Central Administrative Tribunal - Lucknow
Dr Nasreen Bano Siddiqui vs Kendriya Vidyalaya Sanghthan on 21 October, 2022
CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors
CENTRAL ADMINISTRATIVE TRIBUNAL
LUCKNOW BENCH
LUCKNOW
Original Application No. 332/00375/2021
Order reserved on : 20.05.2022
Order pronounced on : 21.10.2022
HON'BLE MR. DEVENDRA CHAUDHRY, MEMBER (A),
Dr. Nasreen Bano Siddiqui aged about 51 years daughter of Late
Tufail Ahmad Resident of House No. 592K/070, Subhani Kheda,
Dilkusha Cantt. Telibagh, Lucknow.
..Applicant
By Advocate: Shri Dinesh Kumar Tandon.
VERSUS
1. Commissioner, Kendriya Vidyalaya Sangathan, 18- Institutional
Area, Shaheed Jeet Singh Marg, New Delhi-110016.
2. Joint Commissioner, Kendriya Vidyalaya Sangathan, 18-
Institutional Area, Shaheed Jeet Singh Marg, New Delhi-110016.
3. Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Sector 'J', Aliganj, Lucknow.
4. Deputy Commissioner, Kendriya Vidyalaya Sangathan, Regional
Office, Agra KV No. 2, Agra Cantt Campus, Grand Parade Road, Agra
Cantt. Agra- 282 001 (U.P.)
5. Assistant Commissioner (Estt.-II & III), Kendriya Vidyalaya
Sangathan, 18- Institutional Area, Shaheed Jeet Singh Marg, New
Delhi-110016.
..Respondents
By Advocate: Ms. Garima Dixit for Ms. Pushpila Bisht
ORDER
Per Hon'ble Mr. Devendra Chaudhry, Member (A) The present Original application (OA) has been filed on account of non-consideration of the representations of the applicant for modification of the place of transfer.
2. Per applicant, brief facts of the case are that the applicant was appointed as TGT (Hindi) on direct recruitment in Kendriya Page 1 of 8 CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors Vidyalaya Sangathan (KVS) in 2004 and posted first at Khandwa. Thereafter, she has been posted in various places such as Armapur Kanpur, Chakeri Kanpur, AMC Lucknow etc. during course of career. That, in the latest, in 2016 she was posted at KV, CRPF, Bijnaur (2nd Shift), Lucknow, where she joined on 13.05.2016. However, as the said KV was closed therefore the staff therein was redeployed vide office order dated 18.10.2019 (Annexure A-5). It is the submission of the applicant that out of the 07 PGT teachers, 06 were male and one was herself-female. That, all the male teachers were adjusted in places of their choice within Lucknow district. However, she was shifted to Babugarh Cantt instead of Kendriya Vidyalaya, Aliganj (2nd shift) where a post was indeed vacant on 01.11.2019 which was only a fortnight after her transfer of 18.10.2019. That, in contra another teacher Shri Vineet Kumar of Computer Science who was posted at KV, CRPF, Bijnaur-Lucknow inspite of non-availability of post, he was adjusted on 10.09.2021 at KV, RDSO, Lucknow and till then [that is for about two years] not relieved from his place of posting. That, the applicant was relieved from KV Bijnaur vide order dated 23.10.2019 (Annexure A-6) that is within five days of her transfer on 18/10/2019. Because of this discrimination ever since, she has been making representations starting 08.11.2019 praying for modification of transfer to KV, Aliganj (2nd shift), Lucknow, as PGT (Hindi) which post fell vacant from 01.11.2019. That the concerned Deputy Commissioner such as KVS (RO, Lucknow) has also recommended her case however the same has not been Page 2 of 8 CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors considered till date. That, while the respondents are within the authority with regards to redeployment of surplus staff as when a school is closed down at a location, but however, as per Para 7
(h) of the transfer guidelines, if a staff has been redeployed due to declaration as surplus staff, then the concerned staff can be posted back to the earlier station after one year should a vacancy arise and since a period of one year had lapsed since her transfer of 2019 to Babugarh KVS, therefore, the applicant could have been considered -
(a) for being posted at KVS, Gomtinagar / Aliganj (2nd Shift), Lucknow as TGT (Hindi) as that post fell vacant as from 31.01.2020 due to retirement of the concerned teacher at KVS, Gomtinagar (2nd Shift), Lucknow.
(b) for any one of the five posts of PGT (Hindi) which fell vacant in September / October 2021, but the respondents have not considered the case of the applicant in-spite of provision of para 7(h) of the transfer guidelines. It is accordingly prayed that the case of the applicant may now be considered for transfer to a vacant post of PGT (Hindi) at Lucknow.
3. Respondents in their counter affidavit have repelled the contention of the applicant by stating that
(i) after being declared surplus staff at KV, CRPF, Bijnaur, Lucknow as per Para 5 (a) and 7 of the transfer guidelines of KV Sangathan 2018, the staff had to be redeployed and accordingly the applicant has been redeployed and therefore there is no Page 3 of 8 CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors case of the applicant.
(ii) the applicant submitted her online application for annual transfer for the year 2020-21 with a transfer count 24, but, she did not filled up the column of choice of station for inter station transfer, but filled up choice of station for displacement transfer at Lucknow and Gorakhpur only and so her application was considered but could not be acceded to, as she had not filled up the column of choice of station for inter-station transfer. 3.1 Therefore, as the applicant has been redeployed per Para 5 (a) and 7 of the transfer guidelines effective from 01.04.2011, hence, there is no case of the applicant, and so, the OA lacking any merits deserves to be dismissed.
4. Heard the learned counsel for the parties at length and perused all the pleadings filed carefully.
5. The key issue is the consideration of the applicant for transfer to a Kendriya Vidyalaya in Lucknow per the transfer guidelines, in particular guidelines relating to surplus staff transfer per Para 5 (a), 7 and in specific Para 7(h).
6. In order to examine the plea of the applicant, it would be relevant to quote the concerned Paras 5 and 7.
"5. ADMINISTRATIVE TRANSFER OF EMPLOYEES.
Through such transfer KVS shall ordinarily:
a) Redeploy surplus staff in excess of sanctioned strength at a location to other location against sanctioned vacancies.
b) Post employees in Hard stations.
c) Displacement of an employee from a location to accommodate the request of an employee who is LTR/ DFP/ MDG /PH employee / Widow / Single Parent/employees who · have completed tenure in Hard/Very Hard/NER station.
d) Rotational transfer of employees working in sensitive posts in pursuance with the instructions issued by the Central Vigilance Commission circular no.Page 4 of 8
CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors 03/09/13 vide letter no. 004/VGL/090 dated 11.09.2013.
xxxxx
7. METHOD FOR ADMINISTRATIVE TRANSFER.
Administrative transfer under clause 5(a) shall be effected in the decreasing order of displacement count of employees holding a post at station to eliminate surplus· staff and such staff shall be accommodated against clear vacancies.
Administrative transfer under 5(b) shall be effected in decreasing order of the displacement count of employees holding a post to fill up anticipated vacancies in hard station and other desired stations to a desired extent. As regards 5(c). to transfer an employee, as defined in clause 11 (a), to a desired station(s) mentioned in his/her request application form, an employee holding the same post with the highest displacement count, subject to not being below D1 /D2 as prescribed herein below at the relevant station(s) in the order of preference indicated by an employee, shall be able to be displaced in the event if, there is no clear vacancy at the station(s). However an employee seeking request transfer within same station can apply for KVs choice but such transfer will be considered only against vacancy and this will not affect station seniority of the employee and will be liable to be transferred/ displaced in public interest.
While displacing an employee in such manner an effort would be made to post such an employee against a choice station indicated in annual transfer application proforma failing which to the nearest vacancy against a clear vacancy. In case of a tie in the displacement count of employees the male employee shall be displaced.·ln case of a tie between the employees of the same gender the employee with earlier date of joining in present station in present post shall be displaced and in case date of joining also coincides for two or more employees then the youngest employee shall be displaced.
a) Provided, cut off mark D1 on Displacement Count i.e. equal to 10 (Ten) displacement count & D2 on displacement count, i.e. equal to 10 (Ten) displacement count with 10 years stay at the station have been prescribed below which an employee shall not be displaced in a particular year to accommodate the transfer request of employees under para 5(c).
In a situation where clear vaccmcy is not available at the desired station(s) to accommodate the request of employee who has completed tenure in NER/Hard/Very Hard station & whose transfer count is equal to C1, then, an employee who is posted at one of the desired stations & having D1 displacement count, i.e. equal to 10 (Ten) displacement count, shall be displaced to accommodate the transfer request of such employee.
So far as, transfer requests of other priority category employees under para 5(c) i.e. LTR/ DFP/MDG/PH employee/Widow/Single Parent are concerned, they would be given priority in transfer against the available vacancies at their choice stations. If vacancy is not · available at the choice station(s). then, an employee who is having D2 displacement count, i.e. equal to 10 displacement count+ 10 years stay at the station shall be displaced to accommodate the transfer request of these employees.
Page 5 of 8
CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors
b) Provided, more factors can be added/ deleted and points allocated for different factors can be altered on year to year basis to remediate any imbalance resulting in transfers. Changes shall be notified well in advance before inviting transfer applications.
c) Provided, an employee with a higher displacement count can be retained if the employee's services are absolutely crucial in the organizational interest. In such eventuality an employee with next lower displacement count shall be liable to be displaced.
d) Provided, exemption for one year at a time can be given to an employee or group of employees from displacement for such period owing to circumstances or such other administrative exigencies justifying such exemption.
KVS employees whose children are likely to appear in class X & XII Board Exams in the transfer year will get exemption of one year. An Employee who has disabled dependent child may also be considered under this provision on the production of Medical Certificate issued by the competent authority. (For list of disabilities see 11 (e).
e) Provided, an employee can be transferred from a location if the employee's stay has become prejudicial to the interest of the organization at any point of time, employee transferred under this provision shall not be considered for coming back on the same station on request transfer before completion of 03 years stay at the new station.
f) Provided further, an employee can be transferred to a location in administrative exigencies without having any regard to the displacement count of the employee.
g) Provided, an employee can be transferred in public interest from a location to another Location/ station having low staff strength in the same region in the descending order of displacement count after the completion of annual transfer process.
h) An employee, being surplus and redeployed at. some other station under Para 5(a), may be considered for coming back within one year, if vacancy arises later on at the same station from which he/ she was transferred out. In the case of more than one such surplus redeployed employees from the same station, the junior most employee in terms of stay at the previous station shall be given first priority, Provided, that he/she makes request for the same.
On examination of the above, it is quite clear that while Para 5 does indeed have provision with regard to transfer of employees on the basis of sanctioned strength and redeployed thereof, in Para 7(h), there indeed is a provision that an employee being declared surplus and posted to some other station due to being Page 6 of 8 CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors declared surplus under Para 5(a), then the employee may be considered for coming back within one year.
7. The respondents in the CA have emphasized Para 5(a) and 7, but have not offered any comment on the application of Para 7(h) even though same is being asserted to by the applicant. It is clear that the Para 7(h) does provide for the adjustment of the applicant of the employee declared surplus and posted elsewhere and for being posted back after one year of the said posting out. The since 2019, the applicant has been requesting for redeployment as per posts falling vacant from time to time but to no avail. The applicant has also given another example of one teacher viz - Rekha Tiwari, PGT (Hindi) retiring on 31st May, 2022 which would result in a vacant post for which the applicant can be considered. In all fairness should a post be falling vacant she has a believable case of consideration as per Para 7(h) of the transfer guidelines.
8. It is trite to observe that the KV Sangathan have full rights to deploy any teacher anywhere as per their needs. However, the same is circumscribed per the transfer guidelines also which has been done so as to have a criteria and a methodology for transfers to prevent arbitrariness and have some sense of equitable justice with regards to the transfers per the admittedly administrative need of the KVS. If that be the case, then it is only justifiably fair that the respondents try to, in adherence of the guidelines issued by them, make efforts not to be arbitrary in the decisions. Therefore, without disturbing Page 7 of 8 CAT Lucknow Bench- OA No. 332/00375/2021- Nasreen Bano vs. UoI & Ors the settled position of law with regards to non-interference in transfers by the courts, there are some grounds available for the authorities to consider the case of the applicant per the provisions of para 7(h) of the transfer guidelines. It is told by the applicant that she is unmarried and she has the responsibility of a younger brother who apart from unmarried has had to undergo serious major brain operation on account of brain hemorrhage due to which he has been under coma. If this is true and similar cases related to health problems in families of teachers/employees have been considered, then, there may be an avenue for consideration of the case of the applicant being a woman and with family responsibilities.
9. Therefore, there seems to be case made out for consideration of the plea of the applicant as an exception of exceptions if possible, by the respondents.
10. Therefore, this O.A is disposed of with a direction to the respondents to consider the case of the applicant for being posted anywhere in Lucknow, if possible, should a post be vacant prior to this order or a post may fall vacant subsequent to this order.
11. No costs. Pending MAs, if any, stand disposed.
(Devendra Chaudhry) Member (A) JNS Page 8 of 8