S K DHAKER WORKING AS PGT CHEMISTRY IN NAVODAYA VIDAYALAYA SAMITI PRESENTLY POSTED JNV TEMPORARILY ATTACHED WITH JNV AND Vs. NAVODAYA VIDYALAYA SAMITI THROUGH ITS COMMISSIONER

JUDGEMENT

(1.) SINCE the issue raised in these two OAs is common in nature and relates to transfer, same were heard together and disposed of by the present common order.

(2.) For brevity, facts have been delineated from OA No. 1346/2006. Applicant in this OA is a PGT (Chemistry) since 1997, while applicant in OA No. 1354/2006 is employed as Catering Assistant since the year 1993. Both are working in Navodaya Vidyalaya Samiti and posted to JNV Deverala. Tenders were invited to supply doors from public through Daily Newspaper "Amar Ujala" dated 21.01.2006, fixing last date of application as 28.01.2006 with date of opening tender as 30.01.2006. Applicant made a representation objecting the illegalities and fraud committed by the Principal as the work of doors had already been undertaken and completed on 18/19.01.2006 at a higher rate, though number of contractors were ready to complete it on lower rates. He was called by the Deputy Commissioner, Jaipur vide message dated 03.03.2006 and accordingly he reported at NVS (RO) Jaipur on 04.03.2006. Thereafter, a committee of two persons, namely, Dr. R.K. Sharma, Joint Director (Admn), New Delhi and Shri P.C. Shukla, Asstt. Director, Jaipur was constituted, who reached at JNV Deverala on 17/18.03.2006 and conducted enquiry into the whole matter. It recorded statement of staff members, outsiders as well as the Principal and submitted its report. During enquiry, the Principal of said School made certain false statement against applicants and on such basis they were temporarily attached to JNV Kajra and JNV Kuchamancity, Distt. Nagaur vide orders dated 23.03.2006 and 28.03.2006 respectively. As per their knowledge, report submitted by said Committee clearly recorded that the Principal had committed irregularities in the shape of fraud and based on such report and findings, the Principal has been transferred to JNV Muradabad on 29/30.04.2006. Immediately, thereafter i.e. on 14.6.2006 applicants were also transferred on permanent basis to JNV Rajsamand and JNV Kuchamancity, Distt. Nagaur respectively. Their grievance is that their transfers have been effected without conducting any enquiry and without affording an opportunity of hearing, which render orders of transfer as illegal, arbitrary, unjust and violative of principles of natural justice.

(3.) STRONG reliance was placed on 1997 (2) SCSLJ 255 Arvind Dattaraya Dhande v. State of Maharashtra, wherein it has been held that transfer was not in public interest but was a case of victimization of an honest officer at the best of the aggrieved complainant. Therefore, the transfer was assailed as malafide exercise of power, unsustainable in law. Reliance was also placed on 2003 (2) ATJ 658 T.L. Gupta v. Union of India, wherein it has been held that for any misconduct, disciplinary proceedings are to be taken up and transfer is not the remedy. Reliance was also placed on 2004 (3) ATJ 97 K.P. Prasad v. Union of India, to suggest that respondents should explain and establish administrative exigencies in transferring the official. Further reliance was placed on 2005 (2) ATJ 125 Shri Harpal Singh Kashyap v. Govt. of NCT of Delhi and Ors. to contend that in absence of explaining the exigencies, decision to transfer cannot be sustained particularly when there had been deviation from the rules. Similarly, reliance was placed on 2004 (1) ATJ 328 Shri Sanjay Namdeorao Dhakre v. Sr. Divisional Manager (Oper.), Central Railway, Bhusawal and Ors. to contend that transfer cannot be made by making allegations of misconduct against a Govt. employee. Lastly, reliance was placed on 2005 (1) ATJ 104 Dr. Ravi Shankar v. Union of India and Ors. where it has been emphasized that non-disclosure of reasons is a fundamental defect which cannot be supplemented by filing affidavit.