Central Administrative Tribunal - Jabalpur
Vijay Kumar Sonakiya vs Jawahar Navodaya Vidyalaya on 19 January, 2024
1 O.A.No. 200/00552/2023
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/00552/2023
Jabalpur, this Friday, the 19th day of January, 2024
HON'BLE SHRI JUSTICE AKHIL KUMAR SRIVASTAVA, JUDICIAL MEMBER
HON'BLE SHRI KUMAR RAJESH CHANDRA, ADMINISTRATIVE MEMBER
Vijay Kumar Sonakiya
Aged about 53 years
S/o Shri Sushil Kumar Sonakiya
Presently working as PGT (Maths)
Jawahar Navodaya Vidyalaya
Nowgong Chhatarpur (MP)
R/o Jawahar Navodaya Vidyalaya
Nowgong House No.F-22
Chhatarpur (MP) 471201 -Applicant
(By Advocate -Shri Gautam Prasad)
Versus
1. Commissioner Navodaya Vidyalaya Samiti
Ministry of Human Resource Development Dept.
Of School Education & Literacy Govt. of India
B-15 Institutional Area Sector-62 Distt. GautamBudh
Nagar Noida (UP) 201309
2. Deputy Commissioner
Navodaya Vidyalaya Samiti
Regional Office A-135 Gate No.2
Alkapuri Habibganj Bhopal (MP) 462024
3. Principal Jawahar Navodaya Vidyalaya]
Nowgong Chhatarpur (MP) 471201 - Respondents
(By Advocate -Shri D.S. Baghel)
(Date of reserving the order:01.12.2023)
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2 O.A.No. 200/00552/2023
ORDER
By Justice Akhil Kumar Srivastava, JM;
Through this Original Application, applicant has sought to quash/set aside the impugned transfer order dated 28.04.2023 (Annexure A/8) and impugned order dated 07.06.2023 (Annexure A/11) rejecting the representation of applicant. He also prayed for direction to respondents restraining him in pursuance to impugned transfer order and to permit him to continue on his present place of posting as PGT (maths) at JNV Chhatarpur without any hindrance.
2. The facts of the case are that the applicant was initially appointed as PGT (Maths) on 28.07.2001 and was posted at JNV Kupwara a hard station. Thereafter he was transferred various times and presently was posted at JNV Chhatarpur. In the month of November 2020 applicant suffered a paralytic stroke and uploaded the medical certificate at NVS website with regard to his paralysis which was issued by NVS Medical Board on 29.12.2020 (Annexure A/1). Under Annual Transfer Drive (for short 'ATD') 2020-21 he was transferred from JNV Chhatarpur to JNV Shivpuri as displaced vide order dated 01.07.2021. He submitted his representation Page 2 of 14 3 O.A.No. 200/00552/2023 dated 02.06.2021 for cancellation of his transfer to JNV Shivpuri on medical ground. On not getting any response applicant filed Original Application No.200/470/2021 before this Tribunal which was disposed of vide order dated 23.07.2021 (Annexure A/2) to decide his representation. In compliance of said order of Tribunal, respondents retained in JNV Chhatarpur by treating his post as Protected Deemed on medical grounds. After three months he was again asked in January 2022 to submit his medical certificate. Applicant uploaded the doctor's prescription of December 2022 along with his earlier medical certificate on the portal and in view of the same as per direction of respondent No.2 post of PGT (Maths) at JNV Chhatarpur was made to reflect as Protected Deemed on the portal. On 20.01.2023 respondent No.3 received a communication/order or respondent No.1 that Principal should herself accompany applicant and enquire with medical board than medical certificate of applicant is correct/genuine or not and also send/forward fresh medical certificate by getting it prepared in the new pro-forma. A medical certificate was prepared on 24.01.2023 (Annexure A/4) at Government Hospital at Chhatarpur and it was submitted at office of JNV Chhatarpur, even then the post of Page 3 of 14 4 O.A.No. 200/00552/2023 PGT (Maths at JNV Chhatarpur was directed to be declared as "Actual" vacancy on the portal vide letter dated 28.02.2023 (Annexure A/5). Applicant applied for ATD 2023 vacancy at JNV Tikamgarh in grievance round on 27.03.2023 (Annexure A/7) as the post of PGT (Maths) was going to become vacant in Decemeber 2023. Respondent No.2 vide office order dated 28.04.2023 (Annexure A/8) has directed for transfer of applicant from JNV Chhatarpur to JNV Kabirdham (C.G.) on administrative ground which was 667 kms from Chhatarpur and no other teacher was posted at JNV Chhatarpur in place of applicant. Applicant submitted his representation to the respondents but they refused to accept the same. Thereafter he submitted his representation dated 03.05.2023 (Annexure A/9) to respondents No.1 and 2 by speed post. Applicant again approached this Tribunal by filing O.A. No.465/2023 which was disposed of vide order dated 19.05.2023 (Annexure A/10) to decide his representation till then he was permitted to work at his present place of posting i.e. Chhatarpur. In compliance of said order, respondents vide impugned order dated 07.06.2023 (Annexure A/11) rejected his representation on unfounded grounds. The said order was forwarded to Page 4 of 14 5 O.A.No. 200/00552/2023 respondent No.3 vide letter dated 08.06.2023 (annexure A/12) for being served on applicant with the direction for getting applicant relieved as per transfer order dated 28.04.2023 (Annexure A/8). Hence this Original Application.
3. Respondents in their reply have submitted that a compliant dated 03.03.2022 (Annexure R/1) was received in NVS that he tried to influence his status under transfer portal by producing forget certificate. Accordingly medical certificate uploaded on transfer portal was examined and found that the medical certificate used by the applicant was not in the prescribed format laid down under new Transfer policy 2021. The old certificate uploaded by the applicant did not contain the required details/information of the disease as required according to Annexure III of the transfer policy 2021. To deal with complaint dated 03.03.2022, appropriate direction was issued by NVS vide letter dated 20.01.2023 to RO Bhopal directing inter alia to get verified the medical certificated through the Principal JNV concerned with the issuing authority of Medical Practitioner. Principal JNV Chhatarpur visited the office CMHO Chhatarpur on 21.01.2023. The CMHO vide letter dated 25.01.2023 submitted a report that applicant was suffering from facial Page 5 of 14 6 O.A.No. 200/00552/2023 palsy disease and taking treatment. Since the condition of disease mentioned by the doctor was not covered under the list of diseases mentioned in clause C i.e. "in case of loss of Muscle Power (paralysis) of latest medical certificate, his case does not come under the category for extending protection against deemed status of his vacancy. Therefore as per Clause 4.5 (i) of the Transfer Policy 2021 applicant was not entitled to get benefit of getting protection from displacement under Protected Deemed on account of his medical conditions. It is submitted by the respondents that in first round of transfer applicant has deliberately submitted th wrong medical certificate concealing the material information deliberately for the purpose to grab undue advantage of protection from displacement. Therefore adhering to the provision 4.9(g) of the Transfer Policy 2021 which stipulates that "status of protected deemed, if availed on false certificate and/or fabricated/distorted facts shall invite disciplinary proceeding under CCS Rules, besides administrative transfer of the erring claimant the applicant was subjected to the administrative transfer. He was transferred from JNV Chhatarpur to JNV Kabirdham (CG) on administrative ground vide order datred 28.04.2023. Further Page 6 of 14 7 O.A.No. 200/00552/2023 applicant has been posted at present place from August 2009 i.e. for more than 13 years and as per transfer policy the normal tenure of one place is 5 years. By way of promotion from TGT to PH\GT (Maths) Shri Bhupendra Singh TGT (Maths) JNV Jhajjar (Raj) has been posted as PGT (Maths) at JNV Chhatarpur vide order dated 06.06.2023 (Annexure R/4). Applicant was relieved on 02.05.2023 (Annexure R/5).
4. Applicant in his rejoinder submitted that a complaint received on 03.03.2022 no proper address was mentioned and for any anonymous/pseudonymous complaint the GoI Ministry of Personnel & Public Grievances & Pension vide their letter dated 18.10.2023 (Annexure RJ/1) stated the procedure at Para 3 (i), (ii) and (iii) to be followed to taking cognizance of complaint but no such procedure was adopted on the contrary straightaway cognizance was taken on the said complaint behind his back. Respondents have not placed any documents regarding allegation of rioting and assault being instigated by applicant. It is submitted by the applicant that in letter/report dated 25.01.2023 the Civil Surgeon/CMO has clearly mentioned that the medical certificate of Paralysis stroke which the applicant had got Page 7 of 14 8 O.A.No. 200/00552/2023 prepared from this Hospital on 29.12.2020 the applicant had appeared before the medical board of Government hospital at Chhatarpur on 29.12.2020 where after his medical examination he was issued that medical certificate which was registered in their medical register on 29.12.2020 at Page 105 at Serial No.1230 and also along with the letter/report dated 25.01.2023 the medical certificate dated 24.01.2023 (Annexure A/4) was prepared in new format in Annexure III and was forwarded to the office of Principal JNV Chhatarpur.
5. Respondents have submitted additional reply to the rejoinder filed by the applicant and has reiterated the averments made in their reply. In addition they have submitted that the applicant along with other staff of the vidyalaya are trying to disturb the peaceful atmosphere of vidhyalaya and one Ravita Yadav, Staff Nurse has made a complaint against the applicant as well as other staff namely R.K. Patel, Surendra Solanki on 02.03.2023 (Annexure R/6). Therefore this O.A. is liable to be dismissed.
6. We have heard the learned counsel for the parties and perused the pleadings and documents annexed therewith. Page 8 of 14 9 O.A.No. 200/00552/2023
7. What cannot possibly be disputed here is that the applicant was posted in JNV Chhatarpur from August 2009 and since then he was continuing there for the last more than 13 years and as per transfer policy the normal tenure of one place is 5 years. As regards the plea, pressed into service by the applicant, a complaint dated 03.03.2022 was received regarding forged medical certificate to retain in the same place of posting for that appropriate direction was issued by NVS vide letter dated 20.01.2023 to RO Bhopal directing inter alia to get verified the medical certificate through the Principal JNV concerned with the issuing authority of Medical Practitioner. Principal JNV Chhatarpur visited the office CMHO Chhatarpur on 21.01.2023. The CMHO vide letter dated 25.01.2023 submitted a report that applicant was suffering from facial palsy disease and taking treatment. Since the condition of disease mentioned by the doctor was not covered under the list of diseases mentioned in clause C i.e. "in case of loss of Muscle Power (paralysis) of latest medical certificate, his case does not come under the category for extending protection against deemed status of his vacancy. Therefore as per Clause 4.5 (i) of the Transfer Policy 2021 applicant was not entitled to get benefit of Page 9 of 14 10 O.A.No. 200/00552/2023 getting protection from displacement under Protected Deemed on account of his medical conditions. He was transferred from JNV Chhatarpur to JNV Kabirdham (CG) on administrative ground vide order dated 28.04.2023. Further by way of promotion from TGT to PGT (Maths) Shri Bhupendra Singh TGT (Maths) JNV Jhajjar (Raj) has been posted as PGT (Maths) at JNV Chhatarpur vide order dated 06.06.2023 (Annexure R/4). Applicant was relieved on 02.05.2023 (Annexure R/5). The Competent Authority has transferred the applicant from Chhartarpur to Kabridham on administrative ground and in public interest after considering the relevant factors like the vacancy position, organization seniority and request of the applicant. Indeed such transfer order cannot and should not be interfered with by the courts. A Government servant holding a transferable post is liable to be transferred and he has no right to remain posted at one place or the other. Such transfer orders issued by the competent authority do not violate any legal right. If the courts continue to interfere with day-to-day transfer orders issued by Government and its subordinate authorities, there will be complete chaos in the administration which would not Page 10 of 14 11 O.A.No. 200/00552/2023 be conducive to the public interest. This matter is no more res integra and is now well settled.
8. An identical question came to be decided by Hon'ble Supreme Court in case Shilpi Bose v. State of Bihar, 1991 Supp (2) SCC 659 : AIR 1991 SC 532. Having considered the scope of judicial interference in transfer matter, the Apex Court has observed as under:--
"4. In our opinion, the Courts should not interfere with a transfer order which is 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 mala fide. 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."
9. In the same manner, it was also held by Hon'ble Supreme Court in case Union of India v. S.L. Abbas,(1993) 4 SCC 357 that 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.
10. Sequelly, a three-Judge Bench of Hon'ble Supreme Court in cases Major General J.K. Bansal v. Union of Page 11 of 14 12 O.A.No. 200/00552/2023 India, (2005) 7 SCC 227 and State of M.P. v. S.S. Kourav, (1995) 3 SCC 270 has observed that the Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In case S.C. Saxena v. U.O.I., (2006) 9 SCC 583, it was held by Hon'ble Apex Court that a Government servant cannot disobey a transfer order by not reporting back at the place of posting and then go to a court to ventilate his grievances. This tendency of not reporting at the place of posting and indulging in litigation needs to be curbed.
11. Again the same view was reiterated by Hon'ble Supreme Court State of U.P. v. Gobardhan Lal, (2004) 11 SCC 402 wherein it was ruled as under:--
"7. It is too late in the day for any Government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an Page 12 of 14 13 O.A.No. 200/00552/2023 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 contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power off violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievances sought to be made. Even administrative guidelines for regulating transfer or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have thee 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."
12. Therefore, it is held that the transfer of the applicant was in public interest and on administrative exigency, which indeed legally could not and should not be interfered with on Page 13 of 14 14 O.A.No. 200/00552/2023 the basis of wishful thinking of the applicant and on indicated speculative grounds.
13. As indicated hereinabove, once it is held that the Competent Authority has transferred the applicant from Chhatarpur to Kabirdham (CG) on administrative grounds and in public interest, in that eventuality, the impugned transfer/relieving order dated 02.05.2023 (Annexure R/5) is not open to judicial review. We do not find any reason to interfere with the impugned order (Annexure A/8), which has been passed by the respondents after considering all the relevant factors and as per transfer policy. Therefore, the contrary arguments of the learned counsel for the applicant, stricto sensu deserve to be and are hereby repelled. The ratio of law laid down in the indicated judgments is mutatis mutandis applicable to the present controversy and is a complete answer to the problem in hand.
14. In the light of the aforesaid reasons, as there is no merit, the instant O.A. is hereby dismissed. However, the parties are left to bear their own costs.
(Kumar Rajesh Chandra) (Akhil Kumar Srivastava)
Administrative Member Judicial Member
kg/-
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