Central Administrative Tribunal - Delhi
Rajesh Kumar Vats vs Kvs on 21 May, 2024
1
OA-2909/2023
C-4/Item-22
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
O.A./2909/2023
M.A./319/2024
M.A./3404/2023
Order reserved on :07.05.2024
Order pronounced on :21.05.2024
Hon'ble Dr. Chhabilendra Roul, Member (A)
Rajesh Kumar Vats
Aged about 50 years
S/o Late J.P. Sharma
R/o Nishatganj, Lucknow
Working as Principal,
Presently posted at KV, NHPC
Banbasa, Champawat
Uttarakhand-262310 ...Applicant
(Through Mr. R.K. Shukla,Advocate)
Versus
1. Kendriya Vidyalaya Sangathan,
Through its Commissioner,
18, Institutional Area,
S.J.S. Marg,
New Delhi-110016
2. The Deputy Commissioner,
KVS (HQR) ESTB.I
18, Institutional Area,
S.J.S. Marg,
New Delhi-110016
3. The Assistant Commissioner,
KVS (HQR) ESTB.I
18, Institutional Area,
S.J.S. Marg,
New Delhi-110016
4. The Deputy Commissioner,
KVS, Regional Office
Lucknow Sector-J
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OA-2909/2023
C-4/Item-22
Aliganj, Lucknow,
New Delhi-110016
5. Krishna Prasad Yadav,
Principal
KV AMHAT, SULTANPUR
Uttar Pradesh ... Respondents
(Through Mr. S. Rajappa with Mr. R. Gowrishankar,
Advocates)
ORDER
Hon'ble Dr. Chhabilendra Roul, Member (A) By virtue of the present OA, the applicant is seeking the following relief(s):-
"a. To declare the retention of the respondent no.5 on the place where on applicant was ordered to join his duty i.e. KV Amhat Sultanpur is illegal and arbitrary.
b. To declare the order dated 10.08.2023 as illegal and arbitrary and is violative of clause 12 of para 3 of the KVS transfer policy dated 30.06.2023.
c. To quash and set aside the impugned orders of transfer dated 31.07.2023, 10.08.2023, order dated 31.07.2023 qua the respondent no.5 and order dated 15.09.2023 (Annexure A-1 to Annexure A-4) thereby directing the respondents to consider his grievance for choice posting as has been mentioned in representation dated 01.08.2023 or near Delhi or as has been mentioned in latest representation submitted on 23.08.2023 and 31.08.2023.
d. To pass any other and further orders which this Hon'ble Tribunal deems fit and 3 OA-2909/2023 C-4/Item-22 proper."
2. Learned counsel for the applicant states that the applicant is working as Principal in Kendriya Vidyalaya Sangathan. He was posted at KV IFFCO Aonla Bareilly in Lucknow region. By order dated 31.07.2023 he was transferred to AMHAT Sultanpur in the Varanasi region.
3. He further refers to Annexure A/3 order dated 31.07.2023 by the respondents whereby they have transferred one Sh. Krishna Prasad Yadav who was working as Principal at KVS Sultanpur in the Varanasi region to KVS in Jabalpur region.
4. The respondents vide order dated 10.08.2023 have modified the original transfer order of the applicant and have now posted him to KV NHPC Banbasa in Uttarakhand. Thus, vide order dated 10.08.2023, the respondents cancelled the transfer order of Mr. Krishna Prasad Yadav who was working as Principal at KVS AHMAT Sultanpur and transferred to Jabalpur, on his own request.
5. The applicant has represented against initial transfer order dated 31.07.2023 vide representation dated 01.08.2023. He has filed another representation dated 11.08.2023 against the modified transfer order dated 4 OA-2909/2023 C-4/Item-22 10.08.2023. The respondents initially did not consider his representation and had not responded thereto. Finally, vide their order dated 15.09.2023, they have rejected the representation of the applicant along with others. Being aggrieved, he has filed this OA seeking the aforementioned relief.
6. The learned counsel for the applicant, relying on the grounds taken by the applicant in the OA, states that the respondents have not given due consideration to the representations given by the applicant on 01.08.2023 as well as on 11.08.2023. The respondents vide order dated 15.09.2023 have rejected the representations of 24 employees without assigning any detailed reasoning. The said order is not speaking one and they have not given any specific reason while rejecting the request of the employees. On the other hand, the respondents have acceded to the request of Mr. Krishan Prasad Yadav, whose transfer was cancelled on his request. The learned counsel states that this action of the respondents amounts to discriminatory treatment to the employees who are transferred by the respondents.
7. The applicant further refers to the order dated 10.08.2023 in respect of one Ms. Neelam Malviya and Ms. 5 OA-2909/2023 C-4/Item-22 Anjali Atri whose request has also been considered and acceded to by the respondents. However, the request of the present applicant has not been given due consideration.
7.1 Learned counsel further states that the respondents themselves by their action have violated the transfer policy of 2023 issued by them. He refers to sub clause xii of 3 titled "Basic Principles" which states as under:
"3.(xii) Transfer orders issued to an employee after following due process shall not be cancelled/ modified.
However, under extremely exceptional circumstances or under administrative exigencies, Commissioner, KVS may take appropriate decision on case to case basis. Such transfer cannot be taken as precedent and cannot be claimed as a matter of right."
7.2 He states that the rejection order dated 15.09.2023 is mechanical one and without application of mind when the basic principle states that the Commissioner KVS should decide each case on case to case basis. It implies that the respondents-Commissioner KVS should have given a detailed reasoning as to why they are rejecting request/representation of the applicant. The learned counsel states the respondents have applied pick and choose policy and have not been fair to the applicant. 6
OA-2909/2023 C-4/Item-22 7.3 The learned counsel for the applicant relies upon the decision of Hon'ble High Court in WP (C) 6726/2015 decided on 25.08.2015 in Union of India & Ors. Vs Yogender Mittal. He specifically refers to para 12 of the said judgment which reads as follows:
"12. Referring to Shilpi Bose case (supra) and Gujarat Electricity Board v. Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC), it was held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:-
"(a) the transfer is malafide or arbitrary or perverse;
(b) when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c) when guidelines laid down by the department are infringed;
(d) when it is frequently done and lastly;
(e) if there is a statutory infraction."
Therefore, whenever a public servant is transferred, he must comply with the order but if there be any genuine difficulty in the proceeding of transfer, it is open to him to make representation to the competent authority for modification or cancellation of the transfer order. The said view has been reiterated in UOI vs. S.L. Abbas, AIR 1993 SC 2444, State of Punjab and others vs. Joginder Singh Dhatt, AIR 1993 SC 2486 and State of U.P. and Ors. vs. Gobardhan Lal, AIR 2004 SC 2165."
8. Learned counsel for the applicant states that para 12 of 7 OA-2909/2023 C-4/Item-22 the judgment in Yogender Mittal (supra) refers to judgment of the Hon'ble Apex Court in Shilpi Bose case where the administrative action in respect of transfer could attract judicial review in case the authority concerned has acted in malafide, arbitrary or perverse manner. In the instant case, learned counsel for the applicant states that as it has already been argued that the respondents have adopted pick and choose policy and hence it could be termed either malafide or arbitrary as while accepting the request of some, the respondents have rejected the request of the others without assigning proper reasoning.
9. Per contra, learned counsel for the respondents refers to the basic principles laid down in Para 3 of the transfer policy issued by the respondents for 2023 which reads as under:
"All employees of the KVS are liable to be transferred and posted anywhere in India at any time, as per the requirements of public service and in the interest of the organisation. The core focus will be to maintain the continuity of the teaching- leaming process, in the larger interest of students. The approach of this policy is school and student centric with due regard to the principles of equity and transparency vis-a-vis its employees.
Ii Transfer cannot be claimed as a matter of right by the employees. The choice for transfer to a particular station also cannot 8 OA-2909/2023 C-4/Item-22 be claimed as a matter of right.
Iii The crucial date for determining the eligibility, stay, etc., shall be 30th June for all Stations.
iv As far as possible, KVS will invite Annual Transfer Applications through ONLINE mode. Primary responsibility for submission of transfer application form will be that of the employee. The information submitted by employee will be further verified by the controlling officer. Employee and controlling officer shall be held responsible if any wrong data or information is submitted/ suppressed, and appropriate action would be initiated against such defaulters under relevant Conduct Rules.
v. To ensure stability of teaching learning process, an employee will be eligible to apply for transfer after completion of tenure except cases covered under PwD/MDG/DFP/LTR which will be considered irrespective of tenure during the Annual Transfer process.
vi. The tenure of an employee at normal station will be of 5 years, (irrespective of change in cadre) extendable to 10 years if otherwise not displaced, in order to accommodate those employees who have completed their tenures in Hard, NER, Priority stations. In case of hard and NER station the tenure will be of 03 years, irrespective of change in cadre on account of promotion.
vii. To the extent possible, Non-Teaching Staff/officers (up to SO level) will be expected to serve at least one tenure in the KVS HQ/ Regional Offices /ZIETs, to cater to administrative requirements and to 9 OA-2909/2023 C-4/Item-22 provide wider exposure.
vill. Employee who is a care giver of dependent disabled child/ spouse will be given due consideration in the routine exercise of transfer subject to the administrative constraints. The definition of disability for the purpose of clauses above would be as notified by the Govt of India vide Persons with Disabilities (Equal opportunities, Protection of Rights & Full participation) Act, 1995 and another further amendments/clarification issued by the Govt. from time to time. For this a certificate from the competent Govt. Medical Board as defined in the provisions of these guidelines is required to be submitted.
ix. The Competent Authority reserves the right to transfer/ retain an employee beyond the specified tenure depending on the administrative requirement and in the larger interest of KVS. Further rotational transfer of employees working in sensitive posts shall be governed by the instructions Issued by the Central Vigilance Commission circular no. 03/09/13 vide letter no. 004/VGL/090 dated 11.09.2013 and as issued from time to time.
x. As far as possible, transfer of an employee to a station under spouse category is subject to availability of vacancy, eligibility, station seniority and applicable parameters in the interest of the organization."
9.1 Learned counsel for the respondents states that the employees of the KVS are liable for all India transfer and the basic principle is maintained in the interest of the 10 OA-2909/2023 C-4/Item-22 school and the students.
9.2 He further argues all the actions by the respondents are due to the administrative exigencies and requirement of continuity of teaching. He also further avers that the Competent Authority reserves the right to transfer or retain an employee beyond the specified tenure depending upon the administrative requirement. 9.3 In case of respondent no.5, the continuity beyond five years was extended by the Commissioner, KVS as per the transfer guidelines.
9.4 Referring to sub clause xii of Clause 3 of the said transfer policy, the learned counsel for the respondents states that the Commissioner KVS has considered exceptional circumstances and administrative exigencies on case to case basis and accepted the request of some and rejected the others. He further states that Ms. Neelam and Ms. Anjali are not made necessary parties in the instant case and that is why he is not in a position to give the details of administrative exigencies under which their transfers were cancelled.
9.5 Learned counsel for the respondents further referring to Shipli Bose Vs. State of Bihar, AIR 1991 SC 532, as 11 OA-2909/2023 C-4/Item-22 quoted in WP (C) 6726/2015 of Hon'ble High Court of Delhi, states that the learned counsel for the applicant has conveniently ignored the other conditions mentioned under the said paragraph. Particularly he has laid emphasis on the applicant's allegation of malafide, arbitrariness and perverseness on the part of the respondents, without substantiating the same with the support of cogent evidence. However, the service conditions of the applicant have not been modified nor any statutory provision has been violated. Moreover, the applicant has not been transferred frequently in violation of any laid down guidelines.
9.6 He further quoted para 13 and 14 of the said judgment of the Hon'ble High Court of Delhi where the judgment of Hon'ble Apex Court in Union of India and Others Vs S.L. Abbas, AIR 1993 SC 2444 has been discussed. To be specific, para 13 and 14 of the judgment are reproduced below:
"13. In Union of India and Others vs. S.L. Abbas (1993) 4 SCC 357, the Supreme Court, after considering a challenge to the transfer of a Government employee, inter alia, observed as under:-
"...Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it"12
OA-2909/2023 C-4/Item-22
14. In Home Secretary, U.T. of Chandigarh and Anr. vs. Darshjit Singh Grewal and Ors. (1993) 4 SCC 25, the Hon'ble Supreme Court held that the policy guidelines are relatable to the executive powers of the administration and having enunciated a policy of general application and having communicated to all concerned, the administration was bound by it till such time as the policy was changed."
9.7 Relying on the said judgment of Hon'ble Apex Court, learned counsel for the respondents states that the competent authority has the power to transfer its employees who have joined an all India transferable job.
10. In rejoinder, learned counsel for the applicant states that vide letter dated 02.08.2023, the Dy. Commissioner of KVS Lucknow region has recommended transfer of the applicant to Greater Noida, Delhi or IIFCO Aonla Bareli. However, this matter has not been considered by the respondents while affecting the modified transfer order. He further states that there is a vacancy of Principal at AMC Cantt. Lucknow, where the respondents could have accommodated the applicant therein.
11. Heard the learned counsels for the parties. 11.1 Transfers, deployments, redeployment or placement of organizational human resources are essential components of Human Resources Management Strategies of any organization, be it in private sector or in the Government or 13 OA-2909/2023 C-4/Item-22 Public sector. These strategies are aimed at realizing the organizational goals for furtherance of mission objectives of the organization. For a government department or autonomous organization or Public Sector Undertaking, Public Interest in the form of discharging the assigned responsibilities to these entities by the Constitution, statutory provisions subordinate legislation or delegated competencies is the charter for mission objectives. 11.2 Deployment or transfer is also the process of providing sub-entities and subordinate offices with the required human resources and support they need to be successful in their roles. This is akin to allocation of organizational resources to achieve organizational goals. Modern governments and organizations begin the process prior to adopting transfers as a redeployment tool by assessing the organization's current and future human resources needs. Following these assessments, the competent authority makes decisions how best to deploy the human resources to meet the identified needs. These include the type of human resources required, the number of human resources required, the location of the human resources, and the timing of the deployment. In Government, generally this task is assigned to an Administrative/Establishment/ Placement/Transfer Committee.
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OA-2909/2023 C-4/Item-22 11.3 Effective utilization of service of an employee is in the very core of administrative exigency. It is the prerogative of the employer to transfer his employee at any point of time and to any work station based on administrative exigencies. Deployment of staff in the form of transfers enables realignment of human resources to new work assignments or job responsibilities to meet organizational needs or to provide opportunities to the employees to gain skills and experience. Such activities are aimed at supporting employee's engagement, employee motivation and increased productivity and leadership development across all level of employees within the organization.
11.4 The position that the competent administrative authorities have a prerogative to redeploy or transfer an employee for better utilization of human resources of the organization for furtherance of organizational mission objectives have been well settled in several case laws by the Apex court. The employee in a transferable job does not have any vested right to remain at a particular place or post. The counsel for the respondents has cited the judgment in Gujrat Electricity Board vs Atmaram Sungomal Poshani, 1989 (2) SLR 684 (SC). This judgment of the Apex court has been reiterated in a series of judgments by the Apex Court. 15
OA-2909/2023 C-4/Item-22 11.5 The Apex Court in S.L. Abbas (supra) has again reiterated similar position as under:-
"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."
"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."
11.6 Again in Public Services Tribunal Bar Vs State of U.P. & Another, Appeal (civil) No. 3946 of 2001 decided on 29.01.2003, it was held :-
"Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.
From the above quoted decisions, it is evident that this Court has consistently been of the view that by way of interim order the order of suspension, termination, dismissal and transfer etc. should not be stayed during the pendency of the proceedings in the Court."
The transfer policies are in the form of executive guidelines. And hence, these have no statutory force. The aforementioned case laws affirm the prerogative of the government to transfer its employees to ant place of posting for administrative exigencies. The transfer guidelines are subservient to public interest."
11.7 In State of U.P. Vs Gobardhan Lal (supra), the Apex Court held that:
"6.Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an 16 OA-2909/2023 C-4/Item-22 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 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 such 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."
11.8 Here, even the transgression of the transfer guidelines has not been allowed to be interfered by the court. This has been further reiterated by the Apex Court in Airport Authority of India Vs Rajeev Ratan Pandey and Ors, CA No. 5550 of 2009. Para 10 of the judgment states that even if the transfer order is violative of transfer policy, the court should not interfere. It has been held that:
"In the writ petition, the transfer order has been assailed by the present Respondent No. 1 on the sole ground that it was violative of transfer policy framed by the appellant. The High Court, did not, even find any contravention of transfer 17 OA-2909/2023 C-4/Item-22 policy in transferring the Respondent No. 1 from Lucknow to Calicut"
11.9 Similar view has been echoed in Rajendra Singh & Ors Vs State of Uttar Pradesh & Ors, CA No.4975 of 2009 decided on 31.7.2009.
11.10 When the courts interfere in the administrative functioning of a department by entertaining the petitions against transfer orders, it creates administrative complexities for the authorities. The Apex court in State of Haryana & Ors Vs Kashmir Singh & Ors., on 6 October, 2010 [Civil Appeal Nos. 8690-8701 of 2010] has clearly advised the courts /tribunals to desist from interfering in those matters. It has been held as under:-
"16. In our opinion, the High Court has taken a totally impractical view of the matter. If the view of the High Court is to prevail, great difficulties will be created for the State administration since it will not be able to transfer/deploy its police force from one place where there may be relative peace to another district or region/range in the State where there may be disturbed law and order situation and hence requirement of more police. Courts should not, in our opinion, interfere with purely administrative matters except where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. After all, the State administration cannot function with its hands tied by judiciary behind its back. As Justice Holmes of the US Supreme Court pointed out, there must be some free-play of the joints provided to the executive authorities.
18. For the foregoing reasons, these appeals succeed and are hereby allowed. The impugned judgment of the High court is set aside and the writ petitions before the High Court stand dismissed. No costs."18
OA-2909/2023 C-4/Item-22 11.11 The view that the transfer guidelines /circulars may not in itself confer a vested right which can be enforceable by a writ of mandamus was reiterated and highlighted by the Apex Court in Punjab and Sind Bank & Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774. It was held that:
"17. ..........An employee cannot have a choice of postings. Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a writ of mandamus."
11.12 Even the Supreme Court in Union of India and Others Vs. Ganesh Dass Singh, Civil Appeal No. 1358 of 1994, decided on 25.02.1994 held that there is hardly any scope of judicial review of administrative action in the form of transfer orders. It has been held as under:-
"4. In our opinion, in the present case there is no material to justify interference with the mere order of transfer made by the competent authority for administrative reasons particularly when the Tribunal had rejected the respondent's assertion that the transfer had been made on account of certain complaints he had made regarding the functioning of the Dept. We have no doubt that the view taken by the Tribunal is not justified on the facts found by it. It is also not within the scope of permissible judicial review in such matters relating to mere transfer made by the competent authority for administrative reasons."
11.13 The aforementioned judgments of the Apex Court have given upper hand to the administrative authorities or the Government in matters of transfers. However, transfers may affect negatively the level of productivity, motivation, 19 OA-2909/2023 C-4/Item-22 innovation quality, relations, and participation and communication patterns among other core human resources activities. When handled well and in accordance with the employees' circumstances, deployment increase employee performance through increased innovation, creativity, quality, productivity, profitability, loyalty flexibility, efficiency, effectiveness, and low levels of discontents, dysfunctional conflicts. In other words, employee welfare is also in the interest of the organizations. The principles of effectiveness, efficiency and economy in matters of deployment of human resources are sought to be aligned with organizational mission goals.
11.14 While effecting redeployment through transfers, the organizations should also treat all such employees fairly and without any bias or malafide or discrimination. Moreover, a model employer like the government also treats its employees far more transparently and it is expected that the government ensures that there is no violation of Articles 14 and 16 of the Indian Constitution. Based on the twin objectives of satisfying organizational goals (public interest and better governance for delivery of public services) and employee welfare, growth and development, organizations including government departments formulate transfer/placement policies. These policies ensure 20 OA-2909/2023 C-4/Item-22 transparency and also provide better opportunities to officers for excellence and more planned approach to cadre planning. Such transfer policies develop some sort of reasonable employee expectations to be treated fairly while effective redeployment through transfers. Similarly, the government departments also have reasonable expectations from its employees to cooperate in such deployment to achieve mission goals of departments and other entities. 11.15 Earlier, Delhi High Court, based on the judgments in Shilpi Bose case (supra) and Gujarat Electricity Board Vs. Atmaram Sungomal Poshani (supra), has summarized the scope of judicial review in transfer matters under certain circumstances: It was held that a judicial review of an administrative action is of course permissible, but orders of transfer are interfered when:-
"(a) the transfer is malafide or arbitrary or perverse;
(b) when it adversely alters the service conditions in terms of rank, pay and emoluments;
(c) when guidelines laid down by the department are infringed;
(d) when it is frequently done and lastly;
(e) if there is a statutory infraction."
12. In the instant case, the applicant has failed to convince this Tribunal that the transfer orders dated 31.07.2023 and 10.08.2023 smack of biasness, malafide, arbitrariness and 21 OA-2909/2023 C-4/Item-22 punitive in nature. In view of the above, the present OA lacks merit and hence dismissed.
13. Pending MAs also stand disposed of.
No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /Arti/ /dkm/