Case: State of Karnataka and Ors Vs. Krishna Kumar and Ors

appointed is less, the candidate has to teach Science and Mathematics subjects for 6th and 7th standards, to make up the workload. 6. The learned senior Counsel has further pointed out that since the hybrid category of higher primary schools was created, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder and moreover, in order to implement the Sarva Shiksha Abhiyan, an independent scheme containing the provisions for mutual transfer in Clause 13 of Memo dated 7.4.2010 had been carved out, which is based upon the volition of an incumbent in case he opt for mutual transfer, then it is permissible for him to avail the aforesaid facility. The other service conditions were not to be adversely affected. The salary, as well as the seniority, are not to be adversely affected by mutual transfers in case an incumbent avails the provisions of Clause 13. Office Memorandum dated 07.04.2010 has been issued by the State Government taking care of the exigency of the SSA Scheme, particularly when such higher primary schools were not strictly governed by the provisions of the Act merely on the basis of analogy, the provisions of Clause 13 could not have been struck down by the Tribunal and the same has been illegally affirmed by the High Court. 7. The learned Counsel appearing on behalf of the Respondents has contended that considering the findings recorded by the Tribunal in Paragraphs 17 and 18 of the order, the High Court has found justification with the same and rightly ordered that the transfer of such teachers could have been ordered in accordance with the provisions of the Act and the Rules framed thereunder, and not as per the Office Memorandum, Clause 13 of which has been rightly struck down by the Tribunal. Thus, no case for interference in the order of the Tribunal, as affirmed by the High Court, is made out. The matter of transfer is governed by the provisions of the Act of 2007 and the Rules framed thereunder. It was not permissible to the State Government to issue memo dated 7.4.2010, same cannot hold the field in view of the statutory provisions. 8. After hearing the learned Counsel for the parties, we are of the considered opinion that the SSA Scheme is an independent scheme and considering its imperative, certain primary schools were upgraded to and styled as higher primary schools. The Class 8 was also added in such schools. The hybrid category of primary schools was created to make the education broad-based in rural areas. Considering the aforesaid scheme, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder with respect to higher primary schools. The SSA Scheme was to deal with the primary objective of broad basing education. Clause 13 of the Office Memorandum deals with the mutual transfer. The same is extracted herein below: 13 MUTUAL TRANSFERS: a) If the pre-confirmation service period is declared as satisfactory, mutual transfer requests of such Teachers will be considered. While doing mutual transfer, it should be given effect only when cadre and subjects tally. b) All the mutual transfer at District, Division, and State level to be done at a time. c) Teachers who have computerized information through internet seeking mutual transfer has to be personally present at the Office of the B.E.O. concerned, for the verification of their service details. But for No. 1. Teachers transfer, both of them have to be present before the Transfer Authority for counseling. d) Primary and T.G.T. Teachers appointed under SARVA SHIKSHANA ABHIYAN shall be transferred to Teachers post of the same subject and appointed under the same project. e) S.S.A. and T.G.T. Teachers working under SARVA SHIKSHAN ABHIYAN, YOJANE, submit an application for mutual transfer with Teachers of state zone with the same basic pay or less may be considered for mutual transfer. f) If S.S.A. and T.G.T. Teachers submit an application for transfer to vacant posts it may be considered. 9. Even assuming that the provisions of the Act of 2007 and Rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and Rules has been pointed out with respect to mutual transfers. Particularly when the provisions of mutual transfer which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard. 10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and Rules framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the Rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for mutual transfer. In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme. The SSA Scheme is funded by the Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the Rules framed thereunder. 11. Thus, we find that there is no violation of the provisions of the Act and the Rules by Clause 13 of Office Memorandum dated 07.04.2010. The Tribunal and the High Court have erred in law in quashing the same.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 1

Reasoning from the judgment:
1[ds]8. After hearing the learned Counsel for the parties, we are of the considered opinion that the SSA Scheme is an independent scheme and considering its imperative, certain primary schools were upgraded to and styled as higher primary schools. The Class 8 was also added in such schools. The hybrid category of primary schools was created to make the education broad-based in rural areas. Considering the aforesaid scheme, the matter was strictly not governed by the provisions of the Act of 2007 and the Rules framed thereunder with respect to higher primary schools. The SSA Scheme was to deal with the primary objective of broad basing education. Clause 13 of the Office Memorandum deals with the mutual transfer9. Even assuming that the provisions of the Act of 2007 and Rules thereunder are applicable, since there is no provision to the contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and Rules has been pointed out with respect to mutual transfers. Particularly when the provisions of mutual transfer which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves in this regard10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and Rules framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the Rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for mutual transfer. In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme. The SSA Scheme is funded by the Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the Rules framed thereunder11. Thus, we find that there is no violation of the provisions of the Act and the Rules by Clause 13 of Office Memorandum dated 07.04.2010. The Tribunal and the High Court have erred in law in quashing the same.