State of Karnataka & Anr v. Krishna Kumar & Ors.

The following Order of the Court was passed O R D E R 1. The State of Karnataka has filed appeals aggrieved by t he Judgment and Order passed by the Tribunal and affirmed by the High Court quashing in part the Memo dated 7.4.2010 issued by the State Government in the matter of transfer of teachers of Higher Primary Schools on “Mutual Basis”. 2. The respondents are the teachers appointed in the year 2004- 2005 in the Government primary schools where ‘Sarava Shikshan a Abhiyana’ Scheme (in short, “the SSA Scheme”) was being implemented. The objective of the SSA Scheme is to provide easy access to 8 th standard in the context of universalization of elementary education. In order to give effect to the scheme certain Government primary school s have been upgraded with 8 th standard and they are referred to as “Higher Primary Schools”. 65% of the salary used to be provided by the Central Government. Under the said scheme, in order to make the educ ation broad-based certain Government primary schools were perm itted to impart 8 th standard for the benefit and the improvement of educating children in the rural areas, particularly at the places whe re very few high schools were existing. This decision was taken by the Government to encourage the students to continue the 8 th standard education in the rural areas itself, though 8 th standard was part of the high school for which Trained Graduate Teachers used to be appointed. 3. On 07.04.2010, an Office Memorandum was issued inter alia to transfer and posting of teachers in the schools where the SSA Scheme has been implemented. One of the policy decisions is that those teachers appointed as primary teachers in the upgraded Governme nt higher primary schools will continue to work in the SSA Scheme. The primary teachers appointed under the SSA Scheme shall be transferred to the STATE OF KARNATAKA v. KRISHNA KUMAR post of Teachers of the same subject under the same project. It is also provided that the teachers can submit their applications f or ‘mutual transfer’ with Teachers of the State Zone with the same pa y-scale and other benefits. 4. Certain teachers, aggrieved by clause 13 relating to ‘mutua l transfer’ contained in Office Memorandum, dated 07.04.2010 filed a n original application to the Karnataka Administrative Tribunal, Bangalore. The application has been allowed and the said clause of the Office Memorandum has been quashed and it has been ordered that transfers/ postings be made strictly in accordance with the KCS (R egulation of Transfers of Teachers) Act, 2007 (in short, referred to as “the Act of 2007”) and rules framed thereunder. The State preferred Writ Application in the High Court. The same has been dismissed. Hence, the a ppeal has been preferred by the State of Karnataka, by way of Special Leave. 5. Mr. Basava Prabhu Patil, learned senior counsel, appearing on behalf of the State of Karnataka, urged that under the SSA Sc heme, certain primary schools were upgraded to higher primary schools, by inclusion of 8 th class which was not included in the primary schools. The hybrid category of higher primary schools was created in order to make the education broad-based. The respondents-teachers ha d been appointed with a specific condition that it would be permissible to post them in the schools where the SSA Scheme has been implemented and if workload of teaching is less considering the number of students, they can be asked to teach 6 th and 7 th classes also. The specific condition mentioned in the order of appointment is as under: - “if the workload in the Higher Primary School where appointed is less, the candidate has to teach Scien ce and Mathematics subjects for 6 th and 7 th standards, to make up the workload .” 6. The learned senior counsel has further pointed out that since the hybrid category of higher primary schools was create d, the matter was strictly not governed by the provisions of the Act of 2007 and the rules framed thereunder and moreover, in order to implement the Sarva Shiksha Abhiyan, an independent scheme containing the provisions for mutual transfer in Clause 13 of Memo dated 7.4.2010 had been carved out, which is based upon the volition of an incumbent in case he opt for mutual transfer, then it is permissible for him to avail the aforesaid facility. The other service conditions were not to be adversely affecte d. The 965 salary, as well as the seniority, are not to be adversely affected by mutual transfers in case an incumbent avails the provisions of clause 13. Office Memorandum dated 07.04.2010 has been issued by the State Government taking care of the exigency of the SSA Scheme, particularly when such higher primary schools were not strictly governed by the provisions of the Act merely on the basis of analogy, the provisions of clause 13 could not have been struck down by the Tribunal and the same has been illegally affirmed by the High Court. 7. The learned counsel appearing on behalf of the respondents has contended that considering the findings recorded by the Tribunal in Paragraphs 17 and 18 of the order, the High Court has found justification with the same and rightly ordered that the transfer of such teac hers could have been ordered in accordance with the provisions of the Act and the Rules framed thereunder, and not as per the Office Memorandum, clause 13 of which has been rightly struck down by the Tribunal. Thus, no case for interference in the order of the Tribunal, as affirmed by the High Court, is made out. The matter of transfer is gover ned by the provisions of the Act of 2007 and the rules framed thereunder. It was not permissible to the State Government to issue memo dated 7.4.2010, same cannot hold the field in view of the statutory provisions. 8. After hearing the learned counsel for the parties, we are of the considered opinion that the SSA Scheme is an independent scheme and considering its imperative, certain primary schools were u pgraded to and styled as higher primary schools. The Class 8 was also added in such schools. The hybrid category of primary schools was created to make the education broad-based in rural areas. Considering the aforesaid scheme, the matter was strictly not governed by the provision s of the Act of 2007 and the rules framed thereunder with respect to “higher primary schools”. The SSA Scheme was to deal with the primary objective of broad basing education. Clause 13 of the Office Memorandum deals with the mutual transfer. The same is extra cted herein below: - “13 MUTUAL TRANSFERS: a) If the pre-confirmation service period is declar ed as satisfactory, mutual transfer requests of such Teac hers will be considered. While doing mutual transfer, it should be giv en effect only when cadre and subjects tally. STATE OF KARNATAKA v. KRISHNA KUMAR b) All the mutual transfer at District, Division, and State level to be done at a time. c) Teachers who have computerized information throu gh internet seeking mutual transfer has to be personally p resent at the Office of the B.E.O. concerned, for the veri fication of their service details. But for No.1. Teachers transfer, bot h of them have to be present before the Transfer Authori ty for counseling. d) Primary and T.G.T. Teachers appointed under SARV A SHIKSHANA ABHIYAN shall be transferred to Teachers post of the same subject and appointed under the same proj ect. e) S.S.A. and T.G.T. Teachers working under SARVA SHIKSHAN ABHIYAN, YOJANE, submit an application for mutual transfer with Teachers of state zone with th e same basic pay or less may be considered for mutual transfer. f) If S.S.A. and T.G.T. Teachers submit an applica tion for transfer to vacant posts it may be considered.” 9. Even assuming that the provisions of the Act of 2007 and rules thereunder are applicable, since there is no provision to t he contrary therein, the provision in question providing for mutual transfer could have been carved out by issuing executive instructions contained in Memo dated 7.4.2010. No such provision in the Act and rules has been pointed out with respect to mutual transfers. Particularly when the provisions of ‘mutual transfer’ which is made in Office Memorandum of 2010, depends on the volition of an employee, there is no compulsion, it cannot be said to be arbitrary. It is ordered only when two incumbents opt for mutual transfer. Thus, Office Memorandum dated 07.04.2010 could not be said to be in violation of the provisions of the Act of 2007 and rules. The Tribunal and the High Court both have misdirected themselves i n this regard. 10. In our considered opinion, the provisions of mutual transfer does not militate against the provisions of the Act and ru les framed thereunder and particularly, when it was with respect to SSA Scheme, it was open to making certain provisions by way of Office Memorandum dated 07.04.2010. Mere reference to the Act and the rules framed in the same does not mean that the provisions have been adopted for all the purposes. In the same Memo the provisions have been carved out for 967 mutual transfer. In the absence of statutory provision, the exec utive instructions would have force of law, more so when the SS A is an independent scheme. The SSA Scheme is funded by th e Central Government and considering its exigency, independent provisions could have been carved out which is not to be found in the Act of 2007 and the rules framed thereunder. 11. Thus, we find that there is no violation of the provisions of the Act and the rules by Clause 13 of Office Memorandum dated 07.04.2010. The Tribunal and the High Court have erred in law in quashing the same. Thus, we have no hesitation in setting aside the orders passed by the Tribunal as well as by the High Court and in allowing the appeals. The appeals are, accordingly, allowed. There shall no order as to costs. Nidhi Jain Appeals allowed. STATE OF KARNATAKA v. KRISHNA KUMAR