA 401/2024/CAT/PATNA BENCH SUBMISSIONS
5. Shri M.P. Dixit, Ld. Counsel for applicant arguments can be summarized as under:-
(i). Applicant filed OA No. 144 of 2024 Nancy Isranti Soren Versus Union of India and vide order dated 31.05.2024, this Tribunal, directed respondents to take decision on representation dt.
05.04.2024 and till then allowed to continue but Deputy Commissioner has not considered the provisions of OM dated 30.09.2020, which permits posting of husband and wife at one station till age of 18 years of children and applicant has 10 years old twin child studying in class-II and in view of OM dt. 30.09.2009 present OA deserves to be allowed and Para 4.10 of transfer policy dated 22.01.2022 cannot supercede OM dt. 30.09.2009.
(ii). Impugned orders of transfer dated 09.03.2024, 12.03.2024 and 14/18.06.2024 passed to accommodate respondent no. 6.
(iii). Impugned rejection order dated 14.06.2024 not issued by Commissioner, respondent no. 2, whereas without approval of respondent no. 2 has been issued by respondent, lower authority.
(iv). Applicant has only three years' service left and transferred by arbitrary rejection order dated 14/18.06.2024 to harass and humiliate applicant.
6. Shri H.P. Singh, Ld. Sr. CGSC appearing for respondents contended that:-
i. There is only one post of Staff Nurse at JNV, Sonvarshaghat, Khagaria and applicant is posted since year 1995 and has completed almost 29 years of service at present place of posting and husband also completed more than 29 years of present place of posting.
ii. Applicant does not have any fundamental right to claim for posting at place Sorvarshaghat, place of own choice for entire service career.
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OA 401/2024/CAT/PATNA BENCH iii. The NVS, special Transfer Policy 2021, dated 28.01.2022 applicable to applicant for guidance of NVS, Para 4.10 stipulates on completing 15 years of tenure at present station in present post be declared deemed and liable for displacement through usual transfer process and supports impugned orders of transfer justified and in consonance with law laid down by Hon'ble Supreme Court in case of Bank of India Versus Jagjit Singh Mehta, (1992) 1 SCC 306.
7. This is a trite law that scope of judicial interference in transfer matters in exercise of power of judicial review is limited: -
(i) Transfer is issue of violation of statutory rules.
(ii) Malafide exercise of power.
(iii) Transfer order is without jurisdiction."
CASE LAW
8. Hon'ble Supreme Court in case of Union of India Versus S.L. Abbas, reported in (1993) 4 SCC 357. Their Lordships in paragraph 6, 7 and 8 held reads as:-
6. An order of transfer is an incident of Government service.
Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundamental Rule 15 says that "the President may transfer a Government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that the order of his transfer is vitiated by mala fides on the part of the authority making the order, -- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed "mischief" to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at Shillong, his children are studying there and also because his health had suffered a setback some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force.
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. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said ::6::
OA 401/2024/CAT/PATNA BENCH guideline however does not confer upon the Government employee a legally enforceable right.
8. The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an appellate authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).
[Emphasis supplied]
9. In case of Rajendra Singh and others Versus State of UP & Ors., (2009) 15 SCC 178. Their Lordships in paragraph 8 held as:-
8. 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 U.P. v. Gobardhan Lal [(2004) 11 SCC 402 : 2005 SCC (L&S) 55] , SCC p. 406, para 7).
[Emphasis supplied]
10. In case of Shilpi Bose Versus State of Bihar, (1991) Supp. 2 SCC 659, Hon'ble Supreme Court was seisin with transfer of lady teachers to place where their husbands were posted on their own requests. Challenge of displaced teachers at the transferred places was not sustained. Their Lordships upheld the transfer orders and observed as:-
4. In our opinion, the Courts should not interfere with a transfer Order which are 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 malafide. 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 instead affected party should approach the higher authorities in the Department. If the Courts continue to interfere with day-to-day transfer Orders issued by the Government and its ::7::
OA 401/2024/CAT/PATNA BENCH subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer Orders.
[Emphasis supplied]
11. In case of Union of India Versus Janardhan Debanath, (2004) 4 SCC, Their Lordships in paragraph 14 held:-
"The question whether the respondents could be transferred to a different division is a matter for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for the Supreme Court to direct one way or the other. It is not for this Court to direct one way or the other. The judgment of the High Court is clearly indefensible and is set aside. The writ petitions filed before the High Court deserve to be dismissed which we direct. The appeals are allowed with no order as to costs."
[Emphasis supplied]
12. In Bank of India Versus Jagjit Singh Mehta, (1992) 1 SCC 306, Their Lordships spoken through Hon'ble Shri Justice J. S. Verma, then CJI as under:-
"5. There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all-India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station, they cannot as of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that the spouses thereby would be posted at different places. In addition, in the present case, the respondent voluntarily gave an undertaking that he was prepared to be posted at any place in India and on that basis got promotion from the clerical cadre to the officers' grade and thereafter he seeks to be relieved of that necessary incident of all-India service on the ground that his wife has to remain at Chandigarh. No doubt the guidelines require the two spouses to be posted at one place as far as ::8::
OA 401/2024/CAT/PATNA BENCH practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
[Emphasis supplied] DISCUSSION
13. Now coming to the facts of the present case in background of scope of judicial interference in transfer matters related to limited scope of judicial review by the Court/ Tribunal. Undisputedly applicant joined NVS on 28.08.1995 to the post of Staff Nurse and was posted at JNV, Khagaria, present place of posting from 28.08.1995 and applicant has completed more than 28 years of service at present place of posting.
14. Husband of applicant joined in NVS on 01.07.1995 to the post of Art Teacher and posted at JNV, Khagariya and also completed 29 years of service at present place of service and is due for superannuation on 31.08.2024.
15. The Transfer Policy 2021 notified on 28.01.2022 of NVS, special policy for its employees, formulated in consonance with guidelines of Govt. of India and after completing 15 years' service not entitled for protection from displacement and applicant completed more than 28 years of service at present place of own choice and does not have vested legal right, no fundamental right to claim posting on permanent basis at present place i.e. JNV, Khagaria. In view of clause 4.10 of Transfer Policy 2021, after completing 15 years, post held by applicant came under Deemed vacant category and liable to be displaced in accordance with transfer policy 2021, which is special transfer policy applicable to applicant. The post placed under deemed vacant category as per special transfer policy for NVS employees and one Staff Nurse Mrs. Bharti Kumari, working at JNV Arwal (Bihar) opted choice for JNV, Khagaria under spouse/ single lady category and transfer order dated 01.08.2022 was passed but on her request order dt. 01.08.2022 was cancelled and consequently applicant transfer order from JNV, Khagaria to JNV, Alipurdwar, West Bengal was also cancelled as per representation dt. 29.07.2022 of applicant. Thus ::9::
OA 401/2024/CAT/PATNA BENCH transfer orders impugned are result of transparent, transfer policy 2021 and as per clause no. 4.10 of the special transfer policy 2021 for NVS employees applicant completed more than 28 years at present place of posting cannot be considered for remaining posted of own choice based on OM dated 30.09.2009, clause 4 (viii) as there is no required level of post at JNV, Khagaria, Mrs. Pratima Sinha, Staff Nurse of JNV, Gopalganj (Bihar) opted JNV, Khagaria through online transfer portal and considered by automation system and transferred in place of applicant strictly in accordance with special transfer policy and treated post as deemed vacant.
16. So far as the contention of counsel for applicant that clause 4.10 of Transfer Policy 2021 dated 28.01.2022 is in contravention of clause 4
(viii) of OM dt. 30.09.2009 and special transfer policy will not supercede clause 4 (viii) of OM dt. 30.09.2009 is highly misconceived and above contention as well as prayer to hold clause 4.10 of transfer policy dt. 28.01.2022 null and void is misconceived and no legs to stand and hereby repelled. After 15 years of service, post held by applicant included in deemed vacant category and there is no any post at JNV, Khagaria hence on plain reading of clause 4 (viii) of OM dt. 30.09.2009, same is not attracted and is of no help to applicant.
17. Mr. M.P. Dixit, learned counsel for applicant has failed to substantiate his contention that private respondent no. 6 has been transferred to accommodate her at place of applicant. The respondents on approval of competent authority has issued impugned rejection order dated 14.06.2024, speaking order, whereby explained that by operation of Uniform, transparent, special transfer policy 2021 for NVS employees as per clause 4.10 of special policy, private respondent request accepted and transferred vide justified impugned orders. This Tribunal does not find any force in the submission of counsel for applicant that private respondent no. 6 accommodated so also onus of proof was on applicant to allege discrimination to accommodate respondent no. 6 but applicant also did not furnish any details as to when and under what circumstances the private respondent was transferred, thus plea of arbitrariness raised by Mr. ::10::
OA 401/2024/CAT/PATNA BENCH Dixit, learned counsel for applicant cannot be accepted and rejected. The impugned rejection order dated 18/14.06.2024, Annexure-1(b) is clear as noon day that same issued with approval of competent authority and in consonance with order dated 31.05.2024 passed in OA No. 144 of 2024 and present OA sans merit, no interference is warranted and deserves dismissal at motion stage.
CONCLUSION
18. In view whereof and considering entire facts, circumstances and legal preposition settled by catena of judgments of Hon'ble Supreme Court, applicant has failed to establish infringement of any legal right, violation of any statutory rules of transfer or malafide exercise of power and that impugned transfer orders are without jurisdiction. This Tribunal does not find any merit in the OA and impugned orders are justified and not affected service conditions of applicant.
19. In result present OA is accordingly dismissed at admission stage in limine with no order as to costs.
(Ajay Pratap Singh) Judicial Member Central Administrative Tribunal, Patna Bench, Patna du/-