Madhya Pradesh High Court
Ajay Kumar Mishra vs Kendriya Vidyalaya Sangathan (Kvs) on 19 June, 2023
Author: Sheel Nagu
Bench: Sheel Nagu, Avanindra Kumar Singh
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 19th OF JUNE, 2023
MISC. PETITION No. 3171 of 2023
BETWEEN:-
SMT SARITA MURAMKAR W/O SHRI
SHARAD MURAMKAR, AGED ABOUT 50
YEARS, OCCUPATION: PRT, KENDRA
VIDYALAYA NO. 3 (FIRST SHIFT), BHOPAL
(MADHYA PRADESH)
.....PETITIONER
(BY SHRI SWAPNIL GANGULY - ADVOCATE)
AND
1. KENDRIYA VIDYALAYA SANGATHAN (KVS)
THROUGH ITS COMMISSIONER, 18
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, KATWARIA SARAI, NEW
DELHI (DELHI)
2. THE ASSISTANT COMMISSIONER,
(ESTABLISHMENT 2/3), KENDRIYA
VIDYALAYA SANGATHAN(K.V.S.), 18
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI (DELHI)
3. PRINCIPAL, KENDRIYA VIDYALAYA NO 3,
BHOPAL, DISTRICT BHOPAL (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI MANISH K. VERMA - ADVOCATE)
2
MISC. PETITION No. 3161 of 2023
BETWEEN:-
MANISH KUMAR MISHRA S/O LATE RAM
GOPAL MISHRA, AGED ABOUT 56 YEARS,
OCCUPATION: WORKING AS PRT
KENDRIYA VIDYALAYA SANGATHAN, R/O
H NO 307, NEAR HANUMAN MANDIR, POST
BARARU SAGAR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI KABEER PAUL - ADVOCATE)
AND
1. KENDRIYA VIDYALAYA SANGATHAN (KVS)
THROUGH ITS COMMISSIONER, 18
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI (DELHI)
2. THE ASSISTANT COMMISSIONER,
(ESTABLISHMENT 2/3), KENDRIYA
VIDYALAYA SANGATHAN (K.V.S.), 18
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI (DELHI)
3. DEPUTY COMMISSIONER KENDRIYA
VIDYALAYA SANGATHAN JABALPUR
REGION BEHIND GOVT. SCIENCE
COLLEGE, GCF ESTATE, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH K. VERMA - ADVOCATE)
MISC. PETITION No. 3180 of 2023
BETWEEN:-
SMT. SHIKHA RAKESH W/O SHRI RAKESH
LAL, AGED ABOUT 55 YEARS,
OCCUPATION: TGT (ENGLISH) KENDRIYA
3
VIDYALAYA 1 STC (SECOND SHIFT),
JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI SWAPNIL GANGULY - ADVOCATE)
AND
1. KENDRIYA VIDYALAYA SANGATHAN (KVS)
THROUGH ITS COMMISSIONER, 8
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, KATWARIA SARAI, NEW
DELHI (DELHI)
2. THE ASSISTANT COMMISSIONER,
(ESTABLISHMENT 2/3), KENDRIYA
VIDYALAYA SANGATHAN(K.V.S.), 18
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI (DELHI)
3. PRINCIPAL, KENDRIYA VIDYALAYA, 1 STC,
JABALPUR, DISTRICT JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH K. VERMA - ADVOCATE)
MISC. PETITION No. 3261 of 2023
BETWEEN:-
PRACHI MISHRA W/O SHRI NEERAJ
KUMAR MISHRA, AGED ABOUT 49 YEARS,
OCCUPATION: WORKING AS PRT
KENDRIYA VIDYALAYA, CMM JABALPUR,
R/O H.NO. 625/1, MISHRA COMPOUND, BT
TIRAHA, GARHA, JABALPUR (MADHYA
PRADESH)
.....PETITIONER
(BY SHRI KABEER PAUL - ADVOCATE)
AND
4
1. UNION OF INDIA THROUGH ITS
SECRETARY, MINISTRY OF EDUCATION,
DEPARTMENT OF SCHOOL EDUCATION
AND LITERACY, SHASTRI BHAWAN, NEW
DELHI (DELHI)
2. KENDRIYA VIDYALAYA SANGATHAN
THROUGH THE COMMISSIONER 18,
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI 110016 (DELHI)
3. ASSISTANT COMMISSIONER (ESTT)
KENDRIYA VIDYALAYA SANGATHAN 18,
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI 110016 (DELHI)
4. DEPUTY COMMISSIONER, KENDRIYA
VIDYALAYA SANGATHAN, JABALPUR
REGION BEHIND GOVT. SCIENCE
COLLEGE GCF ESTATE, JABALPUR 482011
(MADHYA PRADESH)
5. PRINCIPAL, KENDRIYA VIDHYALAYA,
COLLEGE OF MATERIAL MANAGEMENT
(CMM), ADD. RIDGE ROAD, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH K. VERMA - ADVOCATE)
MISC. PETITION No. 3370 of 2023
BETWEEN:-
AJAY KUMAR MISHRA S/O LATE R.D.
MISHRA, AGED ABOUT 47 YEARS,
OCCUPATION: PRT. K.V.V.F.J. JABALPUR,
DISTRICT JABALPUR (MADHYA PRADESH)
.....PETITIONER
(BY SHRI KABEER PAUL - ADVOCATE)
AND
5
1. KENDRIYA VIDYALAYA SANGATHAN (KVS)
THROUGH ITS COMMISSIONER, 8
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, KATWARIA SARAI, NEW
DELHI (DELHI)
2. THE ASSISTANT COMMISSIONER,
(ESTABLISHMENT 2/3), KENDRIYA
VIDYALAYA SANGATHAN (K.V.S.), 18
INSTITUTIONAL AREA, SHAHEED JEET
SINGH MARG, NEW DELHI (DELHI)
3. PRINCIPAL, KENDRIYA VIDYALAYA
SANGATHAN (KVS), VEHICLE FACTORY
ESTATE, SECTOR-2, SHIFT-1, JABALPUR
(MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI MANISH K. VERMA - ADVOCATE)
------------------------------------------------------------------------------------------------
This petition coming on for admission this day, Hon'ble Shri
Justice SHEEL NAGU passed the following:
ORDER
This common order shall govern the disposal of MP. No.3171/2023, MP.No.3161/2023, MP.No.3180/2023, MP.No.3261/2023 and MP. No.3370/2023 since similar facts and common question of law are involved in these petitions.
2. This petition filed under Article 227 of the Constitution assails impugned final order dated 18.05.2023 passed by the Central Administrative Tribunal, Jabalpur Bench, Jabalpur (for brevity "Tribunal") in a bunch of original applications including OA.No.200/246/2023, 200/325/2023,200/290/2023,200/303/2023 and 200/315/2023 of petitioners herein in the following terms :-
6"19. If we summarise the rival contention of the two parties, it can be listed as follows.
19.1 Firstly, learned counsel for the applicants have started with a suggestion that the judgement delivered by this bench in the previous O.A. rejecting their plea against the transfer was per incuriam. The reason cited was that the Ahmedabad bench of the Tribunal has in a similar matter passed an order in January 2023, setting aside the transfer orders of Kendra Vidyalaya Sangathan (KVS) for the academic session 2022-23. So this bench should not have taken any decision to the contrary and if it felt that a contrary decision was to be taken, then it should have referred the matter to Principal Bench, New Delhi to be adjudicated upon. The learned counsel for the respondent has vehemently opposed this saying that it is a contemptuous line of argument. He has apprised that they are perhaps not aware that Ernakulam bench has already passed an order in the month of December 2022 which is in line with the orders passed by this bench of the tribunal. So if at all any order was per incuriam, it was the order of Ahmedabad bench and infact that Bench should have referred the matter to Principal Bench, New Delhi. Later on, Principal Bench, Delhi has also dismissed the O.A. filed by the Association of KVS Teachers on this particular issue itself. Hence, the majority view with an exception of Ahmedabad bench of the Tribunal is in line with the order passed by this bench of the Tribunal. Hence this argument of declaring the order of this Jabalpur bench as incuriam is contemptuous. If it were so then Hon'ble High Court of M.P. where the order of this tribunal was challenged would not have decided not to interfere with the order of the tribunal and simply disposed of their petition with the only relief that the representation should be decided by KVS individually by going into individual cases as well as transfer guidelines. Hence this issue is already closed, and we are not inclined to examine afresh the already decided issue.
19.2 Secondly, there has been an argument that the representations that have been rejected by way of the so-called reasoned and speaking order is actually not reasoned and it is a stereotype order. Each and every order of rejection has the same wording and the same paragraph setting with a minor change of the name of the teacher whose representation is being rejected 7 and simply stating that the teacher has been staying at that particular place for so many years. Learned counsel for the respondents have again opposed this line of argument and said that the doctrine of useless formality needs to be invoked. In fact stating the same ground again and again and then rejecting it would have been nothing but an useless formality. He has further argued that the suspension of para 6.1 which talks about the displacement count would have made no difference because this was kept in abeyance. Learned counsel for the respondents have also argued that the counsel for applicant have not understood the purport of para 6 which deals with displacement Count. This displacement count is actually not meant for the teacher who is being assigned a particular number as displacement count. It is basically done with the objective of accommodating a teacher who is coming from a hard station at a particular place. When she/he is to be accommodated, then who will she/he replace is to be decided with the help of this displacement count. So this displacement count is not being calculated with the purpose of retaining a teacher. Rather it is being counted to decide as to who will be sent away to accommodate the incoming teacher. So this displacement count discussion is a misconceived point so far as learned counsel for the applicant are concerned.
19.3 Thirdly, learned counsel for the applicant have said that KVS has not followed the order of Honourable High Court in true spirit. Honourable High Court of Madhya Pradesh has passed an order that the representation of each and every teacher should be decided on the basis of individual hardships that have been stated in their representation as well as transfer guidelines. Since it is a Judicial pronouncement with regard to transfer guidelines so it will supersede the executive instructions of suspending some of the paras of the transfer guidelines. They also argued that the board of governor should have considered this matter before suspending any para of the transfer guidelines. Counsel for the respondent has again opposed and said that in para 13, the power to relax these guidelines is conferred in the commissioner who with the concurrence of the chairman that happens to be union Minister for education can relax these guidelines and there is nothing wrong in it. It is nowhere written that the board of governors will consider 8 relaxing this guideline. The decision with regard to relaxation of rules has actually been taken by the commissioner with the approval of the chairman who happens to be the Union Minister. This tribunal will not like to go into this question because once the judicial pronouncement of Hon'ble High Court of M.P. has already been made, then it will supersede all the executive instruction and the order of High Court should always be respected. In view of the fact that the representations have been considered on the basis of individual hardships alone needs to be reconsidered and all the transfer guidelines should be taken into account before arriving at a final decision with regard to either acceptance or rejection of the representation made by individual teachers.
20. The fact also remains that the KVS academic session for 2022-23 is already over and the new session 2023-24 has begun. Right now summer vacations have started so it gives ample time and opportunity for KVS to consider individual representations and decide as per the direction issued by Honourable High Court of Madhya Pradesh. The suggestion of referring this Tribunal's order rejecting the transfer orders matter in previous round of litigation leading to dismissal of Bunch of OAs to the Principal Bench is rejected and the part that representation should be considered as per the order of the High Court is left to KVS.
21. The matter is remitted back to the respondents with a direction to consider afresh the representation of the applicants by passing a reasoned and speaking order in accordance with directives issued by the Hon'ble High Court of M.P. vide its order dated 03.03.2023 within a period of 90 days from the date of receipt of certified copy of this order under intimation to the applicants. The interim relief granted during the pendency of these Original Applications is vacated in line with the observation made by the Hon'ble High Court of M.P. in some of the petitions of individual teachers that has also landed up before this tribunal in the form of O.A. No. 437/2023 (Aruna Tiwari v/s KVS).
22. All the Original Applications stand disposed of with the aforesaid terms. There shall be no order as to costs."
3. Learned counsel for rival parties are heard at length.
94. The principal grievance, as projected by learned counsel for petitioner, is that though the Tribunal while following the earlier order of Coordinate Bench of this Court dated 03.03.2023 passed in MP. No.1262/2023 and other connected petitions has directed for deciding representations of petitioner afresh by speaking order but while doing so has vacated interim order granted during pendency of OA. It is submitted that Coordinate Bench of this Court in MP. No.1262/2023 and other connected petitions while directing respondents to consider representation against transfer has extended interim orders till outcome in the representation but no such similar direction has been passed by the impugned order.
5. Learned counsel for Kendriya Vidyalaya Sangathan (for brevity "K.V.S.") has relied upon decisions of Apex Court in E.P. Royappa vs. State of Tamil Nadu (1974) 4 SCC 3; B. Varadha Rao vs. State of Karnataka (1986) 4 SCC 131; Union of India & Others vs. H.N. Kirtania (1989) 3 SCC 445; Shilpi Bose & Others vs. State of Bihar & Others 1991 Supp (2) SCC 659; Union of India & Others vs. S.L. Abbas (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle & Another vs. Rajendra CH. Bhattacharjee & Others (1995) 2 SCC 532; State of M.P. & Another vs. S.S. Kourav & Others (1995) 3 SCC 270; Union of India & Others vs. Ganesh Dass Singh (1995) Supp.(3) SCC 214; Abani Kanta Ray vs. State of Orissa & Others (1995) Supp.(4) SCC 169; National Hydroelectric Power Corporation Ltd. vs. Shri Bhagwan & Shiv Prakash (2001) 8 SCC 574; Public Services Tribunal Bar Association vs. State of U.P. & Another (2003) 4 SCC 104; Union of India & Others vs. Janardhan Debanath & Another (2004) 7 SCC 405; State of U.P. & Others vs. Gobardhan Lal (2004) 11 SCC 402; Kendriya Vidyalalaya 10 Sangathan vs. Damodar Prasad Pandey & Others (2004) 12 SCC 299; Somesh Tiwari vs. Union of India (2009) 2 SCC 592; Union of India & Others vs. Muralidhara Menon & Another (2009) 9 SCC 304; Rajendra Singh & Others vs. State of Uttar Pradesh & Others (2009) 15 SCC 178 and State of Haryana & Others vs. Kashmir Singh & Another (2010) 13 SCC 306 to emphasize limited scope of judicial interference in cases of transfer of service. It is submitted that petitioner as well as other similarly placed Teachers are continuing at the present place of posting since long which had caused occurrence of vacancies in various schools all over the nation leading to disruption in the right to school education, which is now a constitutional right under Article 21A of Constitution. Learned counsel has drawn attention of this Court to the earlier order of Coordinate Bench of this Court passed on 19.04.2023 in MP. No.1327/2023 where similar orders were passed directing respondents to consider representation of petitioner therein by observing that interim orders passed during pendency of MP. No.1327/2023 shall continue till 28.04.2023 or till decision on the representation whichever is earlier whereafter petitioner therein was advised to join at the transferred place without awaiting outcome of representation. It is submitted that in view of order passed in MP. No.1327/2023 by Coordinate Bench as aforesaid, the Tribunal has rightly declined to grant any interim relief while directing the respondents to consider representation.
6. After having heard learned counsel for rival parties, what is noticeable is that the interim protection order dated 19.04.2023 passed in MP. No.1327/2023 was restrictive as compared to interim protection granted in similar cases by Coordinate Benches passed on 03.03.2023 in MP. No.1262/2023 & on 08.06.2023 in MP. No.3019/2023.
116.1 Thus, there is some inconsistency between orders passed by two Coordinate Benches of this Court on 08.06.2023 and 03.03.2023 on one hand and order passed on 19.04.2023.
6.2 Learned counsel for rival parties have pressed into service several decisions of Apex Court and as well as High Courts and a decision of Principal Bench of Central Administrative Tribunal rejecting the case of similarly placed Teachers.
6.3 This Court declines to enter into the prolixity of dealing with merits of claim put up by transferred Teachers in their representations and also merit of the justification raised by the employer in support of transfer. Reason being that limited question before this Court is only as to the inconsistency between orders passed by Coordinate Benches (supra).
7. However, this Court is of the considered view that since two other Coordinate Benches on 03.03.2023 and 08.06.2023 protected transferred employees till decision of their representation, it would be appropriate and in the interest of judicial consistency to interfere with impugned order of Tribunal to the limited extent of passing similar protective orders to transferred Teachers as was passed by Coordinate Benches on 03.03.2023 and 08.06.2023.
8. In view of this order being passed in peculiar set of circumstances, the decisions cited by learned counsel for petitioner in the case of (2000) 1 SCC 644 (Sub-Inspector Rooplal & Another vs. Lt. Governor Through Chief Secretary, Delhi & Others) and (2011) 12 SCC 499 (Gammon India Limited vs. Commissioner of Customs, Mumbai) are not being discussed.
129. Consequently, keeping in mind the interest of transferred Teachers on one hand and also ensuring preservation of public interest that vacant posts of Teachers do not lie vacant for long, this Court passes following order:-
(i) Direction of Tribunal in its impugned order directing afresh consideration of representation of transferred Teachers herein is upheld;
(ii) Petitioner herein and similarly placed transferred Teachers are given liberty to prefer supplementary representations latest by 24.06.2023 on the KVS Portal, which shall remain open only till midnight intervening 24th & 25th June, 2023
(iii) K.V.S. is thereafter directed to consider the earlier and supplementary representations by passing a speaking order dated latest by 30.06.2023;
(iv) Aforesaid direction is being issued to ensure that transferred Teachers start discharging their teaching duties from 3 rd/4th of July, 2023 at the place as per outcome of representation;
(v) It is further directed that decision of representations be communicated on line to all the concerned transferred Teachers latest by 01.07.2023.
(vi) In case transferred Teachers herein have been relieved, they will not be forced to join at the transferred place till decision is taken on their representations as per time line fixed above.
(vii) Transferred Teachers are well advised that since they are working on transferable posts, their personal causes are always subservient to the larger public interest of ensuring uninterrupted 13 teaching activity at the place of their posting to be decided by KVS for ensuring preservation of fundamental right to education of the children under Article 21A of the Constitution.
10. With aforesaid directions, present petition stands disposed of. No order as to cost.
(SHEEL NAGU) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
mohsin
Digitally signed by MOHAMMED
MOHSIN QURESHI
Date: 2023.06.22 10:46:44 +05'30'