AI Structured Summary
Not yet generated for this judgment
Judgment
Sunil Thomas, Member (J)
The applicants in OA No. 489/2022, 490/2022 and 494/2022 are individual Post Graduate/Graduate school teachers employed in Kendriya Vidyalaya, Kannur under the respondents. The applicants in OA No. 502/2022 are 13 Primary School teachers employed in Kendriya Vidyalaya, Kannur. All the above teachers were transferred by a transfer order issued on 16.9.2022. The applicants in OAs Nos. 489/2022, 490/2022 and 494/2022 have approached this Tribunal contending that their transfers were ordered in violation of the transfer guidelines 2021, produced along with the OA. All of them claimed that they stood in a better position and were not liable to be transferred. It was alleged that their transfers were effected malafide and will cause great inconvenience and hardship to all of them.
In OA No. 502/2022 all the teachers contend that they were transferred by Annexure A2 transfer order. It was preceded by Annexure A1 notice dated 12.9.2022 by which clause 6 of Annexure A3 transfer guidelines, 2021 was kept in abeyance. According to the applicants transfers were effected in the middle of the academic year and by the transfer order, they have been relieved forthwith. They challenged Annexure A1 notice and sought to quash the entire proceedings pursuant to Annexure A1. In OA No. 502/2022, it was contended that the transfers were effected without considering the transfer guidelines of the year 2021. Several teachers were protected under the guidelines and consequently they were not liable to be transferred. However, overlooking such protection granted to them, under the guise of Annexure A1, such teachers were also transferred. According to the applicants, had annual transfers been effected, they would have got opportunity to convince the authority about their general grievances. They also projected their individual grievances in being transferred. In OA No. 502/2022 the relief sought was to quash Annexures A1 and A2. In all other OAs the transfer orders itself were challenged by the applicants.
The respondents filed their separate but detailed reply statement in all the above OAs. Since OA No. 502/2022 is more comprehensive and challenged Annexure A1 therein, the documents will be referred to in the order in which it is produced in OA No. 502/2022.
In the reply statement it was stated that about 1248 Kendriya Vidyalayas are established in India by the Kendriya Vidyalaya Sangathan which is an autonomous organization registered under the Societies Registration Act and fully financed by the Government of India. All the teachers were appointed through an all India selection process, and they hold transferrable posts. They are liable to be transferred to anywhere in India by Article 71 of the Education Code (Revised edition), for governance of the Kendriya Vidyalaya as well as, as per the terms of their appointment. The transfer guidelines, 2021 was approved by the competent authority. Essentially the guidelines are intended for the internal use of Kendriya Vidyalaya Sangathan. It does not vest with any employee any right as laid down in a catena of decisions referred to in the reply statement. It was asserted that the decision was taken in administrative exigency and taking in to consideration the public interest. It was contended that the courts cannot interfere in the absence of malafide or allegations of violation of statutory Rules. None of those grounds was available in the present case, it was contended. The choice of the teachers to be transferred and the places to which they are to be transferred were within the domain of the appropriate authority and there is no scope for any interference in such exercise of jurisdiction. It was contended that transfer guidelines at best may offer an opportunity to the employee to approach the higher authorities to seek redressal of their grievance but cannot have the consequence of depriving or denying the right of the competent authority to transfer a particular employee of KVS to any place in public interest and as is found necessitated by exigencies of service, as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. It was further contended by the respondents that even if the order is made in violation of the administrative guidelines, it cannot be interfered by courts of law since it does not confer any legally enforceable rights unless it is shown to have been vitiated by mala fides or made in violation of the statutory provisions. Kendriya Vidyalaya Sangathan is the best judge to decide how to distribute and utilize the services of the employees. Power to transfer the employees has been exercised honestly, bonafidely and reasonably in the present case. The scope of judicial review in such an order of transfer has been held to be very limited in a catena of decisions. It was also stated that the transfer was effected this year to ensure rationalization of teachers and redistribution of the existing teachers and to ensure that at least 50% of the regular teaching staff inclusive of all cadres are available in all KVs. It was pointed out that out of total teaching staff of 36,565 in position, only 1,455 transfers have been effected, which is around 4% of the total teaching staff in position.
Heard Mr. T.C. Govindaswamy, the learned counsel for the applicants and Mr. V.V. Asokan, learned senior counsel instructed by Advocate Vineeth Komalachandran on behalf of all the respondents. Examined the records.
It is an admitted fact that all the original applicants except one have been transferred to different parts in Kerala itself. Only one applicant has been transferred outside Kerala, to Thiruchirapally. The learned counsel for the applicants clarified that in OAs Nos. 489/2022, 490/2022 and 494/2022 the applicants rushed to this Tribunal on getting the orders of transfer apprehending that they would be immediately relieved of their duties. Since urgent orders were required, they sought interim relief and interim relief was granted. Only thereafter, the applicants came to know about the issuance of Annexure A1 order dated 12.9.2022, a copy of which is produced in OA No. 502/2022. Consequently, in that OA alone the legality of Annexure A1 is under challenge. In all other OAs, the transfers are challenged on the ground of violation of the transfer guidelines, 2021, which was kept under abeyance by Annexure A1 in OA No. 502/2022. However, since the legality of Annexure A1 is under challenge that will be considered on behalf of all the applicants.
The learned counsel for the applicants assailed Annexure A1 on a preliminary ground that it was issued by an incompetent authority. It was pointed out that Annexure A3 guideline was issued by the Chairman of the 1st respondent, whereas Annexure A1 was issued by the Joint Commissioner. The learned senior counsel pointed out that Annexure A1 was only a notice which only stated that the competent authority has suspended the annual transfer process of KVS for the current academic session 2022-23. The file number on which such an order was passed by the competent authority is referred to in Annexure A1 itself. A perusal of Annexure A1 clearly shows that it was only a notice issued by the Joint Commissioner informing that with the approval of the competent authority the annual transfer process has been suspended. Evidently, it is only a notice given by the Joint Commissioner on the orders issued by the competent authority. Hence, there is no substance in the contention of the learned counsel for the applicants that Annexure A1 was issued by an authority who was not competent to issue it.
The applicants challenged Annexure A1 on the ground that it was issued malafide and without any bonafides. For a closer understanding of Annexure A1, it is essential to reproduce the contents of Annexure A1 which reads as follows:
“This is for information to all concerned that with the approval of the Competent Authority, the annual transfer process of KVS has been suspended for the current academic session (2022-23).
Further only administrative transfers will be effected for the purpose of redistribution and rationalization of teaching staff. All the provisions given in para 6 of the transfer guidelines 29021 are kept in abeyance.”
Learned counsel for the applicant invited the attention to the opening words in Annexure A2 which stated that with the approval of the competent authority the teachers whose names were mentioned in Annexure A2 have been transferred on administrative ground for the purpose of rationalization and redistribution of existing teaching staff, and in order to ensure that at least 50% of regular teaching staff are available in all KVs across the country. Based on this, the learned counsel for the applicants contended that the legality and correctness of Annexure A1 and the vires of Annexure A1 has to be tested against Annexure A2, as to whether the suspension of transfer order and keeping in abeyance the transfer guidelines particularly mentioned in paragraph 2 of Annexure A1 were intended to achieve the redistribution and rationalization of teaching staff.
In an attempt to demonstrate that, at least in the case of the institution from where the applicants stood transferred, the above purpose has not been achieved by the present transfers and thereby supports the allegation of malafides of the respondents, the learned counsel for the applicant referred to the available statistics. According to the learned counsel for the applicant, in the lower primary section of KV, Kannur, which has a sanctioned strength of 17 primary teachers and 1 headmaster, one post remained vacant. That vacancy was covered by engaging a contract teacher. Out of the remaining 16, 14 of the teachers have been transferred by Annexure A2, leaving only two regular teachers in the school. It was also contended that in KV, Kannur which is a 3 division school, there are 3 divisions for each of the standards 1 to 5 and total number of classes per day was 15. Each class had a strength of 50 to 55 students and the total student strength was around 750-800. Reckoning 8 periods per day the total periods to be attended by the teachers was 120. This has to be manned by two regular teachers and one contract teacher. Hence, it was contended by the learned counsel for the applicants that the above demonstrated that though Annexures A1 and A2 were styled as one intended to achieve rationalization and redistribution of teacher and staff and to ensure that at least 50% regular staff are available, it has not been achieved in the case of KV, Kannur, but on the other hand, it has considerably reduced the staff. It was hence pointed out that Annexure A1 smacks malafides and hence is liable to be interfered.
Answering the contention of the learned counsel for the applicants that Annexure A1 and the consequential transfers effected thereon, were with malafide motives and that it was not intended to achieve the object projected to be achieved, the learned senior counsel contended that it is on record that due to the disruption in the normal schooling for the past two years owing to pandemic situation, there has been significant learning loss among the students. It was pointed out that many children had difficulty with online/blended mode of teaching. The national achievement survey data for different classes corroborated the same. According to the mental health and well being of school students 2022 report published by NCERT, during the Covid-19 period, as classes were taken in online mode, 54% of students who participated in the survey reported facing difficulties in understanding and learning of content through online mode. It was found that teaching/learning happens best in face to face mode through a teacher. Hence a need was felt to address on priority, the learning challenges being faced by the students, for the past two years due to pandemic, through administrative means. The rationalization of teachers and redistribution of teachers have been effected to address the above core challenges after pandemic, so that the 50% of the regular teaching staff (inclusive of all cadres) are available in all KVs. Without regular teachers in position, it was found that it was challenging and difficult to cope up with the humongous task entailed to address the same in a uniform way across the country. The administrative transfer clause in KVS transfer guidelines were invoked in view of the dire circumstances.
To substantiate the above contention, the learned Senior counsel referred to Annexure A3 transfer guidelines of 2021, which has mentioned the objective of transfer, as to strive to maintain equitable distribution of its employees across all locations, to ensure efficient functioning of the organization and optimize job satisfaction among the employees. All employees are liable to be transferred anywhere in India at any point of time and transfer to a desired location cannot be claimed as a matter of right.
Viewed from the above angle, it appears that Annexure A1 was issued with an avowed object of ensuring redistribution and rationalization of the teachers strength. Definitely it is for the administration to decide as to how its teacher force shall be distributed and utilized, and the Tribunal cannot go into such exercise, unless it is established that there is definite arbitrariness in the choice of teachers and their distribution.
The learned counsel pointed out that while effecting Annexure A1, definite yardstick has been followed by the institution. Administration identified around 237 Kendriya Vidyalayas having less than 50% of regular teaching staff on its rolls and about 481 KVs having 80% or more regular teaching staff on its rolls all over India, on the basis of available vacancy. Station seniority, which indicates as who has the longest stay in the station as per the date of joining in that station, was taken as the criteria for transfer. Most of the teachers who have been transferred had a stay in a particular station for more than 10 years. It was also pointed out that out of the total teaching staffs of 36,565 in position, only 1,455 transfers have been effected.
Viewed from this angle, the only question that survives is whether these self adopted guidelines have been arbitrarily violated. The applicants have no case that any one among them has a shorter period of stay, in any particular station. Evidently the respondents have followed a rationale criterion in picking up and choosing the teachers liable for transfer. In the light of the explanation offered that for effecting the inter se transfers teachers from Vidyalayas having more than 80% or more regular staff on its rolls and transferring such excess staff to 230 KVs having less than 50% of regular staff cannot be found fault with. It was also pointed out that it was the total staff strength that was taken into consideration. Hence, the individual challenges pointing out the statistics to establish non-compliance with the above formula, especially in the case of KV, Kannur does not appear to be sustainable. Hence, there is nothing on record to indicate that the respondents were actuated by malafides in exercising the jurisdiction.
The learned senior counsel placed reliance on the decisions reported in Kumari Shrilekha Vidyarthi etc. v. State of U.P. & Ors. [AIR 1991 SC 537] to point out that the question of arbitrariness can be gauged by applying the test to see whether there is any discernable principle emerging from the impugned act and if so, whether it satisfies the test of reasonableness. It was held that where a mode is prescribed for doing an act and there is no impediment in following that procedure, performance of the act otherwise and in a manner which does not disclose any discernible principle which is reasonable, may itself attract the vice of arbitrariness. The various facets of arbitrariness have been dealt with by the Supreme Court in Smt. Maneka Gandhi v. Union of India & Anr. [AIR 1978 SC 597] and E.P. Royappa v. State of Tamil Nadu & Anr. [AIR 1974 SC 555]. The learned senior counsel also relied on the decision in Nirmalanandan v. Divakaran [1989 KHC 30] to point out that transfer was an incident of service and the Government servant has no legal right. To support the contention that the guidelines on transfer are not exhaustive, the learned counsel placed reliance on State of Kerala v. Rajan [1989 KHC 490] and in Venkitaramanan Potti v. Travancore Devaswom Board [1993 KHC 346]. In Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey & Ors. [2004 KHC 1687] it was held by the Supreme Court that the courts interference with order of transfer is not called for, unless there is arbitrariness, malafides or violation of any operative guidelines or rules. This was again reiterated in State of Haryana & Ors. v. Kashmir Singh & Anr. [2010 KHC 4750] and in Sreekumar S. v. Union of India & Ors. [2014 (4) KHC 621].
Having evaluated the entire facts in the light of the settled legal propositions, I find no reason to interfere in the transfer order. The challenge to Annexure A1 is not based on sustainable grounds. Consequently, the OAs fail and are dismissed. No costs.