1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR O R D E R DEVI SINGH BHATI VS. 1. CAT. JODHPUR 2. KVS, NEW DELHI 3. A.O., KVS, JAIPUR 4. SURESH TINKER, UDC D.B. CIVIL WRIT PETITION NO.4335/2007 “UNDER ARTICLE 226 & 227 OF THE CONSTITUTION OF INDIA.” DATE OF ORDER ::::: 07th AUGUST, 2007. P R E S E N T HON'BLE MR. JUSTICE RAJESH BALIA HON'BLE MR.JUSTICE MAHESH CHANDRA SHARMA Mr.K.K.Shah for the petitioner. Dr.P.S.Bhati for the respondents. ***** BY THE COURT: We have heard the learned counsel for the parties. The short question raised in this writ petition is whether the transfer of the petitioner, who had made an application in terms of the transfer policy made by the respondent for his last term before retirement for posting at a place where he wanted to settle down after his retirement. At the time of making the application for transfer 2 on request the applicant was required to give five alternate choices as a matter of proforma. Petitioner when he was posted at Jodhpur under the KVS and due to retire on 30.11.2009, made a request for his posting at Jaipur as 'last term before retirement' somewhere in May 2007; as per calender for making such applications for transfer on request under the policy. Petitioner's case is that his first choice to be transferred in the last term before retirement is Jaipur where he is to settle. There was no other applicant in the said category having a prior claim than the petitioner for being posted at Jaipur. But instead of posting the petitioner at Jaipur, he was posted at Uttarlie [at Jalipa Station] still farther than from Jaipur and Jodhpur both. This lead to filing of original application before the Central Administrative Tribunal, which has been dismissed by the Tribunal. The contention of the learned counsel for the petitioner is that under the policy it is envisaged that in such cases the prayer has to be granted even if it results in displacement of a person from the place where the incumbent wants to settle provided the persons to be displaced to make room for such request has more than three years tenure at the desired place. He pointed out that there are 3 persons who are posted at Jaipur for more than three years but without giving effect to the policy made by the respondents themselves he was posted at Jalipa-Uttarlie in violation of the policy. Therefore, he is entitled to relief that his transfer may be made on his request in terms of the policy by dislocating the person who has longer stay at desired place. On the other hand learned counsel for the respondent claimed that transfer is in accordance with the policy. He has been transferred at one of the five choices given by him, therefore, he has no cause of grievance. Since the vacancy was available at Jalipa and not at Jaipur, the clause relating to displacement of the person already stayed for longer period at desired place is not applicable. The further case of the respondent is that before posting the petitioner objections were invited but no objection having been raised by the petitioner he has acquiesced the action of the respondent and for that reason also he is not entitled to any relief. The Tribunal vide its order under challenge dated 19.07.2007 found that a transfer made in infraction of any prescribed norms of the principles governing the transfer is liable to be interfered with but agreed with the respondents that since he has been transferred to one of the five choices he is not entitled to relief on the ground of infraction of the norms governing the transfer. Hence 4 this petition. The arguments have proceeded before us on the same line. The policy governing the transfer of personnels like petitioner laying down the norms of transfer have been made part of the writ petition and were before the Tribunal also. It is apposite to consider the relevant provisions of the transfer policy laid down by the respondents before we reach our conclusion. It envisages three priority categories of incumbents who are considered separate class for making postings at desired place, which otherwise a managerial and administrative consideration. For such class of persons a calander is set in the policy setting a date inviting applications for request transfers and dead line for considering such requests in priority orders. The provisions give out it to be not merely a policy of mere convenience but an object oriented policy yielding to desired results. The three categories are in order of preferences named as [i] MDG which refers to an employee seeking transfer on basis of one or more medical conditions detailed in schedule annexed with their policy affecting himself/herself or spouse, dependent son or daughter of the incumbent. This is for the purpose of giving a posting at a place where the effected incumbent can have medical aid from desired centres. The [ii] category is DSP which refers to an employee whose 5 spouse has died. This is to provide the incumbent emotional security at the time of such bereavement. [iii] And the last category is abbreviated as LTR defined as an employee who is less than three years to retirement enabling an incumbent to settle peacefully at his place smoothly. There is no dispute that the petitioner's case fall in the category of 'LTR' as his remaining service is less than three years before he retires when he made the application. Amongst there categories their inter se priorities are in the same order that is to say [i] MDG [ii] DSP [iii] LTR. The policy also contemplates two types of transfers namely inter regional transfer and intra regional transfer. The transfer which petitioner sought was intra regional transfer is also not in dispute. The transfers have been further categorized in two norms, administrative transfers i.e. Sangathan Orders, suo moto and second is request transfer which is ordered by the Sangathan on the basis of request made by the employee. The Clause governing the request transfers commences through Para 11 of the aforesaid policy which provides a calender for receipt of application for its consideration and disposition. It is envisaged under Clause 11.1 that the Assistant Commissioner of the Region shall receive application for request transfers through the respective Principals of KV till 22nd December. 6 The applications received in the Regional Offices shall be sorted and intra regional applications will be retained. This also envisages that the request form should indicate choice of up to five stations in one or more regions. But this is insisted upon to be filled with 5 places, notwithstanding the incumbent may not have so many options to offer. Para 12.1 deals with a case in which the request for transfers are not to be considered with which we are not concerned as admittedly petitioner's case did not fall into this category. Para 12 .2 provides the manner in which request for transfer of a person belonging to PCGR i.e. to say on request transfer from those who fall within three categories can be accommodated amongst PCGR. It has been stated that first claim of the request shall be on the available vacancies and to the extent vacancies are not available, the request is to be granted by displacement of employees as per Para 15.1. We are not concerned with accommodation of non-PCGR applications. Para 12.3 provides sequence in which the request for transfer shall be disposed of . It envisages that in first stage except 7 those request which fall within Para 12.1 will be granted as per options specified in the applications. Within the PCGR the order of precedence will be as under:- a] MDG [b] DSP [c] LTR [d] Those who have completed their tenure in priority areas will be considered. Vacancies for such places for which no requests are received from teachers coming under PCGR, will be considered for posting of applicants belonging to non-PCGR category. In the event of there being more than one request for same vacancy, priority for transfer shall be given in descending order of aggregate entitlement points as per Para 13 . About this also there is no dispute that the petitioner falls in PCGR category and his priority was No.1 in all places of choice given by him as an option. Para 12.4 and Para 13 again are not relevant for the purposes. Para 14 deals with inter regional transfers and Para 16 deals with intra-regional transfer by regional offices. Under Para 16 in the first stage priority list is to be issued for intra regional transfers taking 8 into account the entitlement points as per Para 13. This priority list shall be displayed on RO Website by 12th May. Representation against transfers proposed in first priority list are to be received by 20 May, and final transfer orders shall be issued by 25 May. The first priority list shall be prepared as per provisions of Paras 12 and 13 above. We have already noticed that in the first priority list petitioner's name was shown that he has first priority at all places which has been included in his class of option. Para 16.2 is relevant for our purposes as a whole issue centers around it. This part of policy reads as under:- Transfers of persons in PCGR category by displacement of others by Regional Offices:- When intra region transfer is sought by a teacher coming under PCGR category and no vacancy available at the station of his choice, required vacancy will be created as per provision of Para 15.1. The teachers so identified for displacement shall be called for counseling by the RTC by 28th May. Therefore, the second transfer shall be displaced on RO Website by 31st May, representation, if any, against transfers proposed therein shall be received upto 10th June and final transfer orders shall be issued by 15th June. 9 Teachers who are transferred on request through operation of priority lists [Inter Regional Transfer] shall not be displaced by Intra Regional Transfer of persons in PCGR category under Para 16.2 under the same year, in which they have got request transfer. Further the teachers coming under PCGR category shall have to indicate upto five choices of different stations for request transfers as prescribed in transfer application [Amended on 04.12.2006]. The Rule which governs the contingency under which displacement has been envisaged for making room for request transfer is consonance with the same criteria as in the case of Inter Regional Transfer and has been stated in Para 15.1 which reads as under :- “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. 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 three 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 10 arising out of transfers orders as per first priority list, will be used to accommodate non-PCGR category requests, who could not be accommodated in the first priority list to the extent possible.” The contention of the petitioner in this regard is that Rule 16.2 read with 15.1 envisages the consideration of available vacancies and the possibilities of displacing the non-CDA employee from the priority place of posting in the order of preferences given in the options . He relies on the fact that if no vacancy is available in the place of his priority choice, his request is to be granted even by displacing a person from that place. The persons to be displaced shall be one with longer stay belonging to same subject/post as the case may be at such place of choice, and who is not belonging to CDA. Ordinarily one such person is to be displaced who has more than three years tenure at such station of choice. Petitioner has pointed out that his first station of choice was Jaipur, where he is to settle on retirement. There are persons on the same post/subject as the petitioner is, but instead of making room for the petitioner at Jalipa he has been posted at Jalipa Uttarlai, which makes him further away from place of his settlement after retirement. Hence the action of the respondent is arbitrary and against the policy, defeating its very purpose. As against this learned counsel for the respondent urges that this paragraph is not at all to be invoked where any vacancy is 11 available at any of the five choices given by the petitioner and it is only in case no vacancy is available at any of the alternate place that this Rule is deployed for making room for request transfer, displacing a person is not an essential condition of the transfer policy that in all the cases displacement has to take place. The essence of the transfer policy is for making a room for request transfer, as far as possible no person should be dislocated. If dislocation has to be made then the cyclic order provided under Rule 15.1 is to be followed. It is has been urged in this connection by the learned counsel for the respondents that since under the policy request for transfer is received from persons belonging to PCGR category as well as non-PCGR category, by a fixed time, after looking at all the applications the vacancy position available at different stations is assessed. It was submitted by learned counsel that where a person desires his transfer to 'X'-station, even if at 'X'-Station there is no vacancy in present but for the purpose of operating requests it is considered vacant post. If same includes station 'X' as one of the stations amongst his options, he can be posted at 'X' station if no vacancy exists at station named in request. In such event displacing a serving incumbent is not necessary. It is for that reason that when there has been a request for transfer from Uttarlai was received. It was considered to be a vacancy available at Uttarlai 12 Jalipa. Since one of the option station given by the petitioner for his on request transfer was Jalipa (at No.3) and vacancy was not available at higher choice, he was posted at Jalipa as per his request. Per contra, it was pointed out by the learned counsel for the petitioner, while having a caveat on this contention, that even accepting this part of the argument of learned counsel for the respondent as per Annexure 5 submitted by him along with his Original Application before the Tribunal and which is a part of paper book of this petition, petitioner's first choice on request under LTR priority for his transfer from Jodhpur station to his last term before retirement was at Jaipur and there has been a request from a person posted at Jaipur for his transfer from Jaipur elsewhere. He pointed out from Annexure A-5 that petitioner's case was included in the priority list issued on website at Item No.3 disclosing his desired transfer from KV No. 2 Jodhpur (Army) whereas there has been on request application for transfer from Bhagwan Sahaya posted at KVRO, Jaipur from Jaipur to other stations. Hence on the respondent's own submission vacancy was available at Jaipur for giving him last posting before retirement at Jaipur which was at priority No.1 by him. 13 In this connection, he further emphasis that from the perusal of the Rules it is apparent that it is not in the discretion of the respondents and it is not open for the respondents to pick up any place out of the option given by the petitioner and giving posting at their discretion, but has to be considered in the order of priority options. It is only where the first priority is not available to be offered the second priority can be looked into. We find as the transfer policy has been designed meticulously, particularly in respect of on request transfers on priority category with specific object to be achieve the benefit of incumbent to secure speedy and required medical aid, to provide emotional security in time of distress and lastly to see that an incumbent at the close of his period of service settles at his desired place with least hastles leaving little scope for discretion, in the matter with the authorities concerned the implementation of policy and they are required to follow strictly the norms. The Rules referred to above do provide first of all the order of priority in considering transfers among PCGR i.e. Priority of transfer on request amongst them. The candidates seeking transfer falling in CDA category are to be considered in priority over DSP and APR category requests amongst PCGR category the last term before retirement category is the last one but it is to be considered prior to 14 non-PCGR category. It can be seen that these priorities considerations are also devised meticulously to achieve the basic object of employee's satisfaction ensuring the best response from the incumbent. It is also envisaged that while accommodating the persons falling in priority categories a person with longer stay may even be moved, but none of the persons falling in priority categories are to be dislocated to make room for other priority categories. Para 12.2 makes it clear that first claim of request transfer will be against available vacancies and to the extent vacancies are not available, by displacement of employees as per Para 15 the requests are to be operated. This clearly reflects that the displacement of employees is not to be resorted to as far as possible, so long as vacancies are available on one or other place of options. We are unable to accept the contention of learned counsel for the petitioner that even if the vacancies are available on one or other five options given by him still in order to accommodate him at the first priority as per his option he is entitled to be accommodated even by displacing other employee. That will make the provision of alternate options of little relevance. But it is also clear that policy does not require as 15 precondition that incumbent must in all circumstances give five options even if in the scheme of things and the object with which the policy has been framed. Such an alternative may not be possible in all circumstances. What is required that an incumbent may give 'upto' 5 alternative options in order of his preference, but expression 'upto' cannot be read as 'must'. What is conveyed by expression 'upto' is clearly not more than 5. Hence insisting in all circumstances to give five options even if the incumbent does not have such option or he does not want to move except to one or two from place, he must give names of 5 stations and than to deny an incumbent benefit of his consideration on the ground that he has been given one of his choiced place, notwithstanding, it be destructive of the object of the policy itself, as has been amply demonstrated in the present case. However, if the vacancies are not available then Para 15.1 is very instructive about it that in such event the PCGR category of request will be given effect to as far as possible by displacing the persons already posted at the place of his choice. It clearly gives out that in such event in the first place the person to be dislocated for posting a person falling in PCGR category shall be searched at the place of his first priority to be 16 posted on transfer. It is only if nobody is available to be dislocated on the basis of criteria stated in Para 15.1, that a person having more than three years tenure at that place may be shifted. If no person with three year's tenure is available at station of first choice of a PCGR, then the same exercise will be carried out in respect of station of his second choice. Failing which this search may be carried successively for third and lower choices. But this is a clear indication that the place of choice in order of priority has to be considered for giving effective posting in terms of request for transfer in priority category and is not merely at the discretion of the authorities to find one or other place of the five choices required to be made by the employee. The reasons appear to be obvious. The object of providing this relief to the concerned incumbent in PCGR category we have noticed above. If this scheme of policy is going to be a meaningful exercise easy deviation cannot be permitted. This may further be fortified from the requirement that in case at none of the places for which a PCGR applicant gives his choice, a person is available for dislocating on the criteria of having more than three years staying at such station, the transferring authority is than required to find cumulatively amongst places a persons with longer stay, of less than three years, and such person is to be 17 dislocated to post the requestee. The fact remains that the policy is very meticulous to ensure that as far as possible 'on request transfer applicants' in priority categories get their utmost priority choice of posting commesurating with object with which the transfer on request has been considered to be on priority basis. We are conscious of the fact that respondents had no compulsion to frame such policy but having framed such policy which is not contrary to law. They can be held bound by it. It cannot be gainsaid that a person who is seeking on priority transfer on 'last term before retirement' his primary object is to find the place where he wants to settle after the retirement because that alone will serve the purpose for which last priority category has been created and if a person who is falling 'in last term before retirement' category offered a place not the place of his first choice even if it is available or can be made available to him under the policy but giving him a posting at another place out of any of his five choices at the discretion of the authorities it would be subversive of the policy itself. On the aforesaid principle we have examined the case and in the light of the submissions made before us if we accept the contention of the learned counsel for the respondent that any request made for transfer then such place is to be considered to be vacant 18 for the posting on request transfer applicant in priority category, then it is not in dispute before us that the first priority of the petitioner was Jaipur as per on the last term of his retirement. As per Annexure A-5 there was a person posted at Jaipur who has desired his transfer out of Jaipur. It is not the case before us that at Jaipur any person falling in priority category above petitioner was there. In such event merely on the basis of said applications the post at Jaipur ought to have been considered vacant. But that has not been done. In such event there was no justification for not transferring the petitioner