Smt. Vandana Acharya vs Union Of India
2021 Latest Caselaw 7081 MP

1       HIGH COURT OF MADHYA PRADESH :
                    BENCH AT INDORE
   RP No.876/21 (Lavneesh Sood vs. Union of India & Ors.)
RP No.877/21 (Smt. Vandana Acharya vs. Union of India & Ors.)

Indore: Dated:- 08/11/2021:-
      Shri A.M. Mathur, learned Senior Counsel with shri
Vaibhav Asawa, learned counsel for the petitioners.
      Heard on admission.
2)    These review petitions are analogously heard on the
request of learned Senior Counsel for the simple reason that the
contention of Shri Mathur is that the grounds on the strength of
which review is sought for are common in both the matters.
3)    The contention of petitioners is that the matter of transfer
of teachers/employees of Kendriya Vidyalay Sangthan (KVS) is
governed by by-laws namely 'Education Code for Kendriya
Vidyalay Sangthan' (Education Code) Annexure A/3. By taking
this Court to Article 71 and 71(A) of Education Code, learned
Senior Counsel submits that his argument is 1) Kendriya
Vidyalay Sangthan is a registered society engaged in imparting
education and, therefore, amenable to the writ jurisdiction of this
Court. 2) The by-laws/Education Code has a force of 'law' and,
therefore, against breach of provision of Education Code or for
its enforcement, a writ petition is maintainable. 3) The Clause-
7(e) of the Code is grossly violated by respondents and,

therefore, transfer orders are bad-in-law.

4) During the course of arguments, Shri Mathur, learned Senior Counsel fairly submitted that the aforesaid aspects were not raised by the petitioners while arguing the writ petitions. However, scope of review is wide enough and review can be entertained on the basis of a new material which could not be produced despite due diligence when main matter was argued.

 2       HIGH COURT OF MADHYA PRADESH :
                    BENCH AT INDORE

RP No.876/21 (Lavneesh Sood vs. Union of India & Ors.) RP No.877/21 (Smt. Vandana Acharya vs. Union of India & Ors.)

Apart from this, review jurisdiction can be exercised to prevent miscarriage of justice. Reliance is placed on Shivdeo Singh and others vs. State of Punjab and others (AIR 1963 SC 1909, Aribam Tuleshwar Sharma vs. Aribam Pishak Sharma and others (AIR 19789 SC 1047) and Rajender Singh vs. Lt. Governor, Andaman & Nicobar islands and others (AIR 2006 SC 75).

5) We have heard Shri Mathur, learned Senior Counsel for sufficient length.

6) In WP No.22269/2021 (Lavneesh Sood vs. Union of India), this Court opined that Central Administrative Tribunal (Tribunal) has not committed any error of law in declining interference in the transfer order. This Court reminded itself that transfer order can be interfered with if it runs contrary to any statutory provision (not policy guidelines), proved to be malafide, changes service condition of an employee to her detriment or issued by an incompetent authority. Personal inconvenience etc. cannot be a ground for interference. In the case of Lavneesh Sood, the singular ground raised was that as per transfer guidelines of KVS 2018, the petitioner could not have been transferred. Three years before retirement, petitioner is a privileged class of employee and, therefore, petitioner, who had only remaining 31 months before retirement should not have been transferred.

7) In WP No.22267/2021 (Smt. Vandana Acharya vs. Union of India), the petitioner mainly assailed the transfer order by alleging breach of Clause 7(e) of the Policy. This Court affirmed the order of the Tribunal declining interference on transfer order 3 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE RP No.876/21 (Lavneesh Sood vs. Union of India & Ors.) RP No.877/21 (Smt. Vandana Acharya vs. Union of India & Ors.)

and opined that the argument of petitioner is that Clause-7(e) is a penal provision and, therefore, any transfer in exercise of and founded upon said penal provision is bad-in-law. Interference was declined by us by holding that neither the authority, who has transferred the petitioner and against whom allegations of malafide are alleged are impleaded eo nomine nor legality and validity of Clause-7(e) was called in question.

8) In this case also, this Court reiterated the legal position regarding scope of judicial review against a transfer order.

9) For the first time in these review petitions, it is argued that the Education Code has a statutory binding/force. In addition, it is argued that KVS is an authority covered under Article 12 of the Constitution and, therefore, writ petition is entertainable and appropriate writ can be issued. In our considered opinion, this point has no relevance and significance. While passing orders under review, this Court has not acted as a Court of first instance. Indeed, this Court has undertaken the judicial review in exercise of power under Article 227 of the Constitution. The KVS is a body for which appropriate Notification under Section 14 of Administrative Tribunals Act 1985 (A.T. Act) is issued by the Central Govt. The 'service matters' of this organisation fall within the ambit of Section 3(q) r/w Section 14 of A.T. Act. The Tribunal declined interference against the impugned transfer order against which petitions were filed. Thus, argument that KVS is an 'authority' and writ petition is maintainable is not of much significance. For this reason the judgment of Supreme Court in Jigya Yadav vs. Central Board of Secondary 4 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE RP No.876/21 (Lavneesh Sood vs. Union of India & Ors.) RP No.877/21 (Smt. Vandana Acharya vs. Union of India & Ors.)

Education and Ors. (2021) 7 SCC 535 is also of no assistance to the petitioner.

10) The whole attempt of petitioner is to show that the 'Educational Code' is statutory in nature. The opening page of this document (Annexure A/3) shows that it is updated on 94 th Board of Governor (BOG) held on 28.12.2012.

11) Articles 71 & 71(A) reads as under:-

"1 BASIC PRINCIPLES 1 All employees of the KVS are liable to be transferred and posted anywhere in India, at any time, and for any period, as requirements of public service and of the Sangathan may dsictate. Transfers and postings are a right of the Sangathan which it would endeavor to exercise in the best interest of the students, with due regard to the principles of equity and transparency vis-a - vis its employees.

2 These guidelines regarding transfers are meant essentially for the internal use of the Sangathan and do not vest any employee with any right. ARTICLE 71(A) TRANSFER GUIDELINES FOR TEACHERS ( UP TO PGTS ) AND OTHERS UP TO ASSISTANT

1. OBJECTIVE Kendriya Vidyalaya Sangathan shall strive to maintain equitable distribution of its employees across all locations to ensure efficient functioning of the organization and optimize job satisfaction amongst employees. All employees are liable to be transferred anywhere in India at any point in time and transfer to a desired location can't be claimed as a matter of right. While effecting transfers the organizational interest shall be given uppermost consideration and that the problems and constraints of employee shall remain subservient."

12) The Clause-7(e) is part of "transfer guidelines for Teachers". There is no iota of material to show that these Guidelines/Education Code has any statutory backing. On the 5 HIGH COURT OF MADHYA PRADESH :

BENCH AT INDORE RP No.876/21 (Lavneesh Sood vs. Union of India & Ors.) RP No.877/21 (Smt. Vandana Acharya vs. Union of India & Ors.)

contrary, in Article 71A, it is clearly mentioned that it is a 'Transfer Guideline'.

13) The question whether the 'education code' is having any statutory backing or not is not of much relevance in view of the language employed in Article 71 and 71(A) reproduced hereinabove. Even assuming that 'education code' has binding force, the said provisions/articles are worded in such manner which makes it clear that the same are directory in nature. This is trite that if language of a provision is clear and unambiguous, it should be given effect to irrespective of its consequences.[See Nelson Motis Vs. Union of India & Ors. (1992) 4 SCC 711].

14) Article 71 gives ample power to the employer to transfer its employee/teacher at any time and for any period according to administrative exigency. Clause 2 of Article 71, in no uncertain terms makes it clear that guidelines are meant for internal use and guidance of the KVS and do not vest any employee with any right. Similarly, Article 71(A) makes it clear that administrative exigency has paramount importance and problems and constraints of employees shall remain subservient. In this view of the matter, the judgment of Jigya Yadav (supra) is of no assistance to the petitioners.

15) In view of foregoing discussion, no case is made out for exercise of review jurisdiction. Review petitions are dismissed.

      (SUJOY PAUL)                                  (ANIL VERMA)
        JUDGE                                            JUDGE

soumya
   Digitally signed by
   SOUMYA RANJAN
   DALAI
   Date: 2021.11.09
   17:51:35 +05'30'