Sumita Paul (Majumdar) vs Union of India (UOI) and Others

A.K. Patnaik, J.—In Writ Appeal No. 73 of 1998 the Appellant has challenged the judgment and order dated 22-7-1998 passed by the learned Single Judge in Civil Rule No. 269 of 1995. In the said Civil Rule No. 269 of 1995, the Appellant herein had challenged the order dated 16.3.1995 transferring her as an Art Teacher from Jawahar Navadaya Vidyalaya. South Tripura to Jawahar Navadaya Vidyalaya, Mahadevpur.

The Petitioner''s case in the said Civil Rule was that she was appointed under a scheme for appointment of spouse of teaching staff of Navadaya Vidyalaya and the said scheme inter alia Stipulated that the spouse is to be posted in the same Navadaya Vidyalaya subject to availability of the vacancy. Yet while the husband of the Petitioner was posted in Jawahar Navadaya Vidyalaya in West Tripura, under the impugned transfer order dated 16.3.1995 the Appellant was posted at Jawahar Navadaya Vidyalaya, Mahederpur in the State of Arunachal Pradesh which is far away from the place of posting of her husband in West Tripura. The aforesaid Civil Rule was dismissed by the learned Single Judge by the impugned judgment on the ground that the stipulation that the spouse is to be posted in the same Navadaya Vidyalaya was only a guideline and did not confer a statutory right. In the impugned judgment the learned Single Judge has also relied on the judgment of the Apex Court, Union of India and Others Vs. S.L. Abbas, in which similar guidelines for posting the husband and wife at the same place were held not to confer any legal enforceable right on the government servant. While dismissing the Civil Rule, however, the learned Single Judge directed the authorities to dispose of the representation of the husband of the Petitioner dated 31.3.1995. Aggrieved by the said judgment order, the Apellant hs preferred the present appeal and has filed Civil Misc. Case No. 292 of 1998 for stay of the impugned transfer order dated 16.3.1995. By order dated 18.8.1998 passed by the Division Bench In the said Civil Misc. Case No. 292 of 1998, it was directed that the interim matter would be considered in the next; week and until the interim matter is heard and disposed of status quo will be maintained by the parties. Thereafter, an application was filed by the Respondents for vacating the said status quo order passed on 18.8.98 stating inter alia, that the Appellant has in the meanwhile been released on 14.8.1998 from Jawahar Navadaya Vidyalaya, Kakraban prior to the order of status quo dated 18.8.1998.

Mr. P.R. Barman, learned Counsel for the Appellant submitted that this was not a case where an administrative guideline was issued for posting the husband and wife who are both Government servant at one place, but. this was a case in which the Appellant was appointed under a scheme which contemplated appointment of a spouse and her posting at a place where her husband was posted subject to availability of the vacancy. In this context Mr. Barman referred to the letter dated 18th August, 1992 of the Director, Navadaya Vidyalaya Samiti to all Deputy Directors which was to the following effect:

J. Sagar

DIRECTOR,

D.O. No. F.7-6/91-NVS(ESTT)

All Deputy Directors (By name)

The question regarding appointment of spouse of teaching staff of Navadaya Vidyalaya has been under consideration of the Samiti lor some time. It has now been decided with the approval of the Chairman, Navadaya Vidyalaya Samiti that such spouses should be considered for appointment on regular basis as teachers in Navadaya Vidyalaya, As these are co-educational residential schools it will be in the interest of the organisation to employ couples as far as possible. The appointment of such case would be considered on the following conditions:

(i) The apouse to be considered for appointment must possess the essential qualifications as per the Recruitment Rules for the concerned teaching post.

(ii) A special recruitment drive for spouses is to be made once in a. year only.

(iii) A spouse is to be posted in the same Navodaya Vidyalaya subject. Lo availability of the vacancy.

Applications for appointment to teaching posts under this Scheme may be invited from eligible spouses of teaching staff of the Vidyalayas on the application form prescribed for general recruitment latest by 7th September, 1992. Interviews for selection of spouses should be held immediately thereafter an completed by 21st September, 1992.

With regards,

Yours sincerely, Sd/- (J. SAGAR)

All the Deputy Directors

of the Regional Offices

of Navadaya Vidyalaya Samiti,

Copy to: Principals of all Jawahar Navadaya Vidyalaya for immediate appropriate action. The contents of this communication should be brought to the notice of all the employees.

Sd/- (M.S. KHANNA) ASSTT. DIR.(P)

According to Mr. Barman, the judgment of the Supreme Court in Union of India and Ors. v. S.L. Abbas (supra) on which the learned Single Judge placed reliance was not applicable to the facts of the present case in as much as in the said judgment the concerned Government servant had not been appointed under any scheme for appointment of spouse as in the present case and that the concerned Government servant in the aforesaid case was only seeking a relief of posting at the place in which his spouse was posted on the basis of an administrative guideline issued by the authorities for posting of husband and wife at the same place of posting. Mr. Barman further submitted that pursuant to the direction of the learned Single Judge in the impugned judgment the representation of the husband of the Appellant Shri Shyama Prasad Paul was considered by the authorities, but he was posted at Lower Subansiri which though adjacent to the State of Arunachal Pradesh was still away from the place of posting of the Appellant inasmuch as it will require at least 48'' hours for the Appellant to travel from her place of posting in the State of Arunachal Pradesh to the place of posting of her husband at Lower Subansiri.

Mr. K.N. Bhattacharjee, learned senior Central Government Standing Counsel, on the other hand, sought to sustain the impugned judgment and order passed by the learned Single Judge and placed reliance on the judgment of the Supreme Court in Union of India and Ors. v. S.L. Abbas(Supra) for the proposition that no statutory right was conferred on the Appellant for seeking a posting at a place of posting of her spouse. Mr. Bhattacharjee further submitted that in any case the letter dated 18th August, 1992 of Director to all the Deputy Directors would show that the spouse has to be posted in the same Navadaya Vidyalaya subject to availability of the vacancy and where there is no availability of vacancy either in the place of posting of the spouse or in the place of posting of her husband the authorities cannot possibly post the spouse at the same place at which her husband has been posted.

We have perused the judgment of the Apex Court in Union of India and Ors. v. S.L. Abbas(Supra) on which great reliance has been made both by the learned Central Government Standing Counsel as well as the learned Single Judge and we are of the view that the facts of the present case are distinguishable from the facts of the case which was dealt by the Apex Court in the said judgment. In the present case, the Appellant was appointed under a specific scheme for appointment of spouse of teaching staff of Navadaya Vidyalaya and as would be evident form the contents of the letter dated 18th August, 1992 of the Director, Navadaya Vidyalaya to all Deputy Directors quoted above, as per the said scheme under which the Appellant was appointed, the Appellant was to be posted in the said Navadaya Vidyalaya subject to availability of the vacancy. But the Government servant in the case of Union of India and Ors. v. S.L. Abbas (supra) had not been appointed under such a scheme for appointment of spouse of a Government servant and there was no such stipulation in the scheme for such appointment. The Government servant in the said case of Union of India and Ors. v. S.L. Abbas (Supra) was seeking relief on the basis of Government of India O.M. dated 3.4.1986 regarding transfer of officers and the Apex Court held that no relief can be granted by the court on the basis of the said administrative guideline and that the said guidelines do not confer any statutory right upon the employee.

Since in the instant case the Appellant was appointed pursuant to: the scheme for appointment of spouse and as per the said scheme the Appellant was required to be posted in the same Navadaya, Vidyalaya subject to availability of the vacancy, in case the authority found that there was no availability of vacancy in the same Navadaya Vidyalaya in which the Appellant had been posted In the State of Arunachal Pradesh, while disposing of the representation of the husband of the Appellant the authority should have posted him at such a place either In the State of Arunachal Pradesh or in the neighbouring District of Arunachal Pradesh which would be covered either by the Appellant or by her husband within as short a time as possible. But it appears that the husband of the Appellant has yet been posted at a place which according to the Appellant cannot be covered even within 48 hours.

In the peculiar facts and circumstances of the case we dispose of the appeal with a direction that the competent authority will now consider and post either the husband of the Appellant or the Appellant to such place or places so that either of them can cover the distance between the respective place of posting with least inconvenience and within as short a time as possible. The aforesaid order will be passed by the Respondents within a period of one month from the date of receipt of the certified copy of this judgment and order and till such order are passed the Appellant need not join at Mahadevpur, Lohit District, Arunachal Pradesh.