Delhi High Court
The Commissioner, Navodaya ... vs Krishan Kumar on 19 January, 2010
Author: Anil Kumar
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ W.P. (C.) No.186/2010
% Date of Decision: 19.01.2010
The Commissioner, Navodaya Vidyalaya Samiti .... Petitioner
Through Mr.S.Rajappa, Advocate.
Versus
Krishan Kumar .... Respondent
Through Mr.M.K.Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE ANIL KUMAR
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether reporters of Local papers may be YES
allowed to see the judgment?
2. To be referred to the reporter or not? NO
3. Whether the judgment should be reported in NO
the Digest?
ANIL KUMAR, J.
*
The petitioner, Commissioner Navodaya Vidyalaya Samiti has
challenged the order dated 3rd August, 2009 passed in O.A
No.2225/2007 titled Krishan Kumar v. Commissioner Navodaya
Vidyalaya Samiti allowing the petition of the respondent and directing
the petitioner to promote the respondent as PGT (Geography) and
quashing order dated 7th August, 2007 whereby seniority was declined
to the respondent.
The respondent has been working as TGT (Social Science) in
Jawahar Navodaya Vidyalaya, Mungeshpur, Delhi and was aggrieved by
the discriminatory treatment to him in not counting his seniority on
inter regional transfer whereas considering the seniority of
Mohd.Abutaleb who had also availed inter regional transfer.
The grievance of the respondent, before the Tribunal, was that
Mohd.Abutaleb was posted at the hard and difficult station and a
request transfer was permitted and he was transferred to Patna region.
However, on transfer to Patna region he was not placed at the bottom of
the seniority of the Patna region and his seniority for promotion at
Shillong, which was a hard and difficult station was considered. In case
of respondent he was posted at Leh which is also a hard and difficult
station and on his transfer, he has been placed at the bottom of the
seniority list of the transferred region and his seniority at Leh has not
been considered for promotion.
The petitioner had contended before the Tribunal that the case of
Mohd.Abutaleb was different as the transfer of Mohd.Abutaleb was not
according to his choice. The Tribunal has noted the plea of the
petitioner in the counter affidavit which did not carve any such
distinction that if an employee is transferred pursuant to his request
then he will lose his seniority and Mohd.Abutaleb was not transferred
pursuant to a request made by him. The Tribunal also rejected the plea
of the petitioner that the transfer policy carves out any distinction of
foregoing of seniority only in case of the specific place of posting as per
the choice of the employees.
Considering the pleas and contentions of the petitioner, the
Tribunal had concluded that the case of Mohd.Abutaleb was not
distinguishable from that of the respondent as in both the cases the
employees had been transferred from hard stations on request basis on
inter regional transfer and since the petitioner had not followed the
uniform policy in as much as in case of respondent the seniority in Leh
region has not been taken into account for the purpose of promotion
whereas in case of Mohd.Abutaleb his seniority in Shillong region had
been considered and, therefore, the relief sought by the respondent was
allowed and order dated 7th August, 2007 was set aside with all
consequential benefits and the petitioner was directed to promote the
respondent as permissible under law. The Tribunal also considered that
the plea of the petitioner was not that consideration of the seniority of
Mohd. Abutaleb of Shillong region after his transfer to Patna region was
contrary to transfer policy of rules. If that be so then the respondent
was also entitled for consideration of his seniority of Leh region after
inter regional transfer to Delhi region.
The learned counsel for the petitioner Mr.Rajappa has very
emphatically contended that in case of Mohd.Abutaleb as he had
already become entitled for promotion before transfer therefore, his
seniority at Shillong region was considered. The learned counsel is,
however, unable to explain as to under what circumstances and under
what rules such exception can be carved out. If Mohd.Abutaleb was
entitled for promotion according to his seniority at Shillong from where
he was transferred at his request, the finding of the Tribunal that the
respondent is also entitled for his seniority at Leh after inter regional
transfer cannot be rejected.
The learned counsel for the petitioner has also relied on (2006) 5
SCC 386, K.P.Sudhakarn Vs State of Kerala in support of his
contention. However in the said precedent the Apex Court had held that
where the statutory rules govern the field, prior executive instruction
ceases to apply. Rule 27 of the Kerala State and Subordinate Service
Rules, 1958 was amended by GO dated 13th January, 1976 inserting a
proviso to clause (a), providing for the consequences of an "own request"
transfer. The said proviso had categorically provided that the seniority
of an employee getting transferred at his own request to another unit
within the same department or to another department will be
determined with reference to the date of his joining duty in the new
department. This proviso was an exception to the general rule contained
in clause (a) of Rule 27 that seniority of a person shall be determined by
the date of the order of his first appointment. Thus in K P.Sudhakaran
(supra) the seniority of the transferred employee had to be reckoned
only from the date of his joining duty in the new unit and he was not
entitled to count his service prior to the date of his transfer on his
request in accordance with the Rules. In contradistinction no such rule
and proviso to such rule has been pointed out by the learned counsel in
case of employees of Navodaya Vidyalaya Samiti. The learned counsel
has also contended that the transfer policy is nothing but the
administrative instructions and cannot be equated the statutory rules.
The counsel had contended that the seniority of Abutaleb had to be
retained and considered because he was due for promotion whereas the
petitioner was not due for promotion. This distinction cannot be
substantiated from the transfer policy nor any rule or any office
memorandum has been shown in support of this plea. Though the
general rule is that if a government servant holding a particular post is
transferred to the same post in the same cadre, the transfer does not
wipe out his length of service up to the date of transfer. But where an
employee is so transferred on his own request, he will have to forego his
seniority up to the date of transfer.
Mr. Abutaleb was transferred from Shillong to Patna region at his
request and applying the general principle, he should have also forgone
his seniority. But in his case though the transfer was made at his
request, however, he had been allowed to retain his seniority. The case
of the petitioner is not that Mr. Abutaleb was allowed to retain seniority
contrary to rules. Had that been the plea of the petitioner, the
respondent could not have claimed parity with him nor could invoke
discrimination. The plea of the petitioner is, rather, that if an employee
is due for promotion and is transferred then such an employee shall be
entitled to retain his seniority. However, this contention cannot be
justified and has not been justified on behalf of petitioner on the basis
of any statutory rules or any office memorandum or any transfer policy.
In the circumstances the respondent shall also be entitled to the same
treatment as was admissible to Mr. Abutaleb. Consequently, the learned
counsel for the petitioners is unable to show any irregularity or illegality
in the order of the tribunal impugned before us.
In the circumstances, we are not inclined to interfere with the
order of the Tribunal declining the defense of the petitioner and
accepting the pleas and contentions of the respondent. The writ petition
in the facts and circumstances is without any merit and it is, therefore,
dismissed.
ANIL KUMAR, J.
JANUARY 19, 2010 MOOL CHAND GARG, J.
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