Central Administrative Tribunal - Chandigarh
Mukesh Yadav vs Kendriya Vidyalaya Sangathan on 22 December, 2023
1- O.A. No. 868/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
CHANDIGARH BENCH
Original Application No.060/868/2023
Pronounced on: 22.12.2023
Reserved on: 13.12.2023
CORAM: HON'BLE MR. SURESH KUMAR BATRA, MEMBER (J)
Mukesh Yadav, TGT Maths, Employee Code 49301, aged 38 years, W/o
Sukhvir, working at Kendriya Vidyalaya Sangathan, KV no. 1, AFS,
Sector -14, Gurugram. Group B
.... Applicant
(By Advocate: Mr. Jagdeep Jaswal)
Versus
1. The Commissioner, Kendriya Vidyalaya Sangathan, 18,
Institutional Area, Shahid Jeet Singh Nagar, New Delhi-110016.
2. Principal, Kendriya Vidyalaya Sangathan, KV no. 1, Sector 14,
AFS Gurugram.
3. Aman Yadav (Emp. Code 81991) Trained Graduate Teacher
Mathematics, transferred from Kendriya Vidyalaya Roing to present
Kendriya Vidyalaya No.1 AFS Gurgaon and temporarily attached to
Reginal Office. KVS, Gurugram.
... .Respondents
(By Advocate: Mr. R.K. Sharma)
ORDER
Per: SURESH KUMAR BATRA MEMBER (J):-
1. The applicant has filed the present Original Application under Section 19 of the Administrative Tribunals Act 1985 seeking the following relief:-
i) Quash impugned transfer Order No. F. No. 11-E-
II046/2/2023-ESTT-II/Part1-A-2-II-(A)-b(i) & (ii)-Administrative
grounds (Annexure A-1) passed by respondent No. 1, whereby the applicant has been ordered to be transferred from KV no. 1, AFS 2- O.A. No. 868/2023 Gurugram to KV Anna Nagar Chennai and respondent no. 3 has been transferred vice her, to the extent, it relates to applicant.
ii) Direct the respondents to allow the applicant to continue her service from KV no. 1, AFS Gurugram as TGT Maths.
2. The facts leading to filing of the present case are that the applicant is a regular employee of Kendriya Vidyalaya Sangathan initially posted at KV BSF Raisinghnagar Rajasthan w.e.f. 14.10.2011 as Primary Teacher. She completed the hard station tenure at KV BSF DBN, Shikarpur, Amritsar (KV-1696) from 15.05.2013 to 03.07.2015. Thereafter, she was posted at KV No. 1 AFS Gurugram w.e.f. 04.07.2019 and since then she has been working there. She has already completed hard tenure at from 15.5.2013 to 03.07.2015 at DBN Shikhar (KV-1696). Vide order dated 04.08.2023, the applicant has been transferred from KV Gurugram to KV Anna Nagar Chennai and the private Respondent No. 3 has been adjusted at her place. She made a representation dated 05.08.2023 (Annexure A-2) to Respondent No. 2 to modify her place of posting and adjust her at some nearby place. The applicant contended that her representation was not forwarded by the respondent no. 2 to the competent authority, therefore, she approached the respondent no. 1 with representation dated 05.08.2023. Her grievance was not redressed by Respondent No. 2. Feeling aggrieved, the applicant filed O.A. No.733/2023 which was disposed of by this Tribunal vide order dated 09.08.2023 while directing the applicant to make a detailed representation with further direction to the respondents to dispose of the representation (Annexure A-2) and additional representation to be submitted by the applicant, by passing a reasoned and speaking order. 3- O.A. No. 868/2023 Pursuant to the directions of this Tribunal, the applicant submitted a detailed representation dated 11.08.2023 (Annexure A-7) which has been rejected vide order dated 01.09.2023 (Annexure A-8). Along therewith, the respondent no. 2 issued relieving order of the applicant on the same day directing her to report the Principal KV Anna Nagar Chennai.
3. The applicant contended that it would be extremely hard for her to move to KV Anna Nagar, Chennai situated at 2136 Km, at this stage. She has also completed "Hard Station Tenure" w.e.f. 15.05.2013 to 03.07.2015 at KV DBN Shikar (KV Code-1696). She also submitted that many senior fellow members (whose displacement count is more than her) i.e. Sr. no. 216 and 261 and who have never been posted at Tenure Stations, got transfers to nearby Delhi. Her son is just 7 years old and her daughter is 12 years old, studying in 2nd and 7 standards respectively and are in the middle of their academic session. Her father in law is also suffering from Intestine and Liver disease since last year and her mother- in-law is also suffering from high blood pressure. Her husband is practicing as an advocate and used to travel most of the time from Gurugram to Chandigarh. She mentioned all these grounds in her representation requested the respondents to modify her place of posting but the respondents without addressing these points, rejected her representation.
4. It has also been contended that as per Part I-A, Para 2(II) (b) (ii & iii), of policy of Transfer Guidelines of Kendriya Vidyalaya Sangathan 2023 (Annexure A-3), the applicant could have been displaced, had she completed 10 years of stay. But in the present case, she has been 4- O.A. No. 868/2023 displaced against the policy because she has only five year active stay at present station.
5. That respondent after issuance of the abovementioned transfer policy, called for options of „Yes‟ or „No‟ from employees, who were due for transfer and keeping in view that fact that children are in the crucial stage of his education, applicant submitted her option „No‟ for transfer keeping in view her family conditions and submitted her options (Annexure A-4) for KV Manesar NSG, KV Rewari, KV Delhi, KV Faridabad and KV Jajhar, all situated close to her Station for easy accommodation of the prevailing circumstances, as required by the respondents. The applicant contended that other senior most employees have got transferred in NCR but she has been discriminated against by the respondents. Reliance has been placed upon judgments of the Hon‟ble Supreme Court including in the cases of Director of School Education Madras & Ors Vs. O. Karuppa Thevan 1994 SCC Suppl (2) 666, S.K.Naushad Rahaman & Ors Vs. Union of India and Ors, Shyam Narayan Jain Vs. State of Rajasthan & Ors, 1995 (2) SCT 79 and Home Secretary, U.T. Chandigarh Vs. Darshjot Singh Grewal, JT 993 (4) SC 387 and S.V. Singh Vs. Union of India and Others (Calcutta) 1988 (2) SLR 717.
6. The respondents filed written statement resisting the claim of the applicant. It has been stated that the applicant having displacement count of 10 was displaced by another employee, who had completed tenure at hard in priority area and was therefore eligible to be accommodated in a location of his choice stations, where vacancies were available or by displacing employee, who had completed their tenure at a 5- O.A. No. 868/2023 particular station as per the KVS transfer policy 2023. The contention that other employees displaced have been given postings at nearby stations is not valid as the transfer process was conducted through computer software as per the transfer policy 2023 of KVS and the places, where there were vacancies available for the concerned employees, who had been displaced were allotted by the software itself, and the concerned Vidyalayas were allotted accordingly. The ground of spouse is not applicable to the employees as a perpetual reason to remain posted at the current station. The personal difficulties, family circumstances, education of children and health issues of the dependent family members are considered by the competent authority and the ultimate decision rests with the administrative authorities. It has been explained that applicant given five choice stations out of which at three places there was no vacancy and at other two places the persons with more displacement counts have been adjusted. Moreover, the applicant did not apply for transfer in 2023 and filled out only five choices for displacement. The applicant cannot displace the employee(s) already posted but can only be accommodated against clear vacancy, if available and only after accommodating the employees opted with „YES‟ for such preferred station as per Policy 2023.
7. Learned counsel for the respondents submitted that Kendriya Vidyalaya Sangathan has a well defined Transfer Policy and transfer of the applicant is based on the administrative exigency and taking into consideration the public interest as the paramount consideration. The Applicant holds a transferable post and is liable to be transferred anywhere in India and that the Applicant has no vested right to remain 6- O.A. No. 868/2023 posted at one place or the other and that this Tribunal ought not to ordinarily interfere with the order of transfer in the absence of mala fides or violation of any statutory provisions which in this case there is none. Further submission is that who should be transferred where and in what manner is for the appropriate authority to decide and that the Courts and Tribunals are not expected to interdict the working of the administrative system by transferring the employees to "proper place" as it is for the administration to take appropriate decision. Reliance has been placed upon a number of judgments including 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 and others vs. H.N. Kirtania, (1989) 3 SCC 445; Shilpi Bose (Mrs.) and others vs. State of Bihar and others, 1991 Supp (2) SCC 659; Union of India and others vs. S.L. Abbas, (1993) 4 SCC 357; Chief General Manager (Telecom) N.E. Telecom Circle and another vs. Rajendra CH. Bhattacharjee and others, (1995) 2 SCC 532.
8. I have gone through the pleadings, judgments relied upon by the parties, perused the material available on record and considered the rival contentions of learned counsel for both sides.
9. This is the 2nd round of litigation by the applicant, a female teacher, seeking cancellation of her transfer from Gurugram to Chennai, a station at a distance of 2136 kilometres. Earlier O.A. (No. 733/2023) filed by her was disposed of with the direction to the respondents to consider and decide her representation by passing a reasoned and speaking order. The respondents were directed to allow the applicant to continue at the present place of posting till the disposal of her 7- O.A. No. 868/2023 representation. The representation of the applicant has been rejected by the respondents vide order dated 01.09.2023 and her relieving order has also been issued on the same date.
10. Learned counsel for the applicant argued that though she has already served at a tenure station and is having lesser displacement counts, still she only has been transferred to a far flung station, Chennai, whereas her other colleagues, who were having more displacement counts have been transferred to choice stations or nearby places. The respondents‟ only argument was that the whole transfer process is computer based and transfers are made by automated process as per the data available on record and applications forms submitted online by the teachers. It has been explained that since the applicant did not opt for transfer in 2023, she cannot displace the employee already posted but can only be accommodated against clear vacancy, if available and only after accommodating the employees opted with „Yes‟ for such preferred station as per policy 2023. I have gone through the Transfer Policy 2023 dated 30.06.2023 (Annexure A-3) carefully and notice that the procedure for calling for the option of „Yes‟ or „No‟ from the teachers in Part 1-A of the Policy 2023, has not been well described in the Policy. The said procedure and its effect must have been specified in the Policy or brought to the notice of employees by way of some other mode before carrying out the said exercise by the employees. Due to lack of proper explanation in the Policy about the newly introduced element of exercising option of „Yes‟ and „No‟ for transfer in the online form, the applicant could not give option judiciously, which resulted into her transfer to a distant place, whereas her other colleagues at Sr. No. 216 and 261, though having 8- O.A. No. 868/2023 more displacement counts, have been adjusted at a near-by station. There is nothing on records to rebut the contention of the applicant.
11. Having heard the contentions of both sides, it is found that the applicant was not considered at first for transfer to her choice stations because she opted "No" for transfer. However, since the respondent No. 3, who has to be adjusted at his choice station after completing his tenure station posting and someone has to be displaced to give place to that person, therefore, the persons with at least 10 displacement counts were considered to be displaced. The other colleagues who have even more displacement counts but given their option „Yes‟ for transfer were accommodated first at their choice stations and the applicant was queued behind for displacement transfer to choice station. Learned counsel for the applicant argued that the applicant, being not aware of such eventualities evolved in the automated transfer process, exercised the option "No" for transfer and she was not allowed to modify her option by the system. It seems that though the applicant is weighed with all the points in her favour for transfer to choice stations e.g. a female employee, already served at tenure station and lesser displacement counts, but she has to suffer due to clicking on „NO‟ option for transfer and for this reason she was not given the benefit of consideration for displacement transfer to choice stations despite having lesser displacement counts and she has been transferred to a station 2136 kms away from her present place of posting.
12. The respondents while considering the representation of the applicant did not address the points raised by the applicant therein. They have just come with the plea that all the transfer process has been 9- O.A. No. 868/2023 made by the computer software developed by the NIC as per the Transfer Policy, 2023. A female teacher, who is mother of two kids, has been transferred to a far distant place Chennai, where she would be facing language barriers also. The posting of such teachers, who do not know the regional language, is not in consonance with the National Education Policy, 2020, which prescribes for teaching in regional language especially up to 8th standard and it would not be in the interest of students as well. Therefore, the impugned order is bad in law being contrary to NEP 2020. It is evident from the tabular chart (Annexure A-10) that in the list of 285 TGT (Math), the applicant is only female teacher, who has been transferred to 2136 kms, whereas colleagues of the applicant have been transferred to stations at the distance of 19 and 24 kms away from the displaced stations.
13. Undisputedly, the applicant has least displacement counts still she has been transferred to a far distant station, whereas others fellow female and even male colleagues, who have more displacement counts are stations seniors have been adjusted at nearby stations. The applicant has two minor children studying at 2nd and 7th standards. She has to care her old ailing father-in-law and mother-in-law. In these circumstances, if she has to move to such distant place, it would definitely shake up her family life. The Hon‟ble Supreme Court while discussing on the transfer policy in its recent judgment in the case of S.K. Naushad Rahman & ors Vs. Union of India and Ors (Civil Appeal No. 1243 of 2022 decided on 10.03.2022), has categorically observed that "women are subject to a patriarchal mindset that regards them as primary caregivers and homemakers and thus, they are burdened with an 10- O.A. No. 868/2023 unequal share of family responsibilities". The respondents have nothing to explain as to why the applicant, who is a female employee, has been transferred to such a far flung different region without considering her family circumstances. The only ground of automated transfer process of computer software cannot be accepted leaving the applicant to suffer just because she clicked on „No‟ option for transfer. I find substance in the argument of learned counsel for the applicant that in TGT Math‟s category all other women employees, who have been displaced have been adjusted within a maximum distance of 250 kms, including number of them being posted within 50 kms and also within the same city.
14. It is seen from the record that the respondents vide order dated 27.10.2023 modified the transfer order of certain employees after considering their representation. Also vide orders dated 14.11.2023, 21.11.2023 and 22.11.2023, the posting stations of number of employees have been modified. However, the representation of the applicant has been rejected without addressing the contentions raised therein and without considering the facts of that case. In deciding the representation of the applicant, the respondents have taken the plea that the transfer process has been carried out through software. The software is a set of instructions and documentations that tells a computer what to do or how to prepare a task. The software works as per the command of the system operator, whereas the Competent Authority is supposed to reasonably consider the actual grievance of the employees, while taking the decisions. The purpose of the direction given vide order dated 16.10.2023 for filing a representation by the applicant and its disposal by the respondents was for its consideration with application of mind with 11- O.A. No. 868/2023 regard to the specific facts and circumstances of the case, but the respondents have not considered the same on the pretext of software based transfer.
15. In these peculiar facts and circumstances of the case, I direct the respondents to adjust the applicant to a near-by vacant station. The orders dated 04.08.2023 to the extent of transfer of applicant and 01.09.2023 (Annexures A-1 colly) and the order dated 05.12.2023 whereby the representation of the applicant has been rejected, are hereby quashed and set aside. The necessary exercise be done within a period of two weeks from the date of receipt of a certified copy of this order. With these directions, the Original Application is disposed of. The Misc. Application No. 2473/2023 also stands disposed of accordingly. No costs.
(SURESH KUMAR BATRA) MEMBER (J) „mw‟