Central Administrative Tribunal - Mumbai
Ravindra B Raut vs Navodaya Vidyalaya Samiti on 6 April, 2023
1 OA No.885/2022
CENTRAL ADMINISTRATIVE TRIBUNAL,
MUMBAI BENCH, MUMBAI
ORIGINAL APPLICATION No.885 of 2022
Dated this Thursday, the 06th day of April, 2023
CORAM: HON'BLE MR. SHRIKRISHNA, MEMBER (A)
Shri Ravindra B. Raut, Age 58 years,
working as Vice Principal In Jawahar Navodaya Vidhyalaya,
Amravati, Residing at JNV Qtrs, Amravati,
Dist. Amravati. - Applicant
(By Advocate Shri Vicky A. Nagrani)
Versus
1. Union of India through Ministry of Education Department
Of School Education and literacy, 107A-D, Shashtri Bhawan,
New Delhi 110 001.
2. The Commissioner, Navodaya Vidyalaya Samiti,
B-15 Institutional Area, Sector 62, Noida 201 370.
3. The Deputy Commissioner, Navodaya Vidyalaya Samiti
Shetti Mahamandal Bhawan (MSFC Ltd.), 2nd Floor, B-Wing,
270 Bhamburda, Senapati Bapat Road, Pune 411 016.
4. The Principal, Jawahar Navodaya Vidyalaya, Amravati,
Dist. Amravati. - Respondents
(By AdvocateSmt. N.V.Masurkar)
Reserved on 27.02.2023
Pronounced on 06.04.2023
ORDER
The applicant is aggrieved by the impugned order dated 06.10.2022 (Annexure A-1) passed by the respondent No.3for taking over the charge as In-charge Principal of Jawahar Navodaya Vidyalaya ('JNV' for short hereinafter), 2 OA No.885/2022 Nandurbar II and order dated 29.10.2022 by which he was relieved from JNV Amravati and he has been asked to take over the charge as In-charge Principal JNV Nandurbar-II by 30.10.2022. The applicant made representation on 06.10.2022 which was forwarded by the respondent No.3 for recommending the case of the applicant.Therefore, the applicant has approached this Tribunal under Section 19 of the Administrative Tribunals Act, 1985 by seeking the following reliefs:
"8.a. This Hon'ble Tribunal may graciously be pleased to call for the records of the case from the Respondents and after examining the same, quash and set aside the orders dated 06.10.2022 and 29.10.2022 with all consequential benefits.
8.b. This Hon'ble Tribunal may further be pleased to direct the Respondents to retain the applicant at JNV, Amravati, till his retirement.
8.c. Costs of the application be provided for.
8.d. Any other and further order as this Hon'ble Tribunal deems fit in the nature and circumstances of the case be passed."
2. The applicant has also prayed for interim relief which was granted ex-parte by this Tribunal on 04.11.2022 by stayingtheposting of the applicant to JNV, Nandurbar II. 3 OA No.885/2022
3. Summarized facts of the case-
3.1. The applicant was initially appointed as PGT (Biology) on 24.01.1997 at JNV, Durgin Bhopal Region. Thereafter, he was transferred in Pune Region at JNV, Gondia on 11.06.2004. The applicant was thereafter considered and promoted to the post of Vice Principal and on promotion was posted at JNV, Jalana on 26.07.2014. He was in fact posted as In-charge Principal at JNV, Nagpur from 22.12.2017 to 27.02.2018. Thereafter, he was again transferred as Vice Principal at JNV, Amravati on 05.09.2018. On his posting at JNV, Amravati, he was posted as In-charge Principal of JNV, Bhandara with effect from 18.01.2019 to 03.08.2019 and again from 01.10.2021 to 20.12.2021. The applicant has accepted all the transfers without any grievance and he was transferred in the year 2019 from JNV Jalana to JNV Amravati on spouse ground. As per the policy, he has the normal tenure of five years.
3.2. Applicant states that one Shri Kiran V. Bansod, Principal, JNV, Nandurbar is due for retirement on attaining the age of superannuation with effect from 31.10.2022 and after his retirement, applicant is directed to report on 30.10.2022 to 4 OA No.885/2022 take over the charge as In-charge Principal of JNV, Nandurbar II without any order to that effect. Copy of the said order is annexed as Annexure A-1. Being aggrieved by the said order of reporting at JNV Nandurbar II, he had immediately made representation on 06.10.2022 (Annexure A-4) pointing out the fact that he is due for retirement in June 2024 and also due to some personal difficulty of his son, who had attempted to commit suicide and, therefore, requires personal care and attention as he is suffering from mental trauma. The said representation was forwarded by the respondent No.3 himself vide letter dated 07.10.2022 (Annexure A-5) which has not been decided by them. Knowing the fact that the applicant's representation has not yet been decided, respondent No.3 had relieved the applicant vide letter dated 29.10.2022 (Annexure A-2) directing the applicant to report at JNV, Nandurbar II. 3.3. The applicant submits that the impugned orders passed by the respondents on 06.10.2022 and 29.10.2022 are absolutely illegal, void and arbitrary and also there is no order of transferring the applicant from JNV Amravati to JNV Nandurbar II as only direction was given but without any transfer order, which is not permissible in the eyes of law. In 5 OA No.885/2022 the other case, separate order is passed for taking over the charge of Principal but in present case no separate order has been passed. Therefore, without any transfer order, he cannot be transferred which is also in contravention to their own Transfer Policy dated 28.01.2022 which is annexed as Annexure A-6.
3.4. Applicant submits that the impugned order dated 06.10.2022 is in grave violation of their own Transfer Policy dated 28.01.2022 which was formulated for regulating transfer of employees of Navodaya Vidyalaya Samiti as approved by the Hon'ble Education Minister. As per said policy, his case falls under DFR category i.e. Due for Retirement category and under said category, the priority shall be accorded to the employee coming under DFR category to seek transfer without restricting him/her with any mandatory tenure after they attained 58 years of age. He is due for retirement on 30.06.2024 and had attained the age of 58 years and, therefore, priority shall be accorded to him. Thus, applicant was illegally and arbitrarily asked to take over the charge of In- charge Principal at JNV, Nandurbar II despite there being priority which is in violation of their own policy. Because as per 6 OA No.885/2022 their own policy, the normal tenure is of five years and Clause
(p) of para 3 categorically provides that the employees due for retirement within two years termed as DFR shall be allowed to continue at their present station till retirement unless such employee requests for transfer.
3.5. Applicant further submits that the respondents have failed to consider his son's serious ailment who had attempted to commit suicide and also the fact that he is 58 years of age and due for retirement on 30.06.2024, therefore, he comes under the purview of priority as per their own transfer policy and despite that the applicant is transferred which is totally illegal and arbitrary.
4. On notice, the respondents resisted the OA by a reply dated 15.11.2022 and denied all the adverse allegations and averments raised therein and stated that the impugned orders passed by the respondents against the applicant is fully justified and there are no merits in the case. The respondents submits that applicant is giving color of regular transfer to the impugned order which is a provisional, fortuitous arrangements, purely on 'look-after-charge' basis a temporary expedient makeshift, to meet urgent administrative exigencies within the 7 OA No.885/2022 exclusive domain of the employer to determine as to what place and for how long the services of a particular employee are required which is a regular feature of school functioning.
5. It is submitted by the respondents that stop gap arrangement, constitute a class which is separate and distinct from regular arrangement by way of regular transfer, to which transfer policy refers and applied as far as possible and applicant is fully aware of the same as per his contention in para 4.2 of the OA as the JNV Nandurbar II regular Principal got retired on 31.10.2022 and, therefore, as stated in order dated 06.10.2022, he is asked to take over charge as In- charge Principal of JNV Nandurbar II and in para 4.1 makes it clear that it is a stop gap arrangement similar to his stop gap postings as In-charge Principal at JNV Nagpur for the period from 22.12.2017 to 27.02.2018, In-charge Principal at JNV Bhandara for the period from 18.01.2019 to 03.08.2019 and again from 01.10.2021 to 20.12.2021 while holding the post of Vice Principal on promotion and after the exigency getting over/tied up, he returned back to his original posting from where he continued to draw his salary throughout irrespective of his stop gap posting elsewhere which is not the feature in 8 OA No.885/2022 case of regular transfer where he gets stuck of from the strength of the establishment and joins the new establishment as a part of that establishment.
5.1. It is submitted by the respondents that every time after discharging the stop gap arrangement requirement he came back to his original station of posting as Vice Principal and the said stop gap arrangement or looking after charge was discharged by the applicant knowing fully well that he is not transferred but a temporary arrangement made in the exigencies of service. The present arrangement is also exactly similar like previous three stop gap arrangements of looking after work as In-charge Principal in another Jawahar Navodaya Vidyalaya in other District in the Maharashtra Region as per the exigencies of work but this time he has deliberately chooses to allege impugned order as transfer order alleging further that it is issued in violation of transfer policy guidelines for transfer order in order to get the order which he is not entitled to under the law after knowledge of order dated 30.08.2022 in OA 680/2022 annexed as Annexure A-7 to OA, however, the said order is not a precedent in the matters of stop gap arrangement made in urgent 9 OA No.885/2022 administrative exigencies.
5.2. Circular bearing No.F.No.1-15/98-NVS(Estt) dated 10.12.1998 (Annexure R-1) issued by NVS Duties and Responsibilities attached to the post of Vice Principal prescribed in para (ii) which states that "He shall shoulder the responsibilities and duties as assigned to him from time to time by the Principal/Regional Office". The circular further states that "The Regional Offices have already been instructed with regard to the utilization of the services of the Vice Principals as In-charge Principal in the Vidyalayas where the post of Principal is vacant. In such cases, Vice Principal should report in the place of his posting as Vice Principal first and then shall be sent as In-charge of the Vidyalaya where there is a vacancy of post of Principal in the most economical manner." The said duties and responsibilities of Vice Principals have already been communicated to them on their posting as Vice Principals.
5.3. Respondents submits that the applicant has accordingly implemented the earlier orders for taking over the charge of In-charge of the Vidyalaya where there is a vacancy of post of Principal. However, similar order was issued on 10 OA No.885/2022 06.10.2022, he cited the precedent for staying the order in OA 680/2022 vide order dated 30.08.2022. Therefore, it is submitted that the interim relief granted in the matter is liable to be vacated in fairness on this ground alone and the same is liable to be dismissed.
5.4. It is submitted by the respondents that by the impugned order dated 06.10.2022 issued by the Regional Office, applicant is attached at JNV Nandurbar II temporarily as a stop gap arrangement for less than six months or to look after charge basis or till the appointment/joining of regular Principal to meet urgent administrative exigencies, a fortuitous arrangements necessary for running the school similar to the earlier instances cited by the applicant in para 4.1 of the OA. He accordingly made representation for exemption of duties assigned as 'In charge Principal' but he misrepresented before the Tribunal with mala fide intention to get the relief which he is not entitled under the law. It is submitted that without prejudice to aforesaid submission, transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra 11 OA No.885/2022 in the law governing or conditions of service whereas per contra Circular bearing No.F.No.1-15/98-NVS(Estt) dated 10.12.1998 issued by NVS makes such stop gap arrangement as an essential condition of service and OA should not be entertained on the mere making of it or on consideration borne out of conjectures or surmises, except for strong and convincing reasons when there is none in the present case. 5.5. It is submitted by the respondents that the substantive post of the applicant is Vice Principal and on the other posts, he is merely posted purely on 'look-after-charge' basis to meet exigencies of the administration there is nothing wrong on the part of the respondents in doing so. This Tribunal do not have to interfere with the impugned orders passed on 06.10.2022 and 29.10.2022 in the reigns/realm of jurisdiction earmarked for the executive administration and safe guarded the same having exercised as per the powers vested in the authority for urgent administrative exigency being a fortuitous arrangement and be pleased to vacate the ex- parte interim stay dated 04.11.2022.
5.6. In support of their arguments, the respondents have relied upon the following judgments:
12 OA No.885/2022
1. State of U.P. And Ors. Vs. Gobardhan Lal (AIR 2004 SC 2165).
2. Mohit Sain Vs. State of H.P. and others decided by the Hon'ble High Court of Himachal Pradesh on 05.10.2020 and also in CWP No.2225/2020 titled as Puran Chand Vs. State of H.P.
3. Ravi Shankar Singh Vs. The State of Madhya Pradesh decided by Hon'ble High Court of Madhya Pradesh on 28.10.2022.
4. Mohd. Ahsan Zargar Vs. Union Territory of J&K and others decided by Hon'ble Jammu & Kashmir High Court on 10.02.2020.
4. Santosh Tiwari Vs. The State of Madhya Pradesh decided by Hon'ble Madhya Pradesh High Court on 14.06.2022.
5.7. The respondents submit that it is admitted by the applicant that he has been accommodated on promotion from PGT to the post of Vice Principal at JNV Jalna on 26.07.2014, further posted at JNV Amravati on 05.09.2018 as per his own request on spouse ground. The contrary contentions raised by the applicant are, therefore, denied being manipulative giving garb of regular transfer order to the impugned order being a stop gap arrangement to meet the urgent exigencies of administration which has nothing to do with the transfer policy of 28.01.2022 which is applicable to regular transfer orders.13 OA No.885/2022
5.8. The applicant was directed to take over the charge of JNV Nandurabar II as In-charge Principal by 31.10.2022 authorizing to exercise all administrative and financial powers considering purely the administrative exigency as the JNV Nandurbar II as regular Principal will be retiring on 31.10.2022 and Vice Principal was posted at JNV Nandurbar II temporarily till the appointment/joining of regular Principal and along with applicant, other fourteen Vice Principals are also directed to take over the charge of different Vidyalayas where no regular Principal is appointed with same direction. Out of above 12 have already joined at their respective places of posting. 5.9. The respondents have further submitted that even in the case of regular transfer, it is held by the Hon'ble Supreme Court that "Transfer policy or guidelines issued by the State or employer does not have any statutory force as it merely provides for guidelines for the understanding of the Department personnel and the Court does not have the power to annul the transfer order only on the ground that it will cause personal inconvenience to the employee, his family members and children, as consideration of these views fall within the exclusive domain of the employer therefore it is submitted that 14 OA No.885/2022 there is no merit in the submission of the applicant".
6. Applicant has filed rejoinder in response to the reply filed by the respondents on 28.11.2022 denying all the averments and contentions made in the reply and submits that in the impugned order nowhere it has been mentioned about stop gap arrangement and in the relieving order it is stated that applicant is relieved to report at JNV Nandurbar II and he is eligible for TA/DA as per norms and once TA/DA is granted then the said order is nothing but an order of transfer which is stated in OA by the applicant. Applicant is only relying on para 7 of their own policy which deals with Rules for Admissibility of Transfer TA which states that:
7.a. Transfer TA shall be admissible in cases of transfer made on "administrative ground" including the transfer in public interest and administrative redeployment of surplus staff.
7.b. Transfer TA shall be admissible in cases of "rotational transfer" of Regional Language Teacher from outside native state to native state or vice versa after completion of prescribed mandatory tenure.
7.c. Transfer TA shall be admissible in cases of transfer staff from Plain (normal) station to Very Hard/Hard/Semi Hard stations on willingness after completion of prescribed mandatory period. This provision of Transfer TA shall remain applicable to employees like Driver, Electrician-cum-plumber, Lab.
Attendant, Cook, Mess Helper, Chowkidar and 15 OA No.885/2022 Chowkidar-cum-sweeper at par with other employees.
7.d. Service in hard and difficult stations being region specific, transfer TA shall be admissible only in cases of transfer of staff from hard and difficult (Hard/Very Hard/Semi Hard) station of a region to outside hard and difficult station i.e. either any Plain (normal) station or Hard/very hard/Semi Hard station of the other region after completion of prescribed mandatory tenure. This provision of Transfer TA shall remain applicable to employees like Driver, Electrician-cum-plumber, Lab. Attendant, Cook, Mess Helper, Chowkidar and Chowkidar-cum-
sweeper at par with other employees.
7.e. Transfer TA shall be admissible to all cases of transfer of deemed employee on displacement.
7.f. Transfer TA shall not be admissible under the following cases:
(i). Transfer within plain stations on
request.
(ii). Transfer within Hard & difficult stations
(within a region) on request.
(iii). Administrative or displacement
transfer ultimately modified into a request transfer by considering request of the employee.
(iv). If an employee is allotted a station vide disposal of his grievance (not necessarily his choice station) and he/she joins at the allotted station, the case of such transfer shall be treated as transfer on request and Transfer TA shall not be admissible in such transfer unless specified otherwise in the transfer order.
7.g. In case of transfer availed by taking advantage of the provision of "Cumulative Tenure Count due to 16 OA No.885/2022 administrative transfer", the admissibility of transfer TA shall be restricted to completion of requisite tenure at present station."
Thus, the TA is admissible only when the transfer is in administrative exigency and the word used here is transfer and therefore, under no stretch of imagination defining the present order as transfer order can be construed as misrepresentation as alleged by the respondents. However, the respondents have failed to stipulate as to whether any process of appointment of Principal is going on and that the Principal will be appointed in near future nor respondents have stipulated that the transfers of principal will be carried out or any promotion from the post of Vice Principal to Principal is under process. Respondents have also not given any assurance that applicant will be transferred back on completion of said period of six months as his new place of posting is almost 550 kms away from the present place.
6.1. It was submitted that the applicant cannot accept the present post for the short term period also on the ground that his wife is suffering from various serious ailments and he cannot take over the charge at the risk to the life of his wife, when he is deemed protected as per their own policy. So far 17 OA No.885/2022 said policy is concerned, there is no doubt at all that the said Transfer Policy is only a set of guidelines, however, mere reasonable or legitimate expectation in such a situation may not by itself be a distinct enforceable right, but failure to consider and give due weight to it will render the decision irrational and thus, arbitrary and this is how the requirement of due consideration of legitimate expectations forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of Law.
6.2. The applicant submits that the respondents have not assured that the present transfer is only for a period of six months, out of which three months are already over and posting only for a three month will not fulfill the administrative exigency where Christmas vacation is near to arrive soon. Applicant is fully confident that his posting at Nandurbar II will be going to continue by extending orders of so-called stop gap arrangement and he will retire from Nandurbar II itself which will deprive his legitimate rights of deemed protection under "Due For Retirement"(DFR) category. As nowhere single process has started or going on to fill up the regular post of Principal. Further, out of 14 Principals, only 2 Principals, out of 18 OA No.885/2022 which one is applicant himself who is protected under DFR category approached this Tribunal and remaining 12 others have joined at their respective place of posting. 6.3. On the aspect of transfer policy, applicant is relying on the judgment passed by the Hon'ble Apex Court in the case of X Vs. Registrar General, High Court of Madhya Pradesh and Another reported in 2022 SCC Online SC 171 decided on 10.02.2022 and relevant paras Nos. of the said judgement is reproduced as under:
"40. No doubt that the said Transfer Policy is only a set of Guidelines for internal administration of the District Judiciary issued by the MP High Court. However, while exercising its functions on the administrative side, the MP High Court would also be a State within the meaning of Article 12 of the Constitution of India. We may gainfully refer to the following observations made by this Court in the case of Food Corporation of India v. M/s Kamdhenu Cattle Feed Industries, (1993) 1 SCC 71:
"8. The mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirement of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness, a necessary concomitant of the rule of law. Every legitimate expectation is a relevant factor requiring due consideration in a fair decision making process. Whether the expectation of the claimant is reasonable or legitimate in the context is a question of fact in each case. Whenever the question arises, it is to be determined not according to the claimant's perception but in larger public interest wherein other more important considerations may outweigh what would 19 OA No.885/2022 otherwise have been the legitimate expectation of the claimant. A bona fide decision of the public authority reached in this manner would satisfy the requirement of non-arbitrariness and withstand judicial scrutiny. The doctrine of legitimate expectation gets assimilated in the rule of law and operates in our legal system in this manner and to this extent.
9. In Council of Civil Service Unions v. Minister for the Civil Service [1985 AC 374 : (1984) 3 All ER 935 (HL)] the House of Lords indicated the extent to which the legitimate expectation interfaces with exercise of discretionary power. The impugned action was upheld as reasonable, made on due consideration of all relevant factors including the legitimate expectation of the applicant, wherein the considerations of national security were found to outweigh that which otherwise would have been the reasonable expectation of the applicant. Lord Scarman pointed out that "the controlling factor in determining whether the exercise of prerogative power is subject to judicial review is not its source but its 20 subjectmatter". Again in Preston, in re [1985 AC 835 : (1985) 2 All ER 327] it was stated by Lord Scarman that "the principle of fairness has an important place in the law of judicial review"
and "unfairness in the purported exercise of a power can be such that it is an abuse or excess of power". These decisions of the House of Lords give a similar indication of the significance of the doctrine of legitimate expectation. Shri A.K. Sen referred to Shanti Vijay and Co. v. Princess Fatima Fouzia [(1979) 4 SCC 602 : (1980) 1 SCR 459] which holds that court should interfere where discretionary power is not exercised reasonably and in good faith."
..........
50. Undisputedly, neither the procedure as prescribed under Clause 9 of the Transfer Policy of obtaining the comments from the District Judge and the Portfolio Judge were complied with, nor the Transfer Committee considered the provisions of Clause 9(a) of the Transfer 20 OA No.885/2022 Policy.
51. When sub-clause (a) of Clause 9 of the Transfer Policy provided, that the case of a Judicial Officer for an extension should be considered if such Judicial Officer's daughter (not son) was to appear for the final year of Board Examination or University Examination, and when such educational Institution where such daughter is studying, does not have hostel facility for girls, the petitioner had a legitimate expectation that the MP High Court would consider her request in accordance therewith. Not only that, such a concession of extension would have been available only if the District Judge certified that there is no hostel facility available in such educational Institution. It also further required the comments to be obtained by the RG from the District Judge and the Portfolio Judge of the MP High Court. From the perusal of the Transfer Policy, it is clear that total 3 weeks' period is provided between the date of the receipt of the representation and the decision thereon. However, in the present case, within two days from the 24 submission of the representation, the Transfer Committee rejected the same without considering sub- clause (a) of Clause 9 of the Transfer Policy. It is a different matter that inviting comments from the District Judge would have been just a formality, inasmuch as the transfer was effected on his complaint itself."
6.4. The counsel for the applicant submitted that contention of the respondents that it is not a transfer and only a stop gap arrangement, then the matter should be heard by a Division Bench.
7. In rebuttal to the applicant's rejoinder, respondents have filed their sur-rejoinder on 08.12.2022. It was submitted that the applicant having chosen to file the OA before this Bench cannot contend at this late stage that the matter should be heard by a Division Bench. The respondents have denied 21 OA No.885/2022 the averment made in the rejoinder and submits that under the provisions of Rule 12 of the CAT (Procedure) Rules, 1987 which provides to the respondent to authorize the person by whom the reply is to be submitted which are reproduced hereunder :
"12(2). In the reply filed under sub-rule(1), the respondent shall specifically admit, deny or explain the facts stated by the applicant in his application and may also state such additional facts as may be found necessary for the just decision of the case. It shall be signed and verified as a written statement by the respondent or any other person duly authorized by him in writing in the same manner as provided for in Order VI, Rule 15 of the Code of Civil Procedure, 1908 (5 of 1908)."
Therefore, reply submitted by the Principal of JNV Amravati who is respondent No.4 in the present OA and he has been authorized by the respondent No.3 to file the reply on his behalf.
7.1. Respondents contend that applicant himself has agreed that he was relieved with TA/DA. In normal days, when an employee is sent out of his head quarter, he is entitled for Travelling Allowance (TA/DA) for meeting the expenses to be incurred on travelling from one place to another place and is treated as Tour etc. It is submitted that no daily allowance is payable during permanent transfer. He further submits that 22 OA No.885/2022 Deputy Commissioner is empowered to shift, any employee of region concerned on administrative exigencies, however, he has no power to transfer Principal or Vice Principal to anywhere in the Region and has not exercised the power of transfer in the instant case against him but has exercised inbuilt powers of supervision and control in the hierarchy of the administration of Authority and jurisdiction inherent in the Authority in the hierarchy which is further expressed in the office note to depute Vice Principals which is annexed as Annexure A-5 to the reply of the respondents which has been exercised by the respondent No.3. The allegations are made by the applicant against the same unmindful of the anarchy which it may create in ensuring an effective supervision and control and running of administration merely on certain assumed notions of not applying transfer policy with regard to DFR by the authority is Non-countenance under law as held by the Hon'ble Supreme Court in the case of State of U.P. and Ors. Vs. Gobardhan Lal (supra).
7.2. Respondents Nos.3 and 4 have no power to recruit the Principal as the powers are delegated with Hon'ble Commissioner, NVS. Temporary attachment has nothing to do 23 OA No.885/2022 with the regular transfer and the transfer policy nowhere provides that the person under DFR category may not be attached temporarily to any other place/Vidyalaya. The contention raised by the applicant is mere subterfuge and he cannot derive any benefit from the same. Being the urgent administrative exigency and without the prejudice, 14 Vice Principals are attached to the places where either no regular Principal or Vice Principal are posted. Out of above, 12 Vice Principals have already joined at their respective place of posting.
7.3. Respondents also contends that the judgments relied upon by the applicant on the aspect of transfer policy are not applicable in the facts of the present case. Therefore, this OA deserves dismissal with costs.
7.4. Respondents have also filed written submission of oral arguments on 08/09.02.2023 in which they have reiterated their earlier submissions and contended that there is no question of application of NVS 2021 transfer policy meant for rotational transfer/regular transfer with strucking of from erstwhile establishment and transfer of service book to new establishment.
24 OA No.885/20227.5. As per para 3(r) of transfer policy of NSV 2021 it is made clear that the same is mere guidelines regarding transfer are essentially for internal use of the Samiti and do not vest any employee with any right. The impugned order is not covered by the types of transfers which are only covered by the Transfer Policy which has been elaborately explained in para 4 of the transfer policy namely "Request Transfer, Displacement Transfer and Administrative Transfer" whereas there is no question to apply for transfer policy in the present case. Thus, impugned order is issued by the Competent Authority having powers and not amenable to random challenge.
7.6. The respondents further submitted that para 4.9(E) of Transfer policy which deals with Protected Deemed Employee do not apply in the present case because that is meant for the employee who has to come under priority category and not his family members. It was submitted that a false statement has been made by the applicant that his representation dated 06.10.2022 has not been considered and decided by the respondent No.3 whereas he has submitted his representation on 15.08.2022 on this very reason that after 25 OA No.885/2022 going through the office note about proposal of deputing him to JNV Nandurbar II under impugned order, the same is rejected vide order dated 17.08.2022 by Deputy Commissioner. Respondents has given discernible reason while considering his representation sympathetically but denying the same vide letter dated 17.08.2022 to meet the administrative exigency at JNV Nandurbar II. Further, there is no question of deciding repeated representations on the same issue. 7.7. It is submitted by the respondents that there are 73 JNVs in Maharashtra Region where there are no Principal or no Vice Principal or both no Principal and No Vice Principal consists of Maharashtra, Gujarat, Goa, Dadra and Nagar Haveli DNH UT, Daman and Diu Union Territory and no Principal or Vice Principals are available in 14 JNVs under Pune Region is the administrative exigency in the present case. It is submitted that the period of six months in this case is ending in April 2023 besides the order is to look after charge basis or till the appointment/joining of regular Principal.
8. Heard the counsels for both sides at length and perused the pleadings and documents filed on record. The learned counsel for the applicant submits that the applicant 26 OA No.885/2022 was transferred from Amravati to Nandurbar-II in violation of Transfer Policy issued by the respondents. The Transfer Policy provides that the Vice Principals who are due for retirement within two years will not be transferred.
8.1. The contention of the respondents is that the posting order was provisional, fortuitous arrangements, purely on 'look-after-charge' basis a temporary expedient makeshift arrangement to meet urgent administrative exigencies within the exclusive domain of the employer to determine as to what place and for how long the services of a particular employee are required which is regular feature of school functioning. Both the counsels have relied upon various judicial pronouncements in support of their arguments. 8.2. In this background of matter, it is important to first consider the Transfer Policy. The Transfer Policy dated 28.01.2022 was formulated for regulating transfer of employees of Navodaya Vidyalaya Samiti and was duly approved by the Hon'ble Education Minister. As per Clause 4.5(e) of the said transfer policy, the applicant's case falls under DFR category i.e. "Due for Retirement" category and under said category, the priority shall be accorded to the 27 OA No.885/2022 employee coming under DFR category to seek transfer without restricting him/her with any mandatory tenure after they attained 58 years of age. The applicant is due for retirement on 30.06.2024 and had attained the age of 58 years. Thus, he was left with only 20 months of service. Hewas asked to take over the charge of In-charge Principal at JNV, Nandurbar- II despite there being priority which is in violation of the transfer policy. As per the transfer policy, the normal tenure is of five years and Clause (P) of para 3 provides that the employees due for retirement within two years termed as DFR shall be allowed to continue at their present station till retirement unless such employee requests for transfer. 8.3. The respondents have not clarified as to whether any process of appointment of Principal is going on and that a new Principal will be appointed in near future, nor respondents have stipulated that the transfers of principal will be carried out or any promotion from the post of Vice Principal to Principal is under process. Respondents have also not given any assurance that applicant will be transferred back on completion of said period of six months as his new place of posting is more than 450 kms away from the present place. 28 OA No.885/2022 8.4. On receipt of the impugned order dated 06.10.2022, the applicant submitted a representation stating that due to some personal difficulty of his son, who had attempted to commit suicide and, therefore, he requires personal care and attention as he is suffering from mental trauma. He further mentioned that the applicant cannot accept the present post for the short- term period also on the ground that his wife is suffering from various serious ailments and he cannot take over the charge at the risk to the life of his wife. The said representation was forwarded by the respondent No.3 himself vide letter dated 07.10.2022 (Annexure A-5) which has not been decided by them on the ground that his similar representation dated 15.08.2022 on this very reason that after going through the office note about proposal of deputing him to JNV Nandurbar II under impugned order, the same was rejected vide order dated 17.08.2022 by Deputy Commissioner. Applicant has again made similar representation on 18.08.2022, then on 6.10.2022 and 16.10.2022 etc. Therefore, there is no question of deciding repeated representations on the same issue.
29 OA No.885/2022
9. The respondents have placed reliance on the judgment of the Hon'ble Apex Court in the case of State of UP Vs. Gobardhan Lal (supra) which pertains to transfer matter of District Supply Officer (DSO). In that case, the respondent officer was found to have committed many irregularities in his previous postings, he was suspended twice and two Departmental Proceedings were pending against him. Moreover, the transfer of respondent officer in that case was not in violation of the transfer policy and the officer concerned was not due for retirement. Similarly, the Decision of Hon'ble Himachal Pradesh in the case of Mohit Sain Vs. State of H.P (supra) pertains to the transfer matter which was also not in violation of the transfer policy. The respondents on one hand are contending that it was not a transfer and only a stop gap arrangement and at the same time relying on the judgments on the issue of transfer.
9.1. In the case of Ravi Shankar Singh Vs. State of Madhya Pradesh (supra) relied upon by the respondents, the petitioner was deputed in a nearby district for a specific period of 90 days only. But in the case of applicant, he has been 30 OA No.885/2022 posted to a place more than 450 Kms away from his present place of posting without specifying the period for which he will be required to be posted there.
9.2. In the case of Mohd. Ahsan Zargar v. UT of J&K(supra), the petitioner was substantively posted as Sanitary Inspector Bhaderwah and was only temporarily deputed to Municipal Committee Banihal to look after the work of Executive officer as a stop gap arrangement and later on he was sent back to his original place of posting at Bhaderwah where he was substantively posted. Therefore, the facts of that case are totally different.
9.3. In the case of Santosh Tiwari Vs. State of Madhya Pradesh (supra), the petitioner was deputed to Singrauli as a stop gap arrangement and it was specifically mentioned in the order that it is a stop gap arrangement. Therefore, all the above judgments are distinguishable from the peculiar facts of the applicant.
10. The learned counsel for the respondent submitted a copy of the internal note sheet by which it was stated that the order can be issued from 12.08.2022 and the posting will be for six months. However, it is seen that the impugned Office order dated 06.10.2022 directs the applicant to report as on 31 OA No.885/2022 30.10.2022 for taking over the charge as Incharge Principal of JNV, Nandurbar-II. The order does not specify whether it is a transfer or a deputation or as a stop gap arrangement. It does not specify how long the applicant will be posted there. The impugned order does not mention that the arrangement is for six months only. Similarly, the impugned Office Order dated 29.10.2022 directs the applicant to hand over the academic and other charges to Senior Most Teacher Shri. A.D. Dhawane, PGT(Physics) by 29.10.2022 and also relieved the applicant in the afternoon with the direction to take over charge of Incharge Principal, at Jawahar Navodaya Vidyalaya, Nandurbar-II on 31.10.2022. This order also does not specify the tenure of the posting of the applicant that the posting is for six months only.
11. The applicant has also placed reliance on the judgment of Hon'ble Supreme Court in the case of X v. Registrar General, High Court of Madhya Pradesh(supra) in support of his arguments that the transfer order was not reasonable.It is seen that clause (p) of para 3 of the transfer policy dated 28-01-2022 reads as under:
"(p) Employees "Due for Retirement" within two succeeding years as on cut-off date of the transfer year, hitherto termed as DFR, shall be allowed to continue at their present station till retirement unless 32 OA No.885/2022 such employee requests for transfer".
Para 4.3 of the Transfer Policy provides that cut-off date is 31st July. Therefore, I find force in the submission of the applicant that the applicant was transferred in violation of the Transfer Policy in the garb of stop gap arrangement posting. Since the applicant is due for retirement on 30.06.2024, he was left with 20 months of service on the date of impugned orders, and therefore the same was in violation of the respondents' own transfer policy dated 28.01.2022 which has been duly approved by the Hon'ble Education Minister.
12. In light of the above discussion, given the peculiar facts and circumstances of the case and also considering the fact that the applicant is now left with less than 15 months of service, as an exception of exception, not to be cited as precedent, the impugned orders are set aside. The applicant to continue at his original place of posting. The OA is allowed in these terms.
13. There shall be no order as to the costs.
(Shri Krishna) Member (A) kmg*