IN THE HIGH COURT OF KARNATAKA AT BANGALORE P R E S E N T THE HON BLE MR. JUSTICE N. KUMAR A N D THE HON BLE MR. JUSTICE H.S.

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1 IN THE HIGH COURT OF KARNATAKA AT BANGALORE DATED THIS THE 11 TH DAY OF SEPTEMBER 2012 P R E S E N T THE HON BLE MR. JUSTICE N. KUMAR A N D THE HON BLE MR. JUSTICE H.S. KEMPANNA WP No.17482/2011 c/w WP Nos / 2011 (S - CAT) IN WP No.17482/2011 (S-CAT) : BETWEEN: Sri N Periya Swamy Aged 53 years S/o A Nallaswamy Wording as TGT English Jawahar Navodaya Vidyalaya Karaikal, Puducherry, R/o. 2/19, Narayanan Illam Chinnathambi Nagar, Sirkazi Nagapattinam District Petitioner. (By Sri Basavaraj Veerabhadra, Adv.)

2 2 AND : 1. Sri K Shankar Aged about 44 years S/o. Krishna Murthy Working as Trained Graduate Teacher (English), Jawahar Navodaya Vidyalaya Chikkjogihalli, Bellary District, Bellary Smt. Satyabhama Aged about 41 years W/o. Sri K. Shankar Working as Trained Graduate Teacher (Hindi) Jawahar Navodaya Vidyalaya Chikkjogihalli, Bellary District, Bellary Union of India Represented by its Secretary Department of School Education and Literacy Shastri Bhavan New Delhi The Joint Commissioner, Navodaya Vidyalaya Samithi Department of School Education and Literacy No.A 28, Kailash Colony, New Delhi The Deputy Commissioner Jawahar Navodaya Vidyalaya Samithi Hyderabad Region, /3 S.P. Road, Secunderabad Andhra Pradesh. Respondents (By Sri Ranganath S Jois, for C/R1 and 2, Sri N. Amaresh, CGC for R-3 to 5)

3 3 This W.P. filed under Articles 226 and 227 of the Constitution of India with a prayer to quash the order dated passed by the Hon ble Central Administrative Tribunal, Bangalore Bench, in ON APPRECIATION No.513/2010 vide Annexure-A and pass any other appropriate orders. IN WP Nos / 2011 (S - CAT) : BETWEEN: 1. Union of India Represented by its Secretary Department of School Education and Literacy Shastri Bhavan New Delhi The Joint Commissioner, Navodaya Vidyalaya Samithi Department of School Education and Literacy No.A 28, Kailash Colony, New Delhi The Deputy Commissioner Jawahar Navodaya Vidyalaya Samithi Hyderabad Region, /3 S.P. Road, Secunderabad Andhra Pradesh. Petitioners. (By Sri Amaresh N, CGC) AND : 1. Sri K Shankar

4 4 Aged about 44 years S/o. Krishna Murthy Working as Trained Graduate Teacher (English), Jawahar Navodaya Vidyalaya Chikkjogihalli, Bellary District, Bellary Smt. Satyabhama Aged about 41 years W/o. Sri K. Shankar Working as Trained Graduate Teacher (Hindi) Jawahar Navodaya Vidyalaya Chikkjogihalli, Bellary District, Bellary Sri N Periya Swamy TGT English Jawahar Navodaya Vidyalaya Karaikal, Hyderabad Region. Respondents. (By Sri Ranganatha S. Jois for C/R-1 & 2, Sri. Basavaraj Veerabhadra, Adv. for R-3) These WPs are filed under Articles 226 and 227 of the Constitution of India praying to quash the order dated passed by the Central Administrative Tribunal, Bangalore Bench in O.A.NO.513/2009 available as at Annexure-A. These W.Ps. coming on for preliminary hearing this day, N. KUMAR, J., delivered the following: -

5 5 COMMON ORDER The petitioner in WP No.17482/2011 has challenged in this writ petition the order passed by the Central Administrative Tribunal quashing the order of his transfer from Betul in Bhopal Region, in Madhya Pradesh to Karaikal in Tamil Nadu as per Annexure B. The petitioner N Periya Swamy was appointed as Trained Graduate Teacher (for short TGT ) (English) w.e.f and posted at Jawahar Navodaya Vidyalaya (for short JNV ) Guna District (Madhya Pradesh). He served there till for a period of 4 ½ years. On his request he was transferred to JNV Prabhatpattan, Betul District (MP), he reported to duty there on He served in the said post for three years up to In public interest he was transferred from the said post to JNV Churhat (MP) and where he reported to duty on he served there for a period of 9 ½ years up to again on his request he was transferred to JNV

6 Prabhatpattan, Betul District (MP) and he reported to duty on While he was serving at the said place he made a request for transfer to JNV Karaikal which was granted as per Annexure B and he reported to duty on , at this juncture it is necessary to indicate that till he was transferred to Karaikal a place, which is in Hyderabad region, earlier he was working in Bhopal region, so it was a case of inter regional transfer The respondent No.1 is the husband and respondent No.2 is the wife. The first respondent K. Shankar was also appointed as TGT (English) at JNV Bellary in Karnataka and he reported to duty on , his wife 2 nd respondent was working as TGT (Hindi) at JNV, District Sabarkantha, Gujarat under Pune region. Subsequently she was transferrred to JNV Bellary w.e.f , where Sri. Shankar was working in order to unite the couples. Both of them continued to work at JNV Bellary till the date of transfer of petitioner to Karaikal. The transfer policy is contained in the circular dated

7 7 as per Annexure A1. The relevant clauses 2, 3 and important notes appended to the same reads as under :- 2. GENERAL POLICY OF TRANSFERS The Samiti does not transfer any teacher except under administrative exigencies. The transfer on request basis will be considered against available vacancies only. No one will be transferred to his/her home district. 3. POLICY OF COUNSELLING The staff participating in the counselling sessions would be divided into six groups with eligibility as under :- GROUP-I Those seeking transfer to the Vidyalaya where his/her spouse is working and / or where such transfer would result in unification of the couple in the same JNV. This preference will not be given in those cases where both spouses are already working in the same JNV. GROUP-II Those retiring on or before 30 th June 2011.

8 8 GROUP-III Those presently working in JNVs in shillong Region and other hard and difficult stations (Annexure I) identified by the Samiti and who have completed three years of stay at these places as on 30 th June GROUP-IV Those who are seeking inter-regional request transfers i.e. transfer to any JNV outside the Region in which they are presently posted and who have completed three years of stay in present region as on 30 th June GROUP-V Those who are seeking intra-regional request transfers i.e. transfer to any JNV within the same region and who have completed three years of stay at present JNV as on 30 th June GROUP-VI All remaining teachers/non-teaching staff not covered in above categories.

9 Counseling for transfers would be done in the same order as mentioned above. In above groups, teachers will be given preference as per their length of stay in present Region/JNV. IMPORTANT NOTES 1. Employees who have availed transfer on request during preceding three years i.e. on or after 1 st July, 2006 would not be considered for request transfer. 2. Employees recruited at Vidyalaya / Regional Office s level will not be considered for request transfer out of present region since they were recruited for specific region. However, these employees can seek transfer within the present region. 3. Those interested in request transfer must report for counselling at the venue i.e. JNV, Ratibad, Bhopal (MP) as per schedule. 4. No applications for request transfers are being invited. Employees desirous of request transfer should straightaway attend the counselling session. They should, however, bring their applications duly countersigned by the Principal of the vidyalaya on the proforma available at Annexure-II. 3. The grievance of respondent Nos.2 and 3 before the Tribunal was that as they have completed 13 years of 9

10 10 service at Bellary, they were entitled to transfer to a place of their choice i.e., Karaikal as they were eligible for the same. However, that was denied to them because the petitioner herein was transferred to Karaikal. Therefore, they preferred the Original Application No.513/2009 challenging this transfer. The Tribunal relying on the first condition in the important notes, to the effect, that employees should have availed transfer on request during preceding three years i.e. on or after would not be considered for request transfer and has held as the petitioner was transferred on his request from JNV Churhat ( MP ) to JNV Betul ( MP ) he was not eligible for the said transfer. Therefore, it has set aside the order of transfer and directed to consider the claim of respondent Nos.1 and 2. It is against the said order the petitioner is before this court. It is submitted in pursuance of the directions issued by the Tribunal the case of respondent Nos.1 and 2 was considered and as they were found eligible they were

11 11 transferred to JNV, Karaikal on , where they are working at present. 4. The learned counsel for the petitioner assailing the impugned order contends that Group IV deals with inter regional request transfers and Group V deals with intra regional request transfer. If an employee has availed the transfer on request in either of the groups, he is not entitled to a transfer again within the group as mention until the expiry of three years period. However, it has no application when an employee seeks a request transfer in Group-V within 3 years. For he is seeking for a inter regional request transfer, there is no bar. The Tribunal has mis-construed the first important note in the circular and set aside the order of transfer in respect of the petitioner. 5. Per contra, learned counsel appearing for respondent Nos.1 and 2 contend that note No.1 do not make any distinction between the groups, all that it says is, if an employee has sought for transfer on request he is not

12 12 entitled for a transfer on request again, till the expiry of three years period, whether it is inter regional request transfer or intra regional request transfer. The Court cannot re-write the said notice nor add something to it, which is not there, and therefore, he submits that the order passed by the Tribunal is correct and does not call for any interference. 6. However, the learned counsel appearing for the 3 rd respondent - Union of India submits that clause 1 of the important notes has to be harmoniously construed in the background of the scheme. The scheme provides for both inter regional request transfer as well as intra regional request transfer. There is bar of three years period between the two requests which applies to both the groups. If an employee has sought for a request transfer within the region i.e. intra regional transfer and even if he is otherwise eligible for being transferred to a place of his choice on inter regional transfer basis, the three years period stipulated in the note is not applicable and therefore, he submits that

13 13 the order passed by the Tribunal is erroneous and requires to be set aside. 7. A perusal of the aforesaid transfer policy makes it clear that the authorities decided to effect both the inter regional request transfer and intra regional request transfers of teaching staff and non-teaching staff working in all JNV at single venue through the process of counseling. Therefore, they wanted to formulate some guidelines i.e., Annexure-A the general policy of transfer is formulated. The policy prescribes that the Samithi does not transfer any teacher except under administrative exigencies. The transfer on request basis will be considered against available vacancies only. No one will be transferred to home district. Group IV deals with inter regional request transfer i.e., transfer to any JNV outside the region in which they are presently posted and who has completed three years of stay in the present region as on Therefore, the conditions precedent for a transfer for a inter regional request transfer is to applied to

14 14 those persons, who have completed three years of stay in the present region as on Mr.N. Periya Swamy the petitioner was seeking inter regional request transfer. He had completed 17 ½ years of service in Madhya Pradesh region and he was seeking transfer to Karaikal, which is in Hyderabad region. Group V deals with intra regional request transfer i.e., transfer to any JNV within the same region and who have completed three years of stay at present JNV as on Therefore, even if an employee is seeking intra regional request for transfer he should complete three years of stay at present JNV as on Therefore, a reading of these two groups make it clear unless an employee completes three years of service either in one region or in one place, he would not be entitled to either intra regional transfer or inter regional transfer. It is in this background, we have to look at clause No.1 in the important notes, it says Employees who have availed transfer on request during preceding three years i.e., on or after would not be considered for

15 15 request transfer. Therefore, if this provision is r/w Group IV and V it follows If an employee is seeking an inter regional request transfer, he is not entitled to such a transfer, if he has availed such an inter regional request transfer within the preceding three years similarly, If a person, who is seeking intra regional request is not eligible for a transfer within the region. If he has availed transfer on request during preceding three years. In the instant case, the transfer sought for by the petitioner and respondent Nos.1 and 2 do not fall within the same group. The petitioner s request is under group IV whereas respondent Nos.1 and 2 s request fall under group V. To be eligible for a transfer in Group IV the petitioner should not have availed the transfer on request to a region outside the region, where he sought for a transfer. The material on record shows from the date of his appointment for nearly 17 ½ years, petitioner has not sought for inter regional request transfer. In fact he made a request for inter regional request transfer on to Kodagu.

16 16 However, the material on record shows he never went and reported at Kodagu therefore, the said transfer had not taken place. Even if that transfer is taken into consideration it is before three years prescribed in the transfer policy. Merely because he had sought for a transfer within the region that would not be a bar for him to seek for inter regional request transfer. This aspect has been completely missed by the Tribunal. When once the petitioner was granted the inter regional request transfer to Karaikal, there was no available vacancy. It is under those circumstances, the request of respondent Nos.1 and 2 was not accepted. Therefore, the authorities committed no illegality in not complying with the request made by respondent Nos.1 and In that view of the matter, the order of transfer at Annexure B is legal and valid and the tribunal committed serious error in setting aside the order of transfer. It is unfortunate after 17 ½ years when the petitioner wanted to get transfer to a place where he is coming from, though the

17 17 authorities had provided an opportunity, he was deprived of that benefit by virtue of the Tribunal s order. So at this final stage, he could be accommodated at a place of his choice, which he sought for. Notwithstanding this order, it is still open to the authorities, if they chose to retain respondent Nos.1 and 2 in that place or any nearby place so that husband and wife are not separated and they are permitted to serve the institution effectively. Ordered accordingly. JUDGE NG* Sd/- Sd/- JUDGE