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Judgment
The petitioners, who are working as Assistant Teachers in different Government Lower Primary, Primary and Higher Primary schools across the
State, along with certain other similarly situate Assistant Teachers, filed a common application before the Karnataka State Administrative Tribunal (for
short, 'the Tribunal') in Application Nos. 28 to 82/2018.
The petitioners, and certain other co- applicants before the Tribunal in Application Nos. 28 to 82/2018, impugned Rule 5 and Rule 19(2) of the
Karnataka Civil Services (Regulation of Transfer of Teachers) Rules, 2017 (for short, 'the Rules') as being ultra vires the provisions of the Karnataka
Civil Services (Regulation of Transfer of Teachers) Act, 2007 (for short, 'the Act') with the alternative prayer for appropriate writ commanding the
Authorities/ Respondent to grant/ accord exemption to the petitioners, and their co-applicants before the Tribunal, from the rigour of Rule 5 and Rule
19(2) of the Rules (for short, 'the Impugned Rules').
The Tribunal, by its order dated 05.01.2018 (for short, 'the Impugned Order') rejected the common applications, and this batch of Petitions is filed by
the petitioners assailing the impugned order; and the co-applicants before the Tribunal who have not joined the petitioners in this batch of petitions, are
arrayed as respondents.
The petitioners' common ground before the Tribunal was that the petitioners are working as teachers/assistant teachers in different Government
Lower Primary and Higher Primary schools from the date of their respective appointment for the past 8 to 10 years without any transfer, and their
respective spouses are also working either as primary school teachers at various Government Lower Primary and Higher Primary Schools or in
different capacities for the State Government in different Departments; and that the petitioners, because of the Impugned Rules, are denied the
opportunity of seeking, and being, transferred to the place, or a place that is closer to the place, where their respective spouses work.
The Petitioners asserted before the Tribunal that Section 6(1) of the Act prohibits transfer of a teacher from the 'Unit of Seniority' in which such
teacher is appointed to another 'Unit of Seniority' except in cases specified under Section 6(2) of the Act, which allows relaxation from such
prohibition against transfer of teachers in different circumstances enumerated therein, including transfer of a teacher to a place, or a place that is
closer to the place, where the spouse is working with the State Government1. The petitioners assailed the impugned Rules on the ground that they are
notified in contravention of the provisions of Section 6 of the Act; and the petitioners also asserted that they are justified, in the facts and
circumstances, in seeking the alternative relief of exemption from the rigours of the impugned Rules so that they can seek transfer, and be transferred,
to place where their respective spouses work, or to place closer to the spouses' work place, which, but for the impugned Rules, will be permissible as
per the provisions of the Act and the other provisions of the Rules.
The Tribunal, by the impugned order, negatived the petitioners' challenge to the impugned Rules for the reasons that the petitioners' right to seek
transfer on the ground of their respective spouses, also being employees with the Government or Public Sector Undertaking, are working at a place
outside their 'Unit of Seniority' is not absolute even according to the provisions of Section 6(2)(1) of the Act because the phrase used in this Section is
may also be""; and that a Government employee, in view of the decision of the Hon'ble Supreme Court in P U Joshi and others vs. Accountant
General, Ahmedabad and Others2 cannot claim that the Service Rules should forever be the same; and further, that a Government employee's right to
challenge the Service Rules is confined to cases where such challenge is to safeguard the rights and benefits already earned, accrued and acquired
and the Petitioners' case does not fall within this permissible exception.
The petitioners have urged in the writ petitions, in an obvious reference to the provisions of 6(1) and 6(2)(1) of the Act3, that a teacher, on completion
of a minimum of three years in the existing 'Unit of Seniority', can be transferred to another ‘Unit of Seniority’ as against an available clear
vacancy in such another 'Unit of Seniority' if the spouse of such teacher is also a Government Servant and transfer on this ground shall not be made
more than twice in the service of such teacher.
The learned counsel for the petitioners, on the basis of the averments in this regard in the writ petition, urged before this Court that the impugned
Rules are an overreach and beyond the object of the Act asserting that,
(i) though Section 6(2) of the Act provides for transfer of teachers on the ground that his/her spouse is a Government or a PSU Employee in
relaxation of the prohibition under Section 6(1) of the Act as against transfer of a teacher from one 'Unit of Seniority' to another 'Unit of Seniority', the
Impugned Rules in effect deny transfers permissible under Section 6(2) of the Act by prescribing the limit on transfer from one 'Unit of Seniority' to
another 'Unit of Seniority' only if the vacancy in the Taluka or 'Unit of Seniority' where a teacher is working does not exceed 20% of the total
sanctioned post in that Taluka or 'Unit of Seniority'.
(ii) the power of the Government to make Rules under Section 13 of the Act is for carrying out the purposes of the Act, but the Impugned Rules (in
prescribing that inter ‘Units of Seniority’ transfers shall be permissible only if the vacancy in the Taluka or 'Unit of Seniority' where a Teacher
is working does not exceed 20% of the total sanctioned post in that Taluka or 'Unit of Seniority') are in variance from and beyond the purposes of the
Act.
Further, the learned counsel relied upon a set of decisions of the Hon'ble Supreme Court in support of the proposition that Rules cannot be framed in
respect of matters that are not contemplated under the Act and that Rules should be made only for carrying out the purposes of the Act; and if there
is violation of these propositions, the Rules must be quashed. The learned counsel argued that these decisions of the Honourable Supreme Court are
applicable to the present case, and therefore, the Impugned Rules are liable to be quashed.
The learned counsel also contended that because the impugned Rules take away the petitioners’ right to seek transfer on the ground of their
respective spouses being employed with the government/Public Sector Undertaking in another place, the impugned Rules are in violation of their right
to dignity enshrined under Article 21 of the Constitution of India, and therefore, the impugned Rules are ultra vires the Constitution of India.
The authorities/respondents have filed Objection Statement asserting that the Amendment to the Act vide Karnataka State Civil Services (Regulation
of Transfer of Teachers) (Amendment) Act, 2017 was brought in after much deliberation and to accommodate the long standing demand of the
Government School teachers working across the State; and the Rules are brought into force to achieve the objects of the Karnataka State Civil
Services (Regulation of Transfer of Teachers)( Amendment) Act, 2017 and that the provisions of the amended Act and the Rules are beneficial to
teachers like petitioners inasmuch as the scope of priority is widened to include the request of teachers for inter ‘Units of Seniority’ whose
spouses work not only with the Government but even those working in Public Sector Undertakings. It is also emphasised that the Rules are notified to
ensure that teachers are available in Schools and Colleges in Rural areas as it is important to ensure availability of teachers in Rural areas to comply
with the provisions of the Right of Children to Free and Compulsory Education Act, 2009 which enjoins the State Government to ensure that vacancies
in schools under its control shall not exceed 10% of the total sanctioned strength.
It must be emphasised here that the Petitioners have assailed the Impugned Rules, both before the Tribunal and this Court, asserting, inter alia, that the
Impugned Rules are in violation of the Karnataka State Civil Services (Regulation of Transfer of Teachers) Act, 2007 (which, as stated supra, is
referred to as ‘the Act') relying upon earlier provisions of Section 6(2)(1) of the Act though the same is amended by the Karnataka State Civil
Services (Regulation of Transfer of Teachers)(Amendment) Act, 20174 (for short, 'the Amendment Act'). But, it must be also be emphasised that
copies of the Act and Amended Act are appended to the Petition as Annexures and the learned Counsel for the Petitioners has made his submissions
with reference to the provisions of Section 6(2)(1) as amended by the Amendment Act.
In the aforementioned circumstances, the questions that arise for consideration of this Court are as to:
i. Whether Rule 5 and 19(2) of the Karnataka Civil Services (Regulation of Transfers of Teachers) Rules 2017 (impugned Rules) are ultra vires the
Constitution of India and/or the Karnataka State Civil Services (Regulation of Transfer of Teachers), Act 2007 amended further by the Karnataka
State Civil Services (Regulation of Transfer of Teachers)( Amendment) Act, 2017; and,
ii. Whether the impugned order of the Tribunal calls for any interference by this Court?
The Act was promulgated in the year 2007 to provide for regulation of transfer of teachers in Government Schools and Pre-university Colleges with
the object of ensuring the availability of teachers in Government Schools and Pre-university colleges in rural Areas and for the matters connected
therewith and incidental thereto. The Act, as it was promulgated, provided inter-alia for compulsory appointment of teachers to schools/pre-university
in rural areas, transfer of teachers in the interest of public service through a process of computerized counselling and prohibition of transfer of a
teacher from one 'Unit of Seniority'5 to another 'Unit of Seniority' subject to relaxation in cases of request for transfer from a teacher whose spouse is
also a Government Servant, requests for mutual transfers, request for transfer by a teacher who is a widow or handicapped, request for transfer by a
teacher on the ground that such teacher or his/her spouse or children suffer from serious ailments. The Act was amended in 2015, and after this
amendment in 2015, insofar as teachers who could be transferred on the ground that spouse is also a government employee in relaxation of the
prohibition against transfer from one 'Unit of Seniority' to another 'Unit of Seniority'6, it was stipulated that where both the teacher and spouse are
government servants and the teacher has served for at least three years in the existing 'Unit of Seniority', such teacher may be transferred through
counseling, depending upon the availability of clear vacancy, to the working place of his/ her spouse, or to a place near to the working place of his/her
spouse, but not more than twice in the service of such teacher.
The State Government under section 13 of the Act was (and even now, is) empowered to frame Rules by notification after previous publication, and
the State Government can even provide for Rules to operate retrospectively subject to the condition that the reasons for providing the retrospective
operation is specified in a statement to be laid before both the Houses of the State Legislature, and section 13 of the Act expressly stipulates that
every Rule made or notified under the Act shall, as soon as it may be possible after it is made, be laid before each House of the State Legislature in
the manner provided under Section 13(3) of the Act. The Rules, as provided under section 13 of the Act, were initially notified by the State
Government on 15.10.2007, which, inter alia, prescribed the Competent Authorities to transfer the teachers vis-a-vis primary schools, secondary
schools and pre-university college, preparation of timetable for transfer through computerized counselling, notification of vacancies, submission of
applications for transfers, preparation of Priority List and General Instructions for transfers through computerized counselling; and insofar as priority
for transfer of a teacher whose spouse was also employed with the Government, such teacher was to be placed in the Priority List after the teachers
requesting for transfer on the ground that teacher (or his/her spouse/children) being terminally or seriously ill, teacher being physically handicapped
and the teacher being a widow. While the Act is further amended by the Amendment Act in the month of April 2017, the Rules, which are framed by
the State Government in exercise of the powers conferred under Section 13 of the Act (in place of the earlier Rules), are notified vide Notification in
No.ED 12 ETR 2017 Bengaluru dated 29.11.2017. By the Amendment Act, clauses as regards what should constitute 'maximum period', 'minimum
period’ and 'Unit of Seniority'7 are either inserted or substituted, and the Amended Act, inter alia, stipulates compulsory transfer of teachers in
public service8, rotation of teachers by transfer9, that total number of transfers in any cadre and in any 'Unit of Seniority' under the Act shall not
exceed 15% or any lower limit as may prescribed10, priority to fill vacant posts created under centrally sponsored schemes or posts specified by the
State Government11; and in the case of relaxation from prohibition of transfers from one 'Unit of Seniority' to another 'Unit of Seniority' on the request
of a teacher whose spouse is also employed with the State Government, Section 6(2)(1), which was amended in 2015, is substituted. The provisions of
Section 6 of the Act prior to the Amendment Act and after the Amendment Act read as follows: Section 6 of the Act prior to the Amendment Act:
Section 6 of the Act prior to the Amendment Act:
Prohibition of transfer of a teacher from one unit of seniority to another unit of seniority.- (1) There shall be no transfer of a teacher from the unit
of seniority in which he is appointed to another unit of seniority except in cases specified in sub-clause (2):
Provided that a teacher who is found surplus in an unit of seniority may be transferred or redeployed to a needy school or pre-university college in
another unit of seniority:
Provided further that a teacher who is in service and has completed not less than five years of service on the last day fixed for the submission of
transfer application in a unit of seniority may on his request, be transferred through process of counseling to another unit of seniority not more than
once in his service subject to ceiling limit specified in the Act.
(2) The provision of sub-section (1) shall be relaxed in the following cases, namely:-
(1) Where both the spouses are Government Servants and the teacher has served for atleast three years service in the existing unit of seniority may
also be transferred to the place or nearby place of working of his/her spouse by counseling, depending upon the availability of clear vacancy not more
than twice in service.
(1A) In case of mutual transfers subject to conditions that both teachers must have completed minimum period of three years of service; must be
otherwise eligible to be transferred to that zone; must have minimum three years of left over service; such mutual transfers shall not be allowed more
than once in his service and he shall not be eligible for protection of seniority"".
(2) xxxxxxxxxxxxxxxx;
(3) xxxxxxxxxxxxxxxx;
(4) xxxxxxxxxxxxxxxx;
(5) xxxxxxxxxxxxxxxx;â€
Under the Amendment Act, insofar as Section 6 of the Act, the second proviso to Section 6(1) of the Act is omitted, Section 6(2)(1) is substituted and
Clause 6 is inserted after Clause 5 of Section 6(2); and therefore Section 6 of the Act (in material parts) after Amendment Act will read as:
Section 6 after the Amendment Act:
Prohibition of transfer of a teacher from one unit of seniority to another unit of seniority.- (1) There shall be no transfer of a teacher from the unit
of seniority in which he is appointed to another unit of seniority except in cases specified in sub-clause (2):
Provided that a teacher who is found surplus in an unit of seniority may be transferred or redeployed to a needy school or pre-university college in
another unit of seniority:
(2) The provision of sub-section (1) shall be relaxed in the following cases, namely:-
(1) In case of a teacher married to a Government or PSU employee posted outside the unit of seniority of the teacher irrespective of the period of
service,
(1A) In case of mutual transfers subject to conditions that both teachers must have completed minimum period of three years of service; must be
otherwise eligible to be transferred to that zone; must have minimum three years of left over service; such mutual transfers shall not be allowed more
than once in his service and he shall not be eligible for protection of seniority"".]
 (2) xxxxxxxxxxxxxxxx;
 (3) xxxxxxxxxxxxxxxx;
 (4) xxxxxxxxxxxxxxxxx
 (5) xxxxxxxxxxxxxxxx
(6) Where a teacher has completed minimum period of service in any zone and is seeking transfer to an eligible zone in another unit of seniority which
does not have surplus teachers.â€
After the Amendment Act, the prohibition on transfer of teachers from one 'Unit of Seniority' to another 'Unit of Seniority' shall be relaxed, inter alia,
in the case of transfer of teachers, whose spouse is either a Government or PSU employee, irrespective of the period of service as against the earlier
position before the amendment when a teacher, whose spouse is also a Government employee, could be transferred only if the concerned teacher had
completed a minimum of three years in the existing 'Unit of Seniority' and that too only twice in the service of such teacher.
The Rules, which are notified after the Amendment Act, while prescribing the Competent Authorities for the transfer of teachers, re-deployment of
sanctioned posts, posting of teachers and transfer of excess teachers to vacant posts or to schools or to colleges where there is deficiency of teachers,
preparation of time table for transfer and priority list for transfer of teachers under different categories12; and vide the Impugned Rules, limits on
various transfers are also stipulated. The Impugned Rules read as follows:
 RULE-5
 ""5. Limits of the various types of transfers: (1) A request for transfer as per section 3B of the Act or a transfer outside 'Unit of Seniority' shall be
permitted only when the total vacant posts of the category of the concerned teacher in the taluka of his existing posting does not exceed twenty
percent of the total sanctioned strength of the concerned category of post in that taluka.
(2) Out of the overall limit of fifteen percent specified in section 4 of the Act, sub-limits as contained in the Table below shall be applied for various
types of transfers.
TABLE
Sl No. Type of Transfer Sub-Limit (Percentage of the Sanctioned strength of concerned category of teachers in the relevant ‘Unit of
Seniority’)
1 Transfer of excess teachers as per Rule 4 Five Percent
2 Optional transfers as per sub-section (3) of Section 3A and section 3B of the Act Five Percent
3 Compulsory transfer as per sub-sections (1) and (2) of section 3A of the Act. Five Percent
4 Transfer outside a ‘Unit of Seniority’ Three Percent
5 Transfers based on complaint No Limit
Provided that the sub limits for the types of transfers at serial numbers 2, 3 and 4 in the above Table shall be four percent, four percent and two
percent respectively in the alternative years when transfer of excess teachers as per rule 4 is taken up.
Provided further that, the mutual transfers within and outside a 'Unit of Seniority' shall not be counted for the purposes of the sub-limits.
RULE - 19
Requests transfers outside the unit of seniority through counseling: - (1) The transfers outside the unit of seniority shall be allowed as per the
relevant provisions contained in sub-section (1) and (2) of Section 6 of the Act.
(2) the transfers to another unit of seniority shall be affected only if the number of vacant posts of the relevant category or subject in both the unit and
the taluka of the teacher are less than twenty percent of the total number of sanctioned posts of the relevant category or subject, and the unit to which
the transfer is requested does not have surplus teachers.
(3) A separate application form shall be provided for the inter-unit transfer on the Teacher Transfer Portal.
The Scheme as contained in the Act (as amended) and the Rules (notified after the Amendment Act) provide for Compulsory, Optional and Request
transfers of teachers in Government Primary School, High School and Pre-University Colleges, transfers of teachers across different areas identified
as Zone A, Zone B and Zone C and different 'Units of Seniority' for Primary Schools, High Schools and Pre-University Colleges and transfer of
teachers as a consequence of rationalization of posts and redeployment of teachers from Schools and Colleges with surplus teachers to Schools and
Colleges with deficient number of teachers. However, as regards transfer of teachers from one 'Unit of Seniority' to another 'Unit of Seniority',
Section 6(1) of the Act prohibits transfers, but this prohibition is not absolute. The prohibition in Section 6(1) of the Act against inter 'Units of Seniority'
transfers [in view of the terms of both Section 6(1) and 6(2) of the Act] shall be relaxed in cases/instances listed in Section 6(2)(1) of the
Act/Amended Act, including the transfers on the ground that a teacher's spouse is also a Government or a Public Undertaking employee.
Further, these transfers, that are to be made in relaxation of the prohibitions under section 6(1) of the Act, are also subject to the limitation prescribed
under proviso to Section 4 inserted by the Amendment Act viz., that in any given year the total number of transfers in any cadre and in any 'Unit of
Seniority' shall not exceed 15% or such any other lower limit as may be prescribed. The Act, except for mentioning this limitation on the number of
transfers that can be made in any cadre and in any 'Unit of Seniority' under different categories in a given year, does not prescribe sub-limits for the
transfers under each of the different categories of transfers. However, Rule 5 of the Impugned Rules prescribes certain sub-limits on various types of
transfers. Rule 5(1) of the Impugned Rules stipulates that a request for transfer of a teacher from one ‘Unit of Seniority’, to another ‘Unit of
Seniority’ shall be permitted only when the total vacant posts of the category of a concerned teacher in the Taluka of his existing post does not
exceed 20% of the total sanctioned strength of the concerned category of posts in that Taluka. In other words, transfers are not permitted from one
'Unit of Seniority' to another if the vacancies in the category of the concerned teacher in a Taluka of his existing posting are below 20% of the total
sanctioned strength of the concerned category of posts in that Taluka. Rule 5(2) provide for sub-limits as against each category of transfers of the
teachers within the overall limit prescribed under Section 4 of the Act with the stipulation that sub-limits for transfers mentioned at serial number 2, 3
& 4 of the Table shall be 4%, 4% and 2% respectively for the alternate years as a consequence of review, rationalization and deployment of surplus
teachers required to be taken up as per Rule 4. The Rule 5(2) also stipulates that mutual transfers, both within and outside 'Unit of Seniority', shall not
be counted for the purposes of these sub-limits.
Thus, the Rules while harmonizing the modalities of transfers and re-deployment/transfers under different categories across different Zones and
multiple Units of Seniority subject to overall limit on transfer as prescribed under section 4 of the Act, with the object of the Act and Rules viz.
ensuring availability of sufficient teachers in different schools and colleges in Rural Area, has prescribed certain limits. As part of such harmonization,
Rule 5 of the Impugned Rules limits the transfers from one 'Unit of Seniority' to another 'Unit of Seniority', to requests where the vacancies in the
applicable category of posts of the relevant Taluka are below 20% the total sanctioned strength of the such category of posts in such Taluk and
prescribes the sub-limits for different category of transfers within the permissible overall limit. Similarly, Rule 19(2), while providing for transfers from
one 'Unit of Seniority' to another 'Unit of Seniority' as contemplated under section 6(2) of the Act/Amended Act, but through counseling as required
under the Act, enables transfers from one 'Unit of Seniority' to another 'Unit of Seniority' only if the vacancies in 'Unit of Seniority' where the teacher
is working are less than 20% of the number of sanctioned post of the relevant category or subject and that there are no surplus teachers in the other
'Unit of Seniority'. Therefore, this limitation under Rule 19(2) is also part of the harmonization that is achieved under the Rules as aforementioned.
This apart, it is important to note that neither of these limitations in the Impugned Rules exclude the possibility of optional transfers or transfers on
requests outside a 'Unit of Seniority', including the transfers outside a ‘Unit of Seniority’ on request to a particular place on the ground that a
teacher's spouse is also employed with the Government or a Public-Sector Undertaking.
In view of the discussion above, and the conclusion that the Impugned Rules are not only in consonance with the Act but they also harmonise the
different requirements under the Act and Rules, this Court perforce concludes that the Impugned Rules are neither an overreach nor beyond the
object of the Act and also that the Impugned Rules are not ultra vires the Act. In these circumstances none of the decisions cited by the learned
Counsel for the Petitioners would also be applicable to this case on hand.
As regards the other limb of the petitioners’ case that the impugned Rules violate the petitioners’ right under Article 21 of the Constitution
because the Petitioners are denied an opportunity to seek transfer on the ground that respective spouses are also employed with the Government; as
already considered and noted, there is no such denial, and in fact, Rule 5, apart from providing different sub-limits for different categories of transfers,
including sub-limit for transfer outside a 'Unit of Seniority', which is to be followed at the time of making transfers subject to the overall limit
permissible under Section 4 of the Act, has only prescribed an additional limit to ensure that there is rationalization of transfers without deficiency of
teachers in different schools and colleges. As such, the contention that the impugned Rules deny an opportunity to the petitioners to seek transfer on
the ground that their respective spouses are employed with the Government or a Public-Sector Undertaking is misconceived. Insofar as the
petitioners’ contention that they have a fundamental right to seek transfer on the ground that their respective spouses are employed at another
place with the Government, and that as a consequence of the impugned Rules, such fundamental right is violated, it would be appropriate to refer to
the decisions of the Hon’ble Supreme Court in Bank of India Vs. Jagjit Singh Mehta13 and Union of India and others Vs. SL Abbas14. The
Hon’ble Supreme Court, while observing that there can be no doubt a husband and wife, who are both employees in public service, as far as
practicable, should be posted at the same station even if their employers be different and the desirability of such a course is obvious, has declared that
though the guidelines require the spouses to be posted at the same place, but that does not enable any spouse to claim such a posting as a right if the
department/ authorities do not consider it feasible and the only thing required from the departmental Authorities is that they should consider this aspect
along with exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the
administrative needs and claims of the other employees. Therefore, the petitioners cannot succeed in their challenge to the Rules on the assertion that
they have a fundamental right to seek transfer on the ground that their respective spouses are employed at a place different and separate from the
petitioners’ place of work.
For the foregoing reasons, this Court holds that the impugned Rules viz. Rule 5 and 19(2) of the Karnataka Civil Services (Regulation of Transfers of
Teachers) Rules, 2017 are neither ultra vires the Constitution of India nor ultra vires the Karnataka State Civil Services (Regulation of Transfer of
Teachers), Act 2007 amended further by the Karnataka State Civil Services (Regulation of Transfer of Teachers)(Amendment) Act, 2017 and that
the impugned order of the Tribunal does not call for any interference by this Court, and thus, both the questions formulated are held in the negative
against the petitioners.
Consequently, the petitions are dismissed. No Costs