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Ajay Sharma, PGT (Commerce) v/s Sugan Chand Jat & Others


Company & Directors' Information:- S CHAND AND COMPANY LIMITED [Active] CIN = L22219DL1970PLC005400

Company & Directors' Information:- S CHAND AND COMPANY LIMITED [Active] CIN = U22219DL1970PLC005400

Company & Directors' Information:- INDIA E-COMMERCE LIMITED [Active] CIN = L99999MH1968PLC014091

Company & Directors' Information:- AJAY (INDIA) LTD [Active] CIN = U18102RJ1996PLC011678

Company & Directors' Information:- S H COMMERCE PRIVATE LIMITED [Active] CIN = U51109WB2008PTC121420

Company & Directors' Information:- A. M. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2011PTC168744

Company & Directors' Information:- G S E-COMMERCE PRIVATE LIMITED [Active] CIN = U52100KA2013PTC067567

Company & Directors' Information:- V K COMMERCE PVT LTD [Amalgamated] CIN = U51109WB1984PTC037122

Company & Directors' Information:- P. R. COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB2008PTC122333

Company & Directors' Information:- M & P E. COMMERCE PRIVATE LIMITED [Active] CIN = U74300DL1999PTC099198

Company & Directors' Information:- R S COMMERCE PVT LTD [Converted to LLP] CIN = U51909WB1995PTC074372

Company & Directors' Information:- P S COMMERCE PRIVATE LIMITED [Active] CIN = U51909WB1997PTC084487

Company & Directors' Information:- T S R I COMMERCE PRIVATE LIMITED [Strike Off] CIN = U65910TG1999PTC032173

Company & Directors' Information:- AND E-COMMERCE PRIVATE LIMITED [Active] CIN = U74120AP2015PTC096206

Company & Directors' Information:- SUGAN (INDIA) LIMITED [Strike Off] CIN = U27100MH1996PLC097189

Company & Directors' Information:- D B S COMMERCE PRIVATE LIMITED [Active] CIN = U52190MH2009PTC190773

Company & Directors' Information:- AJAY AND CO. PRIVATE LIMITED [Strike Off] CIN = U01122DL1997PTC089125

Company & Directors' Information:- A P COMMERCE LIMITED [Strike Off] CIN = U51909WB1981PLC033798

Company & Directors' Information:- K P INDIA COMMERCE PRIVATE LIMITED [Strike Off] CIN = U51909AS2001PTC006701

Company & Directors' Information:- Y S E-COMMERCE PRIVATE LIMITED [Active] CIN = U72200MH2000PTC126344

Company & Directors' Information:- B AND D E-COMMERCE PRIVATE LIMITED [Strike Off] CIN = U74999HP2015PTC000945

Company & Directors' Information:- I P E-COMMERCE PRIVATE LIMITED [Active] CIN = U52399CH2012PTC033585

    Civil Writ Petition No. 6393 of 2021

    Decided On, 09 July 2021

    At, High Court of Rajasthan

    By, THE HONOURABLE MR. JUSTICE SANGEET LODHA & THE HONOURABLE MR. JUSTICE MAHENDAR KUMAR GOYAL

    For the Petitioner: Vigyan Shah, through VC. For the Respondents: -------



Judgment Text

1. This writ petition is directed against order dated 12.4.21 passed by the Central Administrative Tribunal (CAT), Jaipur Bench, Jaipur, whereby an original application preferred by the first respondent challenging the legality of order dated 1.8.19 issued by the Kendriya Vidhyalaya Sangathan (KVS) transferring the petitioner herein from Kendriya Vidhyalaya (K.V.) No.1, Ajmer to Kendriya Vidhyalay No.5, Jaipur, has been allowed and while quashing the transfer order dated 1.8.19, the official respondents are directed to consider the case of the first respondent for transfer to the post of PGT (Commerce) at K.V.No.5, Jaipur. The said exercise is directed to be completed by the official respondents within four weeks from the date of receipt of certified copy of the order.

2. The facts relevant are that KVS had issued KVS Transfer Guidelines-2018 for Non Teaching Staff upto Assistant Section Officer and Teaching Staff upto PGT. Para 11(g) of the Transfer Guidelines deals with transfer against ‘No Taker Vacancy’. A post which remains vacant after the completion of annual transfer calendar is treated to be ‘No Taker Vacancy’. ‘No Taker Vacancy’ are notified by the official respondents and the employees are invited to make application for transfer against ‘No Taker Vacancy’ through proper channel. In case of more than one claimant employee for the same post in KVS, except those covered by clause 11(g)(iii), preference is given to the employee who will be senior most in terms of service in KVS. Transfers under ‘No Taker Vacancy’ are treated as Request Transfer as specified under para 9 of the Transfer Guidelines.

3. The official respondents issued notification dated 26.7.19 inviting online applications for Request Transfers against ‘No Taker Vacancy’ and Mutual Transfer. In the notification issued, no vacancy for PGT (Commerce) at K.V.No.5, Jaipur was notified, however, the petitioner herein was transferred against the post of PGT (Commerce) from K.V. No.1, Ajmer to K.V. No.5, Jaipur. The first respondent aspirant for transfer to K.V. No.5, Jaipur, challenged the legality of order dated 1.8.19 by way of original application before the CAT.

4. Precisely, the case set out by the first respondent before the CAT was that there was no vacancy displayed for PGT (Commerce) in K.V.No.5, Jaipur and therefore, the application made by him for transfer was not accepted. On the petitioner herein being transferred from K.V. No.1, Ajmer to K.V. No.5, Jaipur without availability of ‘No Taker Vacancy’, the first respondent made a representation to the official respondents through proper channel and claimed that he has more transfer counts/points than the petitioner herein and therefore, he was better entitled to be transferred against the post of PGT (Commerce) in K.V. No.5, Jaipur. The first respondent claimed preference also on the ground that he is undergoing treatment at Jaipur and bound to retire on attaining age of superannuation on 30.6.22. The representation made was not responded to and therefore, the first respondent questioned the legality of the transfer order dated 1.8.19 by way of original application before the CAT, Jaipur Bench, which stands allowed by the order impugned as aforesaid. Hence, this petition.

5. Mr. Vigyan Shah, learned counsel appearing for the petitioner contended that the first respondent had never submitted application before the official respondents seeking transfer against ‘No Taker Vacancies’ pursuant to notification dated 26.7.19 and it was only on 2.8.19 i.e. after the issuance of the transfer order dated 1.8.19, he raised the grievance by way of representation. Learned counsel submitted that in absence of an application being filed by the first respondent pursuant to the notification issued within the stipulated time, there was no occasion for the official respondents to consider his request for transfer to K.V. No.5, Jaipur. Drawing the attention of the Court to clause (x) of the notification dated 20.7.19 under the heading of “Transfer against No Taker Vacancy”, learned counsel submitted that the vacancies displayed were tentative vacancies against ‘No Taker Vacancy’, which were subject to change without any prior intimation and thus, even if ‘No Taker Vacancy’ against the post of PGT (Commerce) in K.V. No.5, Jaipur was not notified, nothing prevented the first respondent to make an application seeking transfer to K.V. No.5, Jaipur. Learned counsel submitted that the CAT has seriously erred in directing consideration of the application of the first respondent who had never applied for the transfer. Learned counsel submitted that the petitioner had already been transferred on 1.8.19 and it is only thereafter that the first respondent submitted the representation raising the grievance on 2.8.19, which was rightly not entertained by the official respondents.

6. Indisputably, between the time period mentioned in notification dated 26.7.19, no post of PGT (Commerce) at K.V. No.5, Jaipur was vacant and therefore, no such post was notified as ‘No Taker Vacancy’ by the official respondents while notifying the no-taker vacancies and thus, the question of anybody applying for transfer against the post of PGT (Commerce) in K.V. No.5, Jaipur did not arise. It is pertinent to note that as per clause (i) of the notification, no-taker vacancies are those posts which remained vacant after completion of the annual transfer process and thus, apparently, in terms of the Transfer Guidelines, all the vacancies which remained vacant after completion of the annual transfer process were required to be notified. But since, the post of PGT (Commerce) in K.V. No.5, Jaipur was not vacant as on the date of issuance of the notification and therefore, the same was not displayed as ‘No Taker Vacancy’. It is true that as per clause (x) of Transfer Guidelines, the vacancies displayed for transfer against no taker vacancies were subject to change without any prior intimation, but then, any such vacancy occurred during the transfer process, the same was required to be duly notified inasmuch as, the aspirants were required to make the application only against ‘No Taker Vacancy’ notified. As a matter of fact, when the Transfer Guidelines specifically makes the provision for consideration of competitive claim of transfer against ‘No Taker Vacancy’, the first respondent could not have been transferred against such vacancy merely because, notwithstanding that such vacancy was not displayed he applied for the same. Moreover, as per clause (viii) of the Transfer Guidelines, any vacancy which may arise or result due to transfer of any employee during the transfer against No-Taker Vacancies, such vacancy was not open to be allotted to any employ

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ee during this process. It has come on record that the post of PGT (Commerce) at K.V. No.5, Jaipur came into existence only on account of transfer of one Smt. Kavita Chandana who was transferred vide order dated 1.8.19 and thus, violating the Transfer Guidelines and the transparency of the process in the matter of transfer of employees contemplated therein, the order passed by the official respondents in perfunctory manner extending favour to the petitioner herein, has rightly been set aside by the CAT. 7. For the aforementioned reasons, no case for interference by us in exercise of extra ordinary jurisdiction under Article 226 of the Constitution of India is made out. 8. The writ petition is therefore, dismissed in limine.
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