Central Administrative Tribunal - Delhi
Sunil Kumar vs Gnctd on 25 September, 2023
1
Item No. 31/ C-5 OA No. 1413/2023
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH: NEW DELHI
O.A. No. 1413/2023
Reserved on 17.08.2023
Pronounced on 25.09.2023
Hon'ble Dr. Chhabilendra Roul, Member (A)
1. SUNIL KUMAR
S/O OM PRAKASH
RZ P3/191, ROSAPURA,
NAJAFGARH DELHI-110043.
...Applicant
(By Advocate : Mr. J.S. Mann with Mr. Gyanendra
Singh)
Versus
1. GOVT. OF N.C.T. OF DELHI
THROUGH THE CHIEF SECRETARY,
5TH FLOOR, DELHI SACHIVALAYA, NEW DELHI-02,
2. DIRECTOR OF EDUCATION
DTE OF EDUCATION,
GOVT OF NCT OF DELHI,
CIVIL LINES, DELHI - 54.
3. MS RENU BHATIA,
DEPUTY DIRECTOR
ZONE-17 DIST WEST B,
VIKASPURI DELHI -18.
...Respondents
(By Advocate: Ms. Anchal Anand)
2
Item No. 31/ C-5 OA No. 1413/2023
ORDER (ORAL)
The present OA has been filed by the applicant against the order dated 09.05.2023 (Impugned order) vide which the Respondent No.2 has transferred the applicant from Baprola Government Boys Senior Secondary School. Delhi to GBSSS at Awalwas, Jwalapuri, Delhi. He has sought the following reliefs in the OA:
"(a) to quash Transfer Order dated 09-05-23 qua the applicant issued by respondent/DOE (ANNEXURE-A-1); and /or
(b) to direct the respondents to inquire into conduct of the Respondent No. 3 /Ms Renu Bhatia i Delhi and initiate disciplinary action against applicant; and/or
(c) pass any other order/direction which this Hon'ble Tribunal deem fit and proper in favour of the applicant and against the respondents in the facts and circumstances of the case."
2. Brief facts of the case are that the present applicant joined as Primary Teacher with MCD on 09.08.1997.
Subsequently, on 28.5.2010, the applicant joined as TGT in Social Science with the Respondent Directorate of Education, NCTD. He joined as TGT at Govt. Co-Ed senior Secondary School at Baprola. The school was bifurcated on 01.10.2018 to Boys and Girls schools and the applicant remained in the Boys Sr. Secondary School Baprola. Vide the aforementioned 3 Item No. 31/ C-5 OA No. 1413/2023 transfer order dated 09.05.2023, the applicant was transferred from GBSSS Baprola to GBSSS, Awalwas, Jwalapuri. Being aggrieved by the said transfer order, the applicant has filed the present OA seeking the aforementioned reliefs.
3. Notices issued to the respondents. In response thereto the respondents have filed their counter affidavit and thereafter the applicant has filed his rejoinder.
4. The applicant in his OA, duly substantiated by the leaned counsel on his behalf during arguments, has tendered the following grounds in support of the relief claimed by him:
4.1 The impugned transfer order is punitive in nature in the wake of a complaint by a person against him. The respondents should have initiated disciplinary proceedings if the complaint was found, prime facie, had some truth in it. Instead, the respondents have transferred him from a school in which he has built a good rapport with staff and students, as a TGT and a NCC Officer. The transfer is to a school which has no NCC wing and hence, it is clear that the respondents have punished him by this transfer process. Further, the punitive intention of the respondents is evident from the fact that the 4 Item No. 31/ C-5 OA No. 1413/2023 respondent have requested the NCC authorities (DG NCC) on 25.05.2023, to surrender the NCC Troops/Unit from Baprola School.
4.2 The Malafide intention of the Respondents is manifest in their subsequent action by suspending the applicant vide their Order No F.DE-7/119/TOT/Vig/H.O./2023/2835-42 dated 15.05.2023 after he filed the present OA on 11.5.2023.
The suspension order stated that his head quarters shall remain Delhi during the period of suspension. Further the applicant has been issued Memorandum of Charges vide the reference dated 24.05.2023. In his rejoinder, the applicant has mentioned that the complaint by the person against him has been withdrawn and hence, the punitive transfer should have been withdrawn.
4.3 The learned counsel for the applicant drew attention of this Tribunal to the judgment of the Hon'ble Madras High Court in WP (MD) No. 10759 of 2021 titled Narasingraja Vs Directorate General of Police and Ors., decided on 28.10.2021 where in the Hon'ble High Court has analyzed a catena of judgments concerning punitive nature of transfers.
He referred to paras 22, 28, 29 and 30 of the said judgement wherein it was held :
5Item No. 31/ C-5 OA No. 1413/2023 "22. At this juncture, it would be more useful to refer Elumalais case (supra). In Elumalai's case (supra), there was a complaint by way of pseudonymous petition made to the first respondent therein alleging that in the Sub Jail, Tiruvallur, non vegetarian food, liqour and cell phone are allowed and the said complaint was enquired on 30.05.2009 at Sub Jail, Tiruvallur, in which the staff and the prisoners have stated that the petitioner wanted to retain him at Sub Jail, Tiruvallur itself as Grade-1 Warder and on his failure to do so he said that the others would be shunted out of the Sub Jail, Tiruvallur to more than 300 kilometres within three days. Therefore, based upon the said statement, it was concluded in the discreet enquiry that the pseudonymous petition must have been sent by the petitioner alone However, it was decided by the respondents therein not to conduct any enquiry since it was not possible to prove the same. In such circumstances, the impugned orders were passed against the petitioner therein. The decisions in the case of Somesh Tiwari (supra) and S.Sevugan vs. The Chief Education Officer [2006 (2) CTC 468] were relied on by the petitioner therein for the proposition that order of transfer being punitive in nature cannot be sustained without affording an opportunity to him. After elaborately hearing the learned counsel on either side and taking into consideration the decisions cited by both sides, this Court opined that there is no dispute or quarrel on the settled proposition of law that a transfer which is administrative, made in public interest and being incidental to service cannot be challenged. Further, this Court was of the view that since the respondents have not followed the principles of natural justice by affording an opportunity to the petitioner therein and conducting an enquiry, the orders impugned therein were punitive in nature and therefore bad in law and accordingly, came to the conclusion that the impugned orders will have to be set aside. Further, it was held by this Court that even in an enquiry, a statement obtained in a preliminary enquiry prior to a fullfledged enquiry cannot be relied upon. Therefore, in such a case an order passed based upon such an enquiry cannot be sustained Further, this Court took note of a decision in T.Pitchal vs. Deputy Inspector General of Police, Tirunelveli Range, Tirunelveli and another [(2006) 2 MLJ 202] wherein this Court, after 6 Item No. 31/ C-5 OA No. 1413/2023 considering the decisions of the Honourable Apex Court as well as the Honourable Division of this Court, has held that the punishment imposed on the basis of a statement given in a preliminary enquiry cannot be sustained. Considering the principles laid down by the Honourable Division Bench of this Court and the Honourable Supreme Court in the decisions cited supra, this Court came to the conclusion that the impugned orders were bad in law, since the respondents therein have violated the principles of natural justice by not affording an opportunity to the petitioner and not conducting any enquiry before passing the transfer orders, set aside the impugned transfers. Accordingly, this Court allowed the writ petitions and set aside the impugned transfer orders.
28. In view of the above settled legal position, this Court is of the opinion that when transfers are effected after preliminary enquiry on the complaints / allegations, it should necessarily be followed up by a detailed investigation and disciplinary proceedings initiated on the allegations resultantly found to be substantiated. However, in the present case, pruna facie it is found that disciplinary proceedings were initiated and charge memos were issued only when the matter was taken up for hearing that too after the matter was being adjourned on several occassions, which is contrary to the aforesaid GO.Ms No 10, dated 07.01.1994 and the clarificatory letter dated 09.08 1994. Even on perusal of the impugned transfer orders, it is seen that the same were passed on the administrative grounds, however, in the counter affidavit filed by the respondents, it is stated that based on the discreet enquiry report, the impugned transfer orders were passed. Further, according to the respondents, the impugned transfer orders were passed to avoid more complications in the prison administration. That apart, the respondents have not initiated disciplinary proceedings immediately after the incident had taken place and only in the month of September, 2021, by way of filing additional counter affidavit, it was brought to the notice of this Court that disciplinary proceedings have been initiated against the petitioner for the incident alleged to have been taken place in the month of April, 2021 and in the counter affidavit filed in the month of August, 2021, there is no whisper about the disciplinary proceedings against the petitioners and only after the 7 Item No. 31/ C-5 OA No. 1413/2023 matter was taken up for hearing, disciplinary proceedings were initiated and charge memos were issued to the petitioner. Hence, this Court comes to a conclusion that the impugned transfer orders are punitive in nature and there is violation of the principles of natural justice on the part of the respondents and therefore, the respondents have not followed the clarification order issued by the Government and the decision in the case of Elumalai's case (supra) would therefore squarely apply to the facts and circumstances of the present case. Hence, the respondents have violated the principles of natural justice as observed in the aforesaid decision. Hence, for all these reasons, the impugned transfer orders are liable to be set aside.
29. Before parting, this Court is of the opinion that there are various interpretations made by the parties for the definitions "administrative ground" and "punitive in nature". The Courts decide the issue as to whether the transfer is on administrative ground or it is punitive in nature on case-to- case basis depending upon the facts and circumstances of the case. Therefore, for giving more clarity to the definitions "administrative ground" and "punitive in nature", it is the right time for the Government to issue clarificatory guidelines in transfer matters, where allegations / complaints are pending against the employees by taking note of the aforecited decisions of this Court as well as the Honourable Supreme Court.
30. In fine,
(i) The writ petitions are allowed,
(ii) The impugned transfer orders, dated 19.06.2021 and 01.07.2021, passed by the Superintendent of Prison, Central Prison, Palayamkottai, Tirunelveli, are quashed;
(iii) However, this order will not stand in the way of the respondents in passing fresh orders, if they are so advised, in the manner known to law;
(iv) In view of the fact that the writ petitions are allowed and the impugned transfer orders are set aside, the observations made in this order shall not be influenced in the future course of action by both the parties.
8Item No. 31/ C-5 OA No. 1413/2023
(v) It is made clear that this order will not stand in the way of the respondents to proceed with the charges framed against the petitioners in accordance with law.
(vi) No costs. Consequently, miscellaneous petitions are closed."
4.3 The applicant was holding the charge of Associate NCC Officer in the said school. As per Circular dated 02.05.2023 (Annexure-A2), the teachers designated as NCC Officers should not have been transferred to another school not having NCC wing. The learned counsel for the applicant refereed to clause 9 of the said circular which reads as follows:
"9. Teacher under the category of NCC Officer will be transferred only in those cases where NCC Directorate recommends the same and forwards a hard copy of recommendations to the concerned Establishment Branch of this Directorate, on or before 24/05/2023"
4.4 The applicant is holding additional charge of NCC Officer. He has acquired the necessary qualifications under the NCC Act and Rules to become an NCC Officer. He was discharging his duties to best of his ability and building a disciplinary cadre of students through the NCC training. As his appointment as NCC officer was with the approval of the Directorate of NCC , Ministry of Defence, his transfer should have been with the consent of the said Directorate in Ministry 9 Item No. 31/ C-5 OA No. 1413/2023 of Defence. He referred to Section 23 of the National Cadet Corps Act, 1949 which states as follows:
"23. Posting-(1) An officer of the Senior Division of the National Cadet Corps shall be posted to a unit of that Division by the Ministry of Defence, Government of India."
4.5 To buttress his arguments, the learned counsel for the applicant cited the judgement of the Chhatigarh High Court in WPS No.239 of 2023 in Dr Ravi Banjare Vs Sate of Chhatisgarh and Ors, wherein it was held that :
"2. Learned counsel for petitioner would submit that after appointing on the post of Assistant Professor, petitioner underwent training of National Cadet Corps (NCC), he is presently holding rank of Lieutenant and posted as Associated NCC officer. As per directions issued by the State Government as also the Central Government, NCC trained teachers/professors are to be posted only in those schools / colleges where NCC training is being imparted to students. At the transferred place, NCC training is not imparted to students. Hence, impugned order so far as it relates to petitioner is liable to be interdicted. He further submitted that the Administrative Officer of 27th CG Batallion NCC, Raipur wrote letter dated 4.1.2023 (Annexure P-11) requesting for cancellation of transfer of petitioner.
5. Taking into consideration facts and circumstances of case, submissions of learned counsel for parties, in particular submission of learned counsel for petitioner that petitioner is a trained NCC officer and working as Associate NCC Officer at his present place of posting; submission of learned State Counsel that presently NCC training is not being imparted to students at the college where petitioner is 10 Item No. 31/ C-5 OA No. 1413/2023 transferred, I find it appropriate to dispose of this writ petition directing petitioner to submit representation before the Committee constituted under Transfer Policy, 2022,"
4.6 The learned counsel for the applicant further cited the judgment of State Administrative Tribunal of Rajasthan decision dated 20.10.2016 in Appeal No. 674 of 2016 titled DR Rajendra Kumar Purohit Vs Director, College Eduaction, Govt of rajstahn wherein a similar view has been taken that the teachers having NCC assignment due to their special training or qualification in NCC should not be transferred to schools having no NCC wing.
5. Per contra, the learned counsel for the respondents averred that the transfers of the applicant and others on 09.05.2023 are based on administrative exigencies and not based on any individual factor. The present applicant has been in the same school for more than 13 years and the transfer is to effect proper redistribution of teachers among various schools in Delhi for better administration and effective teaching in those schools.
5.1 The learned counsel for the respondents further averred that the Respondents are competent to transfer the applicant and others. The applicant is substantially posted as a TGT 11 Item No. 31/ C-5 OA No. 1413/2023 Social Science Teacher and the NCC charge is only additional charge given to him. It is the prerogative of the Principal of the School to assign the additional charge of NCC Officer to any qualified teacher. The respondent Director, Education is not required to seek approval from the Directorate of NCC, Ministry of Defence before effective transfer of its own employees, irrespective of the fact that those teachers may be assigned additional charge of NCC officer. 5.2 The learned counsel for the respondents averred that the government has the competency to transfer its employees to appropriate place of working. The employee in a transferable job/service has no vested right to stay at a particular place of posting. The learned counsel for the respondents cited the Judgment of the Hon'ble Delhi High Court in Amarjeet Singh Dagar Vs. Union of India & Ors in WP( C ) No. 6311 of 2020 decided on 07.03.2022 wherein the Hon'ble High Court has referred to catena of judgments by the Hon'ble Apex Court holding that the employee has no vested right to stay a particular post in a transferrable post. Particularly, paras 23 & 24 of the said judgment states:
"23. At the outset, it must be emphasised that an employee in a transferable job has no vested right to remain posted at one place. The Courts should not 12 Item No. 31/ C-5 OA No. 1413/2023 readily interfere with the transfer order which is made in the public interest and for administrative reasons, unless the transfer order is made in violation of any mandatory statutory rule or on the ground of mala fide. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order, instead, the affected party should approach the higher authorities in the concerned department. If the Courts continue to interfere with day-to-day transfer orders issued by the Government and/or its subordinate Authorities, there will be complete chaos in the administration which would not be conducive to the public interest. Interference under Article 226 of the Constitution of India is permitted only where the Court finds either the transfer order is mala fide or that the service rules prohibit such transfer or that the Authorities issuing the order were not competent to pass the same. It must be remembered that transfer ordinarily is an incidence service and must be left to the discretion of the Authorities concerned, which are in the best position to assess the necessities of the administrative requirements of the situation. The Courts must maintain judicial restraint in such matters. {Refer. Shilpi Bose (Mrs.) & Ors. vs. State of Bihar & Ors., 1991 Supp. (2) SCC 659; Mohd. Masood Ahmad vs. State of Uttar Pradesh & Ors., (2007) 8 SCC 150; State of Haryana vs. Kashmir Singh & Anr., (2010) 13 SCC 306, and Major Amod Kumar vs. Union of India, (2018) 18 SCC 478)}.
24. In Punjab and Sind Bank & Ors. vs. Durgesh Kuwar, 2020 SCC OnLine SC 774, the Supreme Court summarised the principles applicable to transfer orders, as under:
"17. We must begin our analysis of the rival submissions by adverting to the settled principle that transfer is an exigency of service. An employee cannot have a choice of postings Administrative circulars and guidelines are indicators of the manner in which the transfer policy has to be implemented. However, an administrative circular may not in itself confer a vested right which can be enforceable by a 13 Item No. 31/ C-5 OA No. 1413/2023 writ of mandamus Unless an order of transfer is established to be malafide or contrary to a statutory provision or has been issued by an authority not competent to order transfer, the Court in exercise of judicial review would not be inclined to interfere. These principles emerge from the judgments which have been relied upon by the appellants in support of their submissions and to which we have already made a reference above. There can be no dispute about the position in law."
5.3 In view of the prerogative of the government to effect manpower realignment amongst various work units, the catena of judgments declining any vested right to a government servant in transferrable job not to be transferred, and the non-applicability of NCC Act to NCC officers designated by the school principals, the learned counsel for the respondents fairly argues that the applicant has no case and the transfer order is legitimate.
6. I have gone through the records of the case thoroughly and heard the arguments carefully.
7.1 It is settled law that a government employee has no vested right to remain posted at a particular place of posting.
The Hon'ble Apex Court in catena of judgments have held that an employee in a transferable job is liable to be transferred to any work place under the organization where he is working.
There are also several judgments like the one referred by the 14 Item No. 31/ C-5 OA No. 1413/2023 learned counsel for the applicant in Narasingaraja (supra) where it has been held that when the transfer is punitive in nature, the transfer being effected on administrative ground would not suffice. In the instant case the applicant was given additional charge as NCC Officer in the said school and he has been transferred out to a school where there is no NCC Wing.
There was a previous complaint against the applicant for which the respondents have initiated certain preliminary inquiry. Though the applicant asserts presumption, there is no direct evidence that the transfer order is in pursuance of the said preliminary inquiry or the complaint. `w In view of this, it cannot be said that the transfer is punitive in nature.
7.2 The second averment made by learned counsel for the applicant that a teacher Incharge of NCC or designated as NCC officer should not be transfer without express approval of NCC Directorate of Ministry of Defence is not tenable. The NCC Director is outside the organizational hierarchy of the Department of Education of NCT Delhi. The NCT Delhi is fully competent to exercise its powers to transfer its employees to various schools irrespective the fact that teacher is having additional charge of NCC or not. In the instant case, the applicant is substantially appointed as Social Science TGT 15 Item No. 31/ C-5 OA No. 1413/2023 rather than an NCC Officer with approval of the NCC Directorate, Ministry of Defence. Hence, it cannot be said he is appointed only as an NCC Officer and hence the provisions of the Section 23 of the National Cadet Corps Act 1948 is not expressively applicable to a NCC officer holding additional charge. In view of this, the ratio of judgments quoted by the learned counsel for the applicant namely Dr. Ravi Banjare (supra), Dr. Rajendra Kumar Purohit (supra) are not applicable to the instant case.
8. In view of the above, the present OA lacks merit and hence dismissed. Pending MA(s) also stands disposed of accordingly. However, the respondents are directed to utilize the experience of the present applicant as an NCC Officer at appropriate place at appropriate time as per their discretion for better utilization of trained and experience teacher in NCC matters. No order as to costs.
(Dr. Chhabilendra Roul) Member (A) /daya/