Central Administrative Tribunal - Jodhpur
Rakesh Kumar Jain vs Kvs-Nvs on 3 November, 2021
CENTRAL ADMINISTRATIVE TRIBUNAL JODHPUR BENCH, JODHPUR Original Application No. 290/00200/2021 Date of decision: 03.11.2021 CORAM HON'BLE MRS. JASMINE AHMED, MEMBER (J) Rakesh Kumar Jain S/o Shri Manohar Lal Jain, age 57 years, R/o 29, Shanti Nagar, Sector 3, Hiran Magri, Udaipur (Raj.). Presently posted on the post of TGT Maths at Kendriya Vidyalaya No. 1, Pratap Nagar, Udaipur (Raj.). .......Applicant By Advocate: Mr. Jog Singh Bhati, present through VC Versus Kendriya Vidyalaya Sangathan through the Commissioner, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi 110016. The Assistant Commissioner (Estt.-II), Kendriya Vidyalaya Sangathan, 18, Institutional Area, Shaheed Jeet Singh Marg, New Delhi 110016. The Deputy Commissioner, Kendriya Vidyalaya Sangathan (R.O.), 92, Gandhi Nagar Marg, Bajaj Nagar, Jaipur 302016. The Principal, Kendriya Vidyalaya No. 1, Udaipur (Raj.) 313001. ........Respondents By Advocate: Mr. Avinash Acharya, present through VC, after getting an advance notice on behalf of the respondents. ORDER (ORAL)
Per Hon'ble Mrs. Jasmine Ahmed, Member (J) Present Original Application has been filed by the applicant under Section 19 of the Administrative Tribunals Act, 1985 seeking following reliefs :
It is most respectfully prayed that this Original Application may kindly be allowed and the impugned transfer order dated 10.09.2021 (annex.a/1) of the applicant (item no. 130) may kindly be quashed qua the applicant on the ground of stay under Last Term to Retire category. It is further prayed that the impugned Memorandum rejecting the representation, dated 18.10.2021 (annex.9) and impugned relieving order dated 13.09.2021 (annex. a/10) may kindly be quashed and set aside.
Any other relief which this Hon'ble Tribunal deems just & proper in the case may also please be awarded in favour of the applicant.
2. This is a second round of litigation. In first round of litigation in O.A. No. 290/00157/2021, following directions were issued by this Tribunal :
5. It is undisputed fact that the applicant is coming within the LTR Zone and the respondents without considering the same despite properly reflecting such position of the applicant in Proforma-A at page No. 13 (Annex. A/3) that he is due for retirement in August, 2024, the respondents acted contrary to their own instructions issued vide letter dated 01.06.2021 (Annex. A/2). As the applicant has not preferred any representation to the respondents against his transfer order, the applicant is directed to present a detailed representation before the respondents attaching all office orders within a week from today. The respondents, thereafter, directed to take a decision on such representation of the applicant, if preferred, within a period of six weeks from the date of receipt of the representation. Till the respondents takes a decision on such representation of the applicant, if preferred, the applicant shall not be relieved to join his new place of posting.
5. In terms of above directions, OA is disposed of at admission stage itself. The learned counsel for the respondents shall be served copy of this order under the signature of Court Officer, before issuance of a certified copy, in order to inform the respondents directions issued by this Tribunal. However, it is made clear that nothing has been commented on merits of the case while disposing off the present case.
In pursuance of aforequoted order dated 15.09.2021 in OA No. 290/00157/2021, the respondents passed order dated 18.10.2021 (Annex. A/9) rejecting the claim of the applicant and stating therein that :
"Whereas, in the instant case, Sh. Rakesh Kumar Jain state that his date of birth is 24.08.1964 and he is coming under LTR, is not correct as per the above said para of the transfer gui8delines because he is not going to retire in the next three years i.e. on or before 30.08.2024 since the cut of date for counting LTR cases is 30th June of the year. As per records he will be retiring on 31.08.2021 on superannuation."
The respondents rejected the claim of the applicant taking plea of the aforequoted paragraph.
3. Learned counsel for the applicant states that the applicant was declared surplus employee and thereafter, he was transferred from Udaipur to Neemuch (M.P.). It is the contention of learned counsel for the applicant that the respondents themselves remarked that the "He will retire in August, 2024" under the column number 24 of Performa - A (Annex. A/3) issued by the respondents themselves, i.e. "Proposal for redeployment of excess to the requirement of staff in Kendriya Vidyalaya against sanction of staff strength for the year 2021-22 (At Vidyalaya Level)" and also in column number 8 of the said performa, against the query " Whether the employee is coming in LTR for the year2021-22 (Please write Yes/No) If yes please furnish details", it has categorically been written that "Yes he will retire in August". Learned counsel for the applicant states that on the one hand respondents are themselves agreeing that the applicant is coming within the zone of LTR but while rejecting the representation of the applicant, they have stated that the applicant is not coming within the zone of consideration of LTR. Learned counsel for the applicant states that in KVS, transfer orders are not to be issued between the month January to March and the process of transfer to be completed between 31st March to 30th June. In this case, the transfer order is issued on 10th September, 2021. Hence, the calculation for LTR has to be made taking into account the date of transfer and if it is calculated from the date of transfer then the applicant is having only 02 years, 11 months and few days to his Last Term to Retire (LTR), which is less than 03 years and for this obvious reason, the applicant comes under the zone of consideration for LTR. He vehemently argued that as the transfer order has been issued on 10th September, 2021, then 30th June is to be counted from the next year for completion of three years and that will be 30th June 2022 and as such, it cannot be counted in a retrospective way. The respondents have not issued the transfer order before 30th June. Learned counsel for the applicant states that the respondents are trying to create classification amongst the classes. Learned counsel for the applicant thus argued that the respondents are calculating the date in a wrong and arbitrary manner.
4. Learned counsel for the respondents states that the process of counting of completion of 03 years is followed in the same way as it has been followed in the case of the applicant. He also stated that 30th June is always taken as cut of date of the same year whenever the order is issued in the same year. Accordingly, even if the transfer order is of dated 10th September, 2021, for the purposes of calculation of 03 years, it will be calculated till 30th June, 2021 and in that process, the applicant is having two months more than three years. Hence, he is not coming within the zone of LTR and nothing arbitrary has been caused by the respondents. Learned counsel for the respondents also states that the applicant has not challenged the guidelines wherein the calculation of LTR is prescribed. Hence, applicant's counsel cannot take the plea that 30th June will not be followed for transfer for all purposes.
5. To which, learned counsel for the applicant states that the guidelines itself have been issued in the month of June, 2021, hence, the respondents cannot say that three years to be counted from 30th June of this year. Learned counsel for the applicant further states that he was on leave and despite his sanctioned leave, the respondents relieved him on 13th September, 2021 and when he approached the respondents with the order of this Tribunal, he was not allowed to join the post. As the applicant was not allowed to join, he used to send his joining letter daily to the School through post. He also states that the Principal of the School sent a letter dated 29.09.2021 mentioning that as per letter dated 17.09.2021, the applicant is to join his new place of posting and it was also stated that no other communication will be made to the applicant till further orders to be issued from the Regional Office or the Headquarters. The applicant's counsel states that the applicant was illegally relieved from the School though he intimated the Principal about the Casual Leave and leaving headquarters, and also not considering his case under LTR category.
6. At this point of time, learned counsel for the respondents states that in any case, the applicant will come under zone of consideration for LTR in the year 2022 and his case can be considered again, to which learned counsel for the applicant states that by the time post will be filled up by other category of employees, hence, the applicant may not be having any chance to get his choice place of posting which is arbitrary and violative of principle of natural justice and also against the guidelines.
7. Heard rival contentions of the parties and perused the material available on record.
8. This is true that the respondents themselves have mentioned in the Performa-A (Annex. A/3) that the applicant is coming under LTR zone but surprisingly, while taking the decision on his representation, they have not acceded to his request stating that he is having 02 months extra to 03 years as on 30th June, 2021 for consideration under zone of LTR. Accordingly, his case cannot be considered under LTR category. Time and again, it is seen that in the cases of LTR, higher courts have given directions to take care of the employees who are having less period of service so that they can undertake process of their settling retirement life. In KVS guidelines, it is seen that if an employee is having less than three years' service, he comes under LTR zone and he gets special treatment in case of transfer. Here, it is found that though the transfer order has been issued on 10th September, 2021 but while calculating, the respondents are not calculating the same from the date of transfer but from a cut of date, i.e. 30th June. It is also noted that the applicant was relieved on 13.09.2021. The applicant has not challenged the transfer guidelines though it is felt that there are some ambiguities while deciding the case of the applicant but as the applicant has already been relieved, he is directed to join his new place of posting as per order dated 10th September, 2021 (Annex. A/1). Thereafter, the applicant may prefer representation to the respondents claiming benefit of his LTR ground and the respondents shall consider the case of the applicant sympathetically as the case of the applicant has been rejected by the respondents taking the only plea that he is having extra two months time to three years for coming under zone of consideration for LTR.
9. In terms of above directions, OA is disposed of with no order as to costs.
(JASMINE AHMED) MEMBER (J) ss PAGE \* MERGEFORMAT 6