Ch.Kanonbala Devi vs Union Of India And Ors

R.S., CJ

[1] Heard Mr.Kh.Binoykumar, learned senior counsel for the petitioner and Mr.S.Samarjeet, learned CGC for the respondents No. 1, 2 and 3.

[2] The prayers in this writ petition are extracted as under:-

"i. to admit this petition for hearing;

ii. after hearing the parties, to quashed and set aside the order dated 07.12.2018 passed by the CAT, Gauhati Bench in O.A. No: 250/2016; the impugned Transfer Drive, 2016 in so far as the petitioner is concerned whose name is shown at Sl. No. 131 and the consequential Transfer orders dated 19.08.2016 (Annexure - A/2 Colly).

iii. to pass any other further Writ/Orders/Directions as may deem fit, and appropriate in the nature of the case."

[3] The facts relevant for deciding the case are as below:-

The petitioner joined service as a PET (Physical Education Teacher) in the JNV (Jawahar Navodaya Vidyalaya) in the year 1994 and now she is serving as such in the JNV, Khumbong in Imphal West District of Manipur under the Navodaya Vidyalaya Samiti, Regional Office Shillong. Besides, her normal duties as a PET, the petitioner is an Associate NCC Officer, (Third Officer), Junior, Army Wing of the JNV, Khumbong under the NCC Group Head Quarter, Imphal imparting NCC training to the NCC Cadets of the Vidyalaya. The NCC Group Head Quarter, Imphal has issued a communication dated 08.01.2016 in this regard.

In the beginning of the year 2016, on the Website of the Jawahar Navodaya Vidyalaya Samiti, the impugned Transfer Drive, 2016 was uploaded by stating that separate individual Transfer Orders would be issued later on and the name of the petitioner has been shown at Sl. No. 131 of the list of transferees, transferring her to JNV Champhai, Mizoram from JNV Khumbong. The petitioner submitted a representation dated 11.07.2016 to the Navodaya Vidyalaya Samiti authorities for reconsideration in as much, as the petitioner has a 6 year old female child and her husband is serving in the CBI Imphal Branch and there is no CBI Branch Office in Mizoram so that her husband could move the CBI authorities for transferring him to Mizoram, which grounds are well protected by the relevant Transfer policies of the Navodaya Vidyalaya Samiti. Thereafter, the petitioner approached the CAT Gauhati Bench by filing an application in O.A. No: 250/2016 challenging the Transfer Drive, 2016 (Sl. No. 131) on various grounds for violation of the Transfer policies issued by the authorities from time to time. However, by the impugned order dated 07.12.2018 the O.A. has been rejected and the interim stay order is also vacated.

[4] Challenging the order of the Central Administrative Tribunal, the present writ petition is filed. The writ petition was filed on 20.12.2018 without enclosing a copy of the impugned order dated 07.12.2018 passed by the Central Administrative Tribunal in O.A. No.250 of 2016. Subsequently, an interim order was granted by this Court on 04.02.2019 and an application, being MC(W.P) No.15 of 2019 to bring on record the impugned order was allowed and taken on file and interim order continues as on today. Mr.Samarjeet appearing on behalf of the respondents No.1, 2 and 3 also filed an Misc. Case for vacating the interim order. Notice has been sent to private respondent but has not chosen to appear. However, notice to respondent No.4 is dispensed with as her interest will be safeguarded by the order that is to be passed by this Court.

[5] It is an admitted fact that the petitioner had served in the said place for more than 21 years and the learned counsel for the petitioner fairly concedes that transfer is an exigency of service but the request for retaining her posting in a nearby place is sought for on two important reasons; one is the medical condition of the petitioner and the medical condition of the child. It is also pleaded that in the case of transfer of the petitioner, approval of the appropriate authority is required.

[6] Be that as it may, we have perused the order of the Tribunal and we find no reason to find fault with the order because the Tribunal has rightly considered the fact that the applicant therein/petitioner before this Court, had served JNV, Khumbong, Imphal West for 21 years and there cannot be a plea to continue at a single station for endless number of years till the end of his or her career. The Tribunal has also noted that the respondents/authorities have been very considerate so far as the petitioner is concerned by allowing her to continue for 21 years. Therefore, it is obvious that the petitioner cannot and as a matter of right seek retention in the same place for such a long period of time. It is also pointed out that this transfer and posting is based on a transfer drive of 2016 where many such persons are posted based on their number of years and posting and in a particular place and other relevant criteria. An incumbent has been posted to the place where the petitioner is serving and she has also made a request under transfer drive of 2016. It is therefore evident that the petitioner has not been chosen for any hostile discrimination for transfer but it is a case of transfer drive of 2016 where the posting of different persons are considered and taken up for transfer based on transfer policy and considering individual requests.

Therefore, the Tribunal was correct in declining to grant any relief in so far as the transfer is concerned. However, in para No.9, the Tribunal directed the authorities to consider the petitioner's request for posting the petitioner to a nearby place of posting of her spouse, namely, husband based on DoPT OM dated 30.9.2019. Para No.9 of the Tribunal order for clarity is set out as under :-

"9. In view of the above, we are not inclined to interfere with the transfer of the applicant any further. However, the applicant's spouse is at liberty to seek posting to a place nearer to the place where the applicant is posted in terms of the following provisions of the DoPT OM dated 30.09.2009 apropos posting of husband and wife at the same station:-

"(iv) Where the spouse belongs to one Central Service and the other spouse belongs to another Central Service:-

The spouse with the longer service at a station may apply to his/her appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station to the nearest station where the post exists. In case that authority, after consideration of the request, is not in a position to accede to the request, on the basis of non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no post in that station to the nearest station where the post exists."

In case, applicant spouse makes such prayer the appropriate authority will definitely consider the case in accordance with rules."

[7] In the result, we find no error in this direction also. The petitioner in this case is entitled to make an application to the respondent No.2, the Commissioner, Navodaya Vidyalaya Samiti, Department of School Education & Literacy, Govt. of India, B-15, Industrial Area, Sector-62, Noida along with a copy of this order setting out all relevant reasons for posting to a nearby place giving the reasons thereof. The representation to be given on or before 30.8.2019.

[8] All relevant medical records, both of the petitioner and the child, can be submitted along with the representation to be considered by the authority expeditiously preferably within 15 days from the date of such representation. However, interim order of this Court stands vacated for enabling the authority to decide on merits.

[9] The writ petition stands disposed off as above.