Central Administrative Tribunal - Ernakulam
Nithya R Warriar vs Kvs on 5 December, 2022
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CENTRAL ADMINISTRATIVE TRIBUNAL,
ERNAKULAM BENCH,
ERNAKULAM
Original Application No. 180/00632/2021
Monday, this the 5th day of December, 2022
CORAM:
Hon'ble Mr. Justice Sunil Thomas, Member (J)
Hon'ble Mr. K.V. Eapen, Member (A)
Nithya R Warriar, aged 39 years, D/o K. Raghunandanan,
Trained Graduate Teacher (English), Kendriya Vidyalaya
No.2, Naval Base, Kochi, PIN- 682 004, Residing at:
"Krishnakripa", A.P. Varkey Road, Thiruvankulam P.O,
Kochi 682 305. ..... Applicant
(By Advocate : Ms. Sreekala T.N.)
Versus
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18,
Institutional Area, Shaheed Jeet Singh Marg,
New Delhi - 110 016.
2. The Assistant Commissioner (Estt. II & III),
Kendriya Vidyalaya Sangathan, 18,
Institutional Area, Shaheed Jeet Singh Marg,
New Delhi- 110 016.
3. The Deputy Commissioner,
Kendriya Vidyalaya Sangathan,
Ernakulam Region, Kochi - 682 020.
4. The Principal, Kendriya Vidyalaya No.2,
Naval Base, Kochi, Pin - 682 004.
5. The Union of India , Represented by
The Secretary to the Government of India,
Ministry of Education, New Delhi-110 001. ..... Respondents
(By Advocate : Mr. C. Rajendran, SCGC)
This Original Application having been heard on 14.11.2022, the
Tribunal on 05.12.2022 delivered the following:
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ORDER
Per: Justice Sunil Thomas, Judicial Member -
The applicant herein is a Trained Graduate Teacher (TGT) in English presently posted at Kendriya Vidhyalaya-II, Naval Base, Kochi. On her appointment she was initially posted at Shivaganga at Tamil Nadu and joined that post on 10.8.2009. After few postings, she was posted at Kendriya Vidhyalaya-II, Naval Base, in August, 2018. While so, Annexure A3 notification was issued by the respondents inviting applications for promotion inter alia, to the post of Post Graduate Teachers (PGT). The above notification dated 9.4.2018 is Annexure A3. The vacancies related to the period 2014 to 2018. She appeared in the written examination. In Annexure A4 selection panel of approved candidates, she was included as serial No.
172. By Annexure A6 memorandum of promotion she was posted at Kendriya Vidhayalaya-II, ONGC, Agarthala. All selected candidates were directed to accept the offer by 9.2.2019 and to join by 25.2.2019.
2. Raising her personal difficulties and that she was a single parent, she submitted Annexure A7 representation dated 6.2.2019. By Annexure A7(a) she accepted the promotion. However, by a subsequent communication, on being apprehensive that by virtue of Annexure A6 memorandum the request for transfer would not be accepted, she declined her posting at Agarthala. This was followed by Annexures A9 to A11 representations requesting for a posting at Palakkad or Kochi, reiterating her personal difficulties in accepting posting at Agarthala.
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3. While so, based on several representations received from various candidates a modified list dated 25.2.2019 was issued as Annexure A8. A second modified list Annexure A14 dated 26.6.2019 was published. In the meanwhile, she was informed by Annexure A15 that her representations were dismissed. A third modification list of 108 teachers was published as Annexure A16.
4. Aggrieved by the non-consideration of her request, she approached this Tribunal by filing OA No. 471 of 2021. This Tribunal directed her to file a detailed representation referring to all her difficulties. It was submitted as Annexure A21. This Tribunal directed the respondents to consider her grievance and to consider the representation at Annexure A21 and to dispose it off with reference to the Rules and Regulations and till such time to keep one vacancy in Kendriya Vidhyalaya, Naval Base vacant. By Annexure A1, the representation was dismissed. Aggrieved, the applicant has filed this OA. The relief sought was to quash Annexures A1 and Annexure A15 orders and to direct the respondents to consider and grant applicant a posting as PGT, English in the same or nearby KVSs located in Kochi, with all consequential benefits arising therefrom.
5. The grievance of the applicant is that she got divorced in 2018 and immediately thereafter was posted at Kendriya Vidhayalaya-II, Naval Base. The matrimonial relationship with her erstwhile husband was brought to an 4 end by a decree for divorce on mutual consent. By an agreement between the parties the custody of the child was entrusted with the mother being the natural guardian of the minor with visitorial rights granted to the husband to visit the child during a fixed period in a month. She being a single parent has to take care of the minor child. Her anxiety is that if she is transferred to a distant place like Agarthala which is about 2200 kms. away from Kochi, it may give a handle to the husband to seek for cancellation of the custody of the child on alleged violation of visitorial rights. Hence, she sought a posting in Kerala or nearby places.
6. According to the respondents, though it was specifically directed in Annexure A6 memorandum that candidates have to join by 29.6.2019, she did not join in the promoted post. She also refused to accept the promotion offered to her and hence has forfeited her right. It was stated that since she has not joined the place of posting on promotion, her memorandum of offer of promotion stands automatically withdrawn. It was further stated that her grievance cannot be considered sympathetically as the interest organization/public has top priority over an individual's interest.
7. Evidently the applicant is a single parent. She is the custodian of the minor child and definitely has to take care of the child. There is some substance in the contention of the applicant that if she is transferred she may not be able to abide by the visitorial rights conferred on the husband. Definitely it is to be noted that visitorial rights was conferred on the husband 5 not by virtue of the court order, but by an agreement between the parties, a copy of which is not made available. The copy of the order of divorce granted by the court and produced along with the OA does not disclose any visitorial rights. Though, being single parent and the possible breach of visitorial rights are grounds for consideration of request for nearby posting, it cannot be a perpetual reason for not being transferred from Kochi. That cannot be in public interest, especially in a transfer with promotion.
8. Though, the claim of the applicant that she is a single parent child and that any transfer order may affect the visitorial rights conferred on the husband of the applicant cannot be considered as a permanent excuse for avoiding a transfer, that can be a ground for considering a nearby posting.
9. The defence set up by the respondents that applicant did not join the promoted place by 29.6.2019 is without any basis at all. From 6.2.2019 onwards the applicant has been continuously requesting for a favourable posting. Thereafter, Annexures A8, A14 and A16 modification orders were issued by which successively request of several persons have been considered. Even Annexure A16 which is dated 22.7.2019 evidences that the application of various candidates were considered even after the last date prescribed. Hence, even the authorities were not treating the prescribed date as sacrosanct. Consequently, the contention that she did not join the promotion post by 29.6.2019 cannot be accepted. Further applicant has been continuously pursuing her remedies and had approached this Tribunal. By 6 virtue of order of this Tribunal, Annexure A21 was directed to be considered. Thereafter, the stipulation that the applicant has to join by 29.6.2019, cannot survive.
10. In the light of the above finding, the consequential contention that the applicant has refused to accept the promotion cannot also survive after the earlier order of Tribunal. Further, applicant has explained that she did not decline the promotion, but only declared her inability to accept the posting at Agarthala.
11. In spite of the specific order of this Tribunal to consider her request, the real grievance of the applicant has not been addressed in Annexure A1. Annexure A1 speaks of other reasons and not on merits. Though we are not inclined to hold that being a single parent and the possibility of breach of visitorial rights cannot be accepted as permanent grounds for seeking exemption from transfer, we are still convinced that they are ground to hold that she is entitled for a reasonable accommodation at a convenient place. A perusal of the original memorandum of postings clearly show that most of the persons above the applicant and several persons below her, have been given postings in their own respective States even after promotion. However, in the case of applicant, in spite of three successive modifications her proposed posting at a place in the north east, about 2200 kms. away has still not been reconsidered.
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12. In the light of our conclusion that earlier order of this Tribunal has not been complied with properly and her grievance not appreciated in its right perspective, and being convinced that she needs a sympathetic approach, we are inclined to dispose of the OA itself with a direction that Annexure A21 shall be considered afresh having regard to the two specific contentions that she is a single parent and that if she is posted at a very distant place her husband may lose opportunity to exercise his visitorial rights, her application may be considered afresh. It may be considered whether she can be given a posting in Kerala. If it is not available, she may be considered for being posted in any convenient place in any of the neighbouring States. Final decision shall be taken within three weeks from the date of receipt of a copy of this order. She shall be given seven days' time thereafter to join that post, or to decide whether she should accept the promotion.
13. With the above direction the Original Application is disposed of. No costs.
(K.V. EAPEN) (JUSTICE SUNIL THOMAS)
ADMINISTRATIVE MEMBER JUDICIAL MEMBER
"SA"
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Original Application No. 180/00632/2021
APPLICANT'S ANNEXURES
Annexure A1 - True copy of the Memorandum bearing file No. 11-E-
11065(TGT)/6/2021-Estt-II/4197-4200 dated 09.11.2021 issued from the office of the 1st respondent.
Annexure A2 - True copy of the order of this Hon'ble Tribunal in OA No. 180/471/2021 dated 5.10.2021.
Annexure A3 - True extract copy of the notification No. F. 11055- 1/2016-KVS(HQ)/RPS/LDE-Teaching Posts/145, dated 9.4.2018 issued from the office of the 1st respondent. Annexure A4 - True copy of the relevant pages the provisional select panel for promotion from the post of TGT to PGT, published by the 1st respondent.
Annexure A5 - True copy of the judgment of the learned Family Court, Ernakulam dated 15.2.2018 in OP No. 1637/2017.
Annexure A6 - True extract copy of the relevant pages of the order No. F.11055/PGT/LDCE/2018-19/KVS (HQ)/Estt-II, dated 5.2.2019 issued by the 2nd respondent.
Annexure A7 - True copy of the representation dated 6.2.2019 submitted to the 1st respondent.
Annexure A7(a)- True copy of the email communication dated 9.2.2019.
Annexure A8 - True copy of the order No. F. No.
11055/PGT/LDCE/2018-19/KVS(HQ)/Estt-II, dated
nd
25.2.2019 issued by the 2 respondent.
Annexure A9 - True copy of the representation dated 26.2.2019
submitted to the 1st respondent.
Annexure A10 - True copy of the email communication dated 29.5.2019 from the 2nd respondent.
Annexure A11 - True copy of the representation dated 31.5.2019 addressed to the 2nd respondent.
Annexure A12 - True copy of the said letter bearing No. F.No.11055/TGT/LDCE/2018-19/KVS(HQ0/Estt.II, dated 7.6.2019 issued by from the office of the 1st respondent.
9Annexure A13 - True copy of the email dated 10.6.2019. Annexure A14 - True copy of the modification of promotion order No. F. No. 11055/PGT/LDCE/2018-19/KVS, Estt. Dated 26.6.2019 issued from the office of the 1st respondent. Annexure A14(a)- True translation of the relevant portion of Annexure A14. Annexure A15 - True extract copy of the memorandum F. No. 11055/PGT/LDCE/2018-19/KVS (H)Estt., dated st 26.6.2019, issued from the office of the 1 respondent. Annexure A15(a)- True translation of Annexure A15. Annexure A16 - True copy of the order No. F. 11055/TGT/LDCE/2018- 19/KVS(HQ0/Estt.II, dated 22.7.2019.
Annexure A16(a)- True translation of relevant portion of Annexure A16. Annexure A17 - True copy of the representation dated 29.8.2019 addressed to the 1st respondent.
Annexure A18 - True copy of the modification of posting on promotion order No. F. No. 1-1/2019/KVS (HQ)/Estt.II, dated 31.8.2019 issued from the office of the 1st respondent. Annexure A18(a)- True translation of relevant portion of Annexure A18. Annexure A19 - True copy of the representation dated 12.12.2020 addressed to the 3rd respondent.
Annexure A20 - True copy of the communication No. F. 31014/04/2020- 21/KVS RO(EKM), dated 23.12.2020 by the 3rd respondent.
Annexure A21 - True copy of the representation dated 30.9.2021 submitted by the applicant to the 1st respondent.
Annexure A22 - True copy of the memorandum No. F. 11055/PGT/Reserve/2013/KVS(HQ)(Estt.II)/3561-3625, dated 4.4.2014 issued from the office of the 1st respondent.
Annexure A23 - True copy of the memorandum No. F.
11055/PGT/Reserve/2013/KVS(HQ)(Estt.II), dated
st
4.4.2014 issued from the office of the 1 respondent. 10
Annexure A24 - True copy of the memorandum No. F. 11055/PGT/LDCE/2018-19/KVS(HQ)/Estt-II/3649-89, dated 24.7.2020, issued from the office of the 1st respondent.
RESPONDENTS' ANNEXURES Annexure R1 - True photocopy of the letter by the applicant dated 11.2.2019.
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