Delhi High Court

Varinder Kaur vs School Management Of Guru ... on 12 February, 2018

*     IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                                  Decided on: 12.02.2018


+     LPA 379/2015 and CM APPL. 10251/2016
      VARINDER KAUR                                          ..... Appellant
                         Through: Mr Elanchezhiyan, Mr Manzar Anis and
                         Mr Nasim Anwar, Advs.


                               versus

      SCHOOL MANAGEMENT OF GURU HARIKRISHAN PUBLIC
      SCHOOL & ORS                     ..... Respondents

Through: Mr Jasmeet Singh, Ms Astha Sharma and Mr Aditya Madaan, Advs for Respondents 1, 2 and 4.

Mr Sanjoy Ghose, ASC and Mr Rhishabh Jetley and Ms Urvi Mohan, Adv for GNCTD (R-3) CORAM:

HON'BLE MR. JUSTICE SIDDHARTH MRIDUL HON'BLE MS. JUSTICE DEEPA SHARMA HON'BLE MS. JUSTICE DEEPA SHARMA

1. In the present Letter Patents Appeal, the appellant has challenged the

judgment dated 07.05.2015 passed by learned Single Judge in W.P.(C) No.

3061/2014, wherein her petition seeking quashing of transfer and relieving

orders dated 28.04.2014 and 02.05.2014 respectively, was dismissed.

LPA 379/2015 Page 1

2. The brief facts of the case are that the appellant was appointed as a

clerk vide her appointment letter dated 11.02.1997. In the appointment

letter, there was a transfer clause. The appointment letter is reproduced

herein:-

      "                              Guri Harkrishan Public School
                                    Fateh Nagar, New Delhi-110018
                                                    13-52/96-97/Est.
                                                  11thFebruary,1997
                          MEMORANDUM

The performance of Mrs. Varinder Kaur has been reviewed. She is hereby informed that she is placed on Probation as a Clerk in the salary scale of Rs. 975-25-1150/EB-30-1660 with a basic start of Rs. 975/- p.m. The appointment shall be governed by the following terms and conditions:

1. The appointment is on Probation for a period of one year with effect from 10th February, 1997.

2. The service conditions shall be governed by the school rules in force from time to time.

3. The staff is liable to be transferred to any branch run by Guru Harkrishan Public school Society. No transfer can be claimed as a matter of right.

4. On Probation a staff shall signed a service contract as required under Delhi Education Act and Rules.

If these terms and conditions are acceptable, you may give your acceptance immediately.

Sd/- Kawaljit Kaur Principal Ms. Varinder Kaur"

(emphasis ours)

LPA 379/2015 Page 2

3. Vide transfer order dated 28.04.2014 issued by respondent No. 2 i.e.

Guru Harkrishan Public School (New Delhi) Society, she was transferred to

their School at Tilak Nagar. Pursuant to the transfer order, the relieving

order dated 02.05.2014 was passed by the respondent No. 1/Guru

Harkrishan Public School.

4. In the Writ Petition No. 3061/2014, the appellant has challenged her

transfer on the ground that she could not have been transferred from Fateh

Nagar School to Tilak Nagar School for the reasons that every School is a

separate legal entity and employees of one School cannot be transferred to

another School and has relied on the judgment of this Court in the case

titled as Satbir Singh vs. Delhi Sikh Gurudwara Management Committee

& Anr. in W.P.(C) No. 8060/2007, decided on 01.05.2013. Another

ground of challenge is that the common seniority list, prepared by the

respondent no. 2, is wrongly prepared as certain cadre posts are wrongly

clubbed together. She has also urged that her transfer is malafide

occasioned on account of her filing complaints against the Chairman of the

Fateh Nagar School who had been harassing her. The transfer being thus

mala fide and hence vitiated.

LPA 379/2015 Page 3

5. All the contentions of the appellant were controverted by the

respondents in their counter affidavit. It has been denied that transfer order

was a mala fide order or that she has been harassed by the Chairman. It is

submitted that a common seniority list was prepared in respect of all the

Schools run by respondent No.2. It is further submitted that the appellant

was transferred to another School which is at a distance of 2-3 kilometers

from Fateh Nagar School pursuant to the transfer policy of the respondents.

6. It is further alleged that the appellant had indulged herself in acts of

indiscipline and has threatened the Principal and the Chairman of

respondent No. 1 /School. It was in these circumstances that in order to

avoid any confrontation, she was transferred to other school run by

respondent No. 2. Reliance has been placed by the respondents on the case

of Anand Swarup Mittal vs. Managing Committee of Ramja Sr.

Secondary School No.4 & Ors. in W.P.(C) no. 2447/1998, decided on

24.08.2006.

7. After hearing the arguments of learned counsel for the parties and

taking note of the case laws relied upon by them, the learned Single Judge

has dismissed the writ petition vide impugned judgment.

LPA 379/2015 Page 4

8. The said impugned judgment has been challenged by the appellant

before us on the ground that the learned Single Judge has ignored his

findings in his earlier judgment in the case of Satbir Singh‟s case (supra)

wherein he had discarded the same common seniority list, on which the

respondents are relying in the present case. Once he has discarded the

common seniority list in his earlier judgment, he cannot now rely on it.

The impugned judgment is erroneous and needs to be set aside. It is further

submitted that the said findings in Satbir Singh‟s case (supra) were

approved by the Division Bench of this Court in appeal.

9. It is further contended that since the Delhi School Education Act,

1973 (hereinafter referred to as 'DSEA'), does not incorporate any

provision of transfer, the employee of one school cannot be transferred to

other school even if the same Society runs both the Schools. In this regard,

it is urged that the learned Single Judge has not correctly appreciated the

law laid down by the Division Bench of this Court in Hamdard Education

Society & Anr vs. Abdul Rehman & Anr, in LPA No. 508 of 2013,

decided on 16.05.2014, wherein the Division Bench has categorically

stated that the employee of a School is an employee of that School only and

he cannot be transferred to other school even if both the schools are run by

LPA 379/2015 Page 5 the same Society. It is argued that the learned Single Judge has wrongly

relied on the obiter of the said judgment. It is further contended that as per

Section 8 of DSEA, service conditions of an employee cannot be changed

after commencement of this Act to the disadvantage of the said employee.

It is submitted that the clause of transfer in the appointment letter is to the

disadvantage of the employee and has to be regarded as null and void.

10. It is further urged that no common seniority list was maintained by

the Society at the time of appointment of the appellant and subsequent

preparation of seniority list without the consent of the employee, which is

also defective, cannot be relied upon. The appellant has also relied on Sub-

Rule (iv) of Rule 109 of Delhi School Education Rules, 1973. The

impugned judgment is further challenged on the ground that the transfer is

punitive and mala fide and the learned Single Judge has failed to appreciate

that she was sexually harassed by the Chairman at the workplace and the

transfer is a counter blast to her complaints of sexual harassment against

the Chairman of the respondent No. 1/School. The act of the respondents

thus is also in violation of the directions of the Supreme Court in the case

of Vishaka & Ors. vs. State of Rajasthan reported in AIR 1997 SC 3011.

LPA 379/2015 Page 6 On these contentions, it is submitted that the impugned judgment is liable

to be set aside.

11. We have heard the arguments and have perused the relevant records.

12. The admitted facts are that the appellant was appointed as a clerk

vide appointment letter dated 11.02.1997. Her appointment letter

contained the transfer clause stating that the staff of the School can be

transferred to any branch run by respondent No.2. When the appellant

signed the said letter of appointment, she was very well aware and concious

of the fact that her services were transferable from one School to another

School run by respondent No. 2/ Society. It is a well settled proposition of

law that the transfer is an incident of service. It is so held by the Supreme

Court in the case of Tushar D. Bhatt vs. State of Gujarat and Anr.

reported in (2009) 11 SCC 678 as under:-

" 15. The legal position has been crystallized in number of judgments that transfer is an incidence of service and transfers are made according to administrative exigencies..."

13. The Supreme Court in the case of Union of India and Others vs.

S.L. Abbas, reported in AIR 1993 SC 2444 has held that it is the prerogative

of the employer to decide a place where an employee should be deputed. It

is also a settled proposition of law, as propounded by the Apex Court in

LPA 379/2015 Page 7 catena of its judgments that Courts should not interfere with transfer order

in writ petitions unless the transfer is vitiated by malafides or made in

violation of any statutory provisions. The Court has held as under:-

"7. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated of by malafides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration. The guidelines say that as far as possible, husband and wife must be posted at the same place. The said guideline however does not confer upon the government employee as a legally enforceable right."

14. In another judgment, in the case of Somesh Tiwari vs. Union of

India (UOI) reported in AIR 2009 SC 1399, the same views have been

expressed by the Apex Court wherein in para 19, it is observed that an

order of transfer is an administrative order and " ....There cannot be any

doubt whatsoever that transfer, which is ordinarily an incident of service

should not be interfered with, save in cases where inter alia mala fide on

the part of the authority is proved."

15. The appellant has alleged her transfer is mala fide. She has alleged

that she has been transferred because she had filed complaints of sexual

LPA 379/2015 Page 8 harassments against the Chairman of respondent No.1-School. The

respondents have denied it vehemently and have urged that the appellant's

own behaviour was questionable; that she had been threatening the

Principal and Chairman. It is further urged that no complaints of sexual

harassment was ever filed by her.

16. The contentions and argument of the appellant that she had been

sexually harassed at her workplace in the present appeal seems to be an

improvement. She has given the facts relating to allegations of harassment

in paragraph 5 of the writ petition No.3061/2017. The relevant paragraph is

reproduced as under:-

"5. That the petitioner was harassed by the Chairman of the School and she suffered mentally on that account and had to take leave from the school. The chairman had threatened the petitioner that he will suspend her if she failed to withdraw complaint from Grievance Cell. The petitioner had lodged various complaints by email and by hand to the Principal due to the ill-treatment given by the Chairman. The copies of the complaints dated 18.03.2014, 22.03.2014 and 01.04.2014 to the Principal through email and complaint dated 13.03.2014 to Chief Coordinator DSGMC/Staff S.C, Review Committee dated 13.03.2014 are annexed as ANNEXURE P-6 (Colly)."

17. The perusal of this and other averments in her writ petition, clearly

shows that she had not in the first instance, imputed allegations of sexual

harassment by the Chairman of the respondent No. 1/School. It is also

LPA 379/2015 Page 9 noteworthy that in her writ petition, in the grounds of challenge of the

transfer order, she has not alleged any harassment at all leave alone

allegations of sexual harassment by the Chairman. The only averment she

made in the writ petition is found in paragraph H of grounds of challenge to

the effect that her „transfer order has been passed malafidely at the behest

of the Chairman of the School.‟

18. She has also failed to bring to our notice any of the complaints, she

had purportedly made regarding sexual harassment by the Chairman of

respondent No. 1 School. The learned Single Judge also did not find any

merit in the contention made relating to sexual harassment by the Chairman

of respondent No. 1 School. In para 9 (iii) of impugned judgment, the

learned Single Judge has held as under:-

" 9(iii)..... At this stage, also, I must refer to and reject the argument

urged on behalf of the petitioner that there exist malafides in her transfer

order because petitioner was being harassed by the Chairman of the Fateh

Nagar School and with respect to which a sexual harassment complaint has

been filed by the petitioner, inasmuch as, just making of a complaint would

not mean that this Court has to take contents of the complaint as

necessarily final and hold that the same are correct unless of course there

LPA 379/2015 Page 10 exists a judicial pronouncement of a court or a competent tribunal holding

that in fact there is sexual harassment of the petitioner. In fact, I put it to

the counsel for the petitioner that the petitioner should be in fact happy on

being transferred from Fateh Nagar School to Tilak Nagar School if the

petitioner was facing harassment in the Fateh Nagar School and to which

observation, obviously the petitioner did not have any answer."

19. It is noteworthy that the appellant has been continuously improving

upon her pleas of malafide transfer, resulted due to her complaints of

harassment by the Chairman. Her contentions that the transfer was the

result of the complaints of sexual harassment against the Chairman, does

not inspire confidence. She has failed to convince our judicial mind that the

transfer was malafide. In situations, where employees of an institution are

having conflicts with each other and are vitiating the atmosphere of the

school, a duty is cast on the employer to manage the employees in order to

ensure a congenial atmosphere in the working place and for that purpose,

the law recognizes that it is the prerogative of the employer to choose a

way to maintain the order at workplace, so that the employees can

discharge their functions efficiently, utilizing their full potential. This Court

LPA 379/2015 Page 11 in the case of P. Rajapratap vs. Union of India reported in 2010 (1) SLR

123 (Delhi) has held in para 15 as under:-

"15. It is good management to separate two employees in an organization who come into conflict with each other without apportioning blame on any, for the reason, a blame game vitiates the atmosphere in an organization. One of the two employees needs to be transferred out. We see no scope for malice in said approach being adopted."

20. Therefore, in order to bring normalcy at the work place, if two

employees are fighting with each other and if one of them is transferred

out, it cannot be said to be an act of malafide on the part of the employer.

The contention of the appellant that her transfer was vitiated being mala

fide, has no force and we find no infirmity or illegality in the impugned

judgment on this count.

21. It is also argued by the learned counsel for the appellant that at the

time when she joined the respondent No. 1/School, there was no common

seniority list and it was prepared subsequently and, therefore, such

seniority list is hit by Section 109 of DSEA, 1973.

22. The learned Single Judge has dealt with this argument in the

impugned judgment in para 9. The relevant paragraph is reproduced as

under:-

LPA 379/2015                                                          Page 12
    "9(i)    Learned counsel for the petitioner argued two further

aspects to question the transfer order. First is that, the common seniority list filed was one which is not properly maintained including for the reason that cadre posts which have not to be shown together have been shown together under the same cadre. The second aspect which is argued is by placing reliance upon Rule 109 of the Delhi School Education Act and Rule, 1973 (in short „DSEAR, 1973‟) that a common seniority list can only be maintained if school had maintained common seniority list even before passing of the DSEAR, 1973.

(ii) Both the aspects urged by the petitioner have no merits because if petitioner questions her position in the seniority list or questions the merit of the common seniority list, then this aspect would be examined when petitioner files proceedings challenging the common seniority list, but that does not mean that a common seniority list is not being maintained by the respondent no. 2/Society of the schools run by it in the name of GHPS. What ought to be the correct seniority in the list, and, not maintaining of a common seniority list, are two totally separate aspects. Once common seniority list is maintained an employee woring in one school can be transferred to another school.

(iii) So far as the second aspect is concerned, the same is also without merit because I do not find on a reading of Rule 109 of the DSEAR, 1973, that only those schools are entitled to maintain a common seniority list who had maintained it prior to passing of the DSEAR, 1973. To give such interpretation, schools opened after the DSEAR, 1973 came into force cannot be allowed to maintain a common seniority list for various schools which are run and effecting transfers from one schools to another although transfer of one employee from one branch to another branch does not in any manner prejudice the service conditions of such employees, and thus which cannot be done. Surely courts cannot

LPA 379/2015 Page 13 decide administrative exigencies as to how an employer is to run his organisation by placing a particular employee at a particular place in the organisation. The administrators of the organisation including schools are entitled within their jurisdiction to take a decision as to which employee has to be placed where, and this Court except in the case of clear cut illegality or on account of clear malafides negating the validity of transfer, will not interfere with the transfer orders......."

23. The issue as to the validity of the seniority list has been left open by

the learned Single Judge in the impugned judgment and the appellant has

been given the option to challenge it by way of appropriate proceedings.

This argument of the appellant is without force.

24. There is no dispute as to the legal proposition that transfer is an

incident of service. Admittedly, at the time when the appellant joined the

respondent No. 1/School, she was aware that her job was a transferable job.

The next contention and argument of the appellant is that every School is a

separate entity and an employee of one School cannot be transferred to

another school even though the same Society runs both the Schools. In

support of this contention, she has relied on the judgment in the case of

Satbir Singh‟s case (supra), and it is urged that the learned Single Judge

has contradicted his findings in Satbir Singh‟s case (supra). It is also urged

that the said findings in the Satbir Singh‟s case (supra) were upheld by the

LPA 379/2015 Page 14 Division Bench of this Court. This argument of the appellant that the earlier

view of the learned Single Judge in Satbir Singh‟s case (supra) had the

approval of the Division Bench of this Court is not correct for the reason

that the Letter Patents Appeal against the judgment in Satbir Singh case

(Supra), was dismissed without expressing any opinion on the judgment in

Satbir Singh‟s case (supra). The Division Bench had no occasion to go into

the merit/validity of the findings in Satbir Singh‟s case in view of the fact

that the transfer order, which was the subject matter of dispute, was

withdrawn and the parties were put to the original position. It, therefore,

cannot be said that the view of learned Single Judge in Satbir Singh‟s case

(supra) was affirmed by the Division Bench of this Court. It is apparent that

the learned Single Judge has discussed in the impugned judgment his

earlier view taken in Satbir Singh‟s case (supra) and has given the reasons

for not agreeing with the conclusion in Satbir Singh‟s case (supra).

25. Another argument is that the findings in Satbir Singh‟s case (supra)

that an employee of a school cannot be transferred to another school even

though run by the same Society were confirmed by the Division Bench of

this Court in LPA No. 508/13 in Hamdard Education Society‟s case (supra).

It is argued that in Hamdard Education Society‟s case (supra), the Division

LPA 379/2015 Page 15 Bench has clearly held that the employee of a School cannot be transferred

to another School even if both the schools are run by the same Society. That

in Hamdard Education Society‟s case (supra), the Division Bench of this

Court has clearly held that"...... the Society establishing the School is not the

employer. Each and every school established by a parent society is an

independent juristic entity having its own scheme of management and

Managing Committee. The employees appointed by the Managing

Committee of the School are not the employees of other Schools." It is

further urged that in Hamdard Education Society‟s case (supra), the

Division Bench of this Court has even gone to the extent of holding that the

transfer clause in the appointment letters is an absurdity in the employment

document and has to be resolved in favour of employee and against the

employer for the reason of contra proferentem rule. It is argued that the

impugned judgment is erroneous because undue emphasis on the obiter in

Hamdard Education Society (supra) ignoring the categorical findings, is

uncalled for. It is further urged that the existence of the common seniority

list is of no consequence, in view of clear findings of co-ordinate Bench of

this Court in Hamdard Education Society‟s case (supra).

LPA 379/2015 Page 16

26. The respondents have urged that the findings in Hamdard Education

Society‟s (supra) do not have binding effect in view of the earlier judgment

of the Division Bench in Anand Swarup's case (supra). The learned

counsel has relied on paras 9 and 11 of the said judgment. It is argued that

in that case despite the fact that the appointment letter did not contain any

transfer clause, the Court had upheld the employer's rights to transfer its

employee from one school to another School run by the same Society or a

Trust holding that such a transfer is not a transfer from one employer to

another. It is further argued that in view of the findings of Apex Court in

the case of Union of India vs. S.K. Kapur, reported in (2011) 4 SCC 589,

the findings in Anand Swarup‟s case (supra), which were given in earlier

judgment is binding and findings in Hamdard Education Society‟s (supra)

which are contrary to the findings of the Division Bench in Anand

Swarup‟s case (supra) were given as the same issue is non est.

27. We have given thoughtful consideration to the contentions and

arguments of the learned counsels for the parties on this point. The Apex

Court in the case of Union of India vs. S.K. Kapur, reported in (2011) 4

SCC 589 has clearly held, in para 9 of the judgment, that where a

subsequent coordinate Bench of an equal strength wants to take a different

LPA 379/2015 Page 17 view from prior decision of a coordinate Bench, then it must refer the

matter to a larger Bench and where it is not so done, the prior decision of a

coordinate Bench is binding on the subsequent Bench of an equal strength.

The Apex Court has held as under:-

"9....It is well settled that if a subsequent co- ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co- ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case (supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."

28. Both in Anand Swarup‟s case (supra) and Hamdard Education

Society‟s case (supra) point in issue was same, i.e. transfer of an employee

from one School to another where both the Schools are run by the same

Society/Trust and relieving of common seniority list in such transfers. In

view of the law propounded by Supreme Court in the S.K. Kapur (supra),

the previous judgment of the Division Bench i.e. Anand Swarup‟s case

(supra) holds the field and is good law on this issue. The coordinate Bench

LPA 379/2015 Page 18 of this Court in Anand Swarup‟s case (supra) in paragraphs 9, 10 ,11 and

15 has clearly held as under:-

" 9. It is not necessary to refer to the various cases cited by the petitioner in his written submissions. It is sufficient to notice the two cases, namely, Shri Ram Foundation and Anr. vs. Directorate of Education and Jawahar Lal Nehru University v. Dr. K.S. Jawatkar (supra),to which he has referred during the course of his submissions. In our view, Shri Ram Foundation and Anr. v. Directorate of Education, when read as a whole does not support the petitioner's case. Reference is invited to the following part of the judgment:

"There is no prohibition in the Act for transfer from one School to another. The question of transferability with promotion or without promotion or on the basis of joint seniority are entirely the matters between the employees and the management. Where an employee joins such an institution which is managed by a Society or a Trust he joins the institution with open eyes. He accepts the term of transferability and joint seniority. He might see a benefit in it."

In our view, the case of Jawaharlal Nehru University (supra) does not advance the petitioner's case. Firstly, the requirement of consent, express or implied, is for transfer from one employer to another, i.e., from one centre to another. In the instant case, it is the admitted position that both the schools are run by Ramjas Foundation, i.e. the Society, which had employed the petitioner. None of the schools is run as an independent Society or a Trust. It is not a case of transfer from one employer to another.

10. Learned Counsel for the respondent, in refuting the submissions made by the petitioner, has taken us through the appointment letter; which is silent on the issue of transfer. The

LPA 379/2015 Page 19 appointment dated 8.10.1970 has been issued by the Ramjas Foundation. It does not contain any provision for transfer or any prohibition on it.

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.

15. In these circumstances, we hold that there was no legal embargo on the transfer of the petitioner by the respondent Society from its one school to the other and the same is not vitiated by any malafides or extraneous considerations. The challenge to the transfer, therefore, fails.

Petition stands dismissed."

29. In Anand Swarup‟s (supra), this Court had upheld the transfer of the

employee from one school to another of the same Society i.e. Ramjas

Foundation, despite the fact that there was no transfer clause in the

appointment letter of the employee. The present case is on better footing.

The fact shows that the appointment letter of the appellant contained the

transfer clause and she had signed her appointment letter knowing fully

well that her post was transferable. Admittedly, a common seniority list is

also being maintained by the respondent No. 2. As discussed above, the

appellant has also failed to point out any element of malafide or bias on the

part of respondents. Admittedly, the place where she has been transferred

LPA 379/2015 Page 20 is nearby. Even otherwise, the appellant has not claimed any inconvenience