Saturday, October 15, 2011

OA NO.261/2010 --on ??????????-12-2010





Sri C.B.Krishnappa,
S/o Late Basappa,
Aged about 40,
Post Graduate Teacher (Chemistry),
Jawahar Navodaya Vidyalaya,
Bagalur, Bangalore Urban District,
Bangalore – 562149.
(now under order of transfer)
Residing at Quarter No.5,
Navodaya Vidyalaya Campus,
Bagalur, Bangalore Urban district.
Bangalore – 562 149. ...Applicant

(By Advocate Shri K.P.M.Varghese)


1. The Union of India,
Represented by its Secretary,
M/o Human Resources,
Development (Department of School
Education & Literacy),
North Block,
New Delhi – 110 001.

2. The Commissioner,
Javahar Navodaya Vidyalaya Samithi,
No.A-28, Kailash Colony,
New Delhi – 110 001.

3. The Deputy Commissioner,
Navodaya Vidyalaya Samithi,
Hyderabad Region,
Andhra Pradesh.

4. Smt. Anuradha A.
Jawahar Navodaya Vidyalaya,
Bagalur, Bangalore Urban District,
Bangalore – 562 149. ...Respondents

(By Advocate Shri N.Amaresh for Respondents-1to3 and Shri B.Veerabhadra for Respondent-4)

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This OA is filed under Section 19 of Administrative Tribunals Act, 1985 against the impugned order dated 21.6.2010 at Annexure A4 transferring the applicant from JNV, Bangalore to JNV, Adilabad, in Andhra Pradesh.

2. The applicant was first appointed as trained graduate teacher and posted to Andaman Nicobar in the year 1998. He served there for nearly 5 years and was transferred to JNV, Haveri in 2003. On promotion as Post Graduate Teacher he was transferred to JNV, Malagi, Uttarkannada in 2003 from where he was brought to Bagalur, Bangalore Urban District in 2006. His service is transferable within the whole of India, however all the above posts are within Hyderabad region as per the geographical regions carved by NVS for administrative convenience.

3. Now he is under order of transfer to Adilabad District in Andhra Pradesh vide order dated 21.6.2010 (Annexure A4). He has filed this OA claiming that the said transfer order should be set aside as it is unjust, arbitrary and without authority and has further requested to continue his services as Post Graduate Teacher at JNV, Bagalur.

4. In the application he claims 3 grounds:-
(i) The first ground stated is that the Deputy Commissioner for the JNV, Hyderabad Region who has issued the impugned transfer order had no authority to transfer him.
(ii) His second ground is the bias shown by Principal. Before he personally received the transfer order, the School Principal proceeded to issue his relieving order (Annexure A5) and hence the relieving order which is served
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on him simultaneously with transfer order is also untenable. The applicant submits that vide letter dated 26.5.2009 the Navodaya Vidyalaya Samithi introduced a policy of transfer under which staff having put in more than 10 years in the same JNV was to be transferred and such a list was called from the Principal. The Principal i.e., Respondent-4 included the name of the applicant in such a list even when he had not completed 10 years but only nearly 3 years at Bagalur. Applicant claims that the impugned order will be the 4th transfer order for him in a period of 12 years. The reason why the Principal, Smt.Anuradha was unfavourable to him was that there were some complaint of organising private coaching classes by the Principal for which her office was raided by CBI and she, alongwith two private teachers were interrogated and she felt that the applicant had his hand in arranging the whole event. This has been claimed even though the applicant is not able to show any act of Principal which may be treated as a demonstration of her bias.
(iii) The third ground claimed by the applicant is that he has an old ailing mother suffering from health problems and there is no one else to look after the mother. He has therefore requested Respondent-3 to reconsider and cancel his transfer order but the request till date has not been answered.

5. Alongwith the OA the applicant had also filed a prayer for interim relief. On 29.6.2010 this Tribunal has not granted stay to the transfer order or the relieving order. However, the NVS (Navodaya Vidyalaya authorities) have been directed not to make any posting in his place at Bagalur so that if the decision of this OA is favourable to him, then he can join at Bagalur without any complication.

6. We have gone through the application, the reply filed by the respondents and have also heard both the Counsel in detail. The learned Counsel for the
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applicant claim that the transfer order is passed without authority as it has been passed by a Deputy Commissioner incharge who is only incharge and not a regular Deputy Commissioner. The learned Counsel argued that it could have been passed by a regular Deputy Commissioner only. This plea is not acceptable to us. It is well known administrative parlance that any officer who is working as incharge officer as a short term adjustment, is authorised to exercise all the powers of that post. Therefore, it has been rightly pointed out by the learned Counsel for the respondents that the order has been passed with proper authority. He also points out that the relieving order can be issued by the head of the office (here the Principal) who has received the concerned transfer order even if the applicant may not have received it himself. The learned Counsel for applicant would like us to believe that since the relieving order (Annexure A5) was issued the very next day after issuing transfer order (Annexure A4) and that both the orders were served simultaneously on the applicant, it showed bias. But we agree with the learned Counsel for respondents that it does not show any irregularity nor any bias nor any undue haste. Further, the transfer from Bangalore Urban District to Adilabad, District in Andhra Pradesh is inter-regional transfer for which the Deputy Commissioner does not require the permission of the Head Office of NVS. Annexure R2 clearly shows that the concerned Deputy Commissioner had the delegated powers and even though he was only incharge Deputy Commissioner, he could exercise all the powers, stated therein.

7. Tackling the ground of malafide by the NVS the learned Counsel for the respondents brought it to our notice that out of the earlier four transfers, the transfer from Andaman Nicobar to Karnataka (Haveri) in 2003 was at the request of the applicant. Similarly, his transferred from Malagi to Bagalur was also on his own request. Thus when his two requests have been accommodated it cannot
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be said that the authorities are biased against him. Moreover, the applicant belongs to Group'B' and therefore transferable all over India. Even then, once he was brought to Karnataka State in 2003 he has not been posted out of Karnataka on all (both) occasions which also shows that there is no reason to claim any bias against him by the authorities.

8. As a slight digression we would like to mention that Respondents claimed in the reply statement that the story of a CBI raid on the chamber of the Principal and her interrogation alongwith two private teachers is a false allegation. Respondents-2, 3 and 4 who have jointly filed their reply statement through Respondent-4 have denied any such involvement of CBI and also denied that the impugned transfer order at Annexure A4 was issued at the instance of the Principal. At para-4.7 of the reply the Principal who is Respondent-4 and who seems to have signed and verified the reply statement on behalf of Respondents also has stated:
“The respondents herein vehemently deny that there was a CBI raid and at the chamber's of the Principal and two class rooms where some illegal coaching classes are being held by the Samiti at the instances of the Principal.”

We have to take a serious note of this statement in view of Annexure A11 produced by the applicant in his rejoinder which is a letter dated 12.11.2009 by the Superintendent of Police, CBI, ACB, Bangalore to the Commissioner, NVS who is R-2, from which it appears that there were allegations of private tuition classes being run in the premises of JNV, Bagalur for standard 11 and 12 and which gives his prima facie finding as below:
“It is revealed Smt.R.Anuradha, Principal, Jawahar Navodaya Vidyalaya, Bagalur, Bangalore had tied up with M/s.Sunrise Education Services and had arranged for tuition classes for the students of Std-XI and Std-XII. It is further revealed that 40 students from the aforesaid 2 classes had joined the tuition classes and had paid Rs.12,000/- per head towards the tuition fees. Smt.R.Anuradha, Principal, Jawahar Navodaya Vidyalaya Bagalur,
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Bangalore (Urban) had connived with the representatives of M/s.Sunrise Education Services, No.4, Royal Park-34, Park Road, Tasker Town, Shivaji Nagar, Behind Harsha Hotel, Bangalore in the matter of providing physical infrastructure at the premises of Jawahar Navodaya Vidyalaya, Bagalur, Bangalore for the conduct of tuition classes in violation of the existing guidelines. She had secured pecuniary advantage from M/s.Sunrise Education Services by securing admission for her son without paying tuition fees and committed misconduct.”

Thus there seems to be an anomaly bordering on carelessness by Respondents-2&3 and bordering on misrepresentation by Respondent-4. However, we would not say more about it at this stage because such a raid does not give any ground for bias by Respondent-3 who is the transferring authority against applicant.

9. At para-4 sub-para 6 and 7 the applicant has offered that he had been harassed by the Principal and particularly avers that after the incidence of CBI raid on the school, the Principal was arrested whereafter the harassment against him has increased. However, he has quoted no instance and no details of any harassment which may have been meted out to him. We also find that Annexure A11 which is a report of the Superintendent of Police, CBI does not mention anywhere that the Principal was arrested. To this extent the averment of the applicant are also unsubstantiated. There appears to be some truth in the claim of applicant that CBI conducted some investigation in the school and also found private coaching classes and have reported the same to the NV authorities. However, this by itself does not prove that the Principal was therefore causing harassment to the applicant or that his transfer was a result of such animosity. In any case such a raid against Principal cannot be a ground of bias by Deputy Commissioner against applicant.

10. The applicant has also tried to raise some sympathy grounds namely the illness of his mother. However, he has not given any papers to the authorities
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showing any serious illness or difficulty of his mother and in any case such a sympathetic ground is for the authorities to consider and this Tribunal cannot take cognizance of it when this ground has not been pleaded before authorities.

11. The learned Counsel for respondents has also submitted certain documents for the perusal of the Tribunal only. These papers are with regard to certain behaviour pattern of the applicant leading to creation of unhealthy atmosphere and complaints from parents. These papers will be kept in a sealed cover by the Registry as a part of record.

12. Both the learned Counsel have thoroughly gone over the Annexure A12 and Annexure R1. Annexure A12 dated 18.12.2009 are new draft guidelines for transfer whereas Annexure R1 dated 12.4.1999 are the earlier guidelines for the transfer in respect of Navodaya Vidyalaya staff. Under the draft new transfer policy the inter-regional transfers on administrative grounds of misconduct or unsatisfactory performance can be carried out by the Joint Commissioner. At para-4 of the draft new policy administrative transfer due to completion of the maximum tenure period of 7 years in respect of post graduate teachers is the norm. However, the same para-4(i) further mentions that the cases of employees who have not completed 7 years will be properly examined and the transfer will be affected to the extent necessary in pursuance to the objectives spelled out at para-1.3. Learned Counsel could not show whether NVS is currently following old or new draft guidelines. However, we find that simply on the ground that he has not completed 7 years the transfer order of the applicant cannot be said to be violative of these new draft rules.

13. The learned Counsel for respondents has also pointed out that the old circular produced at Annexure R1 also contains a separate chart about
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delegation of powers under which Sl.No.(b) it is mentioned that the power to post, transfer and assign duties to Group 'B' officers at the head quarters and regional offices and Vidyalayas enjoyed by the Joint Commissioner are also fully
delegated to Deputy Commissioner. This rule of delegation is not withdrawn. Hence even though the new draft rules mention that the Joint Commissioner has the powers to effect transfer on administrative grounds, the same can be exercised by the Deputy Commissioner under delegated powers.

14. The learned Counsel for respondents has relied on the judgement of Hon'ble Supreme Court in Rajendra Roy Vs. Union of India and Another – (1993) 1 SCC 148:
“The order of transfer often causes a lot of difficulties and dislocation in the family set-up of the concerned employees but on that score the order of transfer is not liable to be struck down. In a transferable post an order of transfer is a normal consequence and personal difficulties are matters for consideration of the department. Unless such orders is passed mala fide or in violation of the rules of service and guidelines for transfer without any proper justification, the Court and the Tribunal should not interfere with the order of transfer.”

He has also relied on the judgement in State of M.P. And Another Vs. S.S.Kourav and Others – 1995 SCC (L&S) 666, it is observed -

“4. It is contended for the respondent that the respondent had already worked at Jagdalpur from 1982 to 1989 and when he was transferred to Bhopal, there was no justification to retransfer him again to Jagdalpur. We cannot appreciate these grounds. The courts or tribunals are not appellate forums to decide on transfers of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the courts or tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation. In this case we have seen that on the administrative grounds the transfer orders came to be issued. Therefore, we cannot go into the expediency of posting an officer at a particular place.”

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Thus, by and large the ratio lies in favour of not interfering with transfer orders unless malafide or bending of rules and guidelines is clearly demonstrated.

15. In view of the above, we have no hesitation to agree with the learned Counsel for the respondents that there is no need to interfere with the impugned transfer order dated 21.6.2010 (Annexure A4). OA is dismissed. No order as to costs.



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