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Wednesday, July 25, 2018

अगर आप अवकाश के लिए आवेदन करते हैं , और अधिकारी उस पर आपको जवाब नहीं देता तो भी आप अवकाश के लिए मान्य हैं ,देखें , कोर्ट का आदेश -

अगर आप अवकाश  के लिए आवेदन करते हैं , और अधिकारी उस पर आपको जवाब नहीं देता तो भी 
आप अवकाश के लिए मान्य हैं ,देखें , कोर्ट का आदेश  -
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Once the applicant applied for leave, the ball is in the court of the respondents.
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Indira Vinod vs When An Employee Applied For Leave on 3 March, 2010
      

  

  

                  CENTRAL ADMINISTRATIVE TRIBUNAL
                              ERNAKULAM BENCH

                         Original Application No. 420 of 2008

                     Wednesday, this the 3rd day of March, 2010

CORAM:

       HON'BLE SRI GEORGE PARACKEN, JUDICIAL MEMBER
       HON'BLE SRI K.GEORGE JOSEPH, ADMINISTRATIVE MEMBER

Indira Vinod,
W/o. K.P. Vinod Krishnan,
Vatika, Palapuram P.O.,
Ottappalam : 3, Palakkad District.                ...           Applicant.

(By Advocate Mrs. Sumathi Dandapani with Mr. Millu Dandapani)

                                      v e r s u s

1.     The Commissioner,
       Kendriya Vidyalaya Sangathan,
       18, Institutional Area,
       Shaheed Jeet Singh Marg, New Delhi.

2.     The Joint Commissioner (Vigilance),
       Kendriya Vidyalaya Sangathan,
       18, Institutional Area,
       Shaheed Jeet Singh Marg, New Delhi.

3.     The Educational Officer (Vig.),
       Kendriya Vidyalaya Sangathan,
       18, Institutional Area,
       Shaheed Jeet Singh Marg, New Delhi.

4.     The Assistant Commissioner,
       Kendriya Vidyalaya Sangathan,
       Regional Office, Bangalore.

5.     The Assistant Commissioner,
       Kendriya Vidyalaya Sangathan,
       Regional Office, Chennai.

6.     The Principal,
       Kendriya Vidyalaya,
       Palapuram, Ottapalam, Palakkad.

7.     Joint Commissioner & Appellate Authority,
       Kendriya Vidyalaya Sangathan,
       18, Institutional Area,
       Shaheed Jeet Singh Marg, New Delhi.               ...    Respondents.

(By Advocate Mr. Thomas Mathew Nellimoottil)


The Original Application having been heard on 15.02.10, this Tribunal on 03.03.2010
delivered the following :
 
                                        O R D E R
HON'BLE MR. K. GEORGE JOSEPH, ADMINISTRATIVE MEMBER In this O.A., in the second round of litigation, the applicant challenges the order of her removal from service under article 81(d) of Education Code for the Kendriya Vidyalayas and orders rejecting her appeals/revision petition by the competent authorities.
2. To state the facts in brief, the applicant had joined Kendriya Vidyalaya Sangathan (KVS, for short) in 1977. While working as Post Graduate Teacher (English) at KV, Ottappalam, she had applied for 'No Objection Certificate', for obtaining a passport, which was issued to her on 18.04.1999. While applying for it she had intimated the KVS authorities that her husband, an officer in the Cabinet Secretariat, Government of India, was posted at London and that she intended to be abroad for three years. She had requested for extra-ordinary leave for 178 days ( from 02.08.1999 to 26.01.2000) to accompany her husband. As her leave was not rejected, she went abroad on 07.08.1999. While at London, she was under medical treatment and practically immobile for some time. She sought extension of leave on medical ground vide Annexure A-7 letter dated 18.01.2000. In the meantime, she was directed by the 6th respondent to report for duty latest by 20.01.2000. The KVS issued a show cause notice under article 81(d) of the Education Code asking her to explain as to why provisional loss of lien should not be confirmed. Thereafter, order confirming the loss of lien dated 31.07.2001 with effect from 01.08.1999 was sent by registered post, but it was returned undelivered. In the meanwhile, she had moved to a new residence in London about which intimation was given to the KVS and the communications from KVS which were sent to her old address were not reaching her. On return to India, the applicant filed an appeal followed by a revision application highlighting that she had not been served with the show cause notice and the order suspending lien. As her attempt to resume duty at Kendriya Vidyalaya, Ottappalam, failed, she had filed OA No. 389/2003 before this Tribunal. The Tribunal set aside the impugned orders and directed the respondents to reinstate the applicant forthwith. The KVS challenged the said order of this Tribunal before Hon'ble High Court of Kerala in Writ Petition (C) No. 10834 of 2005. The Hon'ble High Court modified the aforesaid order of this Tribunal as under :
"9. We find it difficult to accept the contention as above, since we are satisfied that the Tribunal had not appropriately comprehended the situation vis-a-vis the contentions that had been raised by the parties. Disciplinary action had been initiated for reasons of absence amounting to abandonment. Learned counsel for the petitioners had adverted to a decision of the Supreme Court of the Supreme Court reported in Canara Bank v. Debasis Das (AIR 2003 SC 2041). If principles of natural justice were found violated, it is not as if the entire action has to be scrapped, but the proceedings should be permitted to be recommenced from the point at which it had suffered by infraction.
10. Adopting the principle as above, we feel that the Sangathan should get and opportunity to seek the explanation of the teacher. Now, that the documents had been made available by the petitioners to the respondent-teacher, it may be possible for her to make appropriate explanation in response to Ext.P4 and it may be possible for the Sangathan to consider dispassionately her stand. In case of necessity, they will have the right to proceed further in the matter, at their discretion. We make it clear that if the first respondent herein makes a representation in response to Ext.P4 within a period of one month from today, appropriate decision is to be taken by the Sangathan either to proceed with the matter or to drop the proceedings at their discretion taking notice of the totality of the circumstances. Now that the teacher has returned to India, it would be in the interest of all concerned that strong measures are not pursued. In case it is found essential that further proceedings are to be initiated, we direct that within a period of four months from today, such proceedings are to be completed and decision communicated to the respondent.
11. So as to make it possible for the Sangathan to proceed further in the matter, we direct that directions in Ext.P6 will stand appropriately modified, so as to give them liberty to adopt to this course. The direction for reinstatement is set aside and the further decisions are to depend on the procedure that are adopted by the Management.
The Writ Petition is allowed to the above extent. No costs."
In accordance with the directions of Hon'ble High Court, the applicant submitted a representation on 10.10.2005 which was rejected by the KVS vide order dated 19.06.2007. Aggrieved by the said order, this OA has been filed by the applicant.
3. The applicant contends that she had intimated the respondents about the change of her address in London. The show cause notice and the impugned order at Annexure A-2 were sent to her old address, therefore, she did not get a chance to make a reply to the same. On this ground, Annexure A-12 is liable to be set aside. While applying for NOC, the applicant had categorically stated that her husband was posted in Indian Embassy, London, and that she would join him. The medical certificates she had produced were issued by the authorised medical attendant as prescribed by the High Commission of India in London. It was open to the respondents to verify the claim of being sick made by the applicant. The alleged misconduct of unauthorised absence commenced from 2.8.1999, 1.8.1999 being a holiday. At the material time, article 81
(d) of Education Code was not in the statute book, but came to be inserted only on 4.9.2000. Therefore, proceedings against the applicant should be conducted as per CCS (CCA) Rules only. It is highly illegal and arbitrary to give retrospective effect to an executive order to adjudicate the offence which took place prior to issuance of the said order. The applicant went abroad to join her husband after duly intimating the respondents. She had been sending leave letters consecutively alongwith medical certificates, therefore, it cannot be said that the applicant was unauthorisedly absent. There is no question of abandonment of service as she never signified her unwillingness to continue in service. The provisions under article 81(d) of Education Code are highly arbitrary, unconstitutional and illegal because it seeks to remove an employee by a summary procedure.
4. The respondents contested the O.A. The applicant had gone abroad without sanctioned leave. It amounted to gross indiscipline. After the competent authority decided and communicated her absence as unauthorised, the question of communication separately about refusal of leave is redundant. Mere submission of leave letters with medical certificates cannot force the leave sanctioning authority to sanction the leave. Only the order dated 31.07.2001 sent to her was returned undelivered. The show cause notice declaring provisional loss of lien served upon her was not received back. It must have been received by her. To buttress their arguments the respondents relied upon the judgement of Hon'ble Delhi High Court in W.P.(C) No. 7868/2007, Smt. Sunitha Nair vs. The Commissioner, Kendriya Vidyalaya Sngathan & Ors., as well as the judgements of Apex Court in Mithilesh Singh vs. Union of India and Others, (2003) 3 SCC 309 and in State of Punjab vs. P.L. Singla, 2009 (1) SC 65. As none of the contentions raised by the applicant are tenable, the OA should be dismissed.
5. Arguments were heard and documents perused.
6. This O.A. revolves round the article 81(d) of the Education Code. The relevant extract from the Education Code is reproduced as under :
"81(d) : Voluntary Abandonment of Service -
The KVS vide letter F.No. 11-12-/2000-KVS(Vig.) dated 4.9.2002 has conveyed the following decision on :
(1) If an employee has been absent/remains absent without sanctioned leave or beyond the period of leave originally granted or subsequently extended, he shall provisionally lost his lien on his post unless :
                      (a)   he   returns    within  fifteen  calendar   days  of   the
              commencement of the absence or             the expiry of leave originally
              granted or subsequently extended, as the case may be, and

(b) satisfies the appointing authority that his absence or his inability to return on the expiry of the leave as the case may be was for reasons beyond his control. Their employee not reporting for duty within fifteen calendar days and satisfactorily explaining the reasons for such absence as aforesaid shall be deemed to have voluntarily abandoned his service and would thereby provisionally lose lien on his post.
                         xxxxxxxxx         xxxxxxxxx          xxxxxxxxxx

              Note :    The following supplementary instructions have been issued for
                         giving effect of the above provisions:

1. When an employee applied for leave, medical or otherwise, the competent authority to sanction such a leave should invariably provide in writing when such a leave is refused or not sanctioned adducing the grounds of refusal.
2. Employees seeking leave on prolonged medical grounds may be referred to the Medical Board at the Regional Office nearest to the residence of the employee so that they do not get any succor on plea of inability on health grounds.
3. The disciplinary authority while examining the representation on show-cause notice should preferably give a personal hearing to the employee before issue of the final order of loss of lien on the post, thereby terminating the service that employee.
xxxxxx xxxxxxx xxxxxxxx xxxxxxxx
6. The personal file alongwith service book and the case file of the appellant maintained at the Regional Office may be invariably provided alongwith the comments on the points of appeal. The Disciplinary Authority should also specifically mention the grounds or consideration on which the leave was refused to the employee."
7. Para 2 of Annexure A-17 order of this Tribunal in OA No. 389/2003 gives the background of insertion of the article 81(d). The same is reproduced as under :
"2. The 5th respondents has filed a detailed reply statement on his behalf and on behalf of all the respondents contending that the Kendriya Vidyalaya Sangathan is an autonomous body registered under the Department of Higher and Secondary Education, Ministry of Human Resource Development, Government of India. The Sangathan has its own regulation off affairs of Kendriya Vidyalaya Sangathan employees as per the terms of appointment. Chapter VIII deals with disciplinary matters of staff. Annexure R-1 is a copy of the provisions of the Education Code. Article 81(d) of the code was inserted by the Board of Governors at its meeting held on 17.07.2000, as per the powers conferred by Resolution 22 of the Memorandum and Rules of Kendriya Vidyalaya Sangathan. Insertion of the provision in the Education Code was duly communicated to all concerned, to all Regional Offices and the Principals with a request to circulate among teachers and staff. The increasing tendency on the part of teachers, particularly ladies to be absent from duties on the slightest pretext which was causing indiscipline and deterioration in academic standards and normal disciplinary proceedings under CCS (CCA) Rules, 1965 were found to be insufficient. CCS (CCA) Rules were dilatory and inadequate to address the magnitude of the problems of unauthorised absence of the staff. In order to give uninterrupted education to the children and thereby sustaining the public confidence in the Institution it was deemed essential to incorporate the said Article in the Rule. The rules regarding the terms and conditions of appointment is invariably added to the offer of appointment, thereby the employees enters into a valid contract with the Sangathan. An employee cannot later make a unilateral disclaimer. The removal of the applicant from service was not caused by disciplinary proceedings under CCS (CCA) Rules but as per the sub clause (6) of Article 81 (d) of Education Code for Kendriya Vidyalayas which was adopted in public interest and administrative exigencies."
This article is meant to tackle absenteeism of wayward teachers and thereby to prevent interruption in teaching.
8. As regards constitutionality of Section 81(d), the Tribunal had held in OA No. 389/2003, in the first round of litigation, as under :
"10. There cannot be any quarrel to the contention of the respondents that Kendriya Vidyalaya Sangathan is an autonomous body registered under the Department of Higher and Secondary Education, Ministry of Human Resource Development, Government of India. The Sangathan has power to make its own rules and regulations and therefore, the Education Code R-1 with special reference to Article 81(d) of the Code cannot be said to be unconstitutional. Every Institutions to maintain the institutional interest have the right to incorporate enacting rules for their proper maintenance of the discipline of academic standards especially when it happens to a Institution of Education. On perusal of the said code, we find that the provisions of the code is not repugnant or override the provisions of CCS (CCA) Rules nor Fundamental Rules......."
Article 81(d) of the Code is not unconstitutional. It came into force on 4.9.2000 only. Therefore, at the time the alleged absence of the applicant commenced, the CCS (CCA) Rules are applicable. From 04.09.2000 onwards, the Article 81(d) was applicable.
9. We now proceed to adjudicate whether the absence of the applicant from 02.08.1999 to 31.07.2002 for which she had applied for leave on 29.06.1998, amounted to absence without sanctioned leave and voluntary abandonment of service in the context of CCS (CCA) Rules and Article 81(d) of Education Code, in the totality of the facts and circumstances of the case.
10. The applicant joined as Primary Teacher in Kendriya Vidyalaya in 1977. She was promoted as Trained Graduate Teacher in 1988 and again promoted as Post Graduate Teacher (Eng.) in 1991. She had 22 years of unblemished and satisfactory service to her credit. She must have taken her teaching career quite seriously. She was not of the type frequently absenting herself from duty on the slightest pretext causing indiscipline and deterioration in academic standard. Respondents have not stated anything to the contrary. Her husband was a Central Government officer who was sent on a posting in Indian High Commission at London. She had applied for NOC for obtaining an official passport on 09.02.1999 expressing her intention to be abroad for three years. Initially she applied for 178 days extra ordinary leave with effect from 02.08.1999. If there were a KVS School at London, her request for a transfer to London on spouse ground should have elicited sympathetic consideration. At the time she applied for leave, she was governed by CCS (Leave) Rules, 1972. Section 7 of the said Rule is extracted as under :
"7. Right to leave:
(1)Leave cannot be claimed as of right.
(2)When the exigencies of public service so require, leave of any kind may be refused or revoked by the authority competent to grant it, but it shall not be open to that authority to alter the kind of leave due and applied for except at the written request of the Government servant.
GOVERNMENT OF INDIA DECISION (1) Government servants to be encouraged to take leave regularly.- The Government have had under consideration the recommendation made by the Second Pay Commission that the Heads of Departments, Offices, etc. should plan their work in such a way as to permit Government servants to take a certain amount of leave annually and a longer period after some years or according to many special necessity.
Leave cannot be claimed as of right When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. These provisions have been made in the rules because it is not always possible to let all who want leave at a particular time to have it at that time and there is a limit beyond which depletion of staff cannot be permitted without dislocating the working of an establishment. These provisions are not intended to be used as in effect to abridge the leave entitlement of the staff. Indeed it is desirable in the interest of efficiency of the public service that Government servants take leave at suitable intervals and return to work keen and refreshed.
The leave sanctioning authority may, therefore, encourage Government servants to take leave regularly, preferably annually. In cases where all application for leave cannot, in the interest of public service, be granted at the same time, the leave sanctioning authority should draw up phased programmed for the grant of leave to the applicants by turns with due regard to the principles enunciated.
[G.I., M.H.A., O.M.No.6/51/60-Ests.(A), dated the 25th January, 1961 and reiterated, vide G.I.,Dept. Of Per.& Trg., O.M. No. 14028/3/2000-Estt.(L), dated the 22/27th March, 2001.] "
11. It is amply clear that the leave cannot be claimed as a matter of right because it is not always possible to let all who want leave at a particular time to have it at that time, therefore, in exigencies of public service , the leave sanctioning authority can refuse the leave of any kind. But this power to refuse leave should not be used to abridge the leave entitlement of the staff. The power to refuse is not unlimited, it cannot be exercised arbitrarily. This being the position, the applicant who had left for London to join her husband on 07.08.1999 as the leave sought was not rejected, had no reason to believe that her request for leave will not be entertained. She had apprised the authorities about her intention to proceed on leave as early as 09.02.1999. She had a valid reason to take leave as she wanted to join her spouse who was serving Government of India and was posted at London. The authorities had ample time of six months to make alternate arrangement in her absence so that students appearing for Board Examination were not adversely affected. However, the respondents did not respond to the leave application. They had no valid reason to reject her application for leave. They had also no reason to doubt her intention to return from leave. Once the applicant applied for leave, the ball is in the court of the respondents. They should either sanction it or reject it. They can reject it in the exigencies of public service. There were no exigencies of public service that the respondents could communicate to the applicant under the CCS (Leave) Rules. The inaction on the part of the respondents in dealing with the application for leave from the applicant is unjustifiable as it goes against the spirit of CCS (Leave) Rules, 1972.
12. The Article 81(d) of the Education Code was introduced on 04.09.2000. The respondents could terminate the services of an employee for remaining absent without sanctioned leave. The respondents treated the absence of the applicant as voluntary abandonment of service attracting provisional loss of lien on her post without taking any action on her request for leave. The supplementary instruction No. 1 to 81(d) of the Education Code enjoins upon the respondents to provide grounds of refusal in writing when a leave is refused or not sanctioned. The leave sanctioning authorities have only two courses of action, which is legally tenable.
(i) to sanction the leave; or
(ii)to refuse the leave giving in writing the grounds of refusal. The respondents did not take either course of action. Instead, they simply ignored the leave application. They have ignored the leave application at their own peril. Respondents treated the applicant's absence as absence without sanctioned leave amounting to voluntary abandonment of service inspite of her leave application before them. It is illegal on the part of the respondents not to sanction leave which was sought on valid grounds when they did not have any ground to refuse it. It is doubly illegal for the respondents to treat her absence as absence without sanctioned leave amounting to voluntary abandonment of service. This is not done in an organization meant to promote excellence in education. After applying for leave the applicant is not expected to do anything further to get it sanctioned. It is for the respondents to sanction it or to refuse it. If they refuse the leave, they have to give reasons for the same. Without fulfilling this mandatory requirement, the respondents are not empowered to treat the applicant's absence as if it is without sanctioned leave amounting to voluntary abandonment of service and proceed to terminate her service. KVS is engaged in the pursuit of excellence in education. KVS is envisaged as a pace setting institution to provide quality education. It ill behoves a vibrant organization, like the KVS striving for excellence in education to treat its teachers as chattel to be oppressed and exploited. Excellence flourishes where head is held high and mind is free, not where self respect and dignity of employees are trampled upon by insensitive authority. The purpose of insertingarticle 81(d) in the Education Code is not to show the door to any teacher who dares to seek leave for valid reasons. Its purpose was to discipline habitually absenting teachers who are not serious about teaching. The respondents have violated the spirit of 81(d) of Education Code by wilful and callous inaction on the leave application to make applicant's absence technically 'absent without sanctioned leave' . While they stress on the fact that the applicant is absent without sanctioned leave, they conveniently forget that it is they who have to sanction the leave or refuse it giving valid reasons. For giving effect to the provisions under 81(d) the leave sanctioning authority "should invariably provide in writing when such a leave is refused or not sanctioned adducing the grounds of refusal." Without fulfilling the mandatory requirement of refusal of leave applied for, specifically mentioning the grounds for refusal, the respondents have no moral or legal right to proceed further in the matter in a manner injurious to the applicant. The contention that as the competent authority had decided and communicated to the applicant that her absence was unauthorised, the question of communicating separately about refusal of leave is redundant, is not acceptable because the KVS is flouting the instructions under 81(d).
13. While at London, the applicant had sought extension of leave with medical certificates. As the respondents are aware of the applicant's intention to be away for three years, they doubt the veracity of her medical certificates. They think that she must have produced the medical certificates "which normally any Government official takes refuge under said circumstances". They are unable to see the possibility of applicant's falling ill irrespective of her intention to stay abroad with her spouse for three years. The leave sanctioning authority is not the competent authority to decide the genuineness of the medical reason for leave. The competent authority for that purpose is the medical officer. It was open to the KVS authorities to secure second medical opinion by requesting the Indian High Commission for the same. But, they did not choose to do so. They have a right to question the second medical report also but they are not competent, not being medically qualified, to judge the medical condition of the applicant at the relevant time. In not giving any weightage to the medical certificates produced by the applicant without the benefit of opinion of a Medical Board, they disobeyed the instructions under article 81(d).
14. If the applicant had no intention to return to her job, there was no need to post the KVS with her address abroad and change of her address. The fact that she had all along kept the authorities concerned well informed about her intention to take leave, the purpose for which she is going and the extent of leave that is required etc. invariably show her intention to return the school to teach her students. There is no element of abandonment of service in any of her actions. Article 81(d) came into effect on 4.9.2000 only, one year after the applicant went on leave. It cannot be given retrospective effect as it is not expressly provided for. The selective retrospective application of 81(d) to the applicant's absence disregarding the mandatory instructions under the same article which are binding of the KVS is an illegal act. The supplementary instructions for giving effect to the provisions of article 81(d) would demand that article 81(d) could be applied only after the KVS followed the instructions under it scrupulously. The inaction of the KVS authorities on the leave application disabled them from giving effect to the provisions of article 81(d). To enable them to give effect to the provisions of the said article, they have to first deal with the leave application. Therefore, the onus for making the absence of applicant without sanctioned leave is squarely on the respondents, not with the applicant. The applicant is more sinned against than sinned.
15. Article 81(d) of the Education Code does not cover an employee leaving the country without prior permission. Therefore, the said article does not empower the respondents to proceed against the applicant for leaving the country without prior permission. For, nothing prevents an employee on sanctioned leave from leaving the country without prior permission from competent authority. Article 81(d) deals with unauthorised absence, not unauthorised trip abroad, which should be dealt with under the relevant Rules. In the orders dated 29.11.2002 at Annenxure A-14 and dated 19.06.2007 at Annexure A-20, the appellate authorities while rejecting the appeal preferred by the applicant against the termination order dated 31.07.2001 have considered that the applicant left the country without taking prior permission of the competent authority. It is only unauthorised absence amounting to the voluntary abandonment of service that is falling under article 81(d) which is a stand alone and self contained article. Article 81(d) (13) makes it absolutely clear that "in matters falling under this article and in those matters alone, the procedure prescribed for holding inquiry in accordance with the CCS (Classification, Appeal) Rules 1965 as applicable to the employees of the Kendriya Vidyalaya Sangathan as also other provisions of the said rules which are not consistent with the provisions of this Article shall stand dispensed with". It becomes quite clear that the respondents used the power under article 81(d) illegally in dealing with the matter of leaving the country without prior permission.
16. The respondent authorities could have effectively communicated with the applicant through the Indian High Commission at London. They should have sought the assistance of the High Commission to serve the show cause notice on the applicant in a second attempt, instead of assuming that it had reached her in the first attempt. Rushing to terminate her service without making a second attempt as described above, was an act of highhandedness on the part of the respondents. Resorting to inaction on the leave letter and doing the barest minimum on their part in taking a major decision like termination of service show a mindset that is too narrow for achieving excellence or giving justice. The respondent authorities woefully lack promptness in response and effectiveness in communication. Considering the failures of the respondents and the openness of the applicant, we are inclined to take the view that the applicant is right in stating that she did not get a chance to reply to the show cause notice and Annexure A-12 order dated 31.07.2001 terminating her service. When she was enabled to make a reply on the intervention of the Hon'ble High Court, the respondents failed miserably to deal with it in the right perspective. They missed the wood for trees.
17. The respondents were extremely myopic in failing to observe that the applicant as a spouse of a serving officer of the Government of India who was posted abroad was travelling with him on an official passport at the cost of public ex-chequer while allegedly leaving the country without prior permission and sanctioned leave. They are unable to see the aspects of the applicant as the spouse of a Government servant, as a mother and as a teacher together. It was open to the respondents to advise her to seek permission to go abroad separately. It would have been a win-win situation for both the respondents and the applicant if the former had encouraged her to take study leave for acquiring further academic qualification while being abroad for a period of three years so that when she came back she would have been better equipped to achieve excellence in teaching. The respondent authorities could have shown a little grace to a teacher with 22 years of service seeking leave to join her husband who was posted abroad by the Central Government under which the KVS operates.
18. Hon'ble High Court had observed that the KVS might take "appropriate decision taking notice of the totality of the circumstances" and advised, "now that the teacher has returned to India, it would be in the interest of all concerned that strong measures are not pursued". Hon'ble High Court expressed the hope that "it may be possible for the Sangathan to consider dispassionately her stand". In our considered view, the KVS failed to consider the applicant's case in its totality and dispassionately and proceeded to take the strongest measure possible against the applicant disregarding the mandatory requirements under 81(d) of the Education Code. The said code was introduced to deal with the problem of unauthorised absence of the staff on the slightest pretext causing indiscipline, deterioration in academic standard, interruption in giving education to the children and loss of public confidence. The intention of the said article is not to refuse genuine request for leave. The applicant was not habitual leave taker. She had a valid reason to seek leave. She had intimated in advance about her intention to go on leave so that appropriate action to give uninterrupted education to the students and thereby to sustain public confidence could be taken by the respondents. There was no reason to refuse her leave. It should have been sanctioned. If there was any reason to refuse they should have communicated the refusal with reason to the applicant. If the respondents expected the applicant to wait indefinitely for the sanction of leave, it is unreasonable. They had not indicated to the applicant what more is she supposed to do to get her leave sanctioned. The inaction on the part of the respondents on the leave application is clearly illegal, arbitrary and unjust. The power under a stringent measure like article 81 (d) should be exercised with great circumspection and caution. The respondents have wielded the power under article 81(d) unjustly in not sanctioning applicant's leave without giving any reason to make it unsanctioned leave amounting to voluntary abandonment of service. The respondent authorities failed to empathize with their employee; they could not appreciate her need to take leave; they failed to exercise power judiciously. It is tyranny of the petty minded, when laws are implemented bereft of human compassion.
19. On the other hand, the applicant is to be faulted for not setting a personal example for others to follow in the matter. She should never have allowed her reputation to be sullied by the stigma of going abroad without approval on leave applied for. She should have insisted on getting the leave sanctioned. If she was not in a position to delay her departure she could have taken up the matter of getting the leave sanctioned with higher authorities from abroad. She also should have specifically sought sanction for going abroad. Unwittingly she made technical transgressions and became a victim of highhandedness. For her technical mistakes, she has suffered quite disproportionately in being kept out of job for many years and the attendant anguish. Now that she has only one more year left for retirement, it is advisable that all disciplinary action pertaining to leave from 02.08.1999 to 01.08.2002 and going abroad without permission and connected litigation are brought to an end.
20. We have gone through the judgement of Hon'ble High Court of Delhi in W.P.(C) No. 7868/2007 as well as the Apex Court judgements in (2003) 3 SCC 309 and 2009 (1) SC 65 cited by the counsel for the respondents. The facts and circumstances of the applicants therein are quite different from those of the applicant herein. As such the decisions in the cited cases are of no assistance to respondents in the O.A.
21. Before parting, we would like to make the following observation, for consideration of the KVS authorities. It is not enough to make stringent a law to meet a grave situation. That law has to be applied judiciously by men with positive mentality. Otherwise, the remedy would prove to be worse than the disease. Therefore, it is essential that those who implement harsh laws are subjected to attitudinal reorientation and are trained to take a judicious view of men and matters while implementing them.
22. In the conspectus of the facts and circumstances of this O.A. and the legal issues involved, in our considered view, the applicant had been unjustly treated by the respondents by not sanctioning her leave. They violated the mandatory instructions under article 81(d). Therefore, the absence of the applicant whose application for leave is neither rejected nor sanctioned does not amount to absence without sanctioned leave and voluntary abandonment of service. The order terminating her service and the orders rejecting appeals/revision application are unjust, illegal and arbitrary. In the interest of justice, the applicant should be reinstated in service with immediate effect.
23. In the result, the Original Application succeeds. Accordingly, it is ordered as under :
Annexure A-12 order dated 31.07.2001 confirming provisional loss of lien of the applicant, Annexure A-14 order dated 29.11.2002, Annexure A-16 order dated 25.03.2003 and Annexure A-20 order dated 19.06.2007 rejecting the appeals/revision petition against the loss of lien are hereby quashed and set aside.
The respondents are directed to reinstate the applicant in service with immediate effect at Ottappalam or at the nearest place where vacancy is available and regularise her leave from 1.8.1999 to 1.8.2002 without pay, within a month of receipt of a copy of this order. The period from 2.8.2002 till the applicant reports for duty upon reinstatement also should be regularized as leave without pay. No costs.
                                (Dated, the 3rd March, 2010)




     (K. GEORGE JOSEPH)                                    (GEORGE PARACKEN)
   ADMINISTRATIVE MEMBER                                    JUDICIAL MEMBER





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Friday, July 20, 2018

कोर्ट ने मयूचल ट्रांसफर एलाऊ किया, कहा कि इससे विभाग के कार्य मे कोई अड़चन नहीं आएगी - -

कोर्ट ने मयूचल ट्रांसफर एलाऊ किया, कहा कि इससे विभाग के कार्य मे कोई अड़चन नहीं आएगी - 



HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

?Court No. - 17 

Case :- SERVICE SINGLE No. - 17420 of 2018 

Petitioner :- Abhilash Kumar Dubey & Another 
Respondent :- State Of U.P. Thru. Prin. Secy., Ayush Deptt. & Others 
Counsel for Petitioner :- Lalendra Pratap Singh 
Counsel for Respondent :- C.S.C. 

Hon'ble Abdul Moin,J. 
Heard learned counsel for the petitioners and Sri P.K. Singh, learned Additional Chief Standing Counsel appearing for the State-respondents. 
With the consent of learned counsel for the parties, this petition is being finally disposed of. 
By means of the present writ petition, the petitioners have prayed for a direction to be issued to respondent no.2 to allow their mutual transfer with regard to petitioner no.1 from Government Ayurvedic Hospital Gaura Badshahpur District Jaunpur to Government Ayurvedic Hospital, Devgoan, District Azamgarh and with regard to petitioner no.2 from Government Ayurvedic Hospital, Devgoan, District Azamgarh to Government Ayurvedic Hospital Gaura Badshahpur District Jaunpur, for which both the petitioners have agreed. 
The case set forth by the petitioners is that petitioner no.2 is physically handicapped and is presently posted at Government Ayurvedic Hospital, Devgoan, District Azamgarh. In support of his contention, petitioner no.2 has annexed certificate showing that he is physically handicapped as Annexure-4 to the writ petition. Both the petitioners have agreed for mutual transfer and have represented to the department. The said representation has been forwarded by the Regional Ayurvedic and Unani Officer, District Jaunpur, vide his recommendation dated 15.05.2018 the endorsement of which finds place at Annexure-3 to the writ petition. 
The contention of learned counsel for the petitioners is that despite specific recommendation by respondent no.3 for mutual transfer of the petitioners, the competent authority namely the Director, Ayurvedic Services, U.P., Lucknow, has not taken any final decision on the same. 
Upon filing of this petition, this Court vide order dated 05.06.2018 had required learned counsel for the respondents to seek instructions in the matter. Today, Sri P.K. Singh, learned Additional Chief Standing Counsel, informs the Court that despite sending a letter, no instructions have been made available. 
Learned counsel for the petitioners submits that once there is specific recommendation by respondent no.3 recommending the case of the petitioners for mutual transfer, the fact that petitioner no.2 is physically handicapped and that once both the petitioners have agreed for mutual transfer, consequently there should not be any impediment to respondent no.2 acceding to the said request more particularly when on account of said mutual transfer there would not be any interruption in the services being rendered by both the petitioners. 
Consequently, keeping in view the aforesaid facts and circumstances of the case, the writ petition is finally disposed of with a direction to respondent no.2 to consider the request of the petitioners for their mutual transfer as recommended by respondent no.3 vide his recommendation dated 15.05.2018, copy of which is Annexure-3 to the writ petition, within a period of three weeks from the date a certified copy of this order is produced before him. 
With the aforesaid observations, the writ petition is disposed of. 
Order Date :- 20.7.2018 
A. Katiyar 



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Wednesday, July 18, 2018

Breaking News - Aspirational District से ट्रांसफर न करने को सरकार का पॉलिसी डिसीजन बताकर याचिका खारिज की -

Breaking News - Aspirational District से ट्रांसफर न करने को सरकार का पॉलिसी डिसीजन बताकर याचिका खारिज की 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 7 
Case :- WRIT - A No. - 14390 of 2018 
Petitioner :- Sunil Kumar 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Udai Chandani,Amit Kumar Satsangi 
Counsel for Respondent :- C.S.C. 

Hon'ble Surya Prakash Kesarwani,J. 
Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents. 
Undisputedly, District 'Shravasti' falls under "Aspirational District Programme". The State Government has taken a policy decision not to transfer any teacher from district selected as under "Aspirational District Programme". 
Under the circumstances, the impugned transfer order dated 20.6.2018, cancelling the online transfer of the petitioner from District - Shravasti, does not suffer from any manifest error of law. 
In view of the aforesaid, the writ petition is dismissed. 
Order Date :- 16.7.2018/vkg 



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Breaking News - Aspirational District से ट्रांसफर न करने को सरकार का पॉलिसी डिसीजन बताकर याचिका खारिज की -

Breaking News - Aspirational District से ट्रांसफर न करने को सरकार का पॉलिसी डिसीजन बताकर याचिका खारिज की 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 7 
Case :- WRIT - A No. - 14390 of 2018 
Petitioner :- Sunil Kumar 
Respondent :- State Of U.P. And 3 Others 
Counsel for Petitioner :- Udai Chandani,Amit Kumar Satsangi 
Counsel for Respondent :- C.S.C. 

Hon'ble Surya Prakash Kesarwani,J. 
Heard learned counsel for the petitioner and the learned standing counsel for the State-respondents. 
Undisputedly, District 'Shravasti' falls under "Aspirational District Programme". The State Government has taken a policy decision not to transfer any teacher from district selected as under "Aspirational District Programme". 
Under the circumstances, the impugned transfer order dated 20.6.2018, cancelling the online transfer of the petitioner from District - Shravasti, does not suffer from any manifest error of law. 
In view of the aforesaid, the writ petition is dismissed. 
Order Date :- 16.7.2018/vkg 



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Saturday, July 14, 2018

29334 गणित विज्ञान भर्ती में टेट रिजल्ट के बाद बी एड बी टी सी को राहत, सुप्रीमकोर्ट में स्टे, लेकिन खतरा अभी टला नही

29334 गणित विज्ञान भर्ती में टेट रिजल्ट के बाद बी एड बी टी सी को राहत, सुप्रीमकोर्ट में स्टे, लेकिन खतरा अभी टला नही

विज्ञान गणित से स्नातक न कर विज्ञान गणित शिक्षक बनने पर भी फंसा है मामला




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Thursday, July 12, 2018

सुप्रीम कोर्ट का सरकारी सेवा पति पत्नी को एक ही स्थान पर पोस्टिंग करने का नजीर भरा आदेश , और इस आदेश ने मुसीबतें झेल रहे तमाम कपल्स की मदद की - Union Of India And Ors vs S.L. Abbas on 27 April, 1993

सुप्रीम कोर्ट का  सरकारी सेवा पति पत्नी को एक ही स्थान पर पोस्टिंग करने का नजीर भरा आदेश , और इस आदेश ने मुसीबतें झेल रहे तमाम कपल्स 
की मदद की  - Union Of India And Ors vs S.L. Abbas on 27 April, 1993



Supreme Court of India
Union Of India And Ors vs S.L. Abbas on 27 April, 1993
Equivalent citations: 1993 AIR 2444, 1993 SCR (3) 427
Author: B Jeevan Reddy
Bench: Jeevan Reddy, B.P. (J)
           PETITIONER:
UNION OF INDIA AND ORS.

 Vs.

RESPONDENT:
S.L. ABBAS

DATE OF JUDGMENT27/04/1993

BENCH:
JEEVAN REDDY, B.P. (J)
BENCH:
JEEVAN REDDY, B.P. (J)
VERMA, JAGDISH SARAN (J)

CITATION:
 1993 AIR 2444    1993 SCR  (3) 427
 1993 SCC  (4) 357   JT 1993 (3) 678
 1993 SCALE  (2)718


ACT:
%
Civil Services:
Fundamental  Rules  11 and  15-Transfer  of  a   Government
servant-When   can  be questioned  in  a   Court/Tribunal-
Guidelines  issued  by Government-Whether  have   statutory
force.
Constitution of India,1950/Central Administrative  Tribunals
Act, 1985:
Article    323-A/Section    14-Jurisdiction    of    Central
Administrative Tribunal-Exercise  of-Whether  Tribunal  can
interfere with an order of Transfer.



HEADNOTE:
The  respondent,  a  Central Government  employee,  who  was
transferred from one place to another, challenged the  order
of transfer on the grounds that: his wife was also  employed
at  the  same  place in a  Central  Government office;  his
children  were also studying there; he himself had  suffered
backbone  fracture  injuries some time ago;  the  guidelines
contained in Government of India O.M. dated 3.4.1986 had not
been  kept in mind while ordering his transfer;  some  other
officials,  who  had been serving at the same  place  for  a
longer period than  the respondent  had  been  allowed  to
continue  and  his transfer was due to the mischief  of  his
Controlling Officer.
In  the  counter-affidavit filed by the appellants,  it  was
submitted  that the transfer was ordered  on  administrative
grounds and was unexceptionable.,
A  Single  Member  of the  Central  Administrative  Tribunal
quashed  the order of transfer on the ground that the  power
of transfer was not an unfettered one, but was circumscribed
by   various   circulars/  guidelines contained   in  the
administrative instructions issued by the Government and  an
order of   transfer  could  be  interdicted  if   it  was
discriminatory,  that in the matter of considering  transfer
of  an individual  officer,  the  Office  Memorandum  dated
3.4.1986, educational dislocation of the children and health
ground,if  present deserved special consideration  and that
in  view  of  the facts and circumstances of  the  case  the
transfer order in question in respect of the respondent  was
mala fide.
428
Allowing  the  appeal, preferred by the Union of  India  and
others, this Court,
HELD:   1.1  An  order  of transfer  is  an  incidence  of
Government  servie.   Who should be transferred where  is  a
matter for the appropriate authority to decide.  Unless  the
order  of  transfer is vitiated by malafides or is  made  in
violation   of statutory  provisions, the   Court   cannot
interfere  with it.  There is no doubt that, while  ordering
the transfer 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, the husband and  the
wife must be posted at the same place. The said  guideline,
however,  does not confer upon the  government  employee  a
legally enforceable right.  Executive instructions issued by
the Government are in the nature of guidelines.  They do not
have statutory force. [430-C-E]
1.2. There  is no dispute that the respondent is  liable  to
transfer  anywhere  in India. It is not the  case  of  the
respondent  that the order of his transfer was vitiated  by
mala  fides on the part of the authority making  the  order,
though  the  Tribunal says  so,  merely  because   certain
guidelines  issued  by the  Central  Government  were  not
followed.   The  immediate superior of unit,  against whom
mischief had been attributed by the respondent, has  nothing
to do with his transfer. [430-F]
2.1. The jurisdiction of the Central Administrative Tribunal
is akin to the jurisdiction of the High Court under  Article
226  of the Constitution of India in service matters, as  is
evident  from  Article 323-A  of  the Constitution.  The
constraints  and norms which the High Court  observes  while
exercising  the  said  jurisdiction  apply  equally  to  the
Tribunal  created  under Article  323A.  The  Administrative
Tribunal  is not an Appellate Authority sitting in  judgment
over  the order; of transfer.  It cannot substitute its  own
judgment  for that of the authority competent  to  transfer.
[430-H,431 -A]
2.2. In  the instant case, the Tribunal has dearly  exceeded
its jurisdiction in interfering with the order of  transfer.
The  order  of the Tribunal reads as if it were  sifting  in
appeal over  the  order  of transfer  made  by  the  Senior
Administrative Officer (competent authority). [431-B]
Bank  of India v. Jagjit Singh Mehta, [1992] 1 S.C.C. 306,
explained.
429



JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2348 of 1993. From the Judgment and Order dated 13.7.1992 of the Central Administrative Tribunal, Guahati in O.A. No. 33/91. Ms. K. Amareswari, B.P. Sarathy and C.V. Subba Rao for the Appellants.
P.K. Goswami, Kailash Vasdev, Ms. Lira Goswami and Ms. Alpana Poddar for the Respondent.
The Judgment of the Court was delivered by B.P. JEEVAN REDDY, J. Heard counsel for the parties. Leave granted.
Respondent is a Garden Curator in the Office of the Scientist-SE, Botanical Survey of India, Eastern Circle, Shillong. By order dated January 29, 1991 he was transferred from Shillong to Pauri (Uttar Pradesh) by the Senior Administrative Officer, office of the Director, Botanical Survey of India, (Ministry of Environment and Forests, Government of India). As many as 19 persons were transferred under the said order including the respondent. The respondent has been working in Shillong since the year 1979.
The respondent approached the Gauhati Bench of the Central Administrative Tribunal (Original Application No. 33 of 1991) questioning the order of his transfer. He submitted that his wife is also employed at Shillong in and off-ice of the Central Government, that his children are studying at Shillong and further that he himself had suffered back-bone fracture injuries some time ago. He submitted that the guidelines contained in Government of India O.M. dated 3.4.1986 have not been kept in mind while ordering his transfer. tie complained that some other officials who have been serving at Shillong for a longer period, have been allowed to continue at Shillong. He attributed 'mischief' to his Controller Officer, Shri B.M. Wadhwa (third respondent in the O.M.).
In the counter affidavit filed by the respondents, they submitted that the transfer was ordered on administrative grounds and is unexceptionable.
The learned Single Member of the Central Administrative Tribunal quashed the order of transfer on the following reasoning: the decisions of the Courts establish that the power of transfer is not an unfettered one but is circumscribed by various circulars/guidelines contained in the administrative instructions issued by the Government. An order of transfer can be interdicted if it is discriminatory. The said principles are applicable to the case of the respondent. Further "in the matter of considering transfer of an individual officer, the Office Memorandum dated 3.4.1986, educational dislocation of the children and health ground, if all present, deserve special consideration not to pass the order." Having said so the learned Member recorded the following finding: "In view of the above facts and circumstances and findings it is held unhesitatingly that the transfer order no. BSI. 80/5/80- Estt. dated 29.1.1991 in respect of applicant S.L.Abbas was malafide and liable to be quashed." The Union of India has preferred this appeal.
An order of transfer is an incident of Government Service. Fundamental Rule 11 says that "the whole time of a Government servant is at the disposal of the Government which pays him and he may be employed in any manner required by proper authority". Fundemental Rule 15 says that "the President may transfer a government servant from one post to another". That the respondent is liable to transfer anywhere in India is not in dispute. It is not the case of the respondent that order of his transfer is vitiated by mala fides on the part of the authority making the order,- though the Tribunal does say so merely because certain guidelines issued by the Central Government are not followed, with which finding we shall deal later. The respondent attributed"mischief"to his immediate superior who had nothing to do with his transfer. All he says is that he should not be transferred because his wife is working at shillong, his children are studying there and also because his health had suffered a set-back some time ago. He relies upon certain executive instructions issued by the Government in that behalf. Those instructions are in the nature of guidelines. They do not have statutory force. Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated 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 a legally enforceable right.
The jurisdication of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the constitution of India in service matters. This is evident from a persual of Article 323-A of the constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constraints of the writ jurisdiction.) The Administrative Tribunal is not an Appellate Authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case the Tribunal has clearly exceeded its jurisdiction in interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority). Shri Goswami, learned counsel for the respondent relies upon the decision of this Court in Bank of India v. Jagjit Singh Mehta [1992] 1 S.C.C.306 rendered by a Bench of which one of us (J.S. VermaJ.) was a member. On a perusal of the judgment, we do not think it supports the respondent in any manner. It is observed therein:
"There can be no doubt that ordinarily and as far as practicable the husband and wife who are both employed should be posted at the same station even if their employers be different. The desirability of such a course is obvious. However, this does not mean that their place of posting should invariably be one of their choice, even though their preference may be taken into account while making the decision in accordance with the administrative needs. In the case of all-India services, the hardship resulting from the two being posted at different stations may be unavoidable at times particularly when they belong to different services and one of them cannot be transferred to the place of the other's posting. While choosing the career and a particular service, the couple have to bear in mind this factor and be prepared to face such a hardship if the administrative needs and transfer policy do not permit the posting of both at one place without sacrifice of the requirements of the administration and needs of other employees. In such a case the couple have to make their choice at the threshold between career prospects and family life. After giving preference to the career prospects by accepting such a promotion or any appointment in an all- India service with the incident of transfer to any place in India, subordinating the need of the couple living together at one station,'they cannot as-of right claim to be relieved of the ordinary incidents of all-India service and avoid transfer to a different place on the ground that-the spouses thereby would-be posted at different places............................................ No doubt the guidelines requires the two spouses to he posted at one pi" as far as practicable, but that does not enable any spouse to claim such a posting as of right if the departmental authorities do not consider it feasible. The only thing required is that the departmental authorities should consider this aspect along with the exigencies of administration and enable the two spouses to live together at one station if it is possible without any detriment to the administrative needs and the claim of other employees."
(emphasis added) The said observations in fact tend to negative the respondent's contentions instead of supporting them. The judgment also does not support the Respondents' contention that if such an order is questioned in a Court or the Tribunal, the authority is obliged to justify the transfer by adducing the reasons therefor. It does not also say that the Court or the Tribunal can quash the order of transfer, if any of the administrative instructions/guidelines are not followed, much less can it be charactrised as malafide for that reason. To reiterate, the order of transfer can be questioned in a court or Tribunal only where it is passed malafide or where it is made in violation of the statutory provisions.
For the above reasons, the appeal is allowed. The judgment under appeal is set aside. There shall be no order as to costs.
N.P.V.         Appeal Allowed.




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सुप्रीम कोर्ट के आदेश की महत्वपूर्ण पक्तियां जी सभी कोर्ट अक्सर पति पत्नी ट्रांसफर मामले में उल्लेख करती हैं , ये सही जरूरतमंद ट्रांसफर चाहने वालों के राहत भरे भी हैं साथ ही प्रशासन / समाज के लिये भी :-

सुप्रीम कोर्ट के आदेश की महत्वपूर्ण पक्तियां जी सभी कोर्ट अक्सर पति पत्नी ट्रांसफर मामले में उल्लेख करती हैं  , ये सही जरूरतमंद ट्रांसफर चाहने वालों के राहत भरे भी हैं साथ ही प्रशासन / समाज  के लिये  भी  राहत भरे  हैं:-



In the case of Union of India -Vs- S.L. Abbas, reported in (1993) 4
SCC 357, have observed that “Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides 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 a legally enforceable right. The order of
transfer can be questioned in a court or tribunal only where it is passed mala fide or where it is made in violation of the statutory provisions.”




In Sarvesh Kumar Awasthi -Vs- U.P. Jal Nigam, reported in (2003) 11 SCC 740, Hon’ble Supreme Court have observed that – 

“In our view, transfer of officers is required to be effected on the basis of set norms or guidelines. The power of transferring an officer cannot be wielded arbitrarily, mala fide or an exercise against efficient and independent officer or at the instance of politicians whose work is not done by the officer concerned. For better administration the officers concerned must have freedom from fear - 14 - W.P. (C) No. 6492 of 2015 Page 14 of 17 of being harassed by repeated transfers or transfers ordered at the instance of someone who has nothing to do with the business of administration.”




Source: http://www.ghconline.nic.in/Judgment/WPC64922015.pdf

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2016 इंटरडिस्ट्रिक्ट ट्रांसफर में कोर्ट ने पति पत्नी सरकारी नौकरी के ट्रांसफर मामले को वरीयता देकर नार्मल ट्रांसफर से ऊपर रखा , कुछ गलत ट्रांसफर हो जाने पर ट्रांसफर आदेश संशोधन करने को कहा -

2016 इंटरडिस्ट्रिक्ट ट्रांसफर में कोर्ट ने पति पत्नी सरकारी नौकरी के ट्रांसफर मामले को वरीयता देकर नार्मल ट्रांसफर से ऊपर रखा , कुछ गलत ट्रांसफर हो जाने पर ट्रांसफर आदेश संशोधन करने को कहा - 



HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 7 
Case :- WRIT - A No. - 48327 of 2016 
Petitioner :- Sunita Rani 
Respondent :- State Of U.P. And 2 Ors. 
Counsel for Petitioner :- Seemant Singh 
Counsel for Respondent :- C.S.C.,Ashok Kumar Yadav 

Hon'ble Manoj Misra,J. 
Heard learned counsel for the petitioner; learned Standing Counsel for respondents 1 and 2; and Sri Sanjay Kumar Srivastava for respondent no. 3. 
Considering the nature of the order that is being passed, this Court does not find it necessary to call for counter affidavits from the respondents as it would serve no useful purpose, therefore, with the consent of learned counsel for the parties, this petition is being disposed of finally. 
The petitioner is a teacher under the U.P. Basic Shiksha Parishad. For inter district transfer of teachers under the U.P. Basic Shiksha Parishad, a detailed transfer policy was notified / vide circular dated 23.6.2016. Under the transfer policy a candidate interested in transfer was required to submit application online giving option of five districts where he or she wanted posting by way of transfer. According to the petitioner, pursuant to the above transfer policy, she submitted online application, which was assigned no. 1711222, seeking transfer from Etah to any school in Agra or Firozabad. The options 1 to 4 were in respect of being posted at Agra whereas the 5th option was for posting in Firozabad. 
The case of the petitioner is that under paragraph 3(6) of the notification /circular dated 23.6.2016, a priority was laid for considering posting of a candidate when, in respect of a particular place, more applications than vacancies are received. According to sub clause (6) of Clause 3, priority is to be provided as follows: 
(1) first priority to physically handicapped candidate; 
(2) second to candidates suffering from specified diseases; 
(3) third to a widow; 
(4) fourth to an Ex-servicemen or an Ex-employee belonging to specified category; 
(5) fifth to a candidate who is either husband or wife and both of them are teachers under the U.P. Basic Shiksha Parishad, and seek posting in a common district; 
(6) sixth to a candidate who is either husband or and wife and both of them are in government service and they seek posting at common place; and 
(7) where a candidate applies for posting in the home town district. 

The policy further provides that where applications of candidates belonging to a single category are received in excess of the vacant posts, then candidate older in age would be given preference. 
The grievance of the petitioner is that though by order dated 21.8.2016, posting/ transfer has been made but the said posting/ transfer is not in accordance with the priority fixed by Clause 3 (6) of the notification/ circular dated 23.6.2016. 

It is the case of the petitioner that her husband had been posted in district Agra and, therefore, she was entitled to be treated 6th in the order of preference for being posted at Agra but instead of her claim being considered for posting at Agra, 31 candidates who are 7th in the order of priority have been posted in Agra when, in fact, their claim ought to have been considered only after exhausting the claim of the petitioner. It is thus the case of the petitioner that the transfer order dated 21.8.2016 requires to be amended and made in-consonance with the transfer policy
Learned counsel representing the respondent no. 3 has submitted that the petitioner may make a representation before the Secretary of U.P. Basic Education Board, Allahabad in respect of her grievance who can pass appropriate order, if it is justified by the transfer policy. 
Having considered the submissions of learned counsel for the petitioner, the writ petition is disposed of with a direction upon the 3rd respondent (Secretary, U.P. Basic Education Board, Allahabad) to consider the grievance of the petitioner in respect of transfer/ posting and thereafter pass appropriate order keeping in mind the priority fixed by the notification/ circular dated 23.6.2016 governing the transfer process. Accordingly, liberty is given to the petitioner to file a comprehensive representation before 3rd respondent in respect of her grievance. If any such representation is filed along with certified copy of this order, the 3rd respondent shall verify the facts and pass appropriate order in accordance with law, keeping in mind the transfer policy, preferably, within a period of three weeks from the date of filing of such representation. 

It is made clear that this Court has not expressed any opinion on the merits of the claim of the petitioner. The aforesaid exercise shall be completed strictly in accordance with law after verifying the facts from the record. 
Order Date :- 4.10.2016 
Arvind 



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Tuesday, July 10, 2018

अध्यापिकाओं के तबादले पर निर्णय लेने का निर्देश, 9 जुलाई के बाद कल 11 जुलाई को सुनवाई की तारिख

अध्यापिकाओं के तबादले पर निर्णय लेने का निर्देश, 9 जुलाई के बाद कल 11 जुलाई को सुनवाई की तारिख 

विसं, इलाहाबाद : इलाहाबाद हाईकोर्ट ने सहारनपुर जिले में महिला सहायक अध्यापिकाओं के तबादले पर दो सप्ताह में निर्णय लेने का निर्देश दिया है। कोर्ट ने यह भी कहा है कि यदि याचियों की तबादले की अर्जी पर आदेश हो चुका हो तो उन्हें सूचित किया जाए। यह आदेश न्यायमूर्ति एसपी केशरवानी ने नीतू व 11 अन्य सहारनपुर की अध्यापिकाओं की याचिका पर दिया है। याचियों का कहना है कि विभा सिंह कुशवाहा केस में दिए गए कोर्ट के आदेश का पालन नहीं किया गया है। याचीगण 2015 से अध्यापक है। नियमावली के तहत उन्हें तबादला मांगने का अधिकार है। सरकारी वकील ने कोर्ट से कहा कि शीघ्र ही तबादला सूची जारी कर दी जाएगी। इस पर कोर्ट ने यह आदेश दिया है।

दूसरी सूची के लिए हाईकोर्ट पर टिकीं निगाहें : परिषदीय स्कूलों के दर्जनों शिक्षकों ने अंतर जिला तबादलों के बाद हाईकोर्ट में याचिका दायर की है। शिक्षकों का कहना है कि उनका कटऑफ अंक अधिक है, फिर भी उनका स्थानांतरण नहीं किया गया है, बल्कि कम कटऑफ वालों को दूसरे जिलों में भेजा गया है। ऐसे ही दिव्यांग शिक्षकों ने भी कोर्ट में अर्जी दायर करके कहा है कि शासनादेश में उन्हें वरीयता देने का निर्देश था लेकिन, उसका अनुपालन नहीं हुआ। बेसिक शिक्षा विभाग ने ऐन वक्त पर आठ अति पिछड़ा जिलों से कोई तबादला नहीं किया है, जबकि आवेदन मांगने के समय और आदेश जारी करने से पहले इस संबंध में कोई विज्ञप्ति जारी नहीं की गई। एकाएक नियम बदलना कहां तक जायज है। यदि तबादला करना नहीं था तो उन जिलों के लिए आवेदन ही क्यों मांगे गए। मुख्य याचिका विभा सिंह कुशवाहा ने की है
**********************
HIGH COURT OF JUDICATURE AT ALLAHABAD 

?Court No. - 7 

Case :- WRIT - A No. - 14105 of 2018 

Petitioner :- Bibha Singh Kushwaha And 24 Others 
Respondent :- State Of U.P. And 2 Others 
Counsel for Petitioner :- Indra Raj Singh,Adarsh Singh 
Counsel for Respondent :- C.S.C.,Sanjay Chaturvedi 

Hon'ble Surya Prakash Kesarwani,J. 
Put up on 11.7.2018 at 10.00 a.m. along with the records of Writ-A Nos.14278 and 14395 of 2018 and all connected matters. 
Order Date :- 9.7.2018 
Ak

***********
C/P

फीमेल ट्रांसफर मैटर हाईकोर्ट अपडेट——————————


आज सुबह सुनवाई विभा सिंह कुशवाहा केस से ही शुरु हुई, इंद्रराज सिंह जी ने वहां से बहस तो चालू की तब जज साहब ने  8 (2)(D) नियम को एक दया पर आश्रित व्यवस्था बताया,, कि ट्रांसफर आपका अधिकार नहीं है,,, बाद में शैलेंद्र श्रीवास्तव और आर के ओझा ने जोरदार बहस करके किसी तरह इंस्पिरेशनल के मुद्दे को बचाने का प्रयास किया और वह काफी हद तक उस में सफल भी रहे। इंस्पिरेशनल जनपद के प्रेस नोट पर सरकार से जवाब मांगा गया है



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एक और तबादला सूची जारी होगी!


एक और तबादला सूची जारी होगी!

इलाहाबाद। परिषदीय शिक्षकों की एक और तबादला सूची जारी हो सकती है। 13 जून को 11,963 शिक्षकों की तबादला सूची जारी होने के बावजूद बड़ी संख्या में आवेदक संतुष्ट नहीं है। दो से छह जुलाई तक तकरीबन छह हजार शिक्षकों ने सचिव बेसिक शिक्षा परिषद से आपत्तियां की हैँ।सभी शर्तें पूरी करने के बावजूद तबादला न होने से असंतुष्ट कुछ शिक्षकों ने हाईकोर्ट में याचिका भी कर दी है। सालभर की कवायद के बाद जारी लिस्ट में कई कमियां मिली हैं। जो आपत्तियां मिली हैं उनका परीक्षण करवाने के बाद देखा जाएगा कि शर्तें पूरी करने के बावजूद किन का ट्रांसफर नहीं हुआ। बेसिक शिक्षा विभाग के अफसर सरकार व हाईकोर्ट का भी रुख देख रहे हैं। अधिक कमी मिलने पर दूसरी लिस्ट भी जारी हो सकती है






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