Central Administrative Tribunal - Jabalpur
Surendra Kumar vs M/O Human Resource Development on 31 October, 2019
1 OA 200/01243/2018
Reserved
CENTRAL ADMINISTRATIVE TRIBUNAL, JABALPUR BENCH
JABALPUR
Original Application No.200/01243/2018
Jabalpur, this Thursday, the 31st day of October, 2019
HON'BLE MR. NAVIN TANDON, ADMINISTRATIVE MEMBER
HON'BLE MR. RAMESH SINGH THAKUR, JUDICIAL MEMBER
Surendra Kumar, S/o Shri Dhoodhnath Ram, aged about 57 years,
presently working as Librarian, Kendriya Vidhyalaya, Dindori; R/o
Old Tehsil Bhawan, Civil Lines, Dindori (M.P.) - 481880
-Applicant
(By Advocate - Shri Amardeep Gupta)
Versus
1. Union of India through its Secretary, Ministry of Human
Resources & Development, School Education Department, Shastri
Bhawan, New Delhi - 110001.
2. Commissioner, Kendriya Vidhyalaya Sangathan, 18,
Institutional Area, Shaheed Jeet Singh Marg, New Delhi - 110016.
3. Principal, KV, Naini, Allahabad, Naini, Post T.S.L, Prayagraj,
Uttar Pradesh 211009 (U.P.).
4. Shalini Trivedi, Librarian, Kendriya Vidyalaya, PL Meerut
Cantt., Meerut Cantt., Meerut (U.P) - 2550001
- Respondents
(By Advocate - Shri Pankaj Dubey)
(Date of reserving order : 01.10.2019)
ORDER
By Navin Tandon, AM.
The applicant is aggrieved that he has not been transferred to his choice place of posting Allahabad despite having higher number of transfer counts.
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2. He has made the following submissions in this O.A:
2.1 He was initially appointed as Librarian in Kendriya Vidhyalaya Sangathan (for brevity 'KVS') on 06.04.1990 and his first posting was in Arunachal Pradesh (Very Hard Station) and he remained there for about seven years. In the year 2012, he has been displaced and transferred to KV Dindori (Hard Station) and is posted there since 2012.
2.2 From 2013 onwards, the applicant is regularly applying for transfer to Allahabad or nearby places like Varanasi, Kanpur, Lucknow and Phulpur during annual transfer. But he has not been successful.
2.3 In the year 2013-14, the applicant's choice has been ignored by the respondents despite having 61 transfer counts and one Ms. Anjali Shrivastava, with a transfer count of only 10, was considered and transferred to Allahabad (Uttar Pradesh).
2.4 The KVS has issued transfer guidelines of Kendriya Vidyalaya for the year 2018 wherein land mark changes has been brought into to make the guidelines more transparent, employee friendly and information technology enabled. According to the transfer policy an employee getting highest number of transfer count shall be accommodated in his choice place of posting.Page 2 of 19
3 OA 200/01243/2018 2.5 Along with transfer policy 2018 dated 13.04.2018 (Annexure A-2), the calendar of activities in respect of Annual Transfer 2018 (Annexure A-3) has also been issued.
2.6 The applicant had filled up his transfer form and opted for Allahabad, Varanasi, Allahabad Phulpur (IFCO), Kanpur and Lucknow as choice place of posting, in decreasing order of preference. He is having transfer count of 67 (Annexure A-4).
2.7 The respondents have issued transfer orders dated 16.10.2018 (Annexure A-1), whereby Ms. Shalini Trivedi (respondent No.4) has been transferred from Meerut Cantt to Naini, Allahabad w.e.f. 01.12.2018. To the best of his knowledge, transfer order of respondent No.4 has been issued on the anticipation of retirement of Librarian working at KV, Naini on 31.12.2018.
Further, respondent No.4 has got a transfer count of only 20 and she has not given any choice for Allahabad.
2.8 Further, better medical facilities are not available in Dindori and in an emergent conditions, the applicant has to move either Jabalpur or Nagpur.
3. The applicant has sought for the following reliefs:
"8. RELIEF SOUGHT:
It is, therefore, humbly prays that this Hon'ble Court may kindly be pleased to:Page 3 of 19
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8.(i) To call for the entire material record pertaining to the instant controversy from the respondents for its kind perusal.
8.(ii) To quash and set aside the impugned transfer order dated 16.10.2018 Annexure A/1 so far as it relates to transfer of Respondent No.4;
8.(iii) After quashment of impugned orders so far as it relates to transfer/posting of Respondent No.4 to direct the Respondent Authorities to transfer applicant at Kendriya Vidyalaya, Naini, Allahabad alongwith all consequential benefits;
8.(iv) Grant any other relief/s, which this Hon'ble Tribunal deems fits and proper in the facts and circumstances of the case to the applicant;
8.(v) Award cost of the instant lis to the applicant."
4. The relevant paras of the reply of respondents are reproduced below:
"5. It is respectfully submitted by the answering respondent that, the applicant is canvassing a case of transfer of the respondent no.4 is with respect to the calendar and the period of considerations of applications in terms of the policy. However kind attention of the Hon'ble Court is invited to impugned order dated 16/10/2018 which mentions that the order of the aforesaid 77 individuals is carried out in terms of para 9, 11 and 11(g) of the Transfer Guidelines. For kind appreciation of this Hon'ble Court it is requested that, para 9 of the transfer policy deals that a request transfer can be made by an employer. The kind attention of this Court is invited to para 12 and 13 of the transfer policy, which spells out the ultimate powers of the Commissioner of the Kendriya Vidyalaya Sangathan to transfer, post and assign the duties to all officers and staffs in the Vidyalayas and he Page 4 of 19 5 OA 200/01243/2018 has the powers to relax the provisions of guidelines. Therefore the order dated 16/10/2018 is clear that the transfer of the respondent no.4 is not in terms of the calendar which has been contended by the applicant but it is on the basis of request which respondent no.4 has made.
6. That it is submitted that, at the time of consideration on annual transfer of 2018, the vacancy was not available which the applicant was wanting, the vacancy occurred only when the transfers for the year 2018 were already over.
7. That, the Commissioner, KVS while invoking his authorities to relax the conditions prescribed under transfer guidelines has considered the application of the respondent no.4 dated 14/09/2018, according to the request of the respondent No.4, the elder daughter of the respondent no.4 who is getting treatment from Lucknow is incomplete by birth with respect to her right ear and she is under taking surgeries in Sanjay Gandhi PGI Lucknow. Being posted at Meerut it is difficult for her to move to Lucknow therefore she wanted to be transferred to Lucknow or nearer to Lucknow relatively. Copy of application dated 14/09/2018 is filed herewith and marked as Annexure R-1.
8. That, on account of no vacancy during annual transfer year 2018, the request of the applicant for transfer to his place of choice could not be acceded to. It was only on 1/12/2018 that the vacancy at Kendriya Vidyalaya, Naini, Allahabad fell vacant, by the time the annual transfers were already over and therefore the request of the applicant to be transferred to Allahabad could not be effected. Page 5 of 19
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9. That it is respectfully submitted that the request of the applicant will be considered during the annual transfer in year 2019 if he applies and he is found eligible otherwise as per transfer guideline 2019."
5. The applicant, vide MA No.200/984/2019 submitted that the post of Librarian at KV Naini, Allahabad is still vacant due to the interim orders passed by this Tribunal. Further, the new calendar for transfer and posting (for the year 2019) was issued and the applicant again applied for transfer to KV, Allahabad. One post of Librarian has got vacant at AFS Manouri, Allahabad after the retirement of Shri Ramlal w.e.f. 31.07.2019. He prays that he could be accommodated at either Naini or AFS Manouri.
6. The applicant has also filed rejoinder wherein apart from reiterating the submissions made in the O.A, he has submitted that he participated in the exercise of Annual Calendar 2019, wherein he again applied for Allahabad. Various transfer orders/modifications transfers/amendment transfers were issued on 31.08.2019 (Annexure A-8, A-9, A-10, A-11 and A-12) and it has been notified vide order dated 31.08.2019 (Annexure A-7) that the annual transfer procedure 2019 has been closed. However, the case of the applicant has not been considered even though AFS Manouri, Allahabad was vacant.
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7. The respondents in their reply dated 06.09.2019 to the MA have submitted that the prescribed schedule activities for Annual Transfer 2018 was between 29.05.2018 to 07.06.2018 and the post of Librarian at KV Naini, Allahabad was not vacant during that period. Applicant will get a chance to apply for his desired location as per calendar for Annual Transfer - 2019. No remarks have been furnished regarding the request for posting the applicant at AFS Manouri, Allahabad.
8. The case was heard for some time on 26.09.2019. It was felt that some more information is required from the respondents and, therefore, the respondents were directed to furnish the following information:
"(i) What is the record date for considering the vacancies for transfer for the Annual Transfer Schedule ?
(ii) How the vacancies which are created between the record date of the first year and the record date of the second year are filled up/considered ?
(iii) The impugned order dated 16.10.2018 (Annexure A-1) states that the transfer orders therein are issued in terms of Para 9, 11 and 11 (g) of the KVS Transfer guidelines, which are 9 - request transfer of employee, 11 - method for request transfer, 11 (g) transfer against No Taker vacancies. Para 7 of the reply mentions that Commissioner, KVS while invoking his authorities to relax the conditions prescribed under transfer guidelines has considered the application of the respondent No.4 dated 14.09.2018.Page 7 of 19
8 OA 200/01243/2018 The conflict between the two needs to be explained by the respondents."
9. In response to the above, the respondents have filed their additional reply, wherein they have submitted as under:
"2. That so far as record date is concerned, it is respectfully submitted that the Annual Request Transfer for the year 2018-2019 were given effect to in terms of the guidelines notified on 13/04/2018 (A-2 page 15). The dates which are taken into account are as per the schedule attached (A-3 page 31). Meaning there-by the vacancy following between the issue of transfer notification and display of tentative vacancies, the dates between issue of transfer notification and display of tentative vacancies on KVs (HQ) website and the date of modification/cancellation on administrative ground are considered the purpose of request and thereafter the vacancies remaining are also considered as per no taker vacancy.
3. That it is respectfully submitted by the respondent that, so far as the vacancies which are created between the record date of the first year and the record date of the second year and it's filling up is concerned, normally no vacancies are filled up, the transfers/displacements are done as per the concerned Transfer Policy/Guidelines and its calendar/provision of Transfer Policy and Guidelines, however such vacancies are bound to be filled up in the events of fresh recruitment, on account of promotions, special exigencies of service (emergency) and the same is Page 8 of 19 9 OA 200/01243/2018 carried out as per the orders of competent authority i.e. Commissioner KVS in terms of Para 12 of the Guidelines/Policy. Even otherwise the Commissioner has powers to relax and interpret guidelines.
4. That it is respectfully submitted that in the instant case, the impugned orders dated 16/10/2018 are issued on approval by the competent authority and therefore the applicant is barred to seek a relief of interfering in the transfer policy and expecting an executive action by this Hon'ble Tribunal, reliance is placed on (2005) 13 SCC 495 'State of Orissa and other vs. Gopinath Dash and others'.
5. That it is respectfully submitted by the answering respondent that, so far as provisions mentioned in the impugned order dated 16/10/2018 are concerned, it is submitted that at the juncture when the cases of request transfer of employee and transfer against no taker vacancy was considered, at that time itself, the application of Respondent no.4 was considered. She had given an application on 14/09/2018 which was considered on 16/10/2018 simultaneously when cases of not taker vacancies are also considered. Therefore the order impugned was issued with regard to 77 individuals by the competent authority. There is no dispute with regard to competent of the authority even otherwise the argument of the applicant that clause 12 of Guidelines/policy is not mentioned will not vitiate the order. Reliance is placed on (2004) 12 SCC 278 'N Mani vs. Sangeeta Theatre and others'."Page 9 of 19
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10. Heard learned counsel for the parties and perused the pleadings available on record.
11. Learned counsel for the applicant brought out that the applicant is facing hostile discrimination from the respondents. He has already served 7 years in Arunachal Pradesh (Very Hard Station) and now 7 years at Dindori (Hard Station). He has been repeatedly trying to get transfer to Allahabad, which is his hometown. Whenever an opportunity opens up, somebody with the far lower transfer count is posted at Allahabad and it has happened not once but twice (2013-14 and 2018). He also submits that the applicant is nearing his retirement age and, therefore, needs to be considered for posting at Allahabad.
12. Learned counsel for the respondents submitted that the case of the applicant is being considered as per the transfer guidelines. When the transfer guidelines 2018 were implemented, there were no vacancies. The impugned transfer order dated 16.10.2018 (Annexure A-1) has been issued by exercising the powers to the Commissioner, KVS under Para 12 and 13 of the transfer guidelines. The applicant is only seeking relief under the transfer guidelines, whereas transfer of respondent No.4 to Allahabad is not as per the annual transfer guidelines.
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11 OA 200/01243/2018 12.1 Further, he places reliance on a decision of Hon'ble Apex Court in the case of State of Orissa and other vs. Gopinath Das and others, (2005) 13 SCC 495 to say that the judicial review cannot be exercises where several course of options are available and the Government has opted for one course of action. He also relied upon judgment of Hon'ble Apex Court in the case of N. Mani vs. Sangeetha Theatre and others, (2004) 12 SCC 278, wherein it has been stated that even if the provision under which the powers have been exercises has not been explicitly stated, it cannot be challenged.
FINDINGS
13. The undisputed facts of the case are that the respondents issued a calendar for KVS Transfer Guidelines 2018 dated 13.04.2018 (Annexure A-2), which describes the all procedure for transfers. The relevant paragraphs are Para 9 (Request transfer of employee), 10 (Factors, points and calculation of transfer count of an employee for request transfer) and 11 (Method for request transfer).
14. The respondents have made out a very detailed point allotment system for each employee who is either seeking request Page 11 of 19 12 OA 200/01243/2018 transfer or is to be displaced. The procedure for request transfers is detailed in Para 11 of the Transfer Guidelines, which specifically mentions that "request transfer for a post will be considered at a station on the basis of decreasing order of "Transfer Count"
computed on the basis of clause 10 of competing employees".
15. There is no doubt that Para 12 and 13 of the Transfer Guidelines empowers the Commissioner KVS to affect transfers and to relax the guidelines. However, it is to be understood/ appreciated that no public authority enjoys unfettered powers. These discretionary powers are to be used, if at all, with utmost caution and in a transparent manner.
16. In the instant case, when the calendar for 2018 transfers were issued, the applicant had applied for transfer to Allahabad. But his request was not agreed to because as per the respondents, there was no vacancies in Allahabad. However, vide the impugned order dated 16.10.2018 (Annexure A-1), respondent No.4 has been transferred from Meerut Cantt to Naini, Allahabad w.e.f. 01.12.2018. The opening lines of the said order reads as under:
"In terms of Para 9, 11 & 11 (g) of the KVS Transfer Guidelines, the following employees are hereby transferred on their own request against available vacancies. Only those employees who have completed their prescribed tenure at Page 12 of 19 13 OA 200/01243/2018 Hard/NER stations and those who are being transfer to Hard/NER stations will be entitled to Transfer benefits as per KVS rules."
16.1 The said order does not mention that Commissioner KVS has exercised his power under para 12 or 13 of the transfer guidelines to transfer respondent No.4 to Naini, Allahabad. 16.2 In fact, it explicitly mentions that these transfers are on their own request against available vacancies. Further, those employees who have completed their tenure in hard stations would be entitled to transfer benefits as per KVS rules.
17. The request for respondent No.4 (Annexure R-1) reads as under:
"Myself, Shalini Trivedi, Librarian, K.V. Punjab lines, Meerut Cantt Employee code is 47467. I am working here from 14March2011 and living with my two daughters in school campus. My husband is working at a Pvt company in Lucknow.
My elder daughter's right year is incomplete by birth and her operations are going on SGPGI, Lucknow. First operation had conducted on 27.04.2017, second operation had conducted on 01.01.2018 and third operation had conducted on 30.05.2018. (proofs are attached).
It is my humbly request that please transfer me at mercy ground in Lucknow or near about treatment place, so that I can give proper treatment. Kindly consider my application on sympathy ground"Page 13 of 19
14 OA 200/01243/2018 17.1 From the above it is clear that respondent No.4 had not even sought her transfer to Allahabad area.
18. Hon'ble Apex Court in the case of Gopinath Dash (supra) has held as under:
"5. While exercising the power of judicial review of administrative action, the Court is not the Appellate Authority and the Constitution does not permit the Court to direct or advise the executive in the matter of policy or to sermonise qua any matter which under the Constitution lies within the sphere of the legislature or the executive, provided these authorities do not transgress their constitutional limits or statutory power. (See Asif Hameed v. State of J&K [1989 Supp (2) SCC 364 : AIR 1989 SC 1899] and Shri Sitaram Sugar Co. Ltd. v. Union of India [(1990) 3 SCC 223 : AIR 1990 SC 1277] .) The scope of judicial enquiry is confined to the question whether the decision taken by the Government is against any statutory provisions or it violates the fundamental rights of the citizens or is opposed to the provisions of the Constitution. Thus, the position is that even if the decision taken by the Government does not appear to be agreeable to the Court, it cannot interfere.
6. The correctness of the reasons which prompted the Government in decision-making taking one course of action instead of another is not a matter of concern in judicial review and the Court is not the appropriate forum for such investigation.
7. The policy decision must be left to the Government as it alone can adopt which policy should be adopted after considering all the points from different angles. In the matter of policy decisions or exercise of discretion by the Government so long as the infringement of fundamental right is not shown the courts will have no occasion to interfere and the Court will not and should not substitute its own judgment for the judgment of the executive in such matters. In assessing the propriety of a decision of the Page 14 of 19 15 OA 200/01243/2018 Government the Court cannot interfere even if a second view is possible from that of the Government."
18.1 The judgment cited above clearly spells out that no judicial review is possible in case the administration chooses one course of action out of several options available to them, which may not be the better option as per the opinion of the Court. However, the instant O.A. is not a case of respondents having decided on one option out of several options available. It is a case where the respondents have issued a very detailed transfer guidelines, and are expected to adhere to it. The opening paragraph of the impugned transfer order dated 16.10.2018 (Annexure A-1), as extracted above, makes it abundantly clear that the transfers are as per transfer guidelines. Therefore, the obvious inference is that the respondents have transferred respondent no. 4 to Allahabad instead of the applicant in clear violation of the guidelines. Therefore, there is no force in the averment of the learned counsel in relying upon the judgement of Gopinath Dash (supra).
19. In the case of N Mani (supra), the Hon'ble Apex Court has held as under:
"8. A perusal of the order of the High Court shows that the principal reason which has prevailed with the High Court in setting aside the order dated 30-10-1995 is that there is no reference made therein to Section 11 of the Act. In our Page 15 of 19 16 OA 200/01243/2018 opinion, the Division Bench of the High Court was not right in forming the opinion which it has done. The power to grant permission has been specifically conferred on the Government by the proviso inserted to Rule 14 by GO No. 1326 dated 6-9-1995. It is noteworthy that in an earlier round of litigation initiated by Respondent 1 the constitutional validity of GO No. 1326 dated 6-9-1995 was upheld. Merely because Section 11 of the Act was not specifically referred to in the order dated 30-10-1995 that could not have been a ground for setting aside the permission dated 30-10-1995.
19.1 Learned counsel for the respondents argued forcefully that even if the provisions under which the powers have been exercised are not mentioned, it cannot be a case for judicial review.
However, the argument falls flat when it is seen that the impugned transfer orders very explicitly mentions that these transfer have been issued in terms of Para 9, 11 and 11 (g) of the Transfer Guidelines. It is one thing not to specifically quote the provisions under which discretionary power is being exercised by the authorities, but quite another thing to exercise the same under the cloak of other provisions which state otherwise. This judgment will also not come to the rescue of the respondents.
20. We would like to highlight what the Hon'ble Apex Court held in the matters of Onkar Lal Bajaj and others vs. Union of India and others, (2003) 2 SCC 6673 :
"36. The role model for governance and decision taken thereof should manifest equity, fair play and justice. The Page 16 of 19 17 OA 200/01243/2018 cardinal principle of governance in a civilized society based on rule of law not only has to base on transparency but must create an impression that the decision-making was motivated on the consideration of probity. The Government has to rise above the nexus of vested interests and nepotism and eschew window-dressing. The act of governance has to withstand the test of judiciousness and impartiality and avoid arbitrary or capricious actions. Therefore, the principle of governance has to be tested on the touchstone of justice, equity and fair play and if the decision is not based on justice, equity and fair play and has taken into consideration other matters, though on the face of it, the decision may look legitimate but as a matter of fact, the reasons are not based on values but to achieve popular accolade, that decision cannot be allowed to operate."
21. Hon'ble Apex Court has held that Government should take decisions based on transparency and consideration of probity. The authority, while exercising the discretionary power vested in it, has to explain as to why a decision has been taken so that the charges of favoritism and nepotism cannot be leveled against the authorities.
22. In the instant case, we find that even through the applicant has a very high transfer count, is near the fag end of his career and is presently working in a Hard Station for the last seven years, has not been considered for his posting to Allahabad and the respondent No.4, who has not even requested for transfer to Allahabad, has been transferred there.
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23. From the above paragraphs, it is very clear that transfer of respondent No.4 to Allahabad is not on the basis of the powers exercised by the Commissioner KVS, but as per Para 9, 11 and 11
(g) of the Transfer Guidelines and para 11 very clearly spells out the method for request transfer. It is undisputed that the applicant has a much higher "transfer Count" as compared to respondent no.
4. Secondly, the respondent No.4 has no locus standi as she has not applied for Allahabad as choice place of posting.
24. The applicant, through his MA, had also prayed that he may be posted at Manouri, Allahabad. But no consideration has been given to the same by the respondents.
25. We find that grave injustice has been done to the applicant by not transferring him to Allahabad. The respondents have not taken a fair call while issuing the transfer order of respondent No.4 to Allahabad.
26. Before we part, we would like to state that respondents should consider incorporating two provisions in the transfer guidelines to be issued in subsequent years. First, the reference date for considering the vacancies should be explicitly stated, which will remove an element of ambiguity. Second, the procedure Page 18 of 19 19 OA 200/01243/2018 for filling the vacancies between the record dates of one year and the next year should be spelt out.
27. Accordingly, the O.A is allowed. The transfer order dated 16.10.2018 (Annexure A-1), qua respondent No.4, is quashed and set aside. The respondents are directed to consider the transfer of the applicant to Allahabad as per the provisions of Para 9, 11 and 11 (g) of the Transfer Guidelines 2018. The said exercise should be completed within 30 days from the date of receipt of certified copy of this order. No costs.
(Ramesh Singh Thakur) (Navin Tandon)
Judicial Member Administrative Member
Am/-
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