Central Administrative Tribunal - Delhi
Mrs. Nisha Saraswat vs Mrs. Avinash Dikshit on 17 December, 2012
CENTRAL ADMINISTRATIVE TRIBUNAL
PRINCIPAL BENCH
OA No.3017 of 2012
New Delhi this the 17th day of December, 2012
Honble Dr. Dharam Paul Sharma, Member (J)
Mrs. Nisha Saraswat,
W/o Mr. Vivek Kumar Saraswat,
Flat No.-T-III/20 (School Campus)
Kendriya Vidyalaya No.1,
Sadar Bazar Road,
Delhi Cantt-110010.
.... Applicant
( By Advocate Mrs. Avnish Ahlawat )
VERSUS
1. Mrs. Avinash Dikshit, Commissioner,
Kendriya Vidyalaya Sangathan,
18, Institutional Area,
Shahid Jeet Singh Marg,
New Delhi.
2. The Principal,
K.V. No.IV, Kandhar Lines,
Near Cariappa Vihar,
Delhi Cantt.
Delhi-110010.
3. Ms. Jaya Sharma,
PGT (Chemistry)
KV No.1
Sadar Bazar Road,
Delhi Cantt.
Delhi-110010.
(To be served through Principal of the School)
.. Respondents
( By Advocates Shri K.M. Singh for R-1 and R-2 and
Shri R.N. Singh for R-3 )
O R D E R
The applicant, a PGT (Chemistry) with the respondents Sangathan, has filed this Application under Section 19 of the Administrative Tribunals Act, 1985 praying for the following reliefs:-
(i) Pass an order of quashing the impugned transfer order dated 21.02.2011 and 30.08.2012, declaring the same illegal, arbitrary and passed with malafide intention and consequently the applicant is allowed to perform her duties at KV No.1 Delhi Cantt., by placing respondent no.3 at some other appropriate Kendriya Vidhyalaya.
(ii) Quash the transfer and posting order dated 26.04.2012 of respondent no.3;
(iii) Applicant may be allowed to join KV No.1 Delhi Cantt. or continue working at KV No.IV Delhi Cantt.
(iv) Any other relief which the Honble Tribunal deem fit and proper may also be granted to the applicant in the facts and circumstances of the case, along with cost of the litigation.
2. The applicants case in brief is are as follows:-
2.1 On 15.11.2010, the respondents passed an order by which one Ms. Sushma Kumari was transferred from K.V. Adampur to K.V. Tagore Garden by replacing Smt. Neelam Khattar, PGT (Chemistry) from K.V. Tagore Garden as Smt. Neelam Khattar was at serial No.2 in the station seniority list. Subsequently, on 25.11.2010, the respondents cancelled the transfer of Smt. Neelam Khattar and she was again posted in same K.V. Tagore Garden. Ms. Sushma Kumari was transferred to K.V. No.1 Delhi Cantt. and the applicant was ordered to be transferred to K.V. Rewari vide order dated 25.11.2010. The applicant was relieved on 26.11.2010 in absentia as she was on leave due to sickness. Ms. Sushma Kumari was allowed to join K.V. No.1, Delhi Cantt. in place of the applicant. On 1.12.2010, the applicant made a representation to the respondents informing that there was no vacancy at K.V. Rewari, as some other teacher, who was also displaced, joined at K.V. Rewari on 29.11.2010. In her representation, the applicant submitted that she being at serial No.3 in the station seniority list was displaced by ignoring two teachers at serial No.1 and 2 and thus, the transfer was stated to be against the transfer policy of the respondents. The respondents modified the earlier transfer order of the applicant and passed a fresh order of transfer transferring the applicant at K.V. OCF, Chandigarh. On 13.12.2010, the applicant submitted a representation against the modified transfer order alleging that the transfer itself was contrary to the transfer policy and further submitted that she was undergoing treatment in AIIMS and RML Hospital since April, 2010, as she was suffering from Osteoarthritis of both the knees with Lumbar Canal Stenosis. Besides she had the liability of her unmarried daughter who met with a serious accident in which she suffered multiple injuries for which she had been operated twice and had again been advised for operation sometime in February, 2011. Accordingly, she submitted that it would not be possible for her to go to the new place of posting at that stage and requested for recalling/re-modifying the transfer order. When no response was received from the respondents to her representation, the applicant filed OA 268/2011, which was disposed of vide order dated 18.01.2011 with the directions to the respondents to take appropriate decision on the representation of the applicant taking into consideration the grounds raised by the applicant in her OA as an additional representation. The respondents were restrained from shifting the applicant from her present posting at Delhi until one month from the date the applicant is communicated the decision on her representation. The respondents then issued a Memo dated 21.2.2011 vide which the applicant was attached with K.V. No.IV, Delhi Cantt., but the same was opposed by the applicant being in contravention of the directions contained in the order of this Tribunal dated 18.1.2011 passed in OA No.268/2011. The applicant then filed CP 270/2011 alleging that the Memo dated 21.02.2011 passed by the respondents was in contravention of the directions issued vide order dated 18.01.2011 in OA No.268/2011. The said CP stood disposed of with the directions to the respondents to dispose of the applicants representation against her transfer order within a week and not to disturb the possession of the staff quarter in K.V. No.1 for one month thereafter. The applicant then reported for duty at KV No.IV, Delhi Cantt., on 06.04.2011. The respondents then passed Memo dated 13.04.2011 directing the applicant to join her duty at KV, OCF, Chandigarh on or before 15.05.2011. This was challenged by the applicant in OA No.1637/2011. Vide order dated 4.5.2011 passed in OA 1637/2011, the respondents were directed to maintain status quo in the matter and also consider the applicants request for release of salary and allowances from December, 2010 as were admissible as per law. The OA 1637/2011 was disposed of vide order dated 28.2.2011 on a consensual basis. The relevant part of that order reads as follows:-
..The number of orders under challenge is indicative of the chequered history of the case. During the intervening period commencing from 25.11.2010 when the first transfer order under challenged was passed, a lot many developments had happened. In the meantime, the matter has been argued at length on different dates and finally on 28.2.2012 when it has been mentioned by the respective counsels of the parties that the annual transfer process has already been initiated and the same is at an advance stage and final annual transfer list is likely to be released shortly. The applicant is also due for annual transfer based on her seniority. She has already given her options/choices of her preferred places of posting. The respondents counsel has also stated that the respondents are not inclined to enforce the transfer order under challenge in these proceedings till annual transfer orders are issued as referred to above, provided the applicant does not pursue this Application any further and withdraw it to which the applicant has agreed. It has been mutually appreciated by both sides that in view of the fact that the annual transfers are likely to be made shortly, this Application would, in all probability, be an exercise in futility serving no useful purpose to either of the parties and is prone to generate further litigation, which would not be conducive either to the efficient administration or ideal employer - employees relationship in the Sangathan. The learned counsel for the applicant, however, submitted that the applicant has learnt that there is likely to be a vacancy in KV No.1, Delhi Cantt, Second Shift for the session 2012-13 in the cadre of PGT (Chemistry) and requested that the respondents may be directed to consider adjustment of the applicant against it. This was strongly opposed by the respondents counsel contending that no such directions need to be issued as the respondents have clear cut policy guidelines on the subject and transfers are made accordingly.
2. I find force in this submission put forth by the respondents counsel, especially when the matter is proposed to be settled in the manner based on mutual conciliation. Furthermore, when the applicant is seeking withdrawal of his Application, there would be no room for issuing any such further directions in the matter. It is better to leave the parties to stand by their respective undertaking or, as the case may be, understanding. The learned counsel for the applicant further seeks liberty to seek redressal in appropriate proceedings in case any grievance arises in times to come. Such liberty cannot be granted on the basis of unfounded assumption, depending upon the events that may take place in future which are not amenable to any pre-judgment with precision and certainty. In any case, law takes its own course. Whatever remedy is available to a person under the law of the land requires no liberty from any quarter for its prosecution.
3. In the aforesaid premises and on consensual basis, the Application is disposed of as having been withdrawn on the basis of the understanding mutually arrived at between the parties as referred to above. The parties are left to bear their own costs.
3. Under the Annual Transfer Policy of the respondents, the transfer orders are made annually from March to 31 July of a given year. Vide the respondents communication dated 6.1.2012 (Annexure I at page 60 of the paperbook), the sanction of various posts/cadre in teaching and non-teaching staff and opening of new classes/sections in KV-I, Delhi Cantt. second shift for the session 2012-13, as approved by the Commissioner KVS, includes two posts of PGT (Science) (Chemistry), one of these posts was already in existence during the year 2011-2012. For the year 2012-13, this is increased to two. Thus, there has been an addition of one post. The applicant also submitted his KVS transfer application form (2012). In the said application form, it is open to the applicant to indicate code numbers of five choices of KVs of the present station of posting in order of preference. The applicant gave two choices in her transfer application form, one for KV No.I, Delhi Cantt. and another for KV No.IV, Delhi Cantt. The applicants Transfer Application Form shows 26 displacement count points actually allocated to the applicant. The applicant claims that she is entitled to 50 transfer counts in terms of the transfer guidelines. Vide notice dated 25.7.2011, as at Annexure Q at page 80 of the paperbook, the respondents Sangathan fixed C1 on transfer count and D1 on displacement count for the year 2011-2012 as 18 and 20 respectively. Accordingly, the employees having total transfer counts 18 or more would be considered for request transfer against displacement subject to availability of eligible displace. The employees having total displacement counts below 20 would not be displaced. Since the applicant is due for superannuation in July, 2015, she falls in the category of LTR, retirement due within next three years. It has also been pointed out that the employees whose cases are covered under DFP/MDG/LTR would be exempted from displacement.
4. As per the calendar of activities, the process of annual transfer for the year 2012-13 was completed on 31.7.2012. It has then been decided by the competent authority that no representation regarding transfer/cancellation/modification of transfer shall be entertained henceforth. All the regional offices were accordingly informed vide respondents communication dated 21.8.2012, as at Annexure K, as well as by notice dated 21.8.2012, as at Annexure L. In the annual transfers, one Ms. Jaya Sharma, respondent no.3 herein, was transferred from K.V. Vikaspuri to KV No.1, Delhi Cantt. The applicant claims that Ms. Jaya Sharma is much junior to her in seniority and was having only 10 transfer counts as against 50 of the applicant. When transfers are made as per the policy, from March to July every year, firstly surplus teachers are displaced and thereafter teachers are adjusted as per their choices. The applicant has been attached to KV No.IV, Delhi Cantt. She was therefore entitled to posting to KV No.1, Delhi Cantt. based on her preference as well as transfer counts. The name of the applicant did not find mention in annual transfers made for the year 2012-13 though the applicant has given her preferences for KV No.1, Delhi Cantt. as first preference and KV No.IV, Delhi Cantt. as second preference. Her request for posting at KV No.1, Delhi Cantt. did not find favour with the respondents and she continued with KV No.IV, Delhi Cantt. This is despite the fact that she gave his preferences for KV No.1, Delhi Cantt. as first preference as there was a clear vacancy of PGT (Chemistry) due to opening of a new science section in Class XI in the 2nd shift. Since the respondents have not passed any order for transferring the applicant during the process of annual transfer during the year 2012-13, as per the calendar of activity which has been completed on 31.7.2012, the applicant presumed that she would not be henceforth transferred, as she would be having less than three years for her retirement.
5. However, even though the process of annual transfer was over on 31.7.2012, the respondents issued Memorandum dated 30.8.2012 transferring the applicant to KV Manesar being the nearest available vacancy in Delhi Region, as she could not get her intra station choice transfer to KV No.1, Delhi Cantt. for want of vacancy. The applicant was on medical leave at the time of issuance of this Memorandum, as she had an appointment with doctor at AIIMS for she has been suffering from Osteoarthritis of both the knees with Pers Plannus with Grade III Chondromalacia with Lumbar Canal Stenosis (PIVD L5 S1). When she came back from the hospital, she was shocked to receive the Memorandum dated 30.8.2012. The very next day, she made a detailed representation on 31.8.2012, copy of which is at Annexure B, requesting for cancellation of her transfer order. As per the policy decision, the representation submitted by the staff, is replied on the same day in the evening, as the respondents have constituted PIO (Public Information Officer) to deal with such representations immediately. However, the applicant did not receive any reply to her representation dated 31.8.2012. She made another representation on 4.9.2012. This too was not replied to by the respondents. Feeling aggrieved, the applicant has filed the present Application. The grievance of the applicant has been that her case of transfer was purposely not considered by the respondents during the process of annual transfer of 2012-13. Had it been done, she would have got her posting in KVS No.1, Delhi Cantt. on her own merits against available vacancy in that school. That vacancy was allowed to be filled up by posting respondent no.3 who was having relatively lesser merits viz. transfer/displacement counts vis-`-vis those of the applicant and then a case is sought to be made out that the applicants preference for intra station choice of K.V. No.1, Delhi Cantt. could not be given for want of vacancy at her choice place. The impugned transfer order dated 30.8.2012 is not a part of annual transfer exercise of the respondents. Apart from stating lack of vacancy being the reason for not granting to the applicant her preferred intra station choice of transfer, the impugned transfer order does not reflect any exigency of service or administration or public interest whatsoever, warranting her transfer to Manesar. Besides, it has been made in the mid of the academic session and, above all, the applicant could not have been transferred within three years of her retirement in terms of the respondents own transfer policy guidelines, as her case now falls in the category of LTR when the impugned order has been passed. Above all, the impugned transfer order is not in terms of the order dated 28.2.2012 by which the applicants earlier OA No.1637/2011 was disposed of on consensual basis in view of understanding mutually arrived at between the applicant and the respondents that the respondents would not enforce the transfer order under challenge in that OA as annual transfer order would be issued and the applicant having agreed to withdraw the said Application in view of the fact that the applicant was due for annual transfer based on her seniority and also given her choices and preferred places of posting. Contrary to this understanding between the parties, the applicant was not considered for transfer during the annual transfer process by the respondents as the applicant preferred intra station choice for transfer was filled up by posting respondent no.3 who would not have been given that posting, had the applicants case been considered on its own merits and shortly thereafter impugned transfer order has been passed giving an impression that the applicants preferred intra station choice could not be acceded to for want of vacancy. This action of the respondents is ex facie arbitrary and malafide and liable to be quashed and set aside as such.
6. Opposing the applicants claim, the official respondents in their reply have, inter alia, stated that their employees are having all India transfer liability. The applicant has been continuing in the same school for more than three decades. The impugned transfer order has been passed by the competent authority without affecting the condition of service of the applicant and it is incumbent upon the transferee to join at new place of posting and then only raise her grievances for redressal thereof, if any, before the competent authority. Transfer is an incident of service and the same is not to be enforced by the Courts unless the transfer is either issued by incompetent authority or it adversely affect the service conditions of the transferee or is the result of malafide. None of these conditions is satisfied in the present case. The applicants claims that she has 50 points as transfer counts is factually incorrect, she has in fact 0 transfer count. The applicant is also bad for misjoinder of party inasmuch as the applicant has impleaded the respondent no.3 in this litigation as if the applicant is having any enforceable right to remain posted in KV No.1, Delhi Cantt. in all times to come and if at all at any stage, any other teacher is posted therein that teacher would become necessary party. The applicant has been attached with KV No.IV, Delhi Cantt. keeping in view the orders passed by this Tribunal. However, the fact remains that there was no vacancy in the said school, as the sanctioned post has already been filled up. It has further been submitted by the official respondents in their reply that the applicants claim under LTR on account if her superannuation in July, 2015 is misconceived inasmuch as the applicant was ordered for transfer on 25.11.2010 and relieved from KV No.1 Delhi Cantt. on 26.11.2010 and that has been the basic order of transfer of the applicant in view thereof the applicant cannot claim to be falling under LTR category.
7. The respondent no.3, being the private respondent, in her reply opposed the maintainability of the Application for joinder of unnecessary party, as no cause accrued to the applicant against respondent no.3. The respondent no.3 applied for annual transfer during the year 2012-13 and the competent authority after considering her request had ordered her transfer to KV No.1 Delhi Cantt. where she has joined in May, 2012. The respondent no.3 does not have any personal relationship with any authority and, therefore, the allegation leveled by the applicant for giving any undue benefit to the respondent no.3 by the respondents no.1 and 2 is misleading and wrong and therefore, denied. In addition, respondent no.3 has stated her personal family conditions justifying her transfer to her present place of posting.
8. At the hearing, Mrs. Avnish Ahlawat, learned counsel for the applicant, reiterated the averments made in the OA, more particularly, reference has been made to the applicants representation dated 31.8.2012 wherein it has, inter alia, been claimed by the applicant that she is already under LTR category as her superannuation is due in July, 2015 and yet ignoring this fact, she has been transferred to KV Manesar contrary to the respondents own transfer guidelines which prohibits transfer of a person within three years of his/her retirement. It has emphatically been contended by the applicants counsel that the applicants case could have been considered during the process of annual transfer. Had it been done, the applicant could not have been denied her preferred intra station choice for transfer as there was a clear vacancy available in KV No.1 Delhi Cantt. Having posted the respondent no.3 in that vacancy, it is not open to the respondents to transfer the applicant to a far off place by taking a plea of absence of any vacancy to accommodate the applicant in her preferred intra station choice for transfer. It is all the more relevant to note in this regard that the applicant was having 50 transfer counts as against 10 transfer counts of the respondent no.3 and thus, the applicant had a better claim for transfer to KV No.1, Delhi Cantt. vis-`-vis respondent no.3 who has actually been posted there. Furthermore, as per the respondents own policy, the respondent no.3 was not even eligible for being considered for request transfer as she was having merely 10 transfer counts whereas policy prescribed that the only employees having total transfer count of 18 or more would be considered for request transfer. In any case, as the applicant was not touched upon during the annual transfer process, she was happy continuing with KV No.IV, Delhi Cantt., i.e., her present place of posting. As the applicants case for transfer was not included in the process of annual transfer, she has a bonafide impression that she would not be transferred hence forth at least until the next year annual transfer process by which time she would have already been in receipt of benefit of LTR provision. The applicants belief finds sustenance from the respondents own communication dated 21.8.2012 informing all concerned that process of annual transfer of 2012-13 having been completed on 31.12.2012, no further representation regarding transfer, cancellation or modification of transfer would be entertained hence forth, except of cases involving extreme compassion. It has been strenuously urged by the applicants counsel that the present case is not a case of simple transfer in the exigency of service or administration or public interest. The applicant having been not transferred as a part of annual transfer process, such transfer could not have been made by the respondents in the absence of any exigency of service or administration or public interest, more so, when it is contrary to respondents own transfer guidelines, the learned counsel for the applicant referred to in this regard Para 17 of Old transfer policy, particularly para 17 (4) of the said policy, which was invoked by the respondents while transferring the applicant in the past. The same is not the position in the present case.
9. Shri K.M. Singh, learned counsel appearing for the official respondents submitted that the applicants claim that she was having 50 transfer counts is factually incorrect. He has referred to her transfer application, a copy of which is at Annexure R/1, wherein column Part C pertaining to calculation of transfer count has been left blank by the applicant and the applicant indicated only 26 displacement counts. It has further been submitted by the respondents counsel that the applicant is working in KV No.IV, Delhi Cantt though there is no vacancy. She was accommodated their in view of this Tribunals order. This unnecessarily added to the financial burden of the respondents. Shri Singh further argued that the applicant should have joined at Manesar and then raised this matter before the competent authority in view of the law laid down by the Honble Supreme Court in the case of S.C. Saxena vs. Union of India and others, 2006 (9) SCC 583. It has further been submitted that the applicants case is not a case of LTR as she was not entitled to LTR benefit in respect of which the cut-off date is 31.3.2012. The applicant is due for superannuation in July, 2015 and thus, having more than three years of service on the cut-off date. Shri Singh placed strong reliance on the objective underlying transfer guidelines which clearly states that transfer to a desired location cannot be claimed as a matter of right. Relying upon the case of B. Madhusudan vs. Union of India and others, 2002 (3) AISLJ 72, (CAT) Hyderabad, Shri Singh contended that one having all India transfer liability can be posted anywhere and it will not be open to such transferee to use the same grounds again and again to press his case. In case where malafide is alleged, it has to be proved beyond doubt. Reference has also been made to the case of Shri Udai Vir Singh Rathi vs. Union of India and others, passed in OA No.2785/2010 dated 11.3.2011, wherein after analysis of the case law on the subject, it has been observed that transfer is a part of service condition of an employee which should not be ordinarily interfered with by a Court of law, unless it is found that (i) the authorities who issued the orders were not competent to pass the orders; (ii) the service rules prohibit such transfer; (iii) the order suffers from mala fide of the respondents; or (iv) the transfer suffers from arbitrary action of the executive. Where there is no violation of transfer policy by the respondents, nor there is any discrimination against the employee, transfer in such a case would not be open to any such objection and the administrative exigency will override personal family problem(s) of the transferee in the matter of transfer. Reference has also been made to the case of Shanker Son Dash vs. MHA vs. Ors, in OA No.2602/2012, wherein the court while passing it order dated 17.9.2012 observed that it is the duty of the employee to report for work upon his transfer and then ventilate his grievances and personal problems to the competent authority.
10. Shri R.N. Singh, learned counsel appearing on behalf of the respondent no.3, opposed the Original Application on the ground of misjoinder of party. It has further been submitted that the applicant has no enforceable right which has been taken away by the respondents, including respondent no.1. As regards malafide, no detailed particulars have been furnished in respect thereof by the applicant. The applicant has already been transferred long time back from KV No.1, Delhi Cantt. and she could not have been transferred back in the same school where she continued for more than three decades. There has been no violation of transfer policy guidelines or of any statutory provisions or of any enforceable right of the applicant. The order passed by the respondents is reasoned one and in any case, the transfer of respondent no.3 is in her own right and no cause of action accrued in this regard to the applicant and, therefore, the Application is liable to be dismissed qua respondent no.3 with costs. He has referred to number of cases on the subject of transfer where principles governing transfer orders have been enunciated. Keeping these principles in mind, Shri R.N. Singh contended that the applicant has not been able to make out any case for grant of the relief as prayed for vis-`-vis respondent no.3.
11. I have given my careful consideration to the respective submissions made by all the parties. I have also carefully perused the records of the case.
12. The principles of law governing the subject of transfer are well settled. Succinctly stated, transfer is a condition of service. Where employment carries a transfer liability, it is for the employer to decide as to where to post an employee. Such an employee cannot have a right to be posted at any particular place of his choice. Any order of transfer being administrative one is amenable to judicial review on limited grounds as are permissible under the law. Thus an order of transfer is open to challenge in law on account of lack of competency of the authority passing such a transfer order; infraction of any rule; being arbitrary, stigmatic or punitive; or having been made for collateral purposes rather than being in the exigency of service and thus, vitiated by malafide. Invariably guidelines for transfer are framed with a view to provide transparency, uniformity and objectivity in the matter of transfer. Though, such guidelines strictly speaking do not have a force of law, as these are essentially made for the guidance of the concerned administrative authority to take objective and uniform decision in the matter of transfer, yet deviation from such guidelines too often assumes relevance in ascertaining as to whether transfer in a given case is made arbitrarily or for collateral purposes or is made in the exigency of service or administration.
13. I may now proceed to deal with the impugned order of transfer in the present case keeping in view the principles as referred to above. It is relevant to note in this regard that the earlier OA filed by the applicant herein viz. OA No.1637/2011 was disposed of vide order dated 28.2.2011 on a consensual basis on the understanding that the applicant was due for necessary transfer based on her seniority and had also given her options or choices or preferred places of posting and the respondents agreed not to enforce the transfer order impugned in that OA till annual transfer orders be issued provided that the applicant did not pursue that Application any further and withdrew the same to which the applicant had agreed to. When the applicant sought directions in that case to the respondents to adjust the applicant against available vacancy in KV No.1, Delhi Cantt., second shift started for the session 2012-2013 in the cadre of PGT (Chemistry), the respondents herein opposed this prayer of the applicant on the ground that no such directions need to be issued as the respondents had clear cut transfer policy/guidelines on the subject and the transfers would be made accordingly. The said Application was accordingly disposed of, as having been withdrawn on the basis of understanding mutually arrived at between the parties as referred to above. That being so, I failed to understand, as to why the respondents did not consider the applicants case for transfer during the annual transfer exercise for the year 2012-13. A copy of calendar of activities in respect of transfer as per new transfer guidelines is at Annexure Q (Collectively) (page 81 of the paperbook). Thus, it is seen that annual transfer exercise commenced on 5th January, 2012 and was completed on 31st July, 2012. Upon completion of annual transfer process, the respondents have notified vide their official communication and notice dated 1.8.2012, as at Annexure K and L respectively, that no representation regarding transfer/cancellation/modification of transfer shall be entertained hence-forth, except the cases involving extreme human compassion. It was open to the respondents to transfer the applicant herein based on her seniority as per their own transfer guidelines, subject to availability of vacancy and exigency of service. From the records, it is seen that there was indeed a vacancy in KV. No.1, Delhi Cantt., for which the applicant had given her first preference. The respondents have posted the respondent no.3 in this vacancy though it was her forth preference in her choices of preferred stations submitted by the respondent no.3. The applicant claims that she had got better claim than that of respondent no.3, as she was having 50 transfer counts as against 10, which respondent no.3 was having. The applicants claim of having 50 transfer counts is controverted by Shri K.M. Singh, learned counsel appearing on behalf of official respondents, when he submitted that the applicant was having 0 transfer counts. However, he could not adduce any material in support of his contention except the fact that the transfer application form submitted by the applicant displayed displacement counts and no transfer counts. Nevertheless, as per the calendar of activities, 25th February has been designated the date for displaying displacement and transfer counts in respect of all employees by the regional offices. The official respondents could have adduced the transfer counts allotted to the applicant as per their transfer guidelines and then show that even if she has been considered on that basis, she would not have been entitled for that preferred place of posting at KV No.1, Delhi Cantt. As against this, the applicant has annexed a copy of transfer counts officially allotted to her, as displayed by the regional office, wherein her transfer counts are shown as 50 and the official respondents have not adduced any plausible explanation as to why the applicant was not considered during the annual transfer exercise based on her seniority having total 50 transfer counts or otherwise against the vacancy admittedly available in KV No.1, Delhi Cantt. Had she been duly considered and could not be adjusted there against on her own seniority, or otherwise on her own merits, she would certainly not have any cause of action in such a case. Not considering her case for intra station transfer against her preferred choice on her own merits and filling up that vacancy by posting somebody else having apparently lesser transfer counts and then denying the applicants claim to that post for want of vacancy apparently smacks of arbitrariness having been prompted by collateral purposes rather than any exigency of service. Nor it is open to the official respondents to say that the applicant was merely attached to her present posting at KV No.IV, Delhi Cantt., where there is not vacancy against which she could be adjusted, thus, they are unduly burdened by paying salaries to two teachers as against one vacancy, as the same is devoid of any subsistence. It was very well open to the respondents to transfer the applicant during the annual transfer exercise, which they had chosen not to do so for reasons best known to them.
14. The impugned transfer order is certainly not an ordinary transfer order as a part of annual transfer exercise. It has been made after completion of annual transfer exercise. No reasons is forthcoming as to why the applicant is being transferred after completion of annual transfer exercise in the mid of academic session. The tenor of the impugned order is as if the respondents are disposing of the applicants representation for her request for posting in KV No.1, Delhi Cantt., which prayer could not be acceded to for want of vacancy. This action of the respondents is apparently misconceived and misconstrued.
15. There is another important factor to be noted in this regard. At the time of passing of the impugned order dated 30.8.2012, the applicant has clearly less than 3 years for retirement. She is due for superannuation in July, 2015. The applicant claimed that impugned transfer is bad on this count as well, as the provision with regard to LTR has not been kept in view while passing the transfer order. In Para 8 of their reply, the official respondents have stated that the claim of the applicant that she is under LTR on account of she likely to attain the age of superannuation in July, 2015 is misconceived and misleading inasmuch as the applicant was ordered for transfer on 25.11.2010 and was relieved from K.V. No.1, Delhi Cantt. on 26.11.2010 and that has been the basic order of transfer of the applicant and in view thereof, the applicant cannot claim to be falling under LTR. Moreover, this aspect has also been considered in the impugned memorandum dated 30.8.2012.. I have carefully perused the impugned Memorandum/order dated 30.8.2012. There is not a whisper in the said order with regard to the applicants claim under LTR. Furthermore, reckoning of LTR period with regard to the earlier transfer order dated 25.11.2010 is erroneous and misconceived. The transfer order dated 25.11.2010 transferred the applicant to K.V. Rewari. Since that post has already been filled in, the applicant could not join in that post and, therefore, the respondents themselves modified that order on 6-7.12.2010 transferring the applicant to K.V. OCF, Chandigarh. That too under para 17 (4) of the transfer guidelines, which para no longer exists in the revised transfer guidelines as are enforced now. Above all, the respondents have agreed not to enforce this transfer order in view of the mutual understanding arrived at between the parties based on which OA 1637/2011 was disposed of on consensual basis. To say now that the applicant is not entitled to LTR benefits in respect of the impugned order dated 30.8.2012 with reference to the earlier transfer order dated 25.11.2010 that ceased to operate as far back in December, 2010 when the same was modified, which too was ultimately abandoned by the respondents at the time of disposal of OA No.1637/2011 vide order dated 28.2.2011 passed on consensual basis, is erroneous and misconceived, more particularly, in view of the fact that the applicant is due for retirement in July, 2015, i.e., within less than 3 years from the date of passing of the impugned transfer order dated 30.8.2012.
16. At the hearing, Shri K.M. Singh, learned counsel appearing for the official respondents, tried to wriggle out of this dilemma by stating that cut off date for LTR in the transfer guidelines is 31.3.2012. This too, I find, is misconceived, as such a cut of date would be more appropriate in the case of annual transfer exercise for which the calendar of activities has been duly prescribed by the respondents. Once the annual transfer exercise isover, the cut off date losses its relevance. By way of necessary implication, such a cut off date in respect of application for LTR would be appropriate in case of administrative transfer and not on request transfer which are made annually. Once annual transfer exercise is over, the period of LTR would be reckoned from the date from which the transfer order is made in a given case. The provision regarding LTR based on retirement due within next three years is a beneficial provision intended to help and facilitate an employee in settling down upon his/her retirement at a place of his/her choice. Keeping the objective underlying this provision, it has to be construed in such a way so as to further its underlying object, especially in cases where the provision is amenable to more than one interpretation. Keeping this in view, the applicant should not have been transferred within three years of her retirement in terms of the respondents own policy in this regard. The respondents have themselves decided vide their notice dated 27.5.2011, as at Annexure Q, to the effect that the employees, whose cases are covered under LTR among other, namely, DFP/MDG would be exempted from displacement. That being so, the applicant should not have been transferred on 30.8.2012 vide the impugned order when she was having less than 3 years for retirement. Of course, the transfer of an employee can always be made in organizations interest and even in relaxation of transfer guidelines with the approval of the Chairman. Nonetheless, the respondents have not pointed out any such organizational interest or approval of the Chairman in the present case.
17. The applicant had initially not challenged the posting of respondent no.3 in KV No.1, Delhi Cantt. for which she gave her preference but somehow was not considered during the exercise of annual transfer for the apparent reason that she was not touched upon by the respondents during such annual transfer exercise and she bonafide believed that she would not be hence forth transferred. Now, transferring the applicant immediately thereafter to Manesar stating that she could not be accommodated in KV No.1, Delhi Cantt., for want of vacancy for which she has indeed applied but had not been considered at all, would certainly, cause serious prejudice to the applicant interest as she has been deprived of due consideration to which she was entitled as per the respondents own transfer policy/guidelines as well as under the law upon consideration of equality in the matter of employment conditions. When the order of transfer is actuated by some collateral purposes than the interest of administration, it is viewed as having been vitiated by malafide in law. That being so, it cannot be said that the applicant has no cause of action. Even if, the applicant is not having any enforceable right in the matter of transfer, nevertheless, she is entitled for due consideration of her claim under the law. In these circumstances, we do not find that the present Application is bad for mis-joinder of party.
18. In these circumstances, we refrain ourselves from interfering with the transfer/posting of respondent no.3 which may otherwise be open to objection on the ground of non-consideration of the applicants claim for the same vacancy. Since the applicant is satisfied by continuing even at KV No.IV, Delhi Cantt., we quash and set aside the impugned order dated 30.8.2012. The applicant has herself prayed in Para 8 (iii) of her Application that she may be allowed to join K.V. No.1, Delhi Cantt., or continue working at KV No.IV, Delhi Cantt.. Having quashed the impugned transfer order dated 30.8.2012, and not interfering with the posting of respondent no.3, the only relief that can logically be granted to the applicant in this case in terms of her alternative prayer as above, namely, to allow her to continue in her present place of posting, i.e., KV No.IV, Delhi Cantt. It will be open to the official respondents to re-deploy the staff so rendered surplus in KV No.IV, Delhi Cantt., in excess of sanctioned strength in exercise of their power on administrative transfer or alternatively, it will also be open to the official respondents to consider accommodating the applicant in KV No.1, Delhi Cantt. by displacing the employee there on relevant consideration of displacement/transfer counts as per their own transfer policy/guidelines, if they consider it proper and necessary. Needless to say that the applicants case is covered under LTR and she shall be exempted from displacement in terms of the respondents own decision.
19. The Original Application is allowed in terms of the above directions. No order as to cost.
(Dr. Dharam Paul Sharma) Member (J) /ravi/