Delhi High Court
Kendriya Vidyalaya Sangathan & ... vs Smt. Neelu Bhatia on 16 July, 2010
Author: Pradeep Nandrajog
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved On:15th July, 2010
Judgment Delivered On:16th July, 2010
+ W.P.(C) NO.9289/2007
KENDRIYA VIDYALAYA SANGATHAN & ANR. ..... Petitioners
Through: Mr.S.Rajappa, Advocate
versus
SMT. NEELU BHATIA ..... Respondent
Through: Mr.M.K.Bhardwaj, Advocate.
CORAM:
HON'BLE MR. JUSTICE PRADEEP NANDRAJOG
HON'BLE MR. JUSTICE MOOL CHAND GARG
1. Whether the Reporters of local papers may be allowed
to see the judgment?
2. To be referred to Reporter or not?
3. Whether the judgment should be reported in the Digest?
PRADEEP NANDRAJOG, J.
1. It is settled law that there is a difference, though
subtle, between an order of transfer of an employee and an
order posting an employee.
2. It is also settled law that whether it is a case of
transfer or of posting, in the exigencies of service,
notwithstanding there being a policy guideline notified
pertaining to transfer or posting, a transfer or a posting can be
done outside the policy guideline, subject to the employer
justifying the same on the known principles of exigencies of
service.
3. It is also settled law that every wrong may not be
actionable. It is only when a wrong results in an injury, can it be
said that the wrong is actionable.
4. Instant writ petition has to be allowed for the reason
we find that the Tribunal has, in the instant case, violated all
aforesaid three known principles of law.
5. The relevant facts are that the respondent Neelu
Bhatia is a primary teacher under the Kendriya Vidyalaya and
was posted at its school being KV-I which is in the Cantonment
area in Delhi.
6. Record shows that in the year 2006, up to 5.9.2006,
she availed 107 earned leaves.
7. She had obtained medical leave up to 26.9.2006,
which was duly sanctioned, and when she reported for duty in
the school on 27.9.2006, she was told to report to the Assistant
Commissioner, Kendriya Vidyalaya who directed her to join duty
at KV-II, which we note is also in the Cantonment area of Delhi.
8. Neelu Bhatia moved the Central Administrative
Tribunal alleging that she was wrongly transferred to KV-II by
treating her as surplus in KV-I and that the exercise was a mala
fide exercise to help somebody else.
9. The stand of the petitioners before the Tribunal was
that on account of Neelu Bhatia taking excessive leave, in the
exigencies of service, since teaching in the school was getting
affected, a teacher was brought in place and that the Principal
of the school inadvertently told Neelu Bhatia that she was being
transferred on account of being declared surplus.
10. Now, Neelu Bhatia resides in Mayapuri and KV-I and
KV-II are in the Cantonment area. The distance between the two
schools is about 3 kilometers and thus it is a case where no
injury is caused to Neelu Bhatia whose pay and other allowances
and the nature of duties remain the same.
11. The actual reason for Neelu Bhatia crying is, as told
to us by her counsel, that as against the distance of about 8
kilometers which Neelu Bhatia had to travel from her house to
KV-I she has now to travel a distance of about 12 kilometers.
12. This is too trivial a fact and an injury to Neelu Bhatia.
It hardly matters whether she travels 8 kilometers or 12
kilometers to reach her school.
13. Noting that it is not a case where Neelu Bhatia has
been transferred to a different city or a far flung area in Delhi,
on this ground itself, the Tribunal ought not to have interfered in
the matter.
14. No doubt, there is a transfer policy framed by the
Kendriya Vidyalaya, but surely, the same does not factor as to
what would happen where a teacher avails excessive leave in a
year. Surely, the interest of students would be better served in
having one teacher teaching the course in one academic year
and not a regular teacher who reduces herself as one whose
status becomes that of a substitute; we say so for the reason by
the month of September 2006 Neelu Bhatia had availed 107
days' leave, meaning thereby, that the so called substitute
teacher taught for more than 50% of the working days and
Neelu Bhatia taught for less than 50% of the working days and
in said set of facts, her status became akin to a substitute
teacher.
15. Now, the interest of students in a school is of
paramount consideration and thus on the exigencies of service,
whatever be the transfer policy, the petitioners were fully
justified in doing what was done.
16. It is not a case of a transfer as conventionally
understood. It is actually a case of posting a teacher who
returns after a long leave and whose classes have been
assigned to another teacher and for continuity of teaching it is
decided to retain the said teacher in the school.
17. We wonder as to wherefrom the Tribunal has
returned a finding that the transfer order is penal. We are left
wondering at the observations of the Tribunal in para 10 of the
impugned order wherein it has been observed: "In case the
authorities felt that the applicant was staying away from School
frequently or for longer durations than considered appropriate in
the interest of students or that she was absent without
permission, it was for them to take a decision either in terms of
the provisions for disciplinary action or for transfer in
accordance with the relevant rules and guidelines. Instead, they
have inducted another teacher while the applicant was on
medical leave and asked her to report for duty at another School
by treating her as surplus. It is not for this Tribunal to usurp the
functions and authority of the respondents in administrative
matter but in the light of the above, it is evident that the
respondents have acted contrary to rules disregarding the
principles of fairness and natural justice to shift the applicant
out from KV No.1 while she was away by inducting another
person in her place and when she reported for duty instead of
taking necessary disciplinary action or issue of proper transfer
order after joining duty, they have asked her to report for duty
in KV No.2 justifying the same by declaring her surplus".
18. We may note that an issue was raised that only the
Commissioner, Kendriya Vidyalaya has the power to transfer a
teacher from one school to another. We set at rest the
controversy by noting that the said power has been delegated to
the Assistant Commissioners and that the order posting Neelu
Bhatia to KV-II is under the signatures of the Assistant
Commissioner, Kendriya Vidyalaya Sangathan, Delhi Region.
19. Lastly, we may note the fact that since 4.10.2006,
Neelu Bhatia is teaching at KV-II.
20. The writ petition is allowed and the impugned order
dated 10.9.2007 passed by the Central Administrative Tribunal
is set aside and as a result OA No.1162/2007 filed by Neelu
Bhatia is dismissed.
PRADEEP NANDRAJOG, J.
JULY 16, 2010 MOOL CHAND GARG, J.
dk
