Central Administrative Tribunal - Patna
Bala Jee Sahay vs Kvs on 9 February, 2024
-1- OA 55/2024
CENTRAL ADMINISTRATIVE TRIBUNAL
PATNA BENCH, PATNA
O.A. No. 050/00055/2024
Date:-09.02.2024
CORAM
HON'BLE MR AJAY PRATAP SINGH, MEMBER [J]
Bala Jee Sahay, S/o Late Kahaiya Jee Sahay, resident of Mohalla- New
Chitrgupta Nagar Colony, Kankarbagh, Patna 800020. At present under
order of Transfer from the post of Sr. Secretariate Assistant, Kendriya
Vidyalaya Sangathan Regional Office Patna to Kendriya Vidyalaya Bhilai
(Chhatisgarh).
.......... Applicant.
-Versus-
1.The Union of India, through the Secretary Ministry of Education, 127,
Patna Shastri Bhawan, New Delhi 110001
Bench 2.The Commissioner, Kendriya Vidyalaya Sangathan, 18 Institutional
Area, Saheed Jeet Singh Marg, New Delhi 110016.
3. The Joint Commissioner (Admn.1), Kendriya Vidyalaya Sangathan
(HQ), 18 Institutional Area, Saheed Jeet Singh Marg, New Delhi - 110016.
4.The Asstt. Commissioner (Estt. II/III) Kendriya Vidyalaya Sangathan
(HQ), 18 Institutional Area, Saheed Jeet Singh Marg, New Delhi 110016.
5.The Deputy Commissioner, Kendriya Vidyalaya Sangthan, Regional
Office, Lohia Nagar, Kankarbagh, Patna 800020
......... Respondents.
Shri J.K. Karn, Learned Counsel for Applicant.
Shri Bindhyachal Rai, Addl. Standing Counsel for respondents
ORDER
Per Ajay Pratap Singh, Member [Judicial]:-
1. Applicant has filed present OA to set aside transfer order dated 04.08.2023 (Annexure-A/1) whereby applicant has been transferred from Regional Office Patna to KVS, Bhilai (Chattisgarh). So also to set aside relieving order dated 15.01.2024, (Annexure-A/2), directing respondents to allow applicant at RO Patna, present place of posting, also seeking direction to respondent authorities to consider pending representations in terms of transfer policy and allow applicant to continue against vacant post at KVS, Jehanabad or KVS Bihta.
2. Ld. counsel for applicant submits that KVS has framed transfer policy 2023 notified on 30.06.2023, (Annexure-A/4). The transfer policy provides for transfer on displacement during annual transfer process. Those employees having at least 10 displacement count shall be liable for -2- OA 55/2024 displacement transfer in decreasing order of displacement count. The further case of the applicant that due to some technical error in the Software applicant has pointed to the authorities that his displacement count has erroneously been shown not due for transfer. The RO authorities has also indicated the said fact to KV (HQ). The respondents have issued transfer order dated 04.08.2023 (Annexure-A/3) whereby on the basis of displacement count, applicant's name was not considered for transfer having less than 10 DC count point. The further case of applicant that due to non-application of mind and in malafide exercise of power, respondents have even not considered applicant pending representations dated 21.11.2023 to cancel fresh subsequently issued on same day impugned transfer order dated 04.08.2023 (Annexure-A/1) and consider applicant for post of KV Bihta or KV Jehanabad on clear vacancies. The impugned order Patna Bench (Annexure-A/1) is highly arbitrary and to accommodate other employee, applicant has been transferred to distance of more than 1120 KM to Bhilai Chattisgarh.
3. Counsel for applicant submits that the impugned order is arbitrary and misuse of discretion and without assigning reasons is contrary to law laid down by Hon'ble Supreme Court in case of Kranti Associates Private Limited & Anothers Vs Masood Ahmed Khan (2010) 9 SCC 496, Mohinder Singh Gill Vs. The Chief Election Commissioner, AIR 1978 SC 851. The Hon'ble Supreme Court in Para-47 of Kranti Associates (Supra) has summarized and has specifically held that trend in India always has been to record reasons even in administrative reasons if such decision affects anyone prejudicially.
4. Mr. Karn, Ld. counsel for applicant after arguing at length submits that in view of the above submissions, since applicant has challenged transfer order on the basis of violation of transfer policy as laid down by Hon'ble High Court in the case of R.S. Choudhary VS State of MP 2007 SCC Online MP 762, the competent authority may be directed to consider and decide the representation of applicant by reasoned and speaking order.
5. Mr. Bindhyachal Rai, Ld. ASC for respondents fairly submits that if fresh representation is filed by the applicant, same shall be considered by reasoned and speaking order.
6. Heard learned counsel for parties. This Tribunal has considered the submissions of both the parties and on perusal of record reveals as under:-
-3- OA 55/20246 (i) The KVS Transfer policy 2023 notified on 30.06.2023 (Annexure-A/4), Part-IA, (B) Transfer to Hard, Priority and NER in sub-para (a) specifically provides that KVS shall effect transfer of male employees who are below 40 years of age and have not served a tenure at Hard, NER and priority stations to fill up the available vacancies in Hard, NER and priority stations. These Transfer shall be carried out during annural transfer process in the cecreasing order of displacement count (DC upto the optimum requirement of post/vacancies in Hard, NER and priority stations.
(ii) The Para 1 A sub-para II of KVS Transfer policy 2023 further provides (b) transfer on displacement during annual Patna Bench transfer process;
"I. TRANSFERS DUE TO ORGANISATIONAL REQUIREMENTS:-
(A) Redeployment of surplus staff: - Redeployment of surplus staff to another school/ station against available vacancies.
KVS shall carry out the process of redeployment of surplus staff in the beginning of the academic session.
a) Identification of Surplus staff: -
When a post is declared surplus by the KVS for a particular session, an employee posted against that post will become excess to the requirement or surplus in the particular KV and such employee needs to be redeployed against a vacant post. The criteria for identification of surplus staff shall be as per decreasing order of the displacement counts of the employee at the school/station/Region, as per applicability.
b) Method to redeploy surplus staff:-
i. Intra-Regional redeployment of surplus staff - an employee identified as surplus staff will be redeployed by the Deputy Commissioner within the Region against the available vacancy. ii Inter-Regional redeployment of surplus staff - an employee who was identified as surplus staff and could not be accommodated within the region shall be redeployed outside the region by the KVS (HQ) against available vacancy, (B) Transfer (under 40) to Hard, Priority and NER:-
Transfer of male employees who are below 40 years of age and have not served a tenure in these Stations
a) KVS, shall effect transfer of male employees who are below 40 years of age and have not served a tenure at Hard, NER and Priority stations to fill the available vacancies in Hard, NER and Priority stations. These transfers shall be carried out during annual transfer process in the decreasing order of displacement count (DC) up to the optimum requirement of post/ vacancies in Hard, NER and Priority stations. An employee who has completed tenure at present place of posting as on 30 June of the transfer year shall be considered for transfer under this provision.
b) Willing female employees shall also be considered for transfer to Hard, NER and Priority Stations after completion of tenure at the present place of posting Such transfers will be treated as administrative transfers.
II TRANSFERS ON ADMINISTRATIVE GROUNDS (A) Tenure Transfer-
a) Transfer against available vacancies: --4- OA 55/2024
Employees who have completed tenure at Normal/ Hard/ NER/ priority station (as on 30 June of the transfer year for employees) and cases of DFP/MDG/LTR may be considered for transfer, subject to availability of vacancies in desired station.
b) Transfer on Displacement during the Annual Transfer Process:-
(i) An employee with at least 5 years stay at present station (irrespective of cadre) and having at least Ten (10) displacement count shall be liable for displacement transfer in decreasing order of displacement count
(ii) Displacement transfers shall be considered to accommodate employees who have completed their tenures in Hard, NER and Priority stations, if vacancies are not available at the desired stations.
(iii) Displacement transfers shall be considered to accommodate employees falling under the category of PWD, MDG, DEP and LTR (if vacancies are not available at the desired station) during the Annual Transfer process by displacing those employees who have completed ten years of stay at the desired station.
(iv) Employee who has not completed tenure or against whom disciplinary proceedings are in progress/contemplated shall not be eligible to apply for transfer."
The para 4 of KVS Transfer Policy 2023 further provides for details displacement count of (Annexure-A/3) employee shall Patna Bench be computed.
(iii) The applicant in present OA is holding post of Senior Secretariate Assistant (SSA) aggrieved by transfer order dt. 04.08.2023 (Annexure-A/1) by accepting incorrect displacement counting, finally the applicant on erroneous displacement count placed at Sl. No. 29 in impugned transfer order vitiating the transfer order not for administrative urgency but for extraneous reasons resulted in malafide exercise of power. If anything is to be done in particular manner accordance with KVS Transfer Policy in this case on basis of displacement count. In fair manner on the basis on the basis of displacement count accordance with KVS transfer policy. One accepted 8 DC and cannot be transferred hence applicant name was rightly not placed in transfer order dated 04.08.2023 (Annexure-A/3) published uploaded at 5:00 p.m. Whereas subsequently at 8:30 p.m. on 4th August 2023 the earlier transfer order data 4th August 2023 (Annexure-A/3) was replaced by impugned transfer order dated 4th August 2023 (Annexure-A/1) and name of applicant added at serial number 29 by colorable exercise of power, contrary to basis of DC code, contravention of KVS transfer policy, malafide exercise of power, applicant transferred deserves to be set aside.
(iv) The transfer of applicant contrary to criteria fixed for transfer in KVS transfer policy as well as mid academic -5- OA 55/2024 transfer impermissible. Applicant son is a student of Middle School and elder son is college going student enrolled in college at Patna. The Hon'ble Supreme Court held in case of Director of School Education Madras and Others Vs. O. Karruppa Thevan and another reported in 1994 SCC Supl. (2) 666 ;- We, therefore, while setting aside the impugned order of the Tribunal, direct that the applicant should not effect the transfer till the end of the current academic year. The appleal is allowed accordingly with no order as to costs.
(v) The applicant submitted online option 5 choice stations.
i. KVS AFS Bihta
ii. KV Sonpur
iii. KV Hajipur
iv. KV Chapra
Patna
Bench v. KV Harnaut
The choice stations were given to avoid displacement as on DC count ought not to have been transferred. The correct DC count is 8 points whereas wrong DC 16 points were reflected all the portal. Hence applicant did not submit online application on KVS online transfer portal and informed to KVS (HQ) on 25th July 2023 and NIC for correction from 16 to 8 so that he could submit his form (Annexure-A/6). Subsequently DC count made good to at 8 points but applicant submitted transfer application on 26th July 2023. It is not disputed that earlier applicant's DC were wrong and incorrect shown on online transfer software. He says so on basis of applicant name sent on 3rdAugust 2023 to KVS (HQ) by DC KVS (R. O.) Patna in this regard.
(vi) The transfer of applicant also stands vitiated by malafide exercise of power to transfer as to accommodate employees from hard station, NER to join KVS R O Patna, and to do so applicant name included in impugned transfer dated 4th August 2023, redrawn annulled earlier order dated 4th August 2023 (Annexure-A/3) and on colorable exercise by malafide misuse of discreation this Tribunal is opinion that once DC count corrected transfer order dated 4th August 2023 (Annexure-A/3) issued applicant ought not to have transferred as per DC counts. Now things are same. DC count is same 8, applicant ought not to have been displaced in mid academic session and -6- OA 55/2024 respondents being a model employer should have executed Transfer Order dated 4th August 2023 (Annexure-A/3) and not impugned transfer order dated 4th August 2023 (Annexure- A/1). It seems they was no vacancy to accommodate employee of hard education/ NER and to accommodate someone applicant has been made scapegoat and arbitrarily transferred, it's not a transfer accordance with policy and not bonafide exercise of the power suited to model employer like KVS.
(vii) The applicant has been transferred on wrong DC count, violation of KVS Transfer Policy, to accommodate other employee away from Patna about 1120 kilometer from present place of posting without considering for choice stations. The applicant has right at least for consideration for choice stations Patna Bench where in undisputed fact that on DC count he was found not to be transferred and was not placed in (Annexure-A/3) transfer order dated 4th August 2023 published on portal and later on without accommodating at choice stations in mid-academy session illegally, malafidely manner transferred vide impugned order vitiating transfer.
(viii) The applicant also submitted representation (Annexure- A/7) to cancel transfer order dated 4th August 2023. As far as he is concerned issued due to technical problem of NIC software, he may not be suffer for no fault of his own transferring in mid- academic session, uprooting his family children studying at Patna. It is evident though measures to correct action was taken and applicant forced to approach this Tribunal in hope of consideration in free and fair manner accordance with KVS policy.
(ix) On 21st November 2023 applicant application forwarded by DC KVS RO Patna to KVS HQ to modify transfer order dated 4th August 2023 (Annexure-A/1) so far relates to applicant to KV Bihta or KV Jehanabad on vacant posts. (Annexure-A/12).
(x) Instead of considering genuine case of applicant, he has been asked for relieving on 15th January. 2024 in spite of oral assurance recommendations on record, waiting for modification on oral instructions on clear recommendations on record. For -7- OA 55/2024 mistakes in error in software. Applicant cannot be made to suffer on arbitrary exercise of power of transfer by authorities.
(xi) The applicant has been discriminated with similarly placed two other SSA on request to normal station considered as KVS HQ issued fresh transfer order dated 22nd September 2023 (Annexure-A/8). The KVS being instrumentality of state cannot adopt different yard sticks to similarly placed employees and in light of order dated 22nd September 2023 accommodation for 2SSA to normal station and not deciding applicant pending representation dated 7th August 2023 (Annexure-A/7) rather sitting tight over it is arbitrary exercise of power and on this count of discrimination, this Tribunal could have interferred in the matter. The applicant has made out strong prima facie case Patna Bench in his favor and deserves some protection.
(xii) So also submits that applicant's children are studying is school and college and mid-academic transfer is arbitrary.
7. This OA is disposed of at this stage itself with following direction to the respondents:-
(i) To take decision on pending representations of applicant Annexure A-7, A-11, A-12 & A-13 as early as possible.
(ii) The Transfer Order of the applicant dt. 04.08.2023 (Annexure-
A/1) so far relates to applicant and relieving order dt. 15.01.2024 (Annexure-A/2) shall not be implemented by the respondents. It is also directed that applicant shall be allowed to continue till representation is decided.
(iii) The decision taken on representation shall be communicated to the applicant and if the decision does not come in favour of applicant, in that eventuality also implementation of the Transfer order dt. 04.08.2023 and relieving order dt. 15.01.2024 shall remain in abeyance for further ten days, to be counted from date of communication of the decision to the applicant.
8. With the above observations and directions indicated hereinabove, the OA is disposed of at admission stage itself. No order as to costs.
[Ajay Pratap Singh] Member [J] du/-