Central Administrative Tribunal - Allahabad
Rekha Shukla vs Union Of India on 29 May, 2023
O.A. No.580/2008 along with O.A. No. 647/2009
(Reserved on 23.5.2023)
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH ALLAHABAD
Original Application No. 580/2008 along with O.A.No.
647/2009
Pronounced on 29th day of May, 2023
Hon'ble Mr. Justice Om Prakash VII, Member (J)
Hon'ble Mr. Mohan Pyare, Member (A)
(O.A. No. 580/2008)
Smt. Rekha Shukla w/o Sri K.C. Shukla r/o 25/1 Patel
Nagar, Mughalsarai, District- Chandauli, presently
working as TGT (Hindi),KVBHU,Varanasi.
. . . Applicant
By Adv: Sri Avnish Tripathi
VERSUS
1. Union of India through the Secretary, Ministry of
Human Resources, New Delhi.
2. The Commissioner, Kendriya Vidyalaya
Sangathan, 18- Institutional Area, Shaheed Jeet
Singh Marg, New Delhi.
3. The Assistant Commissioner, Kendriya Vidyalaya
Sangathan, Regional Office (KVS), Kankar Bagh,
P.O. Lohia Nagar, Patna Pin No. 800020
(B9har).
4. The Principal, Kendriya Vidyalaya Sangathan,
Banaras Hindu University, Campus, Varanasi.
5. Sri S. Selvaraj, Presently posted as Assistant
Commissioner, Kendriya Vidyalaya Sangathan,
Regional Office (KVS), Kankar Bagh, P.O. Lohia
Nagar, Patna Pin No. 800020 (Bihar)
..Respondents
By Adv: Sri N.P.Singh
and
(O.A. No. 647/2009)
Smt. Rekha Shukla w/o Sri K.C. Shukla r/o 25/1 Patel
Nagar, Mughalsarai, District- Chandauli, presently
working as TGT (Hindi),KVBHU,Varanasi.
. . . Applicant
By Adv: Sri Avnish Tripathi
VERSUS
1. Union of India through the Secretary, Ministry of
Human Resources, New Delhi.
Page 1 of 27
O.A. No.580/2008 along with O.A. No. 647/2009
2. The Commissioner, Kendriya Vidyalaya
Sangathan, 18- Institutional Area, Shaheed Jeet
Singh Marg, New Delhi.
3. Joint Commissioner, Kendriya Vidyalaya
Sangathan, Regional Office (KVS), Kankar Bagh,
P.O. Lohia Nagar, Patna Pin No. 800020 (Bihar).
4. The Principal, Kendriya Vidyalaya Sangathan,
Banaras Hindu University, Campus, Varanasi.
5. Principal, Kendriya Vidyalaya, Motihari, Bihar
6.
..Respondents
By Adv: Sri N.P.Singh
ORDER
By Hon'ble Mr. Justice Om Prakash-VII, Member (J) With the consent of both the parties, both the O.As have been heard together and are being decided by a common order.
2. The O.A. No. 580/2008 has been filed by the applicant under section 19 of Administrative Tribunals Act, 1985 with the following reliefs:-
8.1 To issue an order, rule or direction quashing and set aside the impugned order dated 12.5.2008 and relieving order dated 16.5.2008 passed by the respondent No.2 and 3 and communicated by the respondent No. 4 by which the applicant has been transferred from K.V.S. BHU, Varanasi Campus Varanasi to K.V.Motihari, Bihar.
8.2 To issue an order, rule or direction in the nature of mandamus directing the respondent No.2 and 3 to allow the applicant to work on the said post of TGT Hindi Teacher in K.V.S. BHU, Campus, Varanasi and the respondent No. ¾ be directed not to give effect the impugned order dated 12.5.2008 as usual and also pay the salary as and when it become due.
8.3 To issue any other order, rule or direction which this Hon'ble Tribunal may deem fit and proper under the circumstances of the case.Page 2 of 27
O.A. No.580/2008 along with O.A. No. 647/2009 8.4 To award the cost of the Original Application in favour of the applicant.
3. The O.A. No. 647/2009 has been filed by the applicant under section 19 of Administrative Tribunals Act, 1985 with the following reliefs:-
8.1 Issue an order, rule or direction quashing and set aside the impugned order dated 1.12.2008 passed by the respondent No.4, by which the applicant was removed from service. 8.2 Issue an order ,rule or direction for quashing and set aside the impugned order dated 24.4.2009 passed by respondent No. 3 rejecting the appeal of the applicant.
8.3 Issue an order, rule or direction in the nature of mandamus directing the respondents to reinstate the applicant on the said post of Trained Graduate Teacher, Hindi and also allow all the consequential benefits since the date when the applicant was removed from service.
8.4 Issue an order, rule or direction which this Hon'ble Tribunal may deem fit and proper under the facts and circumstances of the case to which the applicant may be found entitled under law. 8.5 To award the cost of original application in favour of the applicant.
4. The facts emerges from the O.A. No. 580/2008 are that applicant was appointed as a Primary Teacher at Nagpur, State of Maharashtra vide appointment letter dated 27.8.1975. Applicant was transferred from Nagpur to 39, K.V.S.,Cant, Varanasi, KVS Varanasi to Tegu, Arunachal Pradesh, North Eastern Zone (hard station ) vide order dated 8.10.1984 and after completion of five years at hard station from Arunachal Pradesh to K.V.S., Mughalsarai in the year 1993. Thereafter, from K.V.S. Mughalsarai to 39 GTC, KVS,Cant, Varanasi vide order Page 3 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 dated 31.3.2003. Again vide order dated 30.5.2005, applicant was transferred from KVS, Banaras to Uttarlie (Rajashthan). Being aggrieved of the order dated 30.5.2005, applicant filed O.A. No. 675 of 2005 before this Tribunal and this Tribunal vide interim order dated 29.6.2005 stayed the operation of the impugned order dated 30.5.2005 and directed the respondents not to give effect to the said order in respect of the applicant. When respondents not complied with the interim order, applicant filed contempt petition No. 89 of 2005. Thereafter, vide order dated 28.3.2007, respondent modified the transfer order dated 30.5.2005 and changed the place of posting instead of Uttarlie (Rajasthan) to KVS No. 4, Varanasi. Respondent again transferred the applicant on 4.7.2007 from BHU, Varanasi to KVS, Gopalganj. Applicant joined the KVS, Gopalganj and submitted a representation for cancelling the transfer order dated 4.7.2007. Applicant worked up to 1.10.2007 at KVS, Gopalganj and relieved to join at KVS, BHU Varanasi vide order dated 1.10.2007 and she joined KVS BHU, Varanasi. Again applicant was transferred vide order dated 12.5.2008 from KVS, BHU, Varanasi to Motihari, Bihar within a short spell of six month.
5. Counter reply has been filed by the learned counsel for the respondents stating therein that present O.A. has been filed by the applicant against the transfer order dated 12/13.5.2008 and relieving order dated 16.5.2008. It is stated that as per Article 81 of the K.V.S. Education Code, the services of the employees of KVS are transferable all over India. Vide order dated 30.5.2005, applicant was transferred from KVS, BHU Campus , Varanasi to KVS, Uttarlie, Rajasthan. The aforesaid order has been challenged by the applicant before this Tribunal by filing O.A. No. 675 of 2005 and the O.A. was allowed vide order dated 1.2.2006 and respondents have Page 4 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 permitted the applicant to continue at KVS, BHU Campus, Varanasi to 15.5.2008 and after that she has been transferred vide transfer order dated 12.5.2008 and applicant has been relieved from KVS, BHU Campus, Varanasi on 16.5.2008. It is further stated that applicant was continuously working at District Varanasi since 1993 in different KVS within the radis of 5 to 10 Kms i.e. KVS, Mughalsarai, Chandauli, BHU Campus, Varanasi. She had worked at Varanasi continuously since 1993 to 2008. She has completed near about 14 years period in Varanasi/ Mughalsari and after completion of near about 14 years period, the applicant has been transferred to KVS, Motihari vide order dated 12.5.2008. She has already been relieved and in her place one Smt. Geeta Singh, TGT, Hindi has joined on 31.5.2008.
6. The facts of O.A. No. 647/2009 is that applicant was transferred from KVS, BHU, Varanasi to KVS, Motihari vide order dated 12/13.5.2008. Respondents relieved the applicant vide order dated 16.5.2008 by mentioning her in-absentia though she was not in-absentia because she was not going to school due to summer vacation. It is further contended that as per rules, 10 days time is allowed to the transferred employee but the same was not allowed to the applicant and vide order dated 1.12.2008, removed the applicant from service w.e.f. 17.5.2008. Applicant has submitted the leave application from 26.5.2008 to 22.6.2008 , 30 days, again from 23.6.2008 to 30.8.2008, 29 days, from 31.8.2008 to 28.9.2008, from 28.9.2008 to 14.10.2008, 10.10.2008 to 24.10.2008, 23.10.2008 to 24.11.2008, and 24.11.2008 to 14.12.2008 along with medical certificates and the said leave application was submitted before the respondent No. 5 , who vide letter dated 10.9.2008 informed the applicant that you have been relieved from the said school, as such you may make the correspondence with the KVS, Page 5 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 Motihari and returned her leave applications. Applicant just after receiving this letter, wrote a letter to KVS , Motihari along with leave application and made request for sanctioning of his earned leave/ EOL on medical ground but the respondent No. 6 informed the applicant vide letter dated 12.9.2008 that her leave may only be sanctioned when she will join at KVS, Motihari, though in fact, the applicant was not in a position to walk and was on bed. Respondents issued show cause notice dated 31.7.2008/4/8/2008 to the applicant for provisional loss of her lien by observing that she has been unauthorizedly absent from duty and she has neither reported the duty nor has submitted any explanation giving the reason for long absent and she was directed to submit her representation against the said show cause notice within 10 days, failing which her provisional loss of her lien be confirmed and she may be removed from service under provision 81 (D) of Education Code for Kendriya Vidyalaya. Applicant submitted reply on 7.8.2008. Respondents vide order dated 1.10.2008 directed the applicant to appear before the Medical Board on 11.10.2008 at Plot No. 2/58,Gol Market, Near Viashali Cinema, Patna. It is submitted that as per rule 81(D) (15)(ii) , if the employee seeking relief on prolonged medical ground may be referred to the Medical Board at Regional Office, nearest to the residence of the employee, so that they do not get any succor on plea of inability on health ground. Applicant vide letter dated 13.10.2008, requested to provide her medical board at near place of her residence. Respondent No. 4 again issued show cause notice vide letter dated 22.8.2008, by which respondents directed the applicant to join her duty at KVS, Motihari within 10 days. Applicant submitted the reply on 1.9.2009 along with details of leave and again submitted leave application before respondent No. 4 .
Page 6 of 27O.A. No.580/2008 along with O.A. No. 647/2009 Respondents wrote several letters to the applicant to join duty, failing which the order shall be passed for removal of her service w.e.f. 17.5.2008. Applicant after receiving the letter dated 20.11.2008 again wrote a letter to respondent No. 4 on 24.11.2008 and again requested for sanctioning of leave. Lastly, vide order dated 1/2.12.2008, respondents passed removal order of the applicant from service.
7. Counter affidavit in O.A. No. 647/2009 has been filed by the learned counsel for respondents, stating therein that applicant was transferred from KV, BHU, Varanasi to KV, Motihari in public interest vide order dated 13.5.2008 under para 17.4 of the transfer guidelines. Applicant has also been relieved on 16.5.2008 from K.V., BHU, Varanasi. After expiry of a considerable period of about two months, Principal , KV, Motihari vide letter dated 21.7.2008 intimated that applicant has not joined the duties in K.V., Motihari with the result, the classes are being hampered and the students who are appearing in the Board Examination, 2009 are suffering a lot. Thereafter, applicant was served a show cause notice dated 4.8.2008. Applicant filed O.A. No. 580/2008 before CAT, Allahabad Bench against the aforesaid transfer/ relieving order but no interim order has been granted by the Tribunal. In response to the show cause notice dated 4.8.2008, applicant has moved representation dated 7.8.2008, in which she has stated that she has applied for medical leave which is addressed to the Principal, KV, BHU, Varanasi. Due to continuous unauthorized absence, Assistant Commissioner provided another opportunity by issuing memorandum dated 22.8.2008 directing the applicant to join within 10 days of receipt of memorandum, failing which it will be presumed that she is not interested to continue with the service in KVS. After expiry of three months , the applicant has failed to resume Page 7 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 her duties at transferred place. Applicant preferred another representation dated 1.9.2008, repeated old story of her illness by submitting medical certificates issued by different Medical Officer on different dates which do not tally with each other and did not join her duties in K.V., Motihari. Even she failed to satisfy the competent authority i.e. Assistant Commissioner, KVS, Regional Office, Patna that she is confined to bed rest and her movement is restricted, therefore, she could not join at the transferred place. Assistant Commissioner vide memorandum dated 1.10.2008 to appear before the Regional Medical Board, Patna for 2nd Medical Opinion but applicant did not appear before the Medical Board. After expiry of notice period an after providing full opportunity to the applicant, she herself refused to join her duties by one pretext or another. Applicant has not appeared before the Medial Board and also failed to file any medical certificate to establish this fact that she was so seriously ill and she was confined to bed and her movement was restricted. Vide Memo dated 20.11.2008, Assistant Commissioner, KVS, Regional Office, Patna has given last opportunity to the applicant to join duty in K.V., Motihari by 27.11.2008 positively failing which the applicant will be deemed to have been removed from service as per provision of Article 81 (d) with effect from 17.5.2008. Finally, the Assistant Commissioner being the disciplinary authority confirmed the provisional loss of lien vide memorandum dated 1/2.12.2008 on her voluntary abandonment of the post of TGT (Hindi) and she was deemed removed from service of KVS w.e.f. 17.5.2008 (afternoon).
8. Heard the learned counsel for the parties in both the OAs.
9. Submissions of the learned counsel for the applicant in O.A. No.580/2008 are that applicant was Page 8 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 transferred from KVS, BHU Campus, Varanasi to K.V., Motihari, Bihar within a short spell of six month and the said transfer was recommended by the Assistant Commissioner, KVS, Patna region who was annoyed with the applicant due to filing of the contempt petition. It is further argued that according to transfer guidelines, lady teacher as far as possible may be transferred near by his present place of posting but in the instant case, applicant has been transferred from Varanasi to Motihari which is four hundred kilometer away from the present place of posting. Applicant has not completed the tenure of five years in the present place of posting. It is further argued that transferring the applicant from KVS, BHU Campus Varanasi frequently three times within short spell of one year is wholly illegal, arbitrary and without jurisdiction. It was further argued that transfer order was issued on the basis of the malice by the K.V.S. There is element of malice on part of the respondents in passing the transfer order as the applicant has been frequently transferred from one place to another. Referring to the Counter Affidavit, it was also argued that the respondents themselves have admitted that transfer order was made to accommodate one Smt. Geeta Singh. It was further argued that one Sri Awadhesh Tripathi, who was also posted at K.V., BHU, Varanasi, who was senior at the station to the applicant, was not transferred. This fact also shows that transfer order was passed transferring the applicant with malafide intention. It was next argued that applicant has been superannuated but cause still survive because applicant has been removed from service on the ground of willful absentia. It is next argued that there was compelling circumstances, as applicant was under
treatment and was unable to move from one place to another, and due to this reason, applicant could not join at Page 9 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 Patna. Learned counsel for applicant has relied upon following case laws:-
i) J.C. Joshi Vs. UOI and others 1996(2) 601 decided by CAT, Principal Bench
ii) Shri Chattar Singh vs. UOI (O.A. No. 912/95) decided on 8.2.1996 by CAT, Principal Bench
iii) Y. Kurikesu Vs. the Sr. Supt. Of Telegraph, Traffic , Trivendrum and others (O.A. No. 484/1993) decided on 28.10.1993 by CAT, Earnakulam Bench
iv) Writ Petitio No. 21175/2019 of High Court of Madhya Pradesh (Sanjay Upadhyay Vs. State of M.P. and others)
10. Contention of the learned counsel for the respondents in O.A. No. 580/2008 is that according to para 1.1. of the KVS Transfer guidelines, all employees of the KVS are liable to be transferred and posted anywhere in India at any time. Transfer and posting are right of Sangathan, which it would endeavor to exercise in the best interest of the students. It is further contended that as per para 17.4 of KVS transfer guidelines, commissioner will be competent to make such departure from the transfer guidelines as he may consider necessary with the approval of the Chairman, KVS. Applicant was transferred from KV, BHU, Varanasi to K.V., Motihari nearby available vacancy of TGT (Hindi). Applicant is trying to twist her matter linking earlier transfers but there is no relevance among the transfer order dated 12/13.5.2008 with earlier transfer orders. It is further argued that applicant was transferred on 12/13.5.2008. He filed O.A. No. 580/2008 but no stay has been granted by this Tribunal. Even after repeated notice, neither applicant has joined the new place of posting nor she appeared before the medical board.
11. Learned counsel for the applicant has vehemently argued in O.A. No. 647/2009 that impugned order was Page 10 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 passed by the respondents, without considering the genuine and legitimate claim of the applicant by not granting the leave on medical ground and also providing the Medical Board at nearby her own town is wholly illegal, arbitrary and against the rule on the subject. It is argued that appellate order is a non-speaking order. It is also contended that prior to removing the services of the applicant, personal hearing is must. Removal order has been passed treating the applicant as unauthorized absence from duty even the leave was in balance in her leave account, is wholly illegal, arbitrary against the rules. It was further argued that transfer was not in public interest. Reason has not been specifically mentioned in the impugned order. There was no willful absentia of the applicant as she had moved applications for grant of leave but it had not been allowed. Thus, it cannot be inferred that applicant remained absent willfully. Learned counsel for the applicant has cited following case laws:-
i) Krushnakant B. Parmar Vs. UOI and another Civil Appeal No. 2106 of 2012 (arising out of SLIP (C ) No. 15381 of 2006 decided on 15.2.2012 by Hon'ble Supreme Court
ii) Radha Raman Kulshretha Vs. State of U.P. (Service Bench No. 1823 of 1985) decided on14.2.2020 by Hon'ble High Court of Allahabad, Lucknow Bench
iii) Mohinder Singh Gill and another Vs. The Chief Election Commissioner, New Delhi 1978 AIR 851.
12. Submission of the learned counsel for the respondents in O.A. No. 647/2009 is that several notices were issued to the respondents to join the duty but applicant has chosen not to join at the new place of posting. She was also directed to appear before the medical board but she refused to do so and requested that as per rule 81 (D) (15)(ii) , the employees seeking relief to the Medical ground may be referred to the Page 11 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 Medical Board at Regional Office nearest to the residence of the employee. It is further stated that several opportunities were granted to the applicant but she has not reported for duty for one reason or other. Medical certificates submitted by the applicant do not establish the fact that she was seriously ill and confined to bed and her movement was restricted. Learned counsel for the respondents relied on the following case laws:-
i) Prem Juneja Vs. UOI (Civil Writ Petition No. 4485 of 2002) decided on 1.11.2002 by Hon'ble Delhi High Court
ii) O.A. No. 671 of 2010 (Smt. Sadhna Negi Vs. Kendriya Vidyalaya Sangathan and others) decided on 28.8.2015 by CAT, Jabalpur Bench.
13. We have considered the rival submissions of the parties and have gone through the entire record.
14. First of all, we would like to discuss the case laws referred by the applicant.
15. In the case of J.C. Joshi Vs. UOI and others (supra), CAT, Principal Bench has observed that applicant was transferred within a period of two years before the date of superannuation, which is not the case of the applicant. At the time of passing of impugned transfer order, applicant has left more than 2 years of service, hence this case law will not support the case of the applicant.
16. In the case of Shri Chattar Singh Vs. UOI and others (supra), CAT, Principal Bench has observed that when a transfer is ordered with a view to punish the employee or for a collateral purpose then the same is malafide, arbitrary and is a colorable exercise of power. In that case, applicant was transferred on his failure to vacate the quarter whereas in the instant case, transfer of the applicant has not been made to punish her. The headquarter of the applicant was always surrounding to Varanasi and she had worked Varanasi continuously Page 12 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 since 1993 to 2008 and she has completed about 14 years period in Varanasi/ Mughalsarai and after completion of 14 years, she has been transferred to K.V., Motihari vide order dated 12.5.2008. Hence, this case will also not support the case of the applicant.
17. In the case of Y. Kurikesu Vs. The Sr. Supt. Of Telegraph Traffic, Trivandrum Division (supra), CAT, Earnakulam Bench has observed that the expression 'Public interest ' is not a magic word which can do service for anything in any situation. Nor, is it a carpet under which any thing could be swept. Expression 'public interest' has a definite purport, and in a particular case such interest must be disclosed or discernible. It has not been done here. In the instant case, earlier applicant was transferred vide order dated 30.5.2005 from KV, BHU Varanasi to K.V. Uttarlie (Rajasthan) and against this order, applicant has filed O.A. No. 675/2005 and in compliance of the order of the Tribunal, transfer order dated 30.5.2005 of applicant was modified vide order dated 28.3.2007 and she has been permitted to work at K.V. No. 4, Varanasi instead of Uttalie ( Rajasthan) and her absence from duty was treated as duty for all purposes. Vide order dated 4.7.2007, applicant was deputed for temporary duty to K.V., Gopalganj w.e.f. 9.7.2007 and vide order dated 1.10.2007 she was again deputed to K.V. BHU, Varanasi. Applicant was transferred to K.V. Mughalsari in the year 1993 and K.V. Cant , Varanasi on 31.3. 2003. Meaning thereby, applicant had worked more than 14 years at the date of passing of impugned order at KV Mughalsarai/ Varanasi and in Varanasi, she has completed her tenure of five years on the date of passing of the impugned order i.e. on 12/13/5/2008. Hence, after completion of her tenure at Varanasi, she has been transferred to KV, Motihari in public interest. This case will also not support the case of Page 13 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 the applicant. Submission raised on behalf of the applicant that reason on account of which transfer has been made, must be disclosed. Since applicant was continuously working for about 14 years in the District- Varanasi or nearby places, therefore, reason assigned in form of public interest can easily be assumed in this matter.
18. In the case of Sanjay Upadhyay Vs.State of M.P. and others (supra), Hon'ble High Court of Madhya Pradesh, on the ground of frequent transfer without assigning any reason as to what administrative exigency existed, quashed the transfer order. In the instant case, applicant is working at Varansi from 31.3.2003 except temporary duty to Gopalganj for 3 months i.e. from 4.7.2007 to 1.10.2007. Therefore, in the instant case, it cannot be said that applicant has been transferred frequently. This case will also not support the case of the applicant.
19. In the case of Krushnakant B. Parmar Vs. UOI and another (supra), Hon'ble Supreme Court observed as under:-
"22. In the present case, the disciplinary authority failed to prove that the absence from duty was wilful, no such finding has been given by the Inquiry Officer or the Appellate Authority. Though the appellant had taken a specific defence that he was prevented from attending duty by Shri P. Venkateswarlu, DCIO, Palanpur who prevented him to sign the attendance register and also brought on record 11 defence exhibits in support of his defence that he was prevented to sign the attendance register, this includes his letter dated 3rd October, 1995 addressed to Shri K.P. Jain, JD, SIB, Ahmedabad, receipts from STD/PCO office of Telephone calls dated 29th September, 1995, etc. but such defence and evidence were ignored and on the basis of irrelevant fact and surmises the Inquiry Officer held the appellant guilty."Page 14 of 27
O.A. No.580/2008 along with O.A. No. 647/2009 In the instant case, applicant was repeatedly advised to report for duty or to attend medical board but she has ignored the directions of the competent authority. Since the applicant has been relieved from K.V.,Varnaasi , hence she was rightly advised to submit her leave application to K.V., Motihari at new place of posting. Principal , K.V. Motihari had advised the applicant vide letter dated 12.9.2008 that before taking any action regarding grant of leave, the applicant should first join the Vidyalaya so that the application may be considered on the strength of K.V. Motihari but applicant has not joined the new place of posting. Applicant was transferred vide order dated 13.5.2008 but after expiry of a period of 2 months, the Principal, KV, Motihari has intimated that applicant has not joined the duties and classes are being hampered. Hence perusal of aforesaid facts clearly shows that applicant has willfully absented herself to join duty because despite several reminders, neither she appeared before the medical board nor she joined her duty. This case will also not support the case of the applicant. If the facts and circumstances emerged from the arguments advanced by the learned counsel for the parties as well as stand taken in the O.A. and C.A. are taken into consideration, it is clear that applicant had to join K.V., Motihari. Thereafter, her leave application could be processed. Since, she did not join and several notices/reminders were given to her by the respondents, thus it can easily be inferred that applicant remained absent willfully from duty. Finding arrived at by the court also find support with the facts that no documentary evidence has been adduced in the matter to show that applicant was really under treatment and remain hospitalized. In absence of aforesaid documents, plea taken by the learned counsel for the applicant is not liable to be accepted.
Page 15 of 27O.A. No.580/2008 along with O.A. No. 647/2009
20. In the case of Radha Raman Kulshretha Vs. State of U.P. (supra), Hon'ble High Court of Allahabad, Lucknow Bench has observed that "If the absence is the result of compelling circumstances under which it was not possible to report or perform duty, such absence cannot be held to be willful. Absence from duty without any application or prior permission may amount to unauthorized absence but it does not always mean willful. There may be different eventualities due to which an employee may abstain from duty, including compelling circumstances beyond his control like illness, accident, hospitalization etc, but in such case the employee canoe be held guilty of failure of devotion to duty or behavior unbecoming of a government servant." In the instant case, as discussed above, applicant was working at Varanasi since 2003 and after completion of her tenure, she has been posted to KV, Motihari. Earlier transfer order was challenged by the applicant, and in compliance of the order of this Tribunal, applicant's transfer order was modified and she was permitted to work at Varanasi. Applicant was transferred vide order dated 13.5.2008 but after expiry of a period of 2 months, the Principal, KV, Motihari has intimated that applicant has not joined the duties and classes are being hampered. Hence perusal of aforesaid facts clearly shows that applicant has willfully absented herself to join duty because despite several reminders, neither she appeared before the medical board nor she joined her duty. Nothing is on record to establish that applicant was in fact bed hidden and hospitalized. If there is no such type of evidence, thus it shall be presumed that applicant was willfully absenting herself. There was no any compelling circumstances which prevented the applicant for joining the duties. This case will also not support the Page 16 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 case of the applicant. Applicant was advised to appear before the Regional Medical Board with her medical certificates to establish the fact that she was so seriously ill and she was confined to bed and her movement was restricted but she failed to do so. From the aforesaid fact, it is evident that applicant has ignored the directions issued by the competent authority and neither joined the new place of posting nor appeared before the Medical board. Mere submission of leave application will not sufficient to presume that applicant's absence was not willful.
21. In the case of Mohinder Singh Gill and another Vs. the Chef Election Commissioner, New Delhi and others (supra), Hon'ble Apex Court has held that "The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought ,out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (1) "Public orders, publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in Ms mind, or what he intended to, do. Public orders made by public authorities are meant to have public effect and are intended to effect the actings and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself."
Page 17 of 27O.A. No.580/2008 along with O.A. No. 647/2009
22. As far as assigning of the specific reason on which ground transfer order was passed is concerned, it may be mentioned here that transfer order itself speak that applicant was transferred in public interest. Since, she was continuously working in KV., BHU, Varanasi for a long time, therefore, mentioning the word public interest in the transfer order itself implies that transfer was passed in accordance with rule. It can also not be held from the transfer order that word public interest is not discernible.
23. In the case of Prem Juneja Vs. UOI (supra), Hon'ble Delhi High Court has observed that "there appears to be no justification for drawing such an assumption. It is not claimed that the employees of KVS are the employees of the Govt. of India. Indubitably they are the employees of the Sangathan and the question of absence without leave is governed by the Education code for Kendriya Vidyalaya. Therefore, the argument of learned counsel for the petitioner that the impugned orders are contrary to Article 311 of the Constitution of India is of no avail to him as Article 311 does not apply to the employees of the Sangthan. This is not the dispute in the present O.A. Transfer order and removal order of the applicant has been passed in accordance with Education Code for K.V.S. ,therefore, this case will also not support the case of the respondent.
24. In the case of Smt. Sadhana Negi Vs. KVS (supra), CAT, Jabalpur Bench has observed that "Article 81(d) clearly makes a provision for providing an opportunity to an employee to show cause against the provisional view of the concerned authority that the employee has lost his or her lien on the post on the ground of his unauthorized absence from duty. Such an employee, who remained absent, can render his explanation. In case the disciplinary authority rejects the explanation and passes an order confirming loss of lien Page 18 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 on the post held by him or her and removing him/her from service, he or she can file an appeal before the Appellate authority." In the instant case show cause notice was issued to the applicant twice and her representation was rejected. Disciplinary authority passed an order confirming loss of lien on the post held by her and removed her from service. Applicant filed appeal which was also rejected by the Appellate Authority. This case fully supports the case of the respondents.
25. From perusal of the record, it is evident that applicant was transferred vide order dated 13.5.2008 from KV, BHU, Varanasi to K.V., Motihari but applicant has not joined at the new place of posting. After expiry of two months, Principal, K.V., Motihari vide letter dated 21.7.2008 intimated that applicant has not reported for duty. Under Rule 81(d)(3) of Education Code, show cause notice was issued to the applicant. Applicant filed O.A. No. 580/2008, in which no stay has been granted. Earlier transfer order of the applicant was modified in compliance of the Tribunal's order passed in O.A. No. 675/2005. Applicant was working at Varanasi since 2003 (except 3 months temporary duty to K.V., Gopalganj). She has completed her tenure of 5 years at Varanasi. As per transfer guidelines, Assistant Commissioner was competent to change the headquarter of a teacher for not exceeding 180 days at a stretch within an academic session to any other school within the region on the grounds of administrative exigencies. Accordingly, applicant was temporarily deputed to KV. Gopalganj w.e.f. 4.7.2007 to 1.10.2007 which is less than 180 days. As per transfer guidelines, diseases like Cancer, Paralytic Stroke, Renal Failure, Coronary Artery Disease where bypass surgery has been actually done, Thalassemia, Parkinsons' disease and Motor Neuron disease are prescribed as valid for transfer on medical grounds. No Page 19 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 such medical certificates have been enclosed by the applicant in the O.A. to establish her case. Show cause notice was issued on 4.8.2008 and 22.8.2008 directing her to join her duties within 10 days but even after her refusal to join the duties by one pretext or other, the Assistant Commissioner , KVS, Patna vide memorandum dated 1.102008 directed the applicant to appear before the Regional Medical Board, Patna for 2nd medical opinion but the applicant has not appeared. Lastly, Assistant Commissioner , KVS, Patna decided to give her final opportunity vide memorandum dated 20.11.2008 to join the duties in K.V., Motihari by 27.11.2008, failing which her services will be deemed to have been removed w.e.f. 17.5.2008. When applicant has not joined the duty, Assistant Commissioner being disciplinary authority passed the order dated 2.12.2008. Appellate authority also affirmed the same. Principal, K.V., Motihari vide letter dated 12.9.2008 informed the applicant that before taking any action regarding grant of leave, the applicant should first join the Vidyalaya so that the application may be considered on the strength of K.V., Motihari. The plea taken by the applicant that as per rule 81(D)(15)(ii) , the medical board should be arranged at nearby place of his/her residence is concerned, since the applicant has been relieved from the K.V, BHU, Varanasi on 16.5.2008 and her new place of posting was K.V., Motihari, hence Assistant Commissioner, KVS, Patna vide memorandum dated 1.10.2008 has rightly directed the applicant to appear before the Regional Medical Board, Patna for 2nd Medical Opinion because Regional Medical Board, Patna was the nearest place of new posting station of the applicant. Hence, we do not find any illegality in the letter dated 1.10.2008 and plea of the applicant is not acceptable.
Page 20 of 27O.A. No.580/2008 along with O.A. No. 647/2009
26. As regards, plea of applicant that in a departmental proceeding, if allegation of unauthorized absence from duty is made, the disciplinary authority is required to prove that the absence was willful, in absence of such finding, the absence will not amount to misconduct. Applicant has filed the O.A. against the impugned transfer order but court has not granted any stay order. Thereafter, applicant was bound to join at new place of posting. But applicant has not joined at transferred place. Despite notices, she has neither appeared before the medical board nor joined at new place of posting. Applicant has not joined her duties on medical grounds but she has not annexed any medical certificate to establish her case that she was confined to bed and was unable to move.
27. The aforesaid fact clearly shows the willful absence of the applicant. Another plea was taken by the applicant that transfer of the applicant has been made without completion of tenure. Applicant was posted in Varanasi since 2003 (except temporary posting of less than 90 days, which is the discretion of the Assistant Commissioner to post any teacher for temporary not exceeding 180 days), and applicant has been transferred from KV, BHU, Varanasi to K.V. Motihari in 2008 i.e. after five years. Hence, this plea of the applicant is also not acceptable.
28. It has been held by the Hon'ble Apex Court in the case of Shilpi Bose(Mrs.) and others Vs. State of Bihar reported in AIR 1991 SC 532 that " 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. If the courts continue to interfere with day-to-day transfer orders issued by the government and its subordinate authorities, there will be Page 21 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 complete chaos in the administration which would not be conducive to public interest."
29. In the case of S.C. Saxena Vs. Union of India and others reported in (2006) 9 SCC 583, Hon'ble Supreme Court has held that "A government servant cannot disobey a transfer order by not reporting at the place of posting and to go to a court to ventilate his grievance. It is his duty to first report for work where he is transferred and make a representation as to what may be his personal problems. It has also been held that this tendency of not reporting at the place of posting and indulging in litigation needs to be curbed."
30. In the case of State of U.P. Vs. Siya Ram and others reported in AIR 2004 SC 4121, the Hon'ble Apex Court observed that "No Government servant or employee of public undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Unless an order of transfer as shown to be an outcome of malafide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals normally cannot interfere with such orders as a matter of routine."
31. In the case of State of U.P. Vs. GovardhanLal reported in 2004 11 SCC 402, (i) Transfer order is shown to be vitiated with malafide (ii) Issued in violation of any statutory provision or (iii) Having been passed by an authority not competent to pass such order."
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32. The transfer is not only an incident but a condition of service and it should not be interfered with unless shown to be an outcome of malafide exercise of power or violative of any statutory provisions otherwise transfer order is not subject to judicial interference as a matter of routine. It is also observed by the Hon'ble Apex Court that no Government servant or employee or public undertaking has any legal right to be posted for long at any one particular place.
33. The Hon'ble Apex Court in the case of High Court of Judicature of Madras Vs. R. Perachi (2011) 12 SCC 137, has been pleased to observe as under:
"23......Transfer of a government servant in a transferable service is a necessary incident of the service career. Assessment of the quality of men is to be made by the superiors taking into account several factors including suitability of the person for a particular post and exigencies of administration. Several imponderables requiring formation of a subjective opinion in that sphere may involved, at times. The only realistic approach is to leave it to the wisdom of the hierarchical superiors to make the decision. Unless the decision is vitiated by mala fides or infraction of any professed norm of principle governing the transfer, which alone can be scrutinized judicially there are no judicially manageable standards of scrutinizing all transfers and the courts lack the necessary expertise for personnel management of all government department. This must be left, in public interest, to the departmental heads subject to the limited judicial scrutiny indicated."
34. Apart from this, as observed by the Hon'ble Apex Court in the case of Aravali Gold Club Vs. Chander Hass reported in (2008) 1 SCC 683 and in the case of Common cause Vs. Union of India reported in (2008) 5 SCC 511, that judges must observe judicial restraint and must not ordinarily encroach into the domain of the legislature or the executive. Undoubtedly, the transfer is Page 23 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 domain of an executive and it should only be interfered with where absolutely necessary on account of violation of any fundamental or other legal right of the citizen. The State administration cannot function with its hands tied by judiciary behind its back.
35. The Hon'ble Apex court not only in one but in number of cases such as in the case of B. Vardharao Vs. State of Karnataka , AIR 1986 SC 1955, Shilpi Bose and others Vs. State of Bihar , 1991 SC 532, Union of India Vs. S.L. Abbas AIR 1993 SC 2444, has been pleased to observe that the transfer is an incidence of Government service and the courts should not normally interfere with it unless the order of transfer is vitiated by malafides or is made in violation of statutory provisions. Apart from this, it is also observed that the court should not interfere with the purely administrative matters like transfer and postings except it is warranted and is passed against the statutory provisions.
36. The Hon'ble Apex Court in the case of S.L. Abbas has been pleased to observe as under:-
"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee a legally enforceable right."
"An order of transfer is an incident of Government service. 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. While ordering the Page 24 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The same guideline however does not confer upon the Government employee a legally enforceable right. Executive instructions are in the nature of guidelines. They do not have statutory force."
37. The law relating to transfer of a Government servant is well settled. The Hon'ble Supreme Court, in a catena of judgments, has laid down the guidelines, which may be summarized as under : -
i. Transfer is a condition of service.
ii. It does not adversely affect the status or
emoluments or seniority of the employee.
iii. The employee has no vested right to get a posting at a particular place or choose to serve at a particular place for a particular time.
iv. It is within the exclusive domain of the employer to determine as to at what place and for how long the services of a particular employee are required. v. Transfer order should be passed in public interest or administrative exigency and not arbitrary or for extraneous consideration or for victimization of neither the employee nor it should be passed under political pressure.
vi. There is a very little scope of judicial review by Courts/Tribunals against the transfer order and the same is restricted only if the transfer order is found to be in contravention of the statutory Rules or malafides are established.
vii. In case of malafides, the employee has to make specific averments and should prove the same by adducing impeccable evidence.
viii. The person against whom allegations of malafide is made should be impleaded as a party by name. ix. Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Departmental personnel.
Page 25 of 27O.A. No.580/2008 along with O.A. No. 647/2009 x. The Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer.
38. The sum and substance made hereinabove are that applicant's transfer was made in accordance with rule on the ground of public interest. Three years service of the applicant was left. She did not join at K.V.Motihari despite ample opportunities having been given to her. Therefore, Principal, K.V., Motihari has rightly advised the applicant to join first at K.V.,Motihari thereafter, leave application will be processed. On number of occasions, show cause notices were issued to the applicant to join her duty, failing which her lien shall be cancelled but applicant did not join duty. Thereafter, impugned order has been passed removing the applicant from service.
39. Since the transfer of the applicant has been made by the competent authority after completion of her tenure and in accordance with the transfer guidelines of K.V.S., we do not find any error in the impugned transfer and relieving order, and O.A. No. 580/2008 is liable to be dismissed.
40. As far as O.A. No. 647/2009 is concerned, vide order dated ½.12.2008, applicant has been removed from service because she has not joined at the transferred place and remained absent. Removal of the applicant on the ground of unauthoised absence is quite harsh and is not commensurate with the gravity of charge. The charge levelled against the applicant is only in respect of unauthorized absence for long time and not joining at the transferred place. Even if the charge leveled against the applicant stands proved, the offence remained only absence from duty. The court finds that in many cases where the employees remained absent from duty for Page 26 of 27 O.A. No.580/2008 along with O.A. No. 647/2009 number of months and year together and reported back to duty, the employer regularize his absence from duty by treating the absence without pay or discontinuance from service but not in any case punishment of removal from services was passed. In the present case, punishment awarded appears to be very harsh and shockingly to the conscience of the court. So far as the proof of charge is concerned, the applicant and respondents have their stands but the court without entering into the controversy of proof of charge, considered that even if the charges are proved and the applicant was given ample opportunity to defend his case during the enquiry, still the facts remains that the decision of removal from service is quite harsh and hit conscience of the Court. Hence the court have no option but to quash the order passed by the disciplinary authority only to the extent of awarding of penalty of removal from service and remand the matter to the disciplinary authority for reconsideration of punishment awarded to the applicant.
41. Accordingly, O.A. No. 580/2008 is dismissed and O.A. No. 647/2009 is allowed. Impugned orders dated ½.12.2008 and 24.4.2009 passed in O.A. No. 647/2009 are quashed. Respondents are directed to consider the case of the applicant afresh after complying the principles of natural justice and pass a fresh order in accordance with law within a period of six months from the date of production of certified copy of the order.
42. All MAs pending in this O.A. also stand disposed off. Copy of the judgment and order be also placed in connected OA.
43. There shall be no order as to costs.
(Mohan Pyare) Justice Om Prakash- VII
Member (A) Member (J)
HLS/-
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