STATE OF KARNATAKA & ANR versus KRISHNA KUMAR & ORS. on 23 April 2019

O R D E R

1. The State of Karnataka has filed appeals aggrieved by theJudgment and Order passed by the Tribunal and affirmed by the HighCourt quashing in part the Memo dated 7.4.2010 issued by the StateGovernment in the matter of transfer of teachers of Higher PrimarySchools on “Mutual Basis”.

2. The respondents are the teachers appointed in the year 2004-2005 in the Government primary schools where ‘Sarava ShikshanaAbhiyana’ Scheme (in short, “the SSA Scheme”) was being implemented.The objective of the SSA Scheme is to provide easy access to 8[th] standardin the context of universalization of elementary education. In order togive effect to the scheme certain Government primary schools havebeen upgraded with 8[th] standard and they are referred to as “HigherPrimary Schools”. 65% of the salary used to be provided by the CentralGovernment. Under the said scheme, in order to make the educationbroad-based certain Government primary schools were permitted toimpart 8[th] standard for the benefit and the improvement of educatingchildren in the rural areas, particularly at the places where very fewhigh schools were existing. This decision was taken by the Governmentto encourage the students to continue the 8[th] standard education in therural areas itself, though 8[th] standard was part of the high school forwhich Trained Graduate Teachers used to be appointed.

3. On 07.04.2010, an Office Memorandum was issued inter aliato transfer and posting of teachers in the schools where the SSA Schemehas been implemented. One of the policy decisions is that those teachersappointed as primary teachers in the upgraded Government higherprimary schools will continue to work in the SSA Scheme. The primaryteachers appointed under the SSA Scheme shall be transferred to the AB

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Apost of Teachers of the same subject under the same project. It is alsoprovided that the teachers can submit their applications for ‘mutualtransfer’ with Teachers of the State Zone with the same pay-scale andother benefits.4. Certain teachers, aggrieved by clause 13 relating to ‘mutualBtransfer’ contained in Office Memorandum, dated 07.04.2010 filed anoriginal application to the Karnataka Administrative Tribunal, Bangalore.The application has been allowed and the said clause of the OfficeMemorandum has been quashed and it has been ordered that transfers/postings be made strictly in accordance with the KCS (Regulation ofTransfers of Teachers) Act, 2007 (in short, referred to as “the Act ofC2007”) and rules framed thereunder. The State preferred Writ Applicationin the High Court. The same has been dismissed. Hence, the appealhas been preferred by the State of Karnataka, by way of Special Leave.

5. Mr. Basava Prabhu Patil, learned senior counsel, appearing onbehalf of the State of Karnataka, urged that under the SSA Scheme,Dcertain primary schools were upgraded to higher primary schools, byinclusion of 8[th] class which was not included in the primary schools.The hybrid category of higher primary schools was created in order tomake the education broad-based. The respondents-teachers had beenappointed with a specific condition that it would be permissible to postEthem in the schools where the SSA Scheme has been implemented andif workload of teaching is less considering the number of students, theycan be asked to teach 6[th] and 7[th] classes also. The specific conditionmentioned in the order of appointment is as under: - “if the workload in the Higher Primary School whereFappointed is less, the candidate has to teach Science andMathematics subjects for 6[th] and 7[th] standards, to make upthe workload.”

6. The learned senior counsel has further pointed out that sincethe hybrid category of higher primary schools was created, the matterGwas strictly not governed by the provisions of the Act of 2007 and therules framed thereunder and moreover, in order to implement the SarvaShiksha Abhiyan, an independent scheme containing the provisions formutual transfer in Clause 13 of Memo dated 7.4.2010 had been carvedout, which is based upon the volition of an incumbent in case he opt formutual transfer, then it is permissible for him to avail the aforesaid facility.HThe other service conditions were not to be adversely affected. The salary, as well as the seniority, are not to be adversely affected by mutualtransfers in case an incumbent avails the provisions of clause 13. OfficeMemorandum dated 07.04.2010 has been issued by the State Governmenttaking care of the exigency of the SSA Scheme, particularly when suchhigher primary schools were not strictly governed by the provisions ofthe Act merely on the basis of analogy, the provisions of clause 13 couldnot have been struck down by the Tribunal and the same has been illegallyaffirmed by the High Court.

7. The learned counsel appearing on behalf of the respondentshas contended that considering the findings recorded by the Tribunal inParagraphs 17 and 18 of the order, the High Court has found justificationwith the same and rightly ordered that the transfer of such teacherscould have been ordered in accordance with the provisions of the Actand 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 theHigh Court, is made out. The matter of transfer is governed by theprovisions of the Act of 2007 and the rules framed thereunder. It wasnot 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 theconsidered opinion that the SSA Scheme is an independent scheme andconsidering its imperative, certain primary schools were upgraded toand styled as higher primary schools. The Class 8 was also added insuch schools. The hybrid category of primary schools was created tomake the education broad-based in rural areas. Considering the aforesaidscheme, the matter was strictly not governed by the provisions of theAct of 2007 and the rules framed thereunder with respect to “higherprimary schools”. The SSA Scheme was to deal with the primaryobjective of broad basing education. Clause 13 of the OfficeMemorandum deals with the mutual transfer. The same is extractedherein below: - “13 MUTUAL TRANSFERS:

a) If the pre-confirmation service period is declared assatisfactory, mutual transfer requests of such Teachers willbe considered. While doing mutual transfer, it should be giveneffect only when cadre and subjects tally.

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Ab) All the mutual transfer at District, Division, and State levelto be done at a time.

c) Teachers who have computerized information throughinternet seeking mutual transfer has to be personally presentat the Office of the B.E.O. concerned, for the verification ofBtheir service details. But for No.1. Teachers transfer, both ofthem have to be present before the Transfer Authority forcounseling.

d) Primary and T.G.T. Teachers appointed under SARVASHIKSHANA ABHIYAN shall be transferred to Teachers postCof the same subject and appointed under the same project.

e) S.S.A. and T.G.T. Teachers working under SARVASHIKSHAN ABHIYAN, YOJANE, submit an application formutual transfer with Teachers of state zone with the samebasic pay or less may be considered for mutual transfer.

Df) If S.S.A. and T.G.T. Teachers submit an application fortransfer to vacant posts it may be considered.”

9. Even assuming that the provisions of the Act of 2007 and rulesthereunder are applicable, since there is no provision to the contrarytherein, the provision in question providing for mutual transfer could haveEbeen carved out by issuing executive instructions contained in Memodated 7.4.2010. No such provision in the Act and rules has been pointedout with respect to mutual transfers. Particularly when the provisions of‘mutual transfer’ which is made in Office Memorandum of 2010, dependson the volition of an employee, there is no compulsion, it cannot be saidto be arbitrary. It is ordered only when two incumbents opt for mutualFtransfer. Thus, Office Memorandum dated 07.04.2010 could not besaid to be in violation of the provisions of the Act of 2007 and rules. TheTribunal and the High Court both have misdirected themselves in thisregard.

10. In our considered opinion, the provisions of mutual transferGdoes not militate against the provisions of the Act and rules framedthereunder and particularly, when it was with respect to SSA Scheme, itwas open to making certain provisions by way of Office Memorandumdated 07.04.2010. Mere reference to the Act and the rules framed in thesame does not mean that the provisions have been adopted for all theHpurposes. In the same Memo the provisions have been carved out for

mutual transfer. In the absence of statutory provision, the executiveinstructions would have force of law, more so when the SSA is anindependent scheme. The SSA Scheme is funded by the CentralGovernment and considering its exigency, independent provisions couldhave been carved out which is not to be found in the Act of 2007 and therules framed thereunder.

11. Thus, we find that there is no violation of the provisions of theAct 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 theTribunal as well as by the High Court and in allowing the appeals. Theappeals are, accordingly, allowed. There shall no order as to costs.

Nidhi Jain

Appeals allowed.

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