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Judgment
Dr. Chhabilendra Roul, Member (A)
The present OA has been filed by the applicant against the order dated 13.09.2022 by which the applicant has been transferred from K.V. Rajokri, AFS, New Delhi to K.V. Koni, Kerala and against order dated 23.03.2023 vide which the representation of the applicant was not considered favourably for cancelation of the aforementioned transfer order.
Brief facts of the applicant are that the applicant was initially appointed as TGT (Math) on 12.08.2009 and posted at K.V.S. Udhampur, Jammu and subsequently transferred to K.V.S. Rajokari, New Delhi. Since then she is working in the same KVS for the last 11 years. Vide transfer order dated 13.09.2022 the applicant was transferred to K.V.S. Rajokari, New Delhi to K.V.S Koni, Kerala. The applicant filed OA No. 2628/2022 before this Tribunal and the Tribunal vide its order dated 30.09.2022 passed the following order:-
“4. However, without going into the merits of the case and in view of the aforesaid facts and circumstances, this O.A. is disposed of with a direction to the applicant to espouse her claim before the respondents by way of a fresh detailed and comprehensive representation within a period of one week from the date of receipt of a copy of this order. On receipt of the representation, the respondents shall decide the same on merit in view of the annual transfer policy, after giving an opportunity of personal hearing to the applicant, by passing an appropriate reasoned and speaking order within a period of two months thereafter. The impugned transfer order qua the applicant is stayed and the effect and operation of relieving order, if any, issued in pursuance of the impugned transfer order is also stayed for a period of two months. If the applicant has already been relieved the respondents shall allow her to join back immediately where she was posted prior to the issuance of the impugned transfer order.”
In pursuant to the aforesaid order dated 30.09.2022 of the Tribunal, the applicant submitted detailed fresh representation on 11.10.2022 (Annexure A-10) to the respondents and the respondents have decided the representation of their employees and issued list of candidates vide order dated 20.12.2022 giving them benefits of Transfer Policies under categories like MDG/DFP/PH/Care-Giver for PH/ Widow/Widower/Single mother etc enumerated in the Transfer Policy Guidelines 2021.
On directions of the respondents, the applicant has attended personal hearing before the Joint Commissioner (Admn.) of K.V.S. Headquarters on 07.02.2023. Vide order dated 23.03.2023, the respondents have issued detailed order, rejecting the request of the applicant for cancellation of the transfer order dated 13.09.2022 and the applicant was relieved from her duties from K.V.S. on 01.04.2023
Being aggrieved, the applicant has filed present OA seeking the following relief(s);-
(i) That the Hon’ble Tribunal may graciously be pleased to pass an order of quashing the impugned order dated 13.09.2023 Annexure A-1 and impugned order dated 23.03.2023 (Annexure A-2) in respect of the applicant and allowing the applicant to perform her duities at the same station/school or other nearby school till her retirement with all consequential benefits.
(ii) That Hon’ble Tribunal may graciously be pleased to pass an order of withdrawal of the impugned relieving order dcated 1.4.2023 (Annexure A-3).
(iii) Any other relief which the Hon’ble Tribunal deem fit and proper may also be granted to the applicants along with the costs of litigation.
On admission of the OA notices were issued to the respondents and they have filed their counter affidavit to which the applicant has also filed his rejoinder to the same.
Learned counsel for the applicant has tendered the following grounds in support of the relief sought by the applicant:-
(a) That the order dated 23.3.2023 is not a speaking order. The issue raised in applicant’s representation dated 11.10.2023 has not been dealt with at all. The order dated 23.03.2023 is just a mechanical order and they have invoked that the academic session 2022-23, the KVS has suspended the Policy Guidelines of 2021 in respect of transfers. Particularly, they have suspended the Clause 6 of the transfer guidelines which gives points to be counted for eligibility / ineligibility of the employees of KVS for transfer from KVS to another KVS.
(b) Learned counsel for the applicant further averred that the order dated 23.03.2023 has not been taken into consideration the specific personal difficulties being faced by the applicant. Particularly, the applicant is a single mother, who has to take care of her old parents and she is suffering from depression and Physiologists has advised her not to be alone. She has matrimonial dispute with her estranged husband for which she has to attend the family court frequently. For all practical purposes though she is a single mother, the KVS Authorities has not given benefits of MDG/DFP/PH/Care-Giver for PH/ Widow/Widower/Single mother etc enumerated in the Transfer Policy Guidelines 2021. The applicant deserved to be treated equally with other candidates who have been given benefits under such exemption clause.
(c) Learned counsel for the applicant further averred that the KVS Authorities have given benefits of these categories of MDG/DFP/PH/Care-Giver for PH/ Widow/Widower/Single mother etc enumerated in the Transfer Policy Guidelines 2021 to other candidates and have not given the same benefits to the present applicant who is a single mother. This speaks of arbitrariness of the decision making by the KVS Authorities and the order dated 23.3.2023 did not consider the applicant’s case as a single mother. This has violated the principle of equality as enumerated under Article 14 of the Constitution of India. The applicant deserved to be treated equally at par with other employees who have been given the benefits of exemption from transfer as she belongs to Single Mother category.
Learned counsel for the respondents vehemently opposed the contention of the learned counsel for the applicant and averred that the order dated 23.3.2023 is reasoned and speaking order. It has given the detailed order as to why the case of the applicant could not be considered in a particular category of Single Mother. Particularly he quoted the following order dated 23.3.2023 by the respondents (impugned order) which states as follows:
“Whereas, on examination of the representation of the applicant and as per details available with KVS (HO), it is observed that Mrs.Kavita Dua, TGT (Maths), Kendriya Vidyalaya, AFS Rajokri had been- working in station we.f 01-Jun-11 i.e more than 11 years, which was identified as KV having 80% or more regular Teaching staff Accordingly, he/she has been transferred from Kendriya Vidyalaya, AFS Rajokri to Kendriya Vidyalaya Konni, where the teachers strength is having less than 50% of regular teaching staff on its rolls. While effecting transfer the organizational interest, which is primarily student centric, remains the upper most consideration.
Further, administrative transfers are effected for the purpose of redistribution of teaching staff in accordance with provisions regarding administrative transfers that are already existing in the Kvs transfer guidelines and accordingly the KVS has exercise the same and identified the teachers as per their all India station seniority (inclusive of all cadres). It is informed that the KVS have also given exemption from administrative transfer to those employees who comes under the category of MDG/DFP/PH/Care-giver/for Widow/Widower/Single Mother etc.”
Learned counsel for the respondents averred that the present applicant has spent more than 11 years in the same school and she is working in a school having 80 % more regular teaching staff. She has been transferred to another school which has less than 50 % regular teaching staff on its own roles. Hence the transfer of the present applicant is as per the rationalization/ redistribution policy adopted by the KVS Authorities suspending the guidelines of 2021 in respect of transfers.
Learned counsel for the respondents further stated that the applicant has failed to convince the respondents as to how to the applicant is single mother. There is no evidence on records to show that the applicant is a single mother and she does not belongs to any other exempted category for which the benefits has been given by the KVS Authorities by consideration of their representations on 20.12.2022. He further stated that personal difficulties of a particular employee is no reason for not effecting transfers of KVS Teaching Staff. KVS Teaching staff belongs to transfereable job and they are liable for transfer to KVSs anywhere in the country. He drew attention to the order of this Tribunal in OA No.608/2023 in para 38 wherein it has been held that:
The last averment by the applicant that she deserves sympathetic consideration on account of the impeding hardship she would face because of her transfer beyond 500 kms from the existing place of posting, daugter’s education, husband’s employment in IPL (a non-government/non-PSU organization in UP), old parents-in-law, etc. have been duly considered by 31 OA No.608 of 2023 Court No.6 (item No.2) the Respondents in the impugned order dated13.1.2023. Moreover, the Apex Court in series of judgments like Gujarat Electricity Board Vs Atmaram Sungomal Poshani (Supra), Union of India Vs S.L. Abbas (supra),Public Services Tribunal Bar ... Vs State Of U.P. & Another(Supra), State of UP &Ors Vs Govardhan Lal (supra),Airport Authority of India Vs Rajeev Ratan Pandey and Ors (supra), Rajendra Singh &Ors Vs State of Uttar Pradesh &Ors(Supra) , State Of Haryana &Ors Vs Kashmir Singh &Ors (supra), Punjab and Sind Bank &Ors. Vs. Durgesh Kuwar (supra), Union of India and Others Vs. Ganesh Dass Singh (supra), has given upper hand to the administrative authorities or the Government in matters of Transfers. In all those judgments, the Apex Court held that the Public Interest is paramount in such administrative exercises and there is very limited scope for judicial review in the matters of transfer. As it has been held in the other set of judgments cited in paragarph 34 above, unless there is malafide, bias, infringement of statutory provisions, lack of competency, non-application of mind, etc, the courts and tribunals should not interfere in the administrative decision in respect of transfers. In the instant case, as 32 OA No.608 of 2023 Court No.6 (item No.2) we have already discussed above, we do not find any such bias or non-application of mind in the present case.
Learned counsel for the respondents stated that the applicant has failed to point-out any bias or malafide on the part of the KVS Authorities while effecting the transfers in respect of the applicant.
Moreover, he drew attention to para 29 of this Tribunal’s order in the aforementioned OA No.608/23 which states as under:-
Personal hardships, family circumstances, education of children, health issues of self and 23 OA No.608 of 2023 Court No.6 (item No.2) dependant family members are matters for consideration for the competent authority but not for the courts/ tribunals to decide the matter as an Appellate Authority. The decision of the Administrative Authorities after considering these personal difficulties is considered final. The Apex court in State of MP and Ors Vs S.S. Kourav & Ors [CA No. 1285 of 1995 decided on 19.1.1995] held that: “It is further contended that in an unfortunate situation the respondent’s wife committed suicide leaving three children and he would suffer extreme hardship if he has to work in the tribal area. This court cannot go into that question of relative hardship. It would be for the administration to consider the facts of the given case and mitigate the real hardship in the interest of good and efficient administration. If there is any such hardship, it would be open to make a representation to the government and it is for the government to consider and take appropriate decision in that behalf.”
Learned counsel for the respondents stated that the KVS Authorities are competent to decide the personal difficulties of the KVS employees by giving them an opportunity being heard in person. KVS Authorities has considered the personal difficulties of the present applicant and other employees of KVS. After giving due consideration of their personal difficulties, speaking order dated 23.3.2023 has been passed. In view of this, he averred that, the present OA lacks and it should be dismissed.
I have gone through the records of the case thoroughly and heard the arguments carefully. In the instant case, the learned counsel for the applicant has prayed that the order dated 23.03.2023 is non-speaking one and it has not dealt with the grievance of the applicant as mentioned in her representation dated 11.10.2022. The second issue raised by the learned counsel for the applicant is that the applicant is a single mother and the benefits of exemption given to other KVS employees who belong to category of MDG/DFP/PH/Care-Giver for PH/ Widow/Widower/Single mother, etc enumerated in the Transfer Policy Guidelines 2021. The argument of the learned counsel for the applicant is that the present applicant has been discriminated and it violates the Article 14 of the Constitution of India. A perusal of the order dated 23.3.2023 shows that the issue whether the present applicant is a single mother or not has not been discussed or nor any finding has been given regarding in that aspect, while other employees who have been given such benefits vide their decision dated 20.12.2022. The present applicant deserves to be considered for exemption from transfer based on the principle of equality of as enumerated under Article 14 of the Constitution of India. Furthermore, the learned counsel for the applicant has averred that the applicant’s relationship with her husband has become estranged and there is matrimonial dispute going on and the applicant has to attend the Family Court frequently. Because of these, she will be facing great difficulty if she has to join new place of posting and she has to travel from Kerala to Delhi to attend the family court for its proceedings. These are the facts which have not been substantiated in the present OA nor in the representation dated 11.10.2022.
In view of the above, the respondents are directed to accord fresh opportunity to the applicant of being heard. The applicant is directed to provide documentary evidence to show that she has a matrimonial dispute going on with her husband and also provide the frequency of dates she has to appear before the Family Court. In that event, the respondents may consider her case for exemption from transfer treating her de facto a single mother.
The applicant is directed to submit a detailed & comprehensive representation to substantiate her claim as single mother as well as the frequency of proceedings in the family Court within one week from the date of receipt of a certified copy of this order. The respondents are directed to consider her representation within 15 days from the date of submission of such representation.
The present OA is disposed of as per above terms. There shall be no order as to the costs.
All pending MAs, if any, are also disposed of accordingly.