Central Administrative Tribunal - Ernakulam
Xavier E K vs Navodya Vidyalaya Sanghathan on 4 October, 2018
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH
Original Application No.180/00935/2015
Thursday, this the 4th day of October, 2018
CO RAM :
HON'BLE Mr.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER
HON'BLE Mr.ASHISH KALIA, JUDICIAL MEMBER
Xavier.E.K.,
TGT Social Science,
JNV Chennithala, Alappuzha - 690 105.
Residing at JNV Quarters, Chennithala,
Alappuzha - 690 105. ...Applicant
(By Advocate - Mr.Vishnu S Chempazhanthiyil)
versus
1. Union of India represented by the Secretary,
Ministry of Human Resource & Development,
Shastri Bhawan, New Delhi - 110 001.
2. The Commissioner, Navodya Vidyalaya Samiti,
Department of School Education & Literacy,
Government of India, B15, Institutional Area,
Sector 62, Noida, Budh Nagar,
Uttar Pradesh - 201 309.
3. The Deputy Commissioner (Pers.),
Navodaya Vidyalaya Samiti (Hyderabad Region),
Ministry of Human Resource & Development,
1-1-10/3, Sardar Pater Road,
Secunderabad - 500 003. ...Respondents
(By Advocates - Mr.N.Anilkumar, Sr.PCGC [R] [R1]
& Mr.Millu Dandapani [R2-3])
This application having been heard on 28 th September 2018, the
Tribunal on 4th October 2018 delivered the following :
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ORDER
Per : Mr.E.K.BHARAT BHUSHAN, ADMINISTRATIVE MEMBER O.A.No.180/935/2015 is filed by Shri.Xavier.E.K., TGT (Social Science) working at Jawahar Navodaya Vidyalaya (JNV for short), Alappuzha. He seeks setting aside of Annexure A-8 dated 18.5.2015 by which he stands transferred to Bellary, Karnataka on promotion and Annexure A-10 dated 4.6.2015 which informs the applicant that owing to his refusal to join the post at Bellary within the stipulated time, the offer of promotion is withdrawn. The prayers contained in the O.A are as follows :
1. Call for the records leading to the issue of Annexure A-8 and Annexure A-10 and set aside Annexure A-8 and Annexure A-10.
2. Direct the respondents to consider the promotion of the applicant as PGT, in the vacant post of PGT History available in JNV Kottayam.
3. Declare that the refusal on the part of the applicant to take cognizance of the fact that the applicant is caregiver of the differently abled child of the applicant and insistence on joining duty at JNV Bellari on being promoted is unjust, illegal and arbitrary and direct the respondents to post the applicant in the vacant post of PGT History in JNV Kottayam.
4. Any other further relief or order as this Hon'ble Tribunal may deem fit and proper to meet the ends of justice.
5. Award the cost of these proceedings.
2. It is stated in the O.A that the applicant has been working at JNV, Alappuzha and his spouse, also TGT (Maths), at JNV, Gadag at Karnataka. The applicant has a 22 year old differently abled child and he is the sole .3.
caregiver of the child. In 2008 the applicant was constrained to decline a promotion on account of his necessity to take care of his son. Again in 2014 he was successful in being selected for promotion as PGT. However, despite the existence of a clear vacancy of PGT (History) in JNV (Kottayam) the applicant was posted to JNV Bellary as per Annexure A-5 dated 23.4.2015. Thereupon the applicant submitted his difficulties in the form of a communication, copy of which is at Annexure A-6 wherein he stated that "I am not in a position to accept the present place of posting on promotion as PGT (History) at JNV, Bellary. Therefore I humbly request you to kindly reconsider my case on sympathetic ground and give me posting at JNV, Kottayam so that the treatment of my son may be continued."
3. As can be seen from the above communication, he had only sought a change in the place of posting and the submission did not amount to refusal of the promotion offered. However, the respondents replied to this with Annexure A-8 and Annexure A-10. The applicant made further representations, copy of one of which is at Annexure A-11. His difficulty in leaving the State are genuine as is evident from the copies of the medical certificates obtained for the treatment of his son, which are available at Annexure A-13 to Annexure A-19. It is submitted that respondents ought to have taken a sympathetic view of the difficulties of the applicant and posted him in the available vacancy at .4.
Kottayam. It is true that he had indicated Kottayam as his home station in his service record but this should not have been a bar for him to be posted in the said district since been he is now a resident of Ernakulam. In any case there are others who are successful in getting a posting to their home stations.
4. As grounds the applicant once again describes his case for transfer to a place of his choice on the ground of compelling personal reasons. He has to take care of his son who is admitted to a school for mentally challenged children at Pampady in Kottayam and the child has been receiving medical care in various hospitals in Kottayam/Ernakulam districts. As per O.M.No.42011/3/2014-Estt.(Res.) dated 6.6.2014, copy of which is available at Annexure A-22 it is specifically mentioned that support system is a relevant factor in the process of rehabilitation and such rehabilitation being a continuous process, shifting of the caregiver should not be treated as a matter of routine.
5. The respondents have filed a reply statement wherein they have detailed points relating to the Transfer Policy. They dispute the parallels alleged by the applicant in the O.A and state that in the case of one Smt.Lizzy Kutty, Staff Nurse who had obtained favourable order through O.A.No.976/2013 the circumstances were entirely different.
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6. When the case was heard on 17.7.2017 this Tribunal directed whether the applicant can be considered for a promotion posting in JNV, Kottayam itself in view of the compelling reasons relating to the disabled child made at representations Annexure A-6, Annexure A-9 and Annexure A-11. It was submitted on behalf of the respondents on 30.8.2017 that the post at Kottayam had been filled up and this Tribunal ordered that an existing post at JNV, Alappuzha should be kept vacant if not already filled up. Accordingly, there is a post of PGT which is kept vacant at Alappuzha.
7. We have considered the case in detail. There are two aspects to the case. The first of which is whether his request for a change in the place of posting intimated through communication at Annexure A-6 amounts to a refusal of the promotion offered to him. On an examination of the same we do not see any refusal of promotion per se. He has again detailed the case of his differently abled son who requires treatment on a long term basis which would be difficult if he is transferred to Bellary. He has indicated that a vacancy of PGT (History) at JNV, Kottayam is vacant and has sought a posting to this position. The respondents were wrong in concluding that this amounts to a refusal of promotion and taking it as a cue to insist that he join at Bellary.
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8. Secondly the facts of the child being afflicted with Schizoaffective disorder are not disputed. With regard to the additional facility to be rendered while posting Government employee who have differently abled dependents, the O.M issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training dated 6.6.2014, copy of which is available at Annexure A-22 unequivocally states that they are entitled to preferential treatment.
9. Considering that the applicant has been found fit for promotion and that there is a clear vacancy now available at JNV, Alappuzha consequent to the transfer of one Shri.Surendran.A, out of the latter station as per NVS Headquarters, Office Order dated 22.8.2017, we direct that the applicant is to be posted as PGT (History) at JNV, Alappuzha within two weeks of receipt of a copy of this order. M.A.No.180/665/2017, M.A.No.180/783/2017 and M.A.No.180/1014/2017 do not survive and the same are closed.
10. The O.A is allowed to the extent as indicated above. No costs.
(Dated this the 4th day of October 2018)
ASHISH KALIA E.K.BHARAT BHUSHAN
JUDICIAL MEMBER ADMINISTRATIVE MEMBER
asp
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List of Annexures in O.A.No.180/00935/2015
1. Annexure A-1 - True copy of the medical certificate dated 26.5.2008 issued by Consultant Psychiatrist of Navajyothi Child Psychiatry Centre, Kusumagiri, Kakkanad, Kochi.
2. Annexure A-2 - True copy of the certificate dated 12.8.2014 issued by the Santhula Trust Hospital, Koothattukulam.
3. Annexure A-3 - True copy of the order No.F.No.1- 96/NVS(HR)/2008/3183 dated 22.9.2008 issued by the 3rd respondent.
4. Annexure A-4 - True copy of the Office Order No.F.No.1- 96/NVS(HR)/2008/3262 dated 30.9.2008 issued by the Asst. Commissioner, NVS.
5. Annexure A-5 - True copy of the Office Order No.F.1- 96/NVS(HR)/Estt.II/2015 dated 23.4.2015 issued by the 3 rd respondent.
6. Annexure A-6 - True copy of the representation dated 24.4.2015 to the 3rd respondent.
7. Annexure A-7 - True copy of the communication No.3- 13/JNVA/Pers./2014-15/43 dated 28.4.2015 issued by the Principal, JNV Alappuzha to the 3rd respondent.
8. Annexure A-8 - True copy of the Office Order No.1- 96/NVS(HR)/Estt.II)/2015 dated 18.5.2015 issued by the 3 rd respondent.
9. Annexure A-9 - True copy of the representation dated 25.5.2015 to the 2nd respondent.
10. Annexure A-10 - True copy of the Office Order No.F.No.1- 96/NVS(HR)/(Estt.II)/2015/803 dated 4.6.2015 issued by the 3 rd respondent.
11. Annexure A-11 - True copy of the representation dated 20.6.2015 to the 1st and 3rd respondents.
12. Annexure A-12 - True copy of the communication No.F.No.3- 13/JNVA/PErs./2015-16/18788 dated 20.6.2015 issued by the Principal, JNV Alappuzha to the 3rd respondent.
13. Annexure A-13 - True copy of the certificate dated 6.4.2015 issued by Kusumagiri Mental Health Centre, Cochin.
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14. Annexure A-14 - True copy of the certificate dated 21.4.2015 issued by Bishop Vayalil Medical Centre, Idukki.
15. Annexure A-15 - True copy of the treatment summary issued by Santhula Trust Hospital, Koothattukulam dated 8.9.2014.
16. Annexure A-16 - True copy of the certificate dated 27.1.2015 issued by Department of Psychiatric, Medical College Hospital, Kottayam.
17. Annexure A-17 - True copy of the certificate dated 4.4.2015 issued by Santhula Trust Hospital, Koothattukulam.
18. Annexure A-18 - True copy of the certificate dated 6.6.2015 and 16.10.2015 issued by St.John of God Special School, Kottayam.
19. Annexure A-19 - True copy of the certificate dated 3.11.2015 issued by Santhula Trust Hospital at Koothattukulam.
20. Annexure A-20 - True copy of the information supplied under RTI Act regarding posting of Teachers.
21. Annexure A-21 - True copy of the order dated 13.2.2014 in O.A.No.976/2013 of this Hon'ble Tribunal.
22. Annexure A-22 - True copy of the O.M.No.42011/3/2014-Estt.(Res.) dated 6.6.2014 issued by the Government of India.
23. Annexure A-23 - True copy of the discharge summary dated 30.12.2015 from Santhula Trust Hospital, Koothattukulam.
24. Annexure A-24 - True copy of the discharge summary from Department of Psychiatry of Christian Medical College, Vellore dated 13.5.2017.
25. Annexure A-25 - True copy of the transfer order No.F.2-8/2015- NVS(Estt.II) dated 27.3.2017 (relevant portion).
26. Annexure A-26 - True copy of the select panel for the post of PGT History under the NVS Direct Recruitment Drive 2016.
27. Annexure R-1(a) - True copy of the order No.F.1-15/2012- NVS(Estt.)/2174 dated 21.4.2015.
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28. Annexure R-1(b) - True copy of the letter F.No.1-96/NVS(HR)/ (Estt.II)/2015 dated 2.6.2015 issued from Navodaya Vidyalaya Samiti, Hyderabad Region.
29. Annexure R-1(c) - True copy of the Office Order F.No.1- 96/NVS(HR)/(Estt.II)/2015, dated 4.6.2015.
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