Tarunjeet Kaur vs School Management Of G.H.P.S., ...
2015 Latest Caselaw 2238 Del

*            IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         W.P.(C) No.7635/2013

%                                                       17th March, 2015

TARUNJEET KAUR                                               ..... Petitioner
                          Through:       Mr. Raj Kumar Sherawat, Advocate.

                          versus

SCHOOL MANAGEMENT OF G.H.P.S., HEMKUNT COLONY & ORS.
                                             ..... Respondents

Through: Mr. Jasmeet Singh, Advocate for respondent Nos.1 and 2.

Ms. Nikhita Khetrapal, Advocate for respondent No.3.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

To be referred to the Reporter or not?

VALMIKI J. MEHTA, J (ORAL)

1. By this writ petition filed under Article 226 of the Constitution

of India, the petitioner, who is an employee of the respondent no.1/School,

impugns the order dated 24.10.2013 passed by the respondent no.2/Society

transferring the petitioner from the respondent no.1/Hemkunt Colony branch

school to the Loni Road branch of the School. The respondent no.1 itself

has thereafter passed a Relieving-cum-Transfer order dated 28.10.2013

whereby the petitioner has been transferred to the Loni Road branch of the

School.

2. The issue with respect to entitlement of a School to transfer its

employees was the subject matter of the decision by me in the case of Satbir

Singh and Anr. Vs. Delhi Sikh Gurudwara Management Committee &

Anr. in W.P.(C) No.8060/2007 decided on 1.5.2013. In the case of Satbir

Singh & Anr. (supra) I have held that since there was no common seniority

list with respect to various schools of the employer in that case, transfer

hence cannot take place and each school has a separate legal entity. The

ratio of the judgment in the case of Satbir Singh & Anr. (supra) has been

approved by the Division Bench of this Court in LPA No.508/2013 titled as

Hamdard Education Society & Anr. Vs. Abdul Rehman & Anr. decided on

16.5.2014 and in which judgment, in para 24, the issue of separate individual

entity of separate schools was held to be so and teachers were held to be not

transferrable because the combined seniority list of the schools was not

being maintained.

3. In the present case, the respondent nos.1 and 2 viz the School

and the Society have filed the counter affidavit in which it is specifically

stated that an inter se seniority list is maintained of all the staff/employees of

all the Schools of the respondent no.2/Society and this is posted on the

website "www.ghphssociety.com". It is also stated in the counter affidavit

that the seniority list has been published after getting declaration of all

employees about the correctness of their seniority mentioned in the inter se

list. Petitioner has not filed any rejoinder affidavit to deny the specific

assertion made in the counter affidavit of maintaining of the common

seniority list of all the staff/employees for all the Schools run by the

respondent no.2/Society.

4. It is also required to be noted that the terms of appointment of

the petitioner include the condition that petitioner can be transferred from

any branch run by the respondent no.2/GHPS Society to another branch.

This is specifically stated in para 3 of the appointment letter dated 3.11.2006

of the petitioner. Transfer is therefore an incident and the contractual term

of service and therefore the ratio of a Division Bench judgment of this Court

in the case of Anand Swarup Mittal Vs. Managing Committee of Ramjas

Sr. Secondary School No.4 and Ors. 2007 (5) Services Law Reporter 14

will apply and which holds that in terms of the appointment letter, services

of a teacher can be utilized by another branch than the branch in which the

employee was originally appointed. The relevant paras of this judgment are

paras 11 to 14 and which paras read as under:-

"11. We may also refer to an earlier letter dated 31.10.1958, which shows that for all the Schools run by the Trust, a common seniority list is maintained and objections are invited from teachers with regard to the seniority list, if any. It would show that the Trust has been

maintaining a common seniority list much prior to the employment and engagement of the petitioner.

12. Our attention has also been drawn to orders passed on 23.8.1971 where transfers were made from one School to the other. Further, common orders transferring employees from one School of the Foundation to the other are enclosed, which are dated 5.12.1981, 1.7.1982, 13.3.1984, 8.4.1987, 15.4.1985, 14.8.1987 etc. These are illustrative of the fact that teachers from one School are being transferred to the other in a routine fashion based on the requirement.

13. We may, at this stage, also refer to a circular dated 18.12.1982 issued by the Assistant Director of Education wherein the Directorate of Education, after seeking legal opinion, advised various Managers or Authorized Officers of Government aided schools that if common seniority was being maintained for the staff of two or more schools and the two schools were being run by the same Trust or Society, transfer of teachers from one school to another school under such chain of schools is permissible. Learned Counsel for the respondent further submitted that under the Delhi Education Act, 1973, there is no provision or embargo on such transfer being effected.

14. Let us recapitulate the factual and legal position which emerges from the facts as noted above and the submissions made by the petitioner and the respective counsel. Petitioner had been appointed prior to coming into force of Delhi Education Act, 1973. The appointment letter neither contains a provision permitting transfers nor does it contain a stipulation barring transfers from one school of the Foundation to the other. The respondent has demonstrated that the transfers were routinely made and the transfer orders that have been placed on record are for the years 1971 onwards. It is, therefore, reasonable to assume that the petitioner, who was working in one of the schools, was definitely in the know of these transfers from one school to the other, which were affecting his colleagues. The occasion for the petitioner's transfer came on 16.7.1988. There are no grounds, averments or allegations made for making it out as a case of mala fide transfer. We find that the transfer happens to be within the same city rather, it is not at too distant a place, i.e., the transfer was from Ramjas School Chitragupta Road to a School in Daryaganj, hardly a distance of 4-6 kilometers. Hence, it cannot be said that the said transfer would have subjected the petitioner to any great inconvenience or ordeal.

Transfer is an incidence of service and there is nothing in the present case to indicate that the transfer was vitiated either on account of malafides or arbitrary exercise of powers." (underlining added)

5. Therefore, once a common seniority list is maintained, persons

such as the petitioner suffer from no prejudice in any of the service

conditions either with respect to monetary emoluments or with respect to

seniority and therefore petitioner cannot question the transfer order.

6. Learned counsel for the petitioner did seek to argue that the

transfer order in this case has been passed not by the respondent no.1/School

but by the respondent no.2/Society and therefore the transfer order is bad

because the petitioner was employed by the respondent no.1/School and not

by the respondent no.2/Society, however, the argument urged on behalf of

the petitioner lacks substance for two reasons. Firstly, the relieving order

dated 28.10.2013 passed by the respondent no.1-School in fact uses the

expression "that the respondent no.1-School is transferring the petitioner".

Therefore, in one way this relieving order of the respondent no.1 dated

28.10.2013 can be taken as a transfer order and it makes no difference in law

merely because respondent no.1/School may have done so under the

directions of the respondent no.2/Society. There is no law which bars a

society from giving instructions to a branch of a School to transfer its

employees and therefore for this reason itself the argument urged on behalf

of the petitioner is misconceived that there is no transfer order of the

petitioner from the respondent no.1/School to the School at Loni Road,

Delhi. The second reason for rejecting the argument urged on behalf of the

petitioner would be that the argument urged has no substance once a specific

seniority list is maintained for all the Schools and the employment letter of

the petitioner contains the clause of transfer being an incident of service.

Petitioner hence cannot argue on form and technicalities that although the

petitioner suffers from no prejudice in her service conditions, petitioner's

services cannot be placed at the disposal of another branch than the branch

to which petitioner was originally employed (being the respondent

no.1/School in this case).

7. I may state that counsel for the petitioner, without prejudice to

the rights of the petitioner, has not pressed the issue of malafide with respect

to the transfer orders.

8. In view of the above, there is no merit in the petition and the

same is therefore dismissed. No costs.

MARCH 17, 2015                                      VALMIKI J. MEHTA, J
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