O.A. NO. 629/2012
Dated this the 7th day of August, 2012
C O R A M
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
B.S.Valsala Nair D/o Balakrishna Pillai
Principal, Kendriya Vidyalaya, Pattom, Trivandrum. residing at Kendriya Vidyalaya Quarters, Pattom,
Trivandrum Distt, Pin - 695004. .... Applicant By Advocate Mr. T.C. Govindaswamy
1 The Commissioner, Kendriya Vidyalayla Sangathan 18-Institutional Area, Shahid Jeet Singh Marg
New Delhi-110 016
2 The Deputy Commissioner, Kendriya Vidyalaya Sangathan Kadavanthara, Ernakulam - 20.
3 The Chairman, Vidyalaya Management Committee Kendriya Vidyalaya, Pattom, Trivandrum - 605004.
5 Smt S.Neerda, Kendriya Vidyalaya
SAP, Peroorkada, Trivandrum-695007. ..... Respondents. By Advocate M/s Iyer & Iyer
The Application having been heard on 27.7.2012 the Tribunal delivered the following:
O R D E R
HON'BLE MRS. K. NOORJEHAN, ADMINISTRATIVE MEMBER
The applicant, the Principal, Kendriya Vidyalaya, Pattom, Trivandrum is aggrieved by her transfer to K.V., SAP, Peroorkada, Trivandrum immediately on joining the post, i.e before completion of her tenure. 2 The applicant working as Principal at Kendriya Vidyalaya (KV for brevity), Pattom, Trivandrum has challenged the transfer order dated 20.7.2012 (Annx.A1) transferring her to SAP Peroorkada, Trivandrum, as illegal and arbitrary. It is submitted that on her promotion as Principal she was posted at KV Jabalpur and joined there in November 2010. In terms of the transfer guidelines and on her request she was posted at KV Pattom by Annx.A2 dated 1.5.2012. She further states that KV Pattom has residential accommodation attached to the post. Since the applicant is separated from her husband for the last few years and her daughter aged 24 years living with her has to be married, she shifted all her house-hold articles in the quarter where she feel secure. It is further stated that as per transfer guidelines one is posted to a particular place/school, she has a right to continue in that school for a minimum period of 5 years whereas in this case she was transferred within months. It is averred that any transfer outside the scope of the above guidelines is to be issued only with the prior approval of the Chairman, KVS. In this case the approval of the Chairman is not obtained. By this application she seeks to quash Annx.A1 transfer order to the extent it relates to her. She has also challenged Para 6 of Annx.A-4, transfer guidelines as arbitrary, discriminatory and unconstitutional. In support of her contention she has referred to orders of this Tribunal in O.A 812 of 2011 dated 3.2.2012 and OA 691of 2011 dated 13.3.2012 by which the OAs were allowed and transfer orders quashed. 3 The respondents contested the OA by filing their reply. In its reply statement the respondent No.1&2 submitted that the O.A is premature as she has not exhausted the alternative remedies available to her. The transfer of the applicant, a local shifting from one KV to another in the same city and within 4 Kms is purely on administrative exigencies. The KV Sangathan transfers are effected to safeguard its organisational interest. The respondents submitted that her daughter is working as Manager in MV Diabetics, Chennai and is not living with her. They further submitted that KV Pattom is a two shift school with a strength of 3969 students including class XII whereas KV SAP has a strength of 1295 students and is upto X standard. Since the applicant has less than 2 years experience as Principal whereas the 4th respondent is a highly experienced Principal having 12 years experience as Principal. Therefore, shifting of the applicant locally to SAP is in larger public interest. It is submitted that the applicant is involved in a financial embezzlement and disciplinary proceedings are contemplated against her. They have cited the undermentioned Apex Court cases in support of their contention that transfer, an incident of service is not to be interfered with, by the Courts unless it is shown to be clearly arbitrary or vitiated by malafides. The transfer of the applicant was ordered in public interest. The services of the applicant are transferable anywhere in India. Transfer is an incidence of service and it is left to the competent authority to decide as to how and where an employee is required to be posted. While taking a decision in public interest, individual's personal inconveniences have no relevance over the administrative exigencies. Personal problems of an employee cannot come in the way of normal service conditions and public interest. The guidelines in this respect are merely the guidelines for the competent authority to consider and they do not create any statutory right in favour of the employee which could be considered enforceable through the Courts or the Tribunals. It is also contended that the transfer of the applicant has been made by the competent authority in public interest on administrative grounds. It does not suffer from any violation of statutory rules.
(i)National Hydroelectric Power Corpn.Ltd. Vs. Shri Bhagwan & Anr. 2001(91) FLR 259
(ii)Union of India Vs. S.L.Abbas, AIR 1993 SC 2444 (iii)Writ Petion No.53310 of 2007, Kushahar Yadav Vs. Engineer-in-Chief, Irrigation Department, UP, Lucknow & Ors.
(iv)Union of India Vs. H.N.Kirtania, (1989) 3 SCC 445 (v) Shilpi Bose (Mrs) & Ors. Vs. State of Bihar & Ors, (1991) 2 Supp. 659 (vi) Abani Kanta Ray Vs. State of Oriss & Ors 1995 Supp (4) SCC 169 (vii) State of M.P & Ors Vs. S.S.Kourav & Ors, 1995 SCC 270 (viii) State of U.P & Ors Vs Gobardhan Lal (2004) 11 SCC 402 (ix) Kendriya Vidyalaya Sangathan Vs. Damodar Prasad Pandey & Ors. (2004) 12 SCC 299.
4 The applicant filed rejoinder to the reply mostly reiterating the facts as stated in the O.A. She alleged that the transfer order was issued at the behest of R2 to mitigate his ill will and malice.
5 Heard learned counsel for the parties and perused the records. 6 The main contention of the applicant is that the transfer order is issued in violation of the transfer norms and to victimise the applicant. 7 In the instant case the impugned transfer order was issued for transferring the applicant from KV Pattom to KV SAP i.e within the city of Trivandrum. The applicant has not produced any material to show that the transfer is effected with any malafide intention nor has she impleaded any officer in personal capacity as party respondent. The respondents submitted that KV Pattom is a two shift school with a strength of 3969 students including class XII whereas KV SAP has a strength of 1295 students and is upto X standard. The applicant has less than 2 years experience as Principal whereas the 4th respondent is a highly experienced Principal having 12 years experience as Principal therefore shifting of the applicant locally to SAP, Trivandrum is in larger public interest. This Tribunal is looking at the transfer, as one necessitated in the larger interest of the student community and parents in particular. During hearing, the respondents counsel stated that the Class XII results of last year were poor with students even failing in Maths. A new Regional Office is set up at Ernakulam and the respondent institution is taking all out efforts to improve results during the current year as Kendriya Vidyalaya, Pattom is one of their prestigious schools. Naturally, the need of the hour is to have a Principal with proven calibre, who will leave no stone unturned to motivate and inspire the students to give their best and instil confidence in the parents. No doubt the applicant too got an award in 2007-08, for her excellent performance, while R-4 is the receipiant of National Award for meritorious service. In recognition of such outstanding performance, she is granted an year's extension which is likely to be extended by one more year. The respondents contended that R-4 in view of her 12 years experience as Principal and ability is more capable to manage K.V Pattom than the applicant. 8 In such circumstances it cannot be said that the issuance of the impugned transfer order is vitiated by malice or ill-will. In case of any malice or ill-will the applicant should address, such grievances to the official grievance redressal machinery for necessary relief. In this case she did not do so. In a catena of judgments the Apex Court has categorically stated that it is the prerogative of the Government/department to decide who is to be posted at a particular place in the overall interest of the organisation. The employee has no right to choose a particular post or place for his posting. Therefore, I do not find any irregularity in issuing the transfer order. Transfer from one place to another is necessary when public interest is involved. Whenever, a public servant is transferred he must comply with the order but if there by any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. But if the same is not stayed, modified or cancelled, the public servant has no justification to avoid or evade transfer on the ground of his difficulty in moving from one place to another. In the instant case the applicant is transferred within the city that too within 4 Kms away from the place of present posting. As regards non-availability of departmental quarters at the new place is concerned, the respondents pointed out that she was not provided with quarters, when she worked in K.V, Island Ground, Chennai, K.V Ernakulam and K.V Pangode, Trivandrum.
9 The Apex Court while dealing with the case of E.P. Royappa v. State of Tamil Nadu and another reported in 1974 SCC (L&S) 165 dismissed the petitioners case, alleging violation of articles 16 and 14 of the Constitution of India, when he as Chief Secretary of the State of Tamil Nadu was transferred to another post within Chennai City. In elaborating the issue in paras 25 to 37, it was held:
"The post of Deputy Chairman, Planning Commission and the Post of Officer on Special Duty carried the same pay and were not lower in status and responsibility and the petitioner could be transferred to those posts.
Comparisons between functions, duties and responsibilities of posts at the apex of different departments are not always possible. The status of the post would also depend on the incumbent, because a brilliant officer can so augment the opportunities of public service in that post that others may covet it."
10 Keeping in mind the dictum laid down by the Apex Court in transfer matter and in view of the foregoing I do not find any illegality in the transfer order at Annexure A-1. None of the grounds raised is tenable. Accordingly, the O.A is dismissed. No costs.
Dated 7th August, 2012