Ayed Mosion - Petitioner @HASH State of Karnataka and Others

In all these petitions, there is common challenge to the order passed by the Karnataka State Administrative Tribunal dated 9-6-2016 (hereinafter referred to as ''the Tribunal'' for the sake of brevity), whereby the Tribunal for the reasons recorded in the order has dismissed the petitions.

We have heard Mr. M.S. Bhagawat, learned Counsel appearing for the petitioners and Mr. H.T. Narendra Prasad, learned Counsel appearing with Mr. K. Ananda, learned Counsel for the respondents.

The principal contention raised on behalf of the petitioners is that when Rule 18 of the Karnataka State Civil Services (Regulation of Transfer of Teachers) Rules, 2007 (hereinafter referred to as ''the Rules'' for short) is holding the field for filling up of the posts of BRC/BRP and other Officers who are engaged in the Central Sponsored Scheme, without prior approval of the Government, the impugned Circular dated 21-5-2016 cannot be issued by the Director of State Planning. It was submitted that the said Circular was challenged before the Tribunal, but the Tribunal held that the said Circular is not applicable to transfer and posting and dismissed the petitions. It is under these circumstances, this Court may consider the said aspect.

Whereas the learned Advocates appearing for respondents contended that Rule 18 of the Rules, will be applicable only in cases where the transfer is to be effected of the Teachers during the academic year only. But if it is a general transfer to be made by way of posting or otherwise, the same would be as per Rule 8 of the Rules. He therefore submitted that when Rule 18 has no application, the contention is ill-founded. In furtherance to his submission, the learned Counsel for the respondents relied upon the decision of this Court dated 9-7-2012 in W.P. No. 48210 of 2011 and allied matters, whereby similar Circular issued by the Director for Training and conducting of the examination for the Teachers who are to be posted as BRC Officers and others under the Central Sponsored Scheme was not interfered with.

In order to appreciate the contention that whether the requirement of Rule 18 of the Rules, is to be applied before issuance of the Circular or not, the reference can be made to the Rules framed under the Karnataka State Civil Services (Regulation of Transfer of Teachers) Act, 2007 and the Rules are known as the Karnataka State Civil Services (Regulation of Transfer of Teachers) Rules, 2007 (hereinafter referred to as ''the Rules'').

Rule 8 of the Rules provided for general instructions regarding transfer through computerised Counselling. Clause (1) of Rule 8 reads as under:

"General transfers should be done only in the months of April and May of every year."

There are other clauses of the Rule 8 which are not much relevant but they all pertain to the general transfer to be undertaken in the month of April and May of every year. If Rule 18 is considered in contradistinction to Rule 8 providing for general transfer, language of Rule 18 in the beginning reads as under:

"18. Powers of Heads of Department.-Heads of Department are empowered to effect the transfer of teachers during the academic year only in the following cases namely.- "

The aforesaid would mean that if the transfer is to be effected in the midst of the academic year or during the academic year, Rule 18 would apply and for such transfer, the power may vest to the head of the Department in the cases as mentioned under clauses (a) to (d) of Rule 18.

Be it recorded that the transfer at the end of the academic year would fail under general transfer as per Rule 8, whereas the transfer in the midst of the academic year may fall under Rule 18. Hence the operational area of Rule 18 and Rule 8 are different.

In the present Circular, there is no question of transfer or posting in the midst of the academic year but the Circular provides for conducting of the examination and posting of the persons as BRC/BRP etc., who may be required to pass the requisite examination and such BRC/BRP etc. shall be from amongst the teachers/Head of Department, as the case may be.

It die contention of the learned Counsel for the petitioners is examined in the light of the aforesaid, further, it can be said that Rule 18 much less clause (d) of Rule 18 will have any applicability, since the Circular does not refer to for transfer of any teacher as BRC/BRP or any Officer working as BRC/BRP in the midst of the academic year.

If the teacher undertakes the requisite examination and dears, he/she may be considered as eligible for posting and if one has not cleared the examination upon completion of three years, he/she may be transferred. But such transfer would be in the cases of general transfer only and if the transfer is to Lake place in the midst of the academic year, then only Rule 18 would apply. Hence, it can be said that the contention raised on behalf of the petitioners is misconceived and on a non-existent premise.

At this stage, we may also record and refer to the decision of this Court in case of H. Mallikarjunaiah and Others v. State of Karnataka and Others, decided on 9-7-2012, wherein the legality and validity of the similar Circular as was issued on 9-3-2011 was challenged and the Tribunal at the initial stage declined to interfere against which the petitions were preferred before this Court the Division Bench of this Court after considering the Circular found that the Circular provides for one of the additional avenues to the Teachers for working in the Central scheme as BRP or CRP. The relevant observations of this Court in the above referred decision at para 17 reads as under:

"17. In the instant case, the Central Government with the object of improving quality of education throughout the country has formulated the scheme called Sarva Shiksha Abhiyan and has prescribed the norms and rules to be followed by the State Government. It is for implementation of the said scheme, the State is making available its teacher staff. Among 1,90,000 teachers who are recruited by the State, in the fist batch they have selected 5,000 teachers on the basis of the written examination purely on merits.

The circulars show that they have to discharge their function as BRPs'' and CRPs'' for a period of three years, so that, more and row teachers get the opportunity out of 1,90,000. As there is no Act or Rule governing the scheme, the scheme is being implemented by issuing of circular from time to time by the persons who are entrusted with the task of implementing the scheme. The contents of the circulars show that the persons who are implementing this scheme encountered difficulty during its implementation and therefore have to modify the strategy by necessary corrective measure. Therefore, as they gain experience, they went on modifying the scheme and plugging the loopholes. Taking into consideration, the post, experience and requirement of the scheme, they have formulated the latest circular prescribing the qualification. These petitioners have been appointed as BRPs and CRPs and their performance is not to the expectation. An opportunity is also given to them to take the examination and improve their performance. If they are successful in the examination, they shall also be given training again to discharge executive work. We cannot think of a more reasonable policy of the Government than the one contained in the circular. Unless the Government policy is shown to be arbitrary, it is settled law that the Courts should not interfere. Government is implementing SSA to give quality education through out the country. A sincere attempt is made from time to time to adopt such modes, which achieve the ultimate objects. Therefore, it is clear from the aforesaid judgments, the Courts should not interfere with the Schemes and policies, unless it is shown to be arbitrary. In the facts and circumstances of this case, absolutely there is no arbitrariness. Therefore, the said contention is also devoid of merit."

Hence, if the Circular is to be tested on the ground of arbitrariness, the contention can be said as without merit, in view of the above referred decision of this Court.

The attempt was made by the learned Counsel for the petitioners to contend that at the relevant point of time though Rules had come into force including the amendment made in Rule 18 vide clause (d) which has come into force on 23-4-2011 but the attention of this Court was not brought nor the Court has considered the argument based on the conflict with the statutory Rule. It was submitted that by Circular the effect of Rule cannot be diluted nor such Circular can stand on the face of the statutory Rule and therefore the Circular would be bad in law.

It is true that the contention by taking recourse or shelter to Rule 18 and more particularly, clause (d) was not pressed in service in the earlier decision and therefore this Court had no occasion to examine the Circular keeping in view Rule 18 of the Rules. But as observed by us herein above, if such contention is considered and examined, when Rule 18 is not all applicable, it would not make any difference in the ultimate consideration of the Circular.

Mr. M.S. Bhagawat, learned Counsel appearing for the petitioners made a lame attempt to contend that the transfer is being effected in June though as per Rule 8 general transfer is to take place in the months of April and May every year. Whereas the learned Government Advocate submitted that once as per the Scheme of Rule 8, the notification shall be issued for general transfer to begin within the month of May and thereafter Counselling shall take place and after Counselling the formal orders shall be issued. He submitted that this year also, tire general transfer process had already started in the month of May and as the process of Counselling is to be undertaken, it has been continued in June and the formal orders are issued in June.

In our view, if we consider the date of the Circular which is challenged is issued on 21-5-2016, merely because subsequent process is continued in June, the same cannot be considered as a ground to contend that Rule 8 for general transfer would not apply and only Rule 18 would apply, as canvassed. Hence the contention cannot be accepted.

If the aforesaid aspects are considered with the reasons recorded by the Tribunal, we do not find that any case is made out for interference.

Hence, the petitions are dismissed.