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

2. The Respondents are the teachers appointed in the year 2004-2005 in the Government primary schools where Sarava Shikshana Abhiyana Scheme (in short, the SSA Scheme) was being implemented. The objective of the SSA Scheme is to provide easy access to 8th standard in the context of universalization of elementary education. In order to give effect to the scheme certain Government primary schools have been upgraded with 8th standard and they are referred to as Higher Primary Schools. 65% of the salary used to be provided by the Central Government. Under the said scheme, in order to make the education broad-based certain Government primary schools were permitted to impart 8th standard for the benefit and the improvement of educating children in the rural areas, particularly at the places where very few high schools were existing. This decision was taken by the Government to encourage the students to continue the 8th standard education in the rural areas itself, though 8th standard was part of the high school for which Trained Graduate Teachers used to be appointed3. On 07.04.2010, an Office Memorandum was issued inter alia to transfer and posting of teachers in the schools where the SSA Scheme has been implemented. One of the policy decisions is that those teachers appointed as primary teachers in the upgraded Government higher primary schools will continue to work in the SSA Scheme. The primary teachers appointed under the SSA Scheme shall be transferred to the post of Teachers of the same subject under the same project. It is also provided that the teachers can submit their applications for mutual transfer with Teachers of the State Zone with the same pay-scale and other benefits4. Certain teachers, aggrieved by Clause 13 relating to mutual transfer contained in Office Memorandum, dated 07.04.2010 filed an original application to the Karnataka Administrative Tribunal, Bangalore. The application has been allowed and the said Clause of the Office Memorandum has been quashed and it has been ordered that transfers/postings be made strictly in accordance with the KCS (Regulation of Transfers of Teachers) Act, 2007 (in short, referred to as the Act of 2007) and Rules framed thereunder. The State preferred Writ Application in the High Court. The same has been dismissed. Hence, the appeal has been preferred by the State of Karnataka, by way of Special Leave.

Reasoning:
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.