Karnataka High Court
C B Lalitha vs The State Of Karnataka on 22 July, 2013
Author: Huluvadi G.Ramesh
Bench: Huluvadi G Ramesh
1
IN THE HIGH COURT OF KARNATAKA AT BANGALORE
Dated this the 22nd day of July, 2013
Before
THE HON'BLE MR JUSTICE HULUVADI G RAMESH
Writ Petition 49502 / 2012 (Edn)
Between
C B Lalitha, 32 yrs
W/o Shashidar K N
Asst. Mistress
Govt. Composite High School
Chikkakanagalu, Alur Taluk
Hassan District Petitioner
(By M/s Lex Nexus, Adv.)
And
1 State of Karnataka - by its Secretary
Education Department, M S Building
Bangalore
2 Commissioner of Secondary Education
K R Circle, Bangalore Respondents
(By Smt M C Nagashree, GP)
Writ Petition is filed under Art.226/227 of the Constitution praying
to declare that R1 continues to exercise power of superintendence and
control over all educational institutions and persons employed in such
2
institutions notwithstanding anything contained in Act 29 of 2007 and
hence direct R1 to consider the revision filed under S.131 of the Karnataka
Education Act, 1983 and to declare R 8(13) of the Karnataka State Civil
Services (Control of Transfer of Teachers) Rules 2007 is ultravires S.6 of
the Karnataka State Civil Services (Regulation of Transfer of Teachers) Act,
2007, etc.
Petition coming on for preliminary hearing this day, the Court made
the following:
ORDER
Petitioner is a lady who is presently working as an Assistant Mistress in Government Composite High School, Alur Taluk at Hassan coming under Mysore Division and her husband is a practicing Advocate in Bangalore. Since she is serving in Hassan for nearly six years, she sought for transfer from Mysore Division to Bangalore Division on the ground of joining spouse. In the normal course, cases of transfer would be considered in the usual course on an annual basis or on expiry of three years at a particular place not only in education department but almost in all departments and only in exceptional cases, transfers are made either in public interest or on the recommendation of the Chief Minister. 3
Here is a case where the Department has adopted counseling through computerisation preparing statistics based on seniority, to be considered on priority - may be to reduce the burden of manual work this method is adopted. But by this method, the authority would not be in a position to consider individual cases and their hardship. There are certain categories to be considered for transfer. There is also a category provided at the time of counseling, i.e., joining spouse as per S.6(2)(1) of the Karnataka State Civil Services (Regulation of Transfer of Teachers) Act, 2007. In the process of counseling, the department would be under the impression such transfers under different categories are considered. But genuine cases for transfer are ignored in this process particularly the case of 'joining spouse'. The government, considering the case of spouses to work in the same place or a place nearby to the place of work of the other spouse recognising the need not to disturb family life, has taken a decision to consider the cases of such persons under a special category fixing 1% of such cases to be considered during counseling which may works out more hardship as a person in the waitlist may not be in a position to get a nearby place where the husband/wife is working. The government must adopt a pragmatic 4 approach. As per the data obtained by the petitioner's counsel under the Right to Information Act, for Bangalore Division, only four cases are pending consideration from other divisions under the 'joining spouse' category. On the petitioner's application seeking transfer to Bangalore division, citing this counseling process and other Rules, the application has been kept in abeyance. Hence, this petition.
The petitioner who is working as an Assistant Mistress in the government school at Hassan, Mysore Division since 2007-08, after she became eligible to be considered for transfer, on completion of three years, made an application for transfer during 2010. Now it is 2013 and still she is struggling to get a transfer to join her spouse. Pointing out the inherent defect in the method adopted for counseling that too with reservation of only 1% under the category of joining spouse, petitioner's counsel argued that it works out hardship and may not materialise at all and would not serve the purpose except for a few who are in the top of the waitlist.
This Court while making an interim order had expressed to convey 5 to the government that this counseling / method adopted would cause inconvenience to the children of the spouses and would also amount to child abuse as a pragmatic approach has not been adopted to accommodate or provide transfer to nearby place or to the place where the other spouse is working. In this view of the matter, fixing of 1% reservation on cases to be considered under the category of joining spouse is totally arbitrary and irrational.
As per the submission made by the petitioner's counsel, only four persons applications are pending consideration so far as Bangalore Division is concerned i.e., from outside Bangalore Division to Bangalore Division. It may not be impossible for the authorities to consider those four cases including that of the petitioner, to accommodate them in Bangalore division or else the rules framed for counseling i.e., under the category of 'joining spouse' the percentage fixed at 1% i.e., R 8 (13) of the Karnataka State Civil Services (Regulation of Transfer of Teachers) Rules, 2007 has to be treated as arbitrary, discriminatory and violative of Art.14 of the Constitution and it is hereby ordered, as a matter of convenience, to 6 accommodate on priority the persons who seek transfer on the ground of joining spouse across on cent per cent reservation - at least by providing reservation of 5% would suffice to the persons who are in the wait list. This observation comes in the wake of public interest as the devotion to duty of the spouses working at different places away from the family and children would get affected by way of frequent leave and ultimately the interest of students will also have to be taken into consideration. Further, if minimum comfort of being with the family is not provided, it will also adversely affect the children. This provision of transfer on the ground of joining spouse is once in a life time provision and as such, it should be treated as a special category and on priority basis.
In that view of the matter, fixing 1% reservation under R 8(13) of the Rules for the category of persons seeking transfer on the ground of joining spouse is quashed. The respondent authorities are directed to transfer the petitioner from Mysore Division i.e., from Hassan to Bangalore Division either at Bangalore or nearby Bangalore within a radius of 50 kms as she is seeking transfer from 2010 itself. This direction shall be 7 meticulously followed for this academic year only failing which the petitioner would be at liberty to initiate contempt proceedings.
Petition is allowed.
Sd/-
Judge an