A.T.Sasi vs Union Of India & Ors.

HON'BLE Mr.K.V.EAPEN, ADMINISTRATIVE MEMBER

The applicant is a Post Graduate Teacher (PGT) in Mathematics at the Jawahar Navodaya Vidyalaya (JNV), Kannur under the Navodaya Vidyalaya Samiti (NVS). His next promotion is to be to the post of Vice Principal (VP) in the JNV. It appears that after due consideration he has been promoted and posted as VP at JNV, Kohima in Nagaland, vide the Annexure A-1 impugned order dated 27.09.2021. The applicant submits that even before his promotion and the meeting of the Departmental Promotion Committee (DPC) in this regard, he had made a request to the authorities requesting that he be accommodated on promotion at the JNV Mahe. The main ground for the request was his wife's illness and treatment from the Government Medical College, Kozhikode for depression/delusional disorder. It was submitted by him that any sudden change in circumstances and environment would adversely affect the treatment. Further, at that point of time, on 27.05.2021 when he had made the request his daughter was studying in 10^th Standard. He submitted that a shifting of location would adversely affect her in the Board Examination. The representation dated 27.05.2021 is produced at Annexure A-2. However, inspite of this, the respondents issued the Annexure A-1 order dated 27.09.2021 promoting him as VP and posting him at JNV, Kohima, Nagaland.

The applicant submits that later on finding that the NVS had granted change in place of posting to several employees (details produced at Annexure A-3, Annexure A-3[a], Annexure A-3[b] and Annexure A-3[c]), he submitted further representations for a change in posting as produced at Annexure A-4 and Annexure A-5. He pointed out therein that a clear vacancy of VP at JNV, Wayanad is available. He submits that the respondents did not consider his request and have now issued the impugned order at Annexure A-6 dated 12.11.2021 with reference to his representation dated 28.09.2021. It has been informed to him by Annexure A-6 that his request for change of place of posting had been considered by the competent authority but could not be acceded to due to administrative exigencies. He has therefore been advised to immediately join the allotted JNV, failing which, it would be presumed that he was not willing to join the offered post and his offer of promotion would be automatically withdrawn.

The applicant submits that the post of VP at JNV, Wayanad was admittedly vacant at the time of issue of the Annexure A-6 reply to him and at the time of filing of this O.A. Further, even during the pendency of this O.A., the respondents have issued modified promotion orders in respect of another teacher who had been promoted to VP. The initial posting in that case was from JNV, Kottayam to JNV, Bellary but was modified to JNV, Alleppey, as per Annexure A-11. Thus, he submits that there is hostile discrimination against him which has compelled him to file the O.A. He submits that in all his representations at Annexure A-2, Annexure A-4, Annexure A-5 and Annexure A-7 what he had primarily highlighted were three aspects. He had furnished medical certificates/reports as well as other documents now produced at Annexure A-8, Annexure A-9 and Annexure A-10 in this O.A in support of these three grounds. The grounds were, first, that his wife was undergoing treatment at Calicut Medical College with monitoring from NIMHANS, Bangalore and that the transfer on promotion would affect her continued treatment in a safe and established environment. Second, that the applicant himself has grave difficulty in handling classes on account of problems in his vocal cord. Third, that his daughter being in the 10^th Standard it would be difficult to leave his spouse, two children and old aged mother in Kerala. He submits that he is aggrieved that none of the above aspects have been shown to have been considered in the impugned order at Annexure A-6. He submits that, even in the reply statement, the respondents have not responded to the above three reasons highlighted by him in seeking a modification of the promotion order. Further, the discrimination meted out to him vis-a-vis others who were favoured with modifications shows arbitrariness, especially when his own contentions were not even looked into. It is pointed out by him that the respondents have only emphasized on the power of the Department to issue transfer orders to places of their choice.

When the matter came up before this Tribunal on 20.12.2021 Shri.Vishnu.S.Chempazhanthiyil, learned counsel for the applicant had submitted that there were two vacancies of VP available, one in JNV, Mahe and the other one in JNV, Wayanad. This Tribunal at that time ordered that the learned counsel for the respondents would clarify whether such vacancies do exist and whether any other person had been granted similar modifications in promotion and posting. Further in view of the submissions made by the applicant, the respondents were also directed not to take any compulsive action regarding joining of the applicant in Kohima until a short reply statement was filed. After the reply statement was received, learned counsel for the applicant kept bringing to our notice by way of verbal submissions as well as by filing a series of M.As that even though there were many other vacancies in the post of VP available in the JNV's located in the Southern Region, the applicant was not being considered by them. It was submitted that other employees were being accommodated after their representations. Hence, on 10.02.2022, the Tribunal directed the learned counsel for the respondents, Shri.M.K.Padamanabhan Nair to file a list of vacancies available in the Southern Region on or before the next posting date.

The respondents filed a reply statement in the O.A on 21.01.2022. In this statement at the outset they submitted that the aim of the NVS system was to make available quality education to talented children, predominantly from rural areas, to develop their full potential. This was done by setting up residential schools in each district. Another objective was to take all actions conducive to the promotion of such schools with the aim of providing good quality modern education with a strong component of inculcation of values. It was also envisaged to provide facilities at suitable stages for instructions through a common medium of Hindi and English all over the country. It is submitted that at present as many as 649 functional JNV institutions are in existence all over the country. The admission to a JNV is at the Class VI level and is done on the basis of a selection test conducted in the concerned district in which all children who have studied and passed Class V from any of the recognised schools of Tehsil/Block in that district would be eligible to appear.

Coming to the transfer policy in the JNV's, it is submitted that there is a notification dated 04.04.2012 regarding the transfer of employees of the NVS. Certain guidelines have been issued from time to time thereafter as deemed appropriate to interpret the provisions of the transfer policy. It is submitted that the employees of the NVS are liable to be transferred anywhere in India at any point of time and that transfer to a desired location cannot be claimed as a matter of right. Further, while effecting transfers the organisational interest would be given upper most consideration and that the problems and constraints of employees shall remain subservient. It is submitted that in the case of the applicant herein who is presently working as PGT (Maths) at JNV, Kannur, the DPC in its meeting held on 01.09.2021 had recommended his name for promotion to the post of VP in the NVS. In pursuance of the recommendations made by the DPC he had been promoted and posted at JNV, Kohima (Nagaland) keeping in view the administrative exigencies and need for posting of VP's in JNVs of the North-East Region. The respondents submit that it is relevant to mention that the posting of the applicant to JNV, Kohima had been considered in the public interest taking into account other exigencies, as the posts of Principal & VP in many JNVs in North-East Region, which is a hard and difficult station under NVS, Regional Office, Shillong, are vacant. It is submitted that it is difficult for the organisation to manage and control effectively the JNVs under the North-East region in the absence of regular Principals/VPs.

Further, it is submitted that the VPs are mainly incharge of the academics in the JNVs. They play a very crucial role in managing, handling and proper academic planning and its implementation in the institution. Thus keeping in view the larger interest of the organisation in the posting of VPs in vacant post under the North-East Region, the applicant's posting to the said JNV had been made on his promotion to the post of VP. It is submitted that the order under challenge is therefore not a routine transfer order made in public interest in the same cadre/post, but a posting order after promotion which the applicant ought to have complied with in the larger interest of the organisation. Posting in choice places even on promotion cannot be claimed as a matter of right by keeping aside the organisational interest. Further, the representations of the applicant on his promotion to the post of VP and posting at JNV, Kohima had been considered. It is submitted that his choice places such as JNV, Wayanad, JNV Mahe, JNV Sindudurg and JNV Chamrajnagar (Karnataka) were either allotted to others or that no such vacancy exists. Thus his request for posting in his choice stations was not acceded to.

It is submitted by the respondents that the applicant by means of a final notice issued by the competent authority dated 09.12.2021, produced by way of an M.A by the applicant at Annexure A-12, had been directed to join at the allotted place of posting by 15.12.2021. This was however interdicted with, by the Tribunal's order dated 20.12.2021. The respondents submit that in fact the applicant cannot claim his posting at any particular JNV as a matter of right by referring instances of other employees on the grounds of modification of their posting orders. It is submitted that facts and circumstances of each case depend upon its own merit. It is well settled law that it is entirely up to the employer to decide when, where and at what point of time, a public servant is to be transferred or posted. The representations filed by the applicant have been considered for change of the place of posting. The applicant was apprised of the fact that the competent authority had not acceded to his request and that he should join at the JNV to which he was posted on promotion. Further, it is also submitted that there had been no infringement of Mental Health Care Act 2017 in the matter of consideration of his wife's illness as alleged by the applicant, as his posting had been made in the JNV concerned on his promotion and not as a routine transfer.

In addition to the above, the respondents have produced a series of judgments of the Hon'ble Apex Court to establish their contention that the Courts/Tribunals should not interfere with such transfer orders which are made in public interest and for administrative reasons, unless the said transfer order was made in violation of any mandatory statutory rules or can be judged on the ground of malafide. It has been held that if the Courts continue to interfere with day to day transfer orders issued by the Government and subordinate authorities, there would be complete chaos in the administration which would not be conducive to public interest. It has also been held that an order of transfer is an incidence of Government service and that the Courts or Tribunals are not appellate forums to decide on transfers of officers on administrative grounds. Further, it has been held that the Courts and Tribunals are not expected to interdict the working of the administrative system by transferring the officers to specific places. The only ground under which an order of transfer can be interdicted is in case the transfer is an outcome of a malafide exercise of power or violative of any statutory provision or passed by an authority not competent to do so. The respondents refer in this connection to the judgments of the Hon'ble Apex Court in Shilpi Bose & Ors. v. State of Bihar & Ors., (1991) Supp. (2) SCC 659, Union of India & Ors. v. S.L.Abbas, (1993) 4 SCC 357, State of M.P & Ors. v. S.S.Kourav & Ors., 1995 (3) SCC 270 and State of U.P & Ors. v. Gobardhan Lal & Ors., (2004) 11 SCC 402 where such directions have been passed by the Court.

In his rejoinder the applicant submits that the respondents had not properly considered the representations submitted by him as is evidenced even from their reply statement. Hence it establishes the discrimination, highhandedness and arbitrariness which were the contentions raised by him. He submits that this Tribunal had interfered in the case of the promotion order of one Shri.Xavier.E.K who had sought modification on almost similar grounds in O.A.No.180/935/2015. A copy of the order of this Tribunal dated 04.10.2018 in that O.A is produced at Annexure A-13. Further, he also submits that the respondents had not even properly considered the directions of the Tribunal in the interim order of 20.12.2021 to properly verify the vacancies, especially in Mahe and Wayanad. The respondents have filed their reply statement stating that there was no vacancy at JNV, Wayanad or JNV Mahe or JNV Sindudurg or JNV Chararajanagar. However, in fact even after filing the verified statement, the respondents had passed an order on 31.01.2022 for filling up the post of VP in JNV Wayanad by granting a modification of the promotion order for one Smt.Jancy Das.P.D., PGT Biology by transferring her from JNV Kannur to JNV Wayanad. A copy of the order issued in this connection has been produced in the rejoinder at Annexure A-14. Thus, they have disregarded even the proceedings before the Tribunal. The applicant has filed a series of M.As with documents to show that various vacancies are available at Chamarajnagar, Mahe etc.

The main ground that is reiterated by him is that an employee, who is a caregiver of disabled person, should not be made to suffer due to displacement by means of a routine transfer. It is contended that the employee builds a kind of support system for the disabled person over a period of time in the locality where he/she has been residing which helps the person in rehabilitation. Rehabilitation is a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual and psychiatric or social functional level. A preferred support system comprises of familiar linguistic zone, schools/academic levels, administration, neighbours, tutors/special educators, friends and medical care including hospitals, therapists and doctors etc. Rehabilitation is a continuous process and creation of such a support system takes years together. Considering these aspects the Government of India had recognised that in the cases of Government employees who have disabled persons in the family and also serve as the caregivers, displacement would have a bearing on the systemic rehabilitation. Thus, the Government has issued instructions that such cases should be granted preference and also should be exempt from the routine exercises of transfer. This principle applies fully in the case of the applicant herein as he is the principal caregiver of his wife.

It is also submitted that Parliament had enacted the Mental Health Care Act 2017 to provide for the mental health care and services for persons with mental illness to protect, promote and fulfil the rights of such persons. While the NVS provides for exemption from transfer in cases of employees or family members suffering from Cancer, Paralytic Stroke, Renal Failure, Coronary Artery Disease, Thalassaemia, Parkinson Disease and Motor Neuron Disease, mental illness was unfortunately not considered as a ground for exemption from transfer on medical grounds. It is submitted that this omission is opposed to the Mental Health Care Act brought into force in India effective from 07.04.2017. Hence, it is submitted that all the above circumstances highlighted had not been considered in the impugned order at Annexure A-6. No application of mind is shown to consider the compassionate needs of the applicant and his family and the order is only a mechanical rejection of the claim raised by him. At the same time, while the power to transfer certainly vests with the NVS arbitrariness can never be a criteria; however, this is evident in the many changes in the orders, as produced at Annexure A-3(a), Annexure A-3(b), Annexure A-3(c), Annexure A-11 etc. This shows that the NVS is capable of making changes in the places of posting on promotion. Thus, the applicant submits that besides the medical problems of his wife not being considered, the action taken by the respondents also shows that he has been subjected to hostile discrimination.

The respondents have strongly countered the above contentions. They submit that it is the applicant's own theory that the respondents have discriminated against him in his posting to JNV, Kohima (Nagaland). The reasons for his posting to JNV, Kohima (Nagaland) had been clearly brought out in the reply statement as indicated earlier. The applicant had been promoted and posted at JNV, Kohima (Nagaland) keeping in view the strong administrative exigencies and need for posting of a VP in JNVs of North-East Region. This was done in the public interest and because of administrative exigencies. It is submitted that VP are mainly incharge of the academics of JNVs and play a very crucial role in the managing, handling and proper academic planning and implementation in the JNV. It is a fact that in most of the schools in the North-East Region which is a hard & difficult area under the NVS, Regional Office, Shillong posts of Principal and VP have been vacant. This has made it difficult for the organisation to manage and effectively control the JNVs. It is submitted that a Vice Principal plays a crucial role in the school. The respondents submit that the order under challenge is not a routine transfer order, as termed by the applicant, made in public interest in the same cadre/post, but is a promotion cum posting order which the applicant should have complied with. His representation had been considered. His choice places such as JNV Wayanad had been allotted to others and his request for posting in his choice stations was not acceded to.

Clarifying this further the respondents submit various details to justify their action in regard to filling up the post of VP at JNV Wayanad, JNV Mahe and JNV Chamarajnagar. This has been done in an objection to M.A.No.180/86/2022 filed by the applicant. The respondents submit that it is on the face of record that the post of VP is not available at JNV, Wayanad. They again referred to the judgments of the Hon'ble Supreme Court in the case of Gobardhan Lal (supra) where the Court had laid down

The applicant has contested all the above contentions and has submitted that there are clear vacancies in various places in the Southern Region at present, including JNV, Malappuram, JNV Mysuru, JNV Chamarajnagar, JNV Sindudurg as is revealed in the final annual transfer list – ATD 2022. Further, he also submits that there is a vacancy of VP in JNV, Ernakulam and JNV Palakkad. He brought to our notice another amendment of the Orders in the matter of one Shri.Dinesh.M., PGT Physics, JNV Kottayam who had been promoted as VP and posted to JNV Silvassa as per promotion order dated 25.02.2022 produced as Annexure A-23. Shri.Dinesh.M. has now been granted a modification pursuant to a representation submitted by him on the ground that his wife was working in JNV, Kottayam. Annexure A-23 was modified and the said Shri.Dinesh.M has been granted a posting on promotion to JNV, Malappuram by Annexure A-24 dated 10.08.2022. Hence there is continued hostile discrimination as per the applicant in his case against him.

We have considered the exhaustive contentions and counter contentions by the two sides. We note that the applicant in a series of M.As filed after this Tribunal had granted the interim stay order on 20.12.2021 brought out that there are large number of vacancies of VP not just within the southern part of India but also specifically in Kerala. We had directed the respondent authorities by our order of 10.02.2022 to furnish a list of vacancies available in the southern region which they have not fully complied with which is deprecated. However, while finally deciding the matter we will not just be bound by the fact that there may be many such vacancies which are existing even in Kannur or nearby Malappuram but whether the actions of the respondents can pass muster in light of the Hon'ble Apex Court judgments brought out earlier by them. The tests of malafide, whether against an act or rule or whether orders are passed by an incompetent authority have to be first considered. Overall on these grounds admittedly there is nothing very clearly established to interdict the promotion and transfer order of the applicant at Annexure A-1 as VP at JNV, Kohima.

This Tribunal in some cases, as in the matter produced by the applicant at Annexure A-13 in O.A.No.180/935/2015 in our order dated 04.10.2018 as well as in the matter of Smt.Sucy Stanly (alias – Susy Joseph), PGT Maths, JNV Malappuram in O.A.No.180/682/2021 in our order dated 16.02.2023 had directed the respondents to post the applicant therein to specific vacancies at different NVS within the State of Kerala. However it is also a consideration that the facts and circumstances of each case are different with each case having its own unique issues. In the case of Sucy Stanly (supra), we had noted that she had a very genuine ground for continuing in the same station as she was completely responsible for the well being of her son, who had 60% permanent disability caused by Autism and Attention Deficit Hyperactivity Disorder (ADHD). In other words he fell within the category of person with benchmark disability defined in Section 2(r) of the Rights of Persons with Disabilities Act, 2016, which enactment provides that the appropriate Government shall ensure that persons with disabilities enjoy the right of equality and life with others. Further, there was also a specific O.M of the DoP&T dated 15.02.1991 which had indicated that “considering that the facilities for medical help and education of mentally retarded children may not be available at all stations, a choice in the place of posting is likely to be of some help to the parent in taking care of such a child.” Thus, it was directed in the said O.M of the DoP&T that “while administratively it may not be possible in all cases to ensure posting of such an employee at a place of his/her choice, Ministries/Departments are requested to take a sympathetic view on the merits of each case and accommodate such requests for posting to the extent possible.” Knowing fully well the limitations of a Court or Tribunal in interfering with transfers which are an incidence of service, we concluded this as an extra-ordinary situation which warranted our interference and had directed that the mother of a mentally retarded son, 24 years old having 60% intellectual disability prosecuting studies in a special school was not liable to be sent to a far away place (the employee had been promoted and transferred from JNV, Malappuram to JNV, Raichur in Karnataka). The matter was therefore interdicted and direction given for posting her as VP, Malappuram. In a similar way, in the matter brought out at Annexure A-13 in O.A.No.180/935/2015 it was noted that the applicant, therein, Shri.Xavier.E.K., was a TGT (Social Science) at JNV, Alappuzha who had been transferred to JNV, Bellary in Karnataka on promotion. Therein again, the applicant had a differently able son who required treatment on a long term basis as he was afflicted with Schizoaffective Disorder. Again relying on the O.M issued by the DoP&T dated 06.06.2014, the respondents were directed that the applicant be posted as PGT (History) at JNV, Alappuzha.

The situation in this case however is not exactly akin to the above two cases. Here the main relevant ground is that the wife of the applicant is under treatment since 2006, for what the applicant submits is a depression/delusional disorder. There are no instructions in the JNV covering this situation as brought out by the applicant himself. Further, the main ground that he has taken is that he is the caregiver of his spouse who is suffering from the said depression/delusional disorder and that any change of place of treatment would affect the treatment itself. This does not appear covered by the said DoP&T O.Ms that were relied upon by this Tribunal in the O.As referred to earlier. We are not disputing the contention of the applicant that his spouse is undergoing treatment for the said disorder but nothing has been produced by the applicant that there is a difficulty in taking her to the place of posting and continuing her treatment there as well.

In addition the respondents have also brought out that the schools in the North-East of India have a real need for well qualified teachers/administrators at the level of Principals/Vice Principals. This may be possible only by deputing people from other parts of the country as there could be shortages of qualified persons from that region. Thus, the administrative exigency and public interest in the posting of the applicant at Kohima are thus quite clear and well established. Of course, the applicant has personal issues, but as we pointed out earlier it would not be quite correct for this Tribunal, given the directions of the Hon'ble Supreme Court as brought out earlier as well as the facts and circumstances of the case which are different from the facts and circumstances of the other cases, to interdict the impugned orders or even direct the respondents to post the applicant to a school within the State of Kerala or nearby.

By way of a suggestion we call upon the respondents to once again consider the overall situation of the applicant specifically referring to the condition of his spouse as brought out by him and examine whether his posting order could be changed to a more nearby location to Kannur where he is at present. However, we again hasten to add that we are not interfering with the order which has been passed in the case of the applicant. This is only by way of a suggestion that is being given. Alternatively it could also be considered whether the applicant can be brought back after a certain period of time spent in the North-East India in case he will have sufficient service left. In any case his promotion orders as Vice Principal should not be reviewed by the respondents unless he himself fails to carry out the directions of any of the respondents subsequent to the disposal of this O.A.

Thus, considering the relevant facts and circumstances, we are not allowing the O.A and it is dismissed. There shall be no order as to costs.