Central Administrative Tribunal - Allahabad
Sushma vs Kendriya Vidyalaya Sangathan on 28 April, 2022
OA No. 181/2022
Open Court
CENTRAL ADMINISTRATIVE TRIBUNAL
ALLAHABAD BENCH
ALLAHABAD.
Allahabad this the 28th day of April, 2022.
Original Application No. 331/00181 of 2022
Hon'ble Mr. Tarun Shridhar, Member (Administrative)
Hon'ble Ms. Pratima K Gupta, Member (Judicial)
Sushma, D/o Hoshiyar Singh
Address : B-196, NHPC Colony, Nigalpani, Baluwakote, Pithoragarh -
252576.
Phone - 9466843397, Email :[email protected]
Present place of Employment : Nigalpani, Pithoragarh, Uttarakhand.
. . .Applicant
By Advocate : Shri Sukhwant Singh
VERSUS
1. The Commissioner, Kendriya Vidyalaya Sangathan
Address for Service: 18, Institutional Area, Shaheed Jeet Singh
Marg, New Delhi - 110016.
Email :- [email protected]. Phone Number - 011-
26512579.
2. The Deputy Commissioner, Estt. 2/3, Kendriya Vidayala
Sangathan
Address for Service: 18, Institutional Area, Shaheed Jeet Singh
Marg, New Delhi - 110016.
Email :- kvse23@gmail. com Phone Number - 011-26857036.
3. Ms. Neha Sharma
Address for Service: Ms. Neha Sharma (PGT ENG), Kendriya
Vidyalaya 14 GTC Subathu, P.O. Subathu, Distt. - Solan,
Himachal Pradesh - 173206. Phone - 01792 275070.
. . . Respondents
By Adv: Shri Rishi Kumar
ORDER
Hon'ble Mr. Tarun Shridhar, Member (Administrative) :
List revised. Shri Sukhwant Singh, learned counsel for the applicant is present. Learned counsel for the respondents is not present even in the revised call. However, on account of specific instructions given by us on the Page 1 of 7 OA No. 181/2022 earlier dates of hearing, we are proceeding to take up this matter even in the absence of the learned counsel for the respondents. Further, we had given a clear indication during the course of hearing yesterday that we shall be adjudicating upon this matter today. Accordingly, this OA is decided following Rule 16 of CAT (Procedure) Rules.
2. The brief facts of the case are that the applicant made a request for transfer in accordance with the transfer policy of the Kendriya Vidyalaya Sangathan (KVS). As per provision of the policy all the applicants are granted marks after giving due weightage to different parameters while considering the request for transfer. The applicant was assigned a weightage of 85 marks. However, her choice of place of posting was assigned to respondent No.3 who had secured less number of marks i.e. 36. The applicant gave an application agitating her grievance before the competent authority which was disposed of by way of a non-speaking and cryptic order. The applicant has approached this Tribunal for redressal of her grievance and seeks the following relief(s) :-
"(i) Set aside the order F.No. 11-E-II046/2/2021-ESTT-II/UNDER-40 REQUEST, Dated 08.10.2021 to the extent of transfer of respondent number 3.
(ii) Direct the concerned authority to grant me transfer to the requested station i.e. station code 541 with all the transfer benefits, station seniority and all the other consequential benefit from the date of 08/10/2021.
(iii) If there is actual public interest in proven to be involved in awarding transfer order to respondent number 3, kindly direct the respondent number 1 & 2 to grant me an opportunity to amend my request and grant me transfer to the requested station in terms of the KVS transfer guidelines 2021 as it would have been proceeded originally during normal transfer process with all the consequential benefits including and transfer benefits, station seniority etc. from the date of 08.10.2021.
(iv) Pass any appropriate order you may deem it fit in facts and circumstances of the present matter.
(v) Award Costs."
3. When the case was came up for hearing on the first occasion (21,02.2022), the learned counsel for the respondents had sought some time Page 2 of 7 OA No. 181/2022 to obtain appropriate instructions , so that this matter could be immediately settled and grievance of the applicant redressed. Since the controversy involved was short, it was considered appropriate that the instructions are sought and the matter decided accordingly instead of extending time for counter reply and rejoinder etc, thus unnecessarily delaying the matter.
However, the said instructions could not be obtained within time and today it is fixed for hearing. This matter was taken up for hearing yesterday too, and we were informed by the counsel for applicants that the competent authority had disposed of the pending representation of the applicant by rejecting the same vide order dated 22.04.2022, He argued that this order is a detailed one and strictly in accordance with the provisions and rules governing the transfer of employees in the Kendriya Vidyalaya Sangathan. The matter was adjourned for today as we did not have the copy of the order passed by the competent authority in the matter i.e. the Commissioner, Kendriya Vidyalaya Sangathan.
4. Today this matter has been taken up in the revised call. None appears to represent the respondents. We are constrained to proceed under rule 16 of the CAT procedure rules. Vide order dated 22.04.2022, the competent authority has disposed of the representation and also observed that since there is no vacancy available in the choice of stations mentioned by the applicant, it is not possible to accept the request. For the sake of clarity, the said order passed by the competent authority is reproduced below :-
"Whereas, KVS had invited online request transfer applications for the year- 2021 through online portal system. Accordingly, Smt. Sushma, PGT (English), K.V., NHPC, Dharchula had applied for request transfer through online application with two choice stations i.e. 1. Subathu 2. Jhajjar, for request transfer for the year 2021, but her request transfer could not be materialized as per the KVS transfer guidelines 2021. As per the records, her date of birth is 10.03.1980, accordingly her case could not be, considered under 40 year age transfer (i.e. under-40 transfer) counting the age as on dated 30.06.2021 as per transfer guidelines.
Whereas, another employee namely Ms. Neha Sharma, PGT (English), KV, Mandi having 36 transfer counts got request transfer to KV Subathu under 40 request transfer vide transfer order dated 08.10.2021 in terms of the para 5 (b) and 8 of the transfer guidelines 2021. As per the records, her date of birth is 16.09.1084, accordingly her case had been considered under 40 years age transfer Page 3 of 7 OA No. 181/2022 (i.e. under -40 transfer) counting the age as on dated 30.06.2021 as per transfer guidelines.
Aggrieved with, Smt. Sushma, PGT (English) filled O.A. No. 181/2022 before the Hon'ble Tribunal Allahabad Bench Allahabad (division bench at Nainital). The Hon'ble Tribunal has passed order dated 21 .02.2022 and the operative part of the order is reproduced below:
"Learned counsel for the applicant argues that the applicant aired her grievance before the competent authority which was disposed of in a Non-speaking cryptic one sentence order. Learned counsel for the applicant argues that there is no way the merit of the applicant and the marks she got in accordance with the policy could have been ignored in favour of respondent no. 3 at this stage. Learned counsel submits that he will be satisfied if the respondents were agreeable to consider transferring /adjusting the applicant at any other station nearby and accordingly allow her to make a fresh request. Learned counsel for the respondents submits that for him to be able to respond to the submissions made by the learned counsel for the applicant he would need to seek appropriate instructions from the respondents.
Accordingly, a time of one week is allowed to the learned counsel for the respondents to seek appropriate instructions.
It is expected that in view of the limited prayer of the applicant at this stage and the fact that she is willing to forego her claim vis-a-vis the private respondents, the authorities would be inclined to take a sympathetic view in the matter."
Whereas, Smt Sushma, PGT (English) KV, NHPC Dharchula has submitted a fresh representation dated 08.04.2022 through Dy. Commissioner (RO) Dehradun with three choice station and mentioning the following that:
1. she has filed OA No. 181/2022 in Hon'ble CAT Nainital Bench in reference to her request transfer.
2. she has also submitted grievance previously with detailed facts and submissions referring to her request transfer.
3. she has already completed his hard station tenure at KV, NHPC Dharchula and submitting a fresh request for transfer with her alternative choice as to SI. No.1 being the first choice in order of her preference i.e. (1) Raghunathpura (Narnaul) (2) Rewari (3) Bhakli.
Whereas, on examination of the above case, it is found that Smt. Sushma, PGT(English) KV, NHPC Dharchula having 85 transfer counts applied for annual request transfer application for the year 2021 with two choice stations i.e. 1.Subathu
2. Jhajjar. Simultaneously, another teacher Ms. Neha Sharma, PGT(English), KV, Mandi having 36 transfer counts also applied for annual request transfer application for the year 2021 with five choice station i.e. 1. Subathu 2. Kasauli 3. Chandigarh 4. AFS Mohali 5. Mullanpur Garibdas.
Whereas, the KVS had effected under 40 transfers (for the employees having age under 40 years) on dated 08.10.2021 prior to the other kind transfers, these transfers were effected to fill up the vacancies in the priority area (i.e. Hard Stations/North Eastern Region) and accordingly, Ms. Neha Sharma, got request transfer under 40 vide transfer order dated 08.10.2021 and got transfer to KV Subathu (which is a hard station) in terms of the para 5(b) and 8 of the transfer guidelines 2021, which reads as under :-
"Employees below 40 years of age (as on 30th June of the year) who have not completed one tenure at hard/very hard (existed earlier)/NER stations in continuous span in service and not presently posted to such stations and have completed one year stay at present station in the present post, in their decreasing order of Displacement Count can Page 4 of 7 OA No. 181/2022 be posted in Hard/NER stations. Choice stations, if any, for posting in Hard/NER station may be indicated in regular annual transfer application. Employees may opt for a posting at hard/NER station. KVS shall post them to such location in a transparent manner as per prescribed calendar of activities. Such transfer though on request shall be treated administrative in nature in accordance with clause 5 (b) above."
And therefore, the request of Smt. Sushma PGT (English) could not be considered for her 1st choice despite having higher transfer counts than that of Ms. Neha Sharma who got request transfer at KV, Subathu (Hard Station), as per the facts mentioned above, more over vacancy was not available at her 2nd choice i.e. Jhajjar station while effecting her (Smt. Sushma) transfer.
Whereas, Smt. Sushma PGT (English) has submitted a fresh representation on dated 08.04.2022 for request transfer with three choice stations i.e. 1. Raghunathpura (Narnaul) 2. Rewari, 3. Bhakli but all of the above stations, vacancy of PGT (English) is not available at present.
Keeping in view the facts and circumstances as given supra, the request of Smt. Sushma, PGT (English) for here transfer considered as per her representation dated 08.04.2022 sympathetically by the competent authority but the same could not be acceded to due to the non-availability of vacancy at her requested places at present.
Thus, the representation dated 08.04.2022 of Smt. Sushma, PGT (English) has been disposed of in compliance with the order dated 21.02.2022 in OA No.181/2022 passed by the Hon'ble Tribunal Allahabad (division bench at Nainital).
This issues with the approval of the competent authority.
5. At this stage, we would not like to dwell upon the legality or the merits of the aforesaid order but merely observe that this order is against the observations made by us during the course of hearing of this matter. We had not sought a counter reply from the respondents in order to afford them an opportunity to rectify the mistake or at least to redress the grievance of the applicant. This was done with the consent of the counsel of the parties. We have also taken the cognizance of the fact that the applicant instead of pressing for the relief of posting her at the place of her own choice had also settled for her 2nd and 3rd choice of stations and made a representation in this regard. We wished the matter would be settled to the best satisfaction of both the parties. We find that the respondents, after much lapse of time, have taken a technical view and sought shelter behind a rigid approach to the rules to justify their position and ignored the fact that the applicant too has a genuine case. We have lost a few months only in seeking and obtaining the Page 5 of 7 OA No. 181/2022 instructions. Had the OA been taken in normal course, and had we sought counter reply and rejoinder followed by arguments, it is quite possible that by now it would have been finally decided.
6. The counsel for the respondents appeared later and tendered apology for not being able to appear and assist in the revised call. He submits that his inability was on account of connectivity issues. Apologies accepted, the counsel vehemently opposed this OA and argued:
(I) That the transfer is an incidence of service and the applicant has been transferred on administrative reasons.
(2) That while passing the order dated 22.04.2022 each and every aspect of the matter was duly considered (3) That the transfer policy of the respondents are mere guidelines and not mandatory. He added that the case of applicant was considered in light of the policy but did not find favour,
7. On considering rival contentions, it emerges that the applicant had served hard posting for three years, and hence she was entitled for posting at a place of her choice. She was granted 85 marks, yet not given the posting of place of her choice despite eligibility. According to the facts stated herein we are not convinced with the arguments of the respondents
8. In view of the situation detailed above, we have no hesitation in deciding this OA at this stage. Learned counsel for the applicant once again draws attention to the transfer policy highlighting that the policy contains a clear provision that an employee who has completed three years or more years in a hard station has to be necessarily given the posting at his /her choice of station. Therefore, we settle this matter by deciding the original application, which is allowed. The order dated 22.04.2022 is hereby Page 6 of 7 OA No. 181/2022 quashed. The competent authority amongst the respondents is directed to forthwith post the applicant to one of the three stations of her choice. However, the applicant, in case she so wishes, in the spirit of cooperation and accommodation, may indicate some other place of her choice too since at present vacancy is said to be not available at her initial choices. She shall be at liberty to give an alternative choice of a place of posting to the competent authority so that the matter is finally settled. However, this is the liberty given to the applicant and she is not under an obligation to exercise it. Therefore, it shall not be held as an excuse by the respondents not to give a posting to her at the place of choice already conveyed by her. The aforesaid direction shall be complied with within a period of two weeks from the date of this order. The liberty offered to the applicant to submit a fresh choice, only if she wishes, is for a period of one week only. The OA stands disposed of with the aforesaid directions. No order as to costs.
9. All the MAs associated with this original application stand disposed of as having become in fructuous.
(Pratima K Gupta) (Tarun Shridhar)
Member(Judicial) Member(Administrative)
RKM/
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