IN THE HIGH COURT OF JUDICATURE AT MADRAS Dated : 22.06.2010 Coram The Honourable Mrs.Justice PRABHA SRIDEVAN and The Honourable Mr.Justice G.M.AKBAR ALI WP.No.7994 of 2010 and MP.Nos. 1 & 2 of 2010 1. The Commissioner Kendriya Vidyalaya Sangathan No. 18, Institutional Area Shaheed Jit Singh Marg New Delhi 110 016. 2. The Asst. Commissioner Kendriya Vidyalaya Sangathan Chennai Region, IIT Campus Chennai 600 036. 3. Dr.E.Prabhakar The Asst. Commissioner Kendriya Vidyalaya Sangathan Chennai Region, IIT Campus Chennai 600 036. ...Petitioners -vs- 1. Mamata Manjari Panda 2. Union of India rep. by its Secretary Department of Secondary Education and Literacy Ministry of Human Resource Development North Block, Delhi. 3. The Registrar, Central Administrative Tribunal Chennai ...Respondents Petition under Article 226 of the Constitution of India praying to issue a writ of certiorari to call for the records of the Central Administrative Tribunal culminating with its Order dated 31.7.2009 passed in O.A.No. 540 of 2009 and quash the same. https://hcservices.ecourts.gov.in/hcservices/ For Petitioners : Mr.M.Vaidyanathan For Respondents : Mr.Godson Swaminath for R1 ORDER (The Order of the Court was delivered by PRABHA SRIDEVAN,J) The first respondent was aggrieved by an order of transfer and her case in brief is as follows: 2. She joined Kendriya Vidyala Island grounds, Chennai on 2.12.1995 as a Physical Education Teacher. She was transferred to DGQA Complex, Chennai on 3.6.2005. She joined on 10.6.2005. Within seven days thereafter, she was transferred to Kendriya Vidyalaya, Army Area, Pune by order dated 17.6.2005. One year later, by order dated 14.7.2006 she was again transferred to Island grounds, Chennai. Before she had completed the period of three years and in violation of the transfer policy, she was transferred to Coimbatore by the proceedings dated 18.6.2009 to accommodate one Mr.Palanisamy, who comes under the Priority Category for the Grant of Request transfer (PCGR). The CAT set aside the order of transfer. 3. The Tribunal had observed that since the first respondent had not completed three years of tenure and since the prescribed time limit was not adhered to, the transfer order should be quashed. The Tribunal further observed that the applicant was not called for counseling, for which the time limit is 28th May 2009. For all these grounds, the Tribunal quashed the order of transfer. Against that, this writ petition has been filed. 4. According to the petitioners herein, the order of transfer was in conformity with the transfer policy. Learned counsel for the petitioners made submissions giving reasons why the first respondent was transferred and that the transfer policy was strictly followed. Learned counsel appearing for the writ petitioners submitted that there was absolutely no violation of the transfer policy. The only reason why the transfer proposals had to be postponed from the date fixed in the calender of events was because of the general elections through out the country and the directions issued by the Election Commissioner, so there was a delay in passing orders on or before 20th April. This fact was circulated through KVS Circular dated 16.4.2009. 5. Learned counsel for the petitioners submitted that in the transfer guidelines, the term 'PCGR' is defined. The transfer order was issued to the first respondent to accommodate one Palanisamy, who had less than three years of service for retirement as on 31st March. According to the learned counsel for the petitioners, the teachers belonging to this category are given utmost priority and the Rules https://hcservices.ecourts.gov.in/hcservices/ enjoin that their request for transfer to a place of their choice should be complied with even if it necessitates the displacement of a teacher of the Vidyalaya. As regards the displacement of teachers, it was submitted that the person who had the longest tenure in the preferred station was identified and it was the first respondent. According to the learned counsel, therefore there was no violation of transfer policy and the order of the Tribunal must be set aside. 6. Learned counsel also submitted that it is well settled that transfer is an incident of service and Courts shall not normally interfere with such orders, except where the order is malafide or for other extreme reasons. 7. Learned counsel for the first respondent reiterated that the order of transfer was contrary to policy. The first respondent was not called for counselling. The first respondent's husband and children are in Chennai and therefore, this too should be taken into consideration. 8. We directed the learned counsel for the petitioners to produce the necessary files. The transfer guidelines with effect from 14.3.2006 have been enclosed in the typed set of papers. The priority category for grant of request of transfer has already been explained by us. Category 15.1 reads as follows:- "Where transfer is sought by a teacher coming under PCGR and no vacancy is available at the station of his choice, required vacancy will be created by displacing a teacher of the same category (post/ subject) with longest stay at the said station, and not belonging to CDA. [Category whose Dislocation should be Avoided]. However, nobody shall be displaced in this manner, as far as possible, before completing a tenure of three years. If no non-CDA category employee with more than three years tenure is not available at the station of first choice of a PCGR category employee, the exercise will be done for locating such a person at stations of his second, third and lower choices, in that order. If no non-CDA employee with more than 3 years tenure is available at any of the stations of choice, the non- CDA employee with longest tenure out of all the preferred stations taken together, will be displaced. The displaced teacher will be accommodated against available nearby vacancy as far as possible within the region. The resultant vacancies arising out of transfers orders as per first priority list, will be used to accommodate non – PCGR category requests, who could not be https://hcservices.ecourts.gov.in/hcservices/ accommodated in the first priority list to the extent possible. Further, a teacher who has completed tenure in priority area and wants to come to his/her choice place in the priority area, may be transferred on request by displacing the senior most teacher (in the manner as stated above) at the station in case of non availability of vacancy at his/ her choice station. This will be applicable to both intra and inter region transfers. The request of the displacee for modification to the choice places will be considered against the vacancies arising upto 30th November of the year (Amended on 24.11.2006). However, the stay of displacee who comes back/ called back to the station from where displaced before completion of three months of active service will remain uninterrupted (Amended on 15.11.2007). 9. The petitioners themselves have given reasons why the counseling could not be done in May and that is because of the directions of the Election Commissioner. This reason is accepted. We see from the records that the Regional Transfer Committee was held on 26.5.2009 and the matter that was placed for consideration inter alia was the transfer of Palanisamy, who comes under PCGR category by displacing the first respondent. The Committee had ordered that those who have been identified for displacement may be called for counseling on or before 5th June 2009. It is seen from the records that transfer proposals were also uploaded on the KVS website with a request to meet the competent authority in person for change of place if any in the available vacancies within the region. Then the first respondent met the Assistant Commissioner on 8.6.2009. A personal hearing was given to the first respondent and she was informed why her transfer was inevitable and it is only thereafter, the transfer order was issued on 18.6.2009. The first respondent was identified as the senior most among non – CDA category with longest tenure out of all the preferred stations and accordingly she was displaced to Kendriya Vidyalaya, Coimbatore. 10. One of the reasons cited by the learned counsel for the first respondent is that the first respondent's husband is working in IIT, which is a non transferrable one and children are studying in Chennai. As far as practicable the petitioner may consider this fact but it cannot be disputed that this service makes her liable to be transferred anywhere in India. She has given a representation stating that she was disturbed thrice within a span of four years. But this is not strictly accurate. From 1995 till 2006, i.e. for ten years she has been in Chennai though in different stations. Therefore, we are able to see that the petitioners had taken note of the specific https://hcservices.ecourts.gov.in/hcservices/ situation and that is why she has been accommodated in and around Chennai. When she was transferred to Pune on public Interest, she came back to Chennai within one year and she has been here ever since. From the narration of the events above and on examination of records, we do not see that the transfer policy has been violated and especially when the person, for whom she has been displaced comes under PCGR Category. He has less than three years of service only and therefore, his wish that he should be accommodated in the place of his choice is given high priority. We also cannot find fault with the transfer policy and this is passed in the interest of a person who is nearing the age of superannuation. 11. In 2004 (12) SCC 299 – KENDRIYA VIDYALAYA SANGATHAN vs DAMODAR PRASAD PANDEY, the same petitioner was involved. There the teacher who was transferred from Madhya Pradesh to Jammu and Kashmir questioned the transfer. The Supreme Court held that, ".........................Plea of the present Respondent 1 that he and wife should be posted at same place was also held to be not acceptable. It was observed that the situation where the husband and the wife can be kept together would always depend upon the availability of vacancies and administrative exigencies. It was noted that present Respondent 1 and his wife had worked together for nearly 17 years at a particular place. It was noticed that Respondent 5 had worked in J&K for about 15 years and she was being given a posting to come back to M.P. i.e. to her original place of posting. ................. The High Court noted that there was no reason to disturb the transfer of the 5th respondent and also held that there was no illegality in the order of transfer so far as Respondent 1 is concerned. After having come to such a conclusion, the High Court gave a direction that present Respondent 1 shall be given a posting in the State of M.P. It is this part of the direction given by the High Court which is assailed by the appellant Kendriya Vidyalaya Sangathan. .................. 4. Transfer which is an incidence of service is not to be interfered with by courts unless it is shown to be clearly arbitrary or visited by mala fide or infraction of any prescribed norms of principles governing the transfer (see Abani Kanta Ray v. State of Orissa. Unless the order of transfer is visited by mala fide or is made in violation of operative guidelines, the court cannot interfere with it (see Union of India v. https://hcservices.ecourts.gov.in/hcservices/ S.L. Abbas). Who should be transferred and posted where is a matter for the administrative authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any operative guidelines or rules the courts should not ordinarily interfere with it. In Union of India v. Janardhan Debanath it was observed as follows: (SCC p.250, para 9). “No government servant or employee of a public undertaking has any legal right to be posted forever at any one particular place or place of his choice since transfer of a particular employee appointed to the class or category of transferable posts from one place to another is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise or stated to be in violation of statutory provisions prohibiting any such transfer, the courts or the tribunals normally cannot interfere with such orders as a matter of routine, as though they were the appellate authorities substituting their own decision for that of the employer/management, as against such orders passed in the interest of administrative exigencies of the service concerned. This position was highlighted by this Court in National Hydroelectric Power Corpn. Ltd. v. Shri Bhagwan.” 5. In the present case, the Tribunal categorically came to hold that mala fides were not involved and the High Court did not disturb that finding. That being so, the High Court’s further direction that Respondent 1 shall be posted somewhere in M.P. is clearly not sustainable. No reason has been indicated to justify the direction. That part of the order of the High Court is vacated. 12. We do not see any malafides in the order of transfer. The allegation regarding violation of transfer for policy guidelines is baseless. So, the writ petition is allowed. No costs. Consequently, connected MPs are closed. 13. However, learned counsel for the first respondent submits that the first respondent has joined in Coimbatore but on 31.7.2010 vacancy would arise in Avadi and she may be posted there. We cannot issue such a direction because there may be other requests and other https://hcservices.ecourts.gov.in/hcservices/ factors to be taken into account. As and when the vacancy arises, the petitioner shall pass appropriate orders. Sd/- Asst.Registrar /True Copy/ Sub.Asst.Registrar bg/glp To 1. The Secretary Union of India Department of Secondary Education and Literacy Ministry of Human Resource Development North Block, Delhi. 2. The Registrar, Central Administrative Tribunal Chennai + 1 CC to M/s.Isaac Mohanlal,Advocate,SR.44336 WP.No.7994 of 2010 KJI(CO) EM/20.7.10 https://hcservices.ecourts.gov.in/hcservices/