Kerala High Court
The Commissioner vs Xavier E.K on 9 June, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR.JUSTICE V.G.ARUN
WEDNESDAY, THE 9TH DAY OF JUNE 2021 / 19TH JYAISHTA, 1943
OP (CAT) NO. 197 OF 2018
AGAINST THE ORDER DATED 4.10.2018 IN OA 935/2015 OF CENTRAL
ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM
PETITIONERS:
1 THE COMMISSIONER, NAVODAYA VIDYALAYA SAMITI,
DEPARTMENT OF SCHOOL EDUCATION AND LITERACY,
GOVERNMENT OF INDIA, B15, INSTITUTIONAL AREA,
SECTOR 62, NOIDA, BUDH NAGAR, UTTAR PRADESH - 201
309.
2 THE DEPUTY COMMISSIONER
NAVODAYA VIDYALAYA SAMITI (HYDERABAD REGION),
MINISTRY OF HUMAN RESOURCE AND DEVELOPMENT,
1-1-10/3, SARDAR PATEL ROAD, SECUNDERABAD - 500
003.
-------------
PETITIONERS 1 AND 2 REPRESENTED BY THE PRINCIPAL
MR.P.VICKRAMAN NAIR, S/O.A.PADMANABHA PILLAI, AGED
58 YEARS, NAVODAYA VIDYALAYA, CHENNITHALA,
ALAPPUZHA DISTRICT - 690 105.
BY ADV. SRI. MILLU DANDAPANI
RESPONDENTS:
1 XAVIER E.K, TGT SOCIAL SCIENCE, JNV CHENNITHALA,
ALAPPUZHA - 690 105, RESIDING AT JNV QUARTERS,
CHENNITHALA, ALAPPUZHA - 690 105.
O.P.(CAT)No.197/2018 2
2 UNION OF INDIA, REPRESENTED BY THE SECRETARY,
MINISTRY OF HUMAN RESOURCE & DEVELOPMENT,
SHASTRI BHAWAN, NEW DELHI - 110 001.
BY ADV. CHANDINI G.NAIR, CGC
THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09.06.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
O.P.(CAT)No.197/2018 3
JUDGMENT
Ravikumar, J.
Respondents 2 and 3 in O.A.No.935 of 2015 on the files of
the Central Administrative Tribunal, Ernakulam Bench filed this Original
Petition feeling aggrieved by the order passed thereon, dated
4.10.2018. The O.A. which culminated in the impugned order was filed
by the first respondent herein seeking the following reliefs:-
"1. Call for the records leading to the issue of Annexure
A8 and A10 and set aside Annexure A8 and A10.
2. Direct the respondents to consider the promotion of
the applicant as PGT, in the vacant post of PGT
History available in JNV Kottayam.
3. Declare that the refusal on the part of the applicant
to take cognizance of the fact that the applicant is
caregiver of the differently abled child of the
applicant and insistence on joining duty at JNV
Bellari on being promoted is unjust, illegal and
arbitrary and direct the respondents to post the
applicant in the vacant post of PGT History in JNV
Kottayam."
2. The basic undisputed facts are as hereunder:-
The first respondent herein/the applicant is a Trained Graduate
Teacher (TGT) in Social Science, working at Jawahar Navodaya
Vidyalaya (JNV), Alappuzha. His wife is a TGT in Mathematics. At the
time of filing of the O.A. she was working at JNV, Gadag at Karnataka.
Presently, she is working at JNV, Kottarakkara of Kollam District in
Kerala. Earlier, the first respondent herein was given promotion as Post
Graduate Teacher (PGT), History as per Annexure-A3 order (in Ext.P1)
dated 22.9.2008. His elder son, who is in his twenties, is a differently
abled child and being his caretaker he had to decline promotion as PGT.
Consequent to his disinclination to accept promotion Annexure-A3 order
issued dated 22.9.2008 was withdrawn as per Annexure-A4 (in Ext.P1)
dated 30.9.2008. In fact, as per Annexure-A4 promotion of five other
TGTs as PGTs who have declined promotion, was also withdrawn.
Subsequently, the first respondent herein applied for considering him
for promotion as PGT, during the year 2014. Consequently, the
Departmental Promotion Committee (DPC) considered it and found him
fit for promotion, as per proceeding dated 21.4.2015. Thereupon, he
was promoted as PGT (History) and posted at JNV, Bellari in Karnataka
as per Annexure-A5 (in Ext.P1) dated 23.4.2015. Detailing his
difficulties to join at JNV, Bellary on account of his being the caretaker
of his differently abled son and pointing out a vacancy of PGT (History)
in JNV, Kottayam in Kerala he filed Annexure-A6 representation,
essentially, requesting for a posting as PGT (History) at JNV, Kottayam.
It was forwarded for consideration of the Deputy Commissioner,
Regional Office, Hyderabad. Thereafter, the first respondent was
informed as per Annexure-A8 (in Ext.P1) dated 18.5.2015 that his
request could not be acceded to and he was directed to join as PGT
(History) at Bellari on or before 25.5.2015 or to submit written
refusal/unwillingness, within the said stipulated time. It was also made
clear thereunder that in case of his failure to join at Bellary the offer for
promotion would be withdrawn and no further correspondence in the
matter would be entertained. Aggrieved by Annexure-A8 order of the
Deputy Commissioner, Navodaya Vidyalaya Samithi he moved the
Commissioner, the first petitioner herein, reiterating the request made
before the Deputy Commissioner for a posting at Kottayam as PGT
(History). Pending its consideration the Deputy Commissioner, the 2 nd
petitioner herein, withdrew Annexure-A5 order of promotion as PGT
(History) and further barred him from being considered for promotion
as PGT, for a period of one year, as per Annexure-A10 (in Ext.P1) dated
4.6.2015. Annexures-A13 to A19 were produced by him to establish
that his son is a differently abled child. It is the inaction on his request
for posting as PGT (History) at Kottayam and the grievance against
Annexures-A8 and A10 that constrained the first respondent herein to
file O.A.No.935/2015 before the Central Administrative Tribunal.
3. A reply affidavit was filed jointly by the appellants and
the 2nd respondent herein, before the Tribunal to resist the claims and
contentions of the first respondent herein/the applicant. Thereupon,
the first respondent herein filed a rejoinder to the reply affidavit. After
considering the rival submissions, rival pleadings and the materials on
record the Tribunal passed the impugned order in this Original Petition.
Evidently, the Tribunal scanned Annexure-A6 representation submitted
by the first respondent herein and came to the conclusion that it could
not have been taken/treated as refusal of the order of promotion under
Annexure-A5. The Tribunal has also considered the entitlement of the
first respondent to the additional facility available to Government
employees having differently abled dependents under Annexure-A22
and ultimately held that the first respondent is entitled to get such
facility available in the matter of posting. The impugned Ext.P7 order
passed by the Tribunal would reveal that on 17.7.2017 it directed the
petitioners herein to consider whether a promotion posting at JNV,
Kottayam could be given to the first respondent in view of the
compelling reason relating to his differently abled child. It would also
reveal that on 30.8.2017 it was submitted on behalf of the petitioners
herein, in fact, the respondents therein, that the post at Kottayam had
been filled up and thereupon, the Tribunal ordered to keep an existing
post of PGT (History) at Alappuzha vacant, if not already filled up.
Considering that the first respondent herein/the applicant was found fit
for promotion by the DPC; that he is entitled to preferential treatment
being the father of a differently abled son by virtue of Annexure-A22 (in
Ext.P1) O.M. dated 6.6.2014 issued by the Ministry of Personnel, Public
Grievances and Pensions, Department of Personnel and Training in the
matter of posting and that a clear vacancy of PGT is available at JNV,
Alappuzha consequent to the transfer of one Shri.Surendran.A, as per
the impugned Ext.P7 order the Tribunal directed to post the first
respondent herein/the applicant as PGT (History) at JNV, Alappuzha,
within the time stipulated therein. This original petition is filed by
respondents 2 and 3 therein against Ext.P7 order of the Tribunal.
4. Heard the learned Central Government Standing Counsel
for the petitioners.
5. In the decision in L.Chandra Kumar v. Union of India
reported in AIR 1997 SC 1125 the Hon'ble Apex Court held that the
decisions of Tribunals, whether created pursuant to Articles 323A or
323B of the Constitution, would be subject to scrutiny in exercise of
power of judicial review before the Division Bench of their respective
High Courts under Article 226/227 of the Constitution of India. Judicial
review is a process of which the High Court exercises its supervisory
jurisdiction over the proceedings and decisions of inferior Courts,
Tribunals and other bodies or persons who carry out quasi judicial
functions or who are charged with the performance of public acts and
duties. The power of judicial review is concerned with reviewing not the
merits of the decision, in respect of which the application for judicial
review is made, but the decision making process itself and it is thus
different from an appeal. It is the fundamental mechanism for keeping
the public authority, inferior courts or Tribunals within due bounds and
upholding the rule of law and at any rate, it is not meant for
substituting its own decision for that of the public authority, inferior
courts or Tribunals concerned. In the decision in Rajesh Aswathi v.
Nand Lal Jaiswal [(2013) 1 SCC 501] it was held that judicial
review, as the words imply, is not an appeal from a decision, but a
review of the manner in which the decision was made.
6. Bearing in mind the scope of judicial review we will
consider the challenge against the order in O.A.No.935/2015 of the
Tribunal. We have already referred to factual position obtained in the
case on hand and the decision of the Tribunal taken with reference to
the factual and legal position. Evidently, the Tribunal considered two
aspects. The first of which was whether the request of the first
respondent herein/the applicant made as per Annexure-A6
representation on receipt of Annexure-A5 order, requesting for a
change in the place of posting under Annexure-A5 amounts to refusal of
the promotion as PGT and the second one, of course, depended on the
answer to the first one, was whether or not the first respondent is
entitled to the additional facility to be rendered in the matter of posting
of Government employees who have differently abled dependents in the
light of Annexure-A22 O.M. dated 6.6.2014 issued by the Ministry of
Personnel, Public Grievances and Pensions, Department of Personnel
and Training.
7. The indisputable fact is that when the first respondent
was given promotion as PGT (History) as per Annexure-A3 order dated
22.9.2008 he declined it assigning his absolute necessity to take care of
his son who is a differently abled child. Consequently, the order of his
promotion was withdrawn and it is thereafter that upon the
recommendation of the DPC he was again promoted as PGT as per
Annexure-A5 order dated 23.4.2015. The Tribunal has also taken note
of the genuineness of the factum of his son being a differently abled
child as revealed from Annexure-A13 to A19. Ground (iv) would reveal
that the petitioners herein did not dispute the fact that the first
respondent's son is a differently abled child. The said ground (iv)
would only reveal that their contention is that wife of the first
respondent is the Vice-Principal of JNV, Kottarakkara in Kollam District
and the child is residing with her. Evidently, their contention appears to
be that in such circumstances, the wife of the first respondent could
take care of the differently abled child. We have already taken note of
the age of the son of the first respondent. He was 21 years old, as on
the year 2015. Considering his age we find it very difficult to digest the
aforesaid contention of the petitioners. Paragraph 4 of the impugned
Ext.P7 order would reveal that his son was admitted to a school for
mentally challenged children at Pampady in Kottayam and that his child
was receiving medical care in various hospitals in Kottayam/Ernakulam
districts. In the said paragraph it was remarked, "As per
O.M.No.42011/3/2014-Estt (Res.) dated 6.6.2014, copy of which is
available at Annexure-A22 it is specifically mentioned that support
system is a relevant factor in the process of rehabilitation and such
rehabilitation being a continuous process, shifting of the caretaker
should not be treated as a matter of routine." The Tribunal went on to
hold that the first respondent is entitled to preferential treatment in the
matter of posting by virtue of his being the father of a differently abled
child in terms of Annexure-A22. From the materials on record, we do
not find any reason at all to hold that the finding of the Tribunal on the
second aspect, mentioned as above, viz., with respect to the eligibility
of the first respondent to get the benefit flowing from Annexure-A22 is
either perverse or unreasonable.
8. Now, we will consider the main contention of the
petitioners. In fact, it was that which was considered by the Tribunal as
the first aspect. The question is whether the petitioners are correct in
contending that the first respondent had refused the promotion as PGT
ordered in his favour as well, as per Annexure-A5. It is their precise
contention that Annexure-A6 tantamounts to refusal of the promotion
offered to him. While considering Annexure-A22, we reminded the
maxim 'Ratio legis est anima legis', which means 'The reason of the law
is the soul of the law'. While considering the demand that 'a
Government employee who is the caretaker of a disabled child may not
have to suffer due to displacement by means of routine
transfer/rotational transfer', Annexure-A22 O.M. dated 6.6.2014 was
issued. The O.M.reads thus:-
"...... This demand has been made on the ground that
a Government employee raises a kind of support
system for his/her disabled child over a period of time
in the locality where he/she resides which helps them
in the rehabilitation.
2. The matter has been examined. Rehabilitation is a
process aimed at enabling persons with disabilities to
reach and maintain their optimal physical, sensory,
intellectual, and psychiatric or a social functional level.
The support system comprises of preferred linguistic
zone, school/academic level, administration,
neighbours, tutors/special educators, friends, medical
care including hospitals, therapists and doctors, etc.
Thus, rehabilitation is a continuous process and
creation of such support system takes years together.
3. Considering that the Government employee who has
disabled child serve as the main care giver of such
child, any displacement of such Government employee
will have a bearing on the systemic rehabilitation of
the disabled child since the new environment/set up
could prove to be a hindrance for the rehabilitation
process of the child. Therefore, a Government servant
who is also a care giver of disabled child may be
exempted from the routine exercise of
transfer/rotational transfer subject to the
administrative constraints. The word 'disabled'
includes (i) blindness or low vision (ii) hearing
impairment (iii) locomotor disability or Cerebral Palsy
(iv) leprosy cured (v) mental retardation (vi) mental
illness and (vii) multiple disabilities.
4. Upbringing and rehabilitation of disabled child
requires financial support. Making the Government
employee to choose voluntary retirement on the
pretext of routine transfer/rotation transfer would have
adverse impact on the rehabilitation process of the
disabled child."
Thus, a scanning of Annexure-A22 would be the reason for its issuance
and it forms the very soul of the said 'Office Memorandum'. We are of
the considered view that if the contention of the petitioners is accepted,
then it will defeat the very soul of Annexure-A22 Office Memorandum,
especially in the absence of administrative constraints.
9. We have already noted that the Tribunal had in fact,
considered the question whether Annexure-A6 tantamounts to refusal
of the promotion offered to the first respondent/the applicant as PGT or
whether it amounts only a prayer for a preferential posting. On a
scanning of Annexure-A6 the Tribunal arrived at the conclusion that at
no stretch of imagination Annexure-A6 could be treated as refusal of
the offer of promotion made to the first respondent as per Annexure-
A5. We are of the considered view that a bare perusal of Annexure-A6
itself would make it amply clear that what the first respondent herein
had prayed for was only a posting at JNV, Kottayam as PGT (History) in
view of the existence of a vacancy, taking note of the fact that as per
Annexure-A5 the first respondent who was then working as TGT was
promoted as PGT along with certain other TGTs and he was posted as
PGT (History) at JNV, Bellari. In such circumstances, when indisputably
what was requested under Annexure-A6 was a posting at JNV, Kottayam
in Kerala State pointing out a vacancy of PGT (History) it cannot be
taken that it amounts to refusal of promotion. It is to be noted that the
first respondent herein who was working as TGT was not asking for a
posting at JNV, Kottayam as TGT, but a posting as PGT which is the
promotion post, obviously pointing out a vacancy in the post of PGT
(History). In the said circumstances, the conclusion and consequential
finding of the Tribunal that Annexure-A6 would not tantamount to
refusal of promotion to the post of PGT cannot be said to be perverse or
illegal and at the same time, it can only be said to be the lawful
conclusion based on the materials on record. It is to be noted that the
first respondent got a differently abled son, in his twenties. As the
caretaker of the said child when he sought for a convenient posting so
as to enable him to continue to take care of his differently abled son, by
way of Annexure-A6 representation before the Commissioner, the mere
fact that pending the proceedings the Deputy Commissioner required
him to join at the transferred place pursuant to the promotion within a
specified time, with dire consequences in case of failure to join duty,
will not and cannot be a ground to say that on expiry of the specified
period the failure to join duty could be treated as refusal of promotion.
It is in this context that Annexure-A22 O.M. dated 6.6.2014 assumes
relevance. The Tribunal has considered the scope of the said O.M. We
have also adverted to the same hereinbefore. On such consideration,
we are of the considered view that non-consideration of the O.M., in the
circumstances obtained in this case in the matter of consideration of
Annexure-A6, would defeat the very soul of the said Office
Memorandum. In such circumstances, it can only be held that the
Tribunal was perfectly right in taking into account the O.M. based on
the request made by the first respondent in Annexure-A6 and holding
that the request is one for posting in the category of PGT and not one
amounting to refusal of promotion and consequently, in considering the
eligibility of the first respondent to the benefits flowing from Annexure-
A22. We have already taken note of the fact that the petitioners are
not actually disputing the fact that the first respondent got a differently
abled son and, as can be seen from ground (iv) of the original petition,
the stand is that the wife of the first respondent who is working as
Vice-Principal of JNV, Kottarakkara could take care of the said son.
Considering the age of the differently abled son of the first respondent
(as on 27.1.2015 he was 21 years old going by Annexure-A16) the said
contention of the petitioners is only to be rejected and it was rightly
rejected by the Tribunal.
10. We have also taken note of the fact that on 30.8.2017,
after taking into account the submission made on behalf of the
petitioners herein/the respondents therein that the post of PGT
(History) at JNV, Kottayam was filled up, the Tribunal had ordered to
keep an existing post of PGT (History) at JNV, Alappuzha vacant.
Finding that the said post ordered to be kept vacant was very much
available, in the circumstances expatiated above the Tribunal thought it
fit to issue a further direction to post the first respondent against that
post. We have no hesitation to hold that taking into account the
purpose for which Annexure-A22 O.M. was issued by the Government of
India and the factual position obtained in this case the petitioners ought
to have honoured the verdict of the Tribunal instead of venturing to get
it set aside. In the decision in Roshan Deen v. Preethilal reported in
AIR 2002 SC 33 the Hon'ble Apex Court held, "Writ Court not to erase
justice in name of correcting error of law". Furthermore, it was held
therein that the power conferred on the High Court under Articles 226
and 227 of the Constitution of India is to advance justice and not to
thwart it and that the very purpose of such constitutional power is that
no man should be subjected to injustice by violating the law. The look
out of the High Court is, therefore, not merely to pick out an error of
law through an academic angle, but to see whether injustice has
resulted on account of any erroneous interpretation of law. 'If justice
became the byproduct of an erroneous view of law the High Court is not
expected to erase such justice in the name of correcting the error of
law', it was further held. In the case on hand, we have absolutely no
doubt that the byproduct of the decision of the Tribunal is nothing but
justice and hence, merely because the Tribunal on its own ordered for a
posting of the first respondent as PGT (History) at JNV, Alappuzha, the
impugned Ext.P7 order of the Tribunal invites no interference in
exercise of the power of judicial review. In that view of the matter, this
Original Petition must fail and consequently, it is dismissed.
Sd/-
C.T.RAVIKUMAR
Judge
Sd/-
V.G.ARUN
Judge
TKS
APPENDIX OF OP (CAT) 197/2018
PETITIONER'S ANNEXURE
EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION
NO.180/935/2015 FILED BY THE 1ST RESPONDENT
ALONG WITH ANNEXURES.
EXHIBIT P2 TRUE COPY OF THE M.A.180/663/2017 IN
O.A.NO.180/00935/2015 ALONG WITH ANNEXURES.
EXHIBIT P3 TRUE COPY OF THE M.A.180/875/2017 IN
O.A.NO.180/00935/2015 ALONG WITH ANNEXURES.
EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THIS
PETITIONER IN O.A.NO.180/00935/2015 ALONG WITH
ANNEXURES.
EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THIS 1ST
RESPONDENT IN O.A.NO.180/00935/2015.
EXHIBIT P6 TRUE COPY OF THE M.A.NO.1017/2017 FILED BY THIS
PETITIONER IN O.A.NO.180/00935/2015 ALONG WITH
ITS ANNEXURE.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 04/10/2018 IN OA
180/00935/2015 OF THE CENTRAL ADMINISTRATIVE
TRIBUNAL, ERNAKULAM BENCH.
EXHIBIT P8 TRUE COPY OF THE O.M.NO.22034/3/81-ESST.(D)
ISSUED BY GOVT. OF INDIA DATED 1.10.1981.
TKS
