Navodaya Vidyalaya Samiti & Deputy Commissioner Navodaya Vidyalaya Samiti (Hyderabad Region) v Xavier E.K & Union of India

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 9[TH] DAY OF JUNE 2021 / 19TH JYAISHTA, 1943 OP (CAT) NO. 197 OF 2018** **AGAINST THE ORDER DATED 4.10.2018 IN OA 935/2015 OF CENTRAL** **ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH, ERNAKULAM PETITIONERS:** - **1 THE COMMISSIONER, NAVODAYA VIDYALAYA SAMITI, DEPARTMENT OF SCHOOL EDUCATION AND LITERACY, GOVERNMENT OF INDIA, B15, INSTITUTIONAL AREA, SECTOR 62, NOIDA, BUDH NAGAR, UTTAR PRADESH - 201 309.** - **2 THE DEPUTY COMMISSIONER** **NAVODAYA VIDYALAYA SAMITI (HYDERABAD REGION), MINISTRY OF HUMAN RESOURCE AND DEVELOPMENT, 1-1-10/3, SARDAR PATEL ROAD, SECUNDERABAD - 500 003.** **-------------** **PETITIONERS 1 AND 2 REPRESENTED BY THE PRINCIPAL MR.P.VICKRAMAN NAIR, S/O.A.PADMANABHA PILLAI, AGED 58 YEARS, NAVODAYA VIDYALAYA, CHENNITHALA, ALAPPUZHA DISTRICT - 690 105.** ## **BY ADV. SRI. MILLU DANDAPANI** **RESPONDENTS:** **1 XAVIER E.K, TGT SOCIAL SCIENCE, JNV CHENNITHALA, ALAPPUZHA - 690 105, RESIDING AT JNV QUARTERS, CHENNITHALA, ALAPPUZHA - 690 105.** O.P.(CAT)No.197/2018 2 **2 UNION OF INDIA, REPRESENTED BY THE SECRETARY, MINISTRY OF HUMAN RESOURCE & DEVELOPMENT, SHASTRI BHAWAN, NEW DELHI - 110 001.** **BY ADV. CHANDINI G.NAIR, CGC** **THIS OP (CAT) HAVING BEEN FINALLY HEARD ON 09.06.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P.(CAT)No.197/2018 3 ## **JUDGMENT** ## **Ravikumar, J.** Respondents 2 and 3 in O.A.No.935 of 2015 on the files of the Central Administrative Tribunal, Ernakulam Bench filed this Original Petition feeling aggrieved by the order passed thereon, dated 4.10.2018. The O.A. which culminated in the impugned order was filed by the first respondent herein seeking the following reliefs:- - "1. Call for the records leading to the issue of Annexure A8 and A10 and set aside Annexure A8 and A10. 2. Direct the respondents to consider the promotion of the applicant as PGT, in the vacant post of PGT History available in JNV Kottayam. 3. Declare that the refusal on the part of the applicant to take cognizance of the fact that the applicant is caregiver of the differently abled child of the applicant and insistence on joining duty at JNV Bellari on being promoted is unjust, illegal and arbitrary and direct the respondents to post the applicant in the vacant post of PGT History in JNV Kottayam." 2. The basic undisputed facts are as hereunder:- The first respondent herein/the applicant is a Trained Graduate Teacher (TGT) in Social Science, working at Jawahar Navodaya Vidyalaya (JNV), Alappuzha. His wife is a TGT in Mathematics. At the O.P.(CAT)No.197/2018 4 time of filing of the O.A. she was working at JNV, Gadag at Karnataka. Presently, she is working at JNV, Kottarakkara of Kollam District in Kerala. Earlier, the first respondent herein was given promotion as Post Graduate Teacher (PGT), History as per Annexure-A3 order (in Ext.P1) dated 22.9.2008. His elder son, who is in his twenties, is a differently abled child and being his caretaker he had to decline promotion as PGT. Consequent to his disinclination to accept promotion Annexure-A3 order issued dated 22.9.2008 was withdrawn as per Annexure-A4 (in Ext.P1) dated 30.9.2008. In fact, as per Annexure-A4 promotion of five other TGTs as PGTs who have declined promotion, was also withdrawn. Subsequently, the first respondent herein applied for considering him for promotion as PGT, during the year 2014. Consequently, the Departmental Promotion Committee (DPC) considered it and found him fit for promotion, as per proceeding dated 21.4.2015. Thereupon, he was promoted as PGT (History) and posted at JNV, Bellari in Karnataka as per Annexure-A5 (in Ext.P1) dated 23.4.2015. Detailing his difficulties to join at JNV, Bellary on account of his being the caretaker of his differently abled son and pointing out a vacancy of PGT (History) in JNV, Kottayam in Kerala he filed Annexure-A6 representation, essentially, requesting for a posting as PGT (History) at JNV, Kottayam. It was forwarded for consideration of the Deputy Commissioner, O.P.(CAT)No.197/2018 5 Regional Office, Hyderabad. Thereafter, the first respondent was informed as per Annexure-A8 (in Ext.P1) dated 18.5.2015 that his request could not be acceded to and he was directed to join as PGT (History) at Bellari on or before 25.5.2015 or to submit written refusal/unwillingness, within the said stipulated time. It was also made clear thereunder that in case of his failure to join at Bellary the offer for promotion would be withdrawn and no further correspondence in the matter would be entertained. Aggrieved by Annexure-A8 order of the Deputy Commissioner, Navodaya Vidyalaya Samithi he moved the Commissioner, the first petitioner herein, reiterating the request made before the Deputy Commissioner for a posting at Kottayam as PGT (History). Pending its consideration the Deputy Commissioner, the 2[nd] petitioner herein, withdrew Annexure-A5 order of promotion as PGT (History) and further barred him from being considered for promotion as PGT, for a period of one year, as per Annexure-A10 (in Ext.P1) dated 4.6.2015. Annexures-A13 to A19 were produced by him to establish that his son is a differently abled child. It is the inaction on his request for posting as PGT (History) at Kottayam and the grievance against Annexures-A8 and A10 that constrained the first respondent herein to file O.A.No.935/2015 before the Central Administrative Tribunal. O.P.(CAT)No.197/2018 6 3. A reply affidavit was filed jointly by the appellants and the 2[nd] respondent herein, before the Tribunal to resist the claims and contentions of the first respondent herein/the applicant. Thereupon, the first respondent herein filed a rejoinder to the reply affidavit. After considering the rival submissions, rival pleadings and the materials on record the Tribunal passed the impugned order in this Original Petition. Evidently, the Tribunal scanned Annexure-A6 representation submitted by the first respondent herein and came to the conclusion that it could not have been taken/treated as refusal of the order of promotion under Annexure-A5. The Tribunal has also considered the entitlement of the first respondent to the additional facility available to Government employees having differently abled dependents under Annexure-A22 and ultimately held that the first respondent is entitled to get such facility available in the matter of posting. The impugned Ext.P7 order passed by the Tribunal would reveal that on 17.7.2017 it directed the petitioners herein to consider whether a promotion posting at JNV, Kottayam could be given to the first respondent in view of the compelling reason relating to his differently abled child. It would also reveal that on 30.8.2017 it was submitted on behalf of the petitioners herein, in fact, the respondents therein, that the post at Kottayam had been filled up and thereupon, the Tribunal ordered to keep an existing O.P.(CAT)No.197/2018 7 post of PGT (History) at Alappuzha vacant, if not already filled up. Considering that the first respondent herein/the applicant was found fit for promotion by the DPC; that he is entitled to preferential treatment being the father of a differently abled son by virtue of Annexure-A22 (in Ext.P1) O.M. dated 6.6.2014 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training in the matter of posting and that a clear vacancy of PGT is available at JNV, Alappuzha consequent to the transfer of one Shri.Surendran.A, as per the impugned Ext.P7 order the Tribunal directed to post the first respondent herein/the applicant as PGT (History) at JNV, Alappuzha, within the time stipulated therein. This original petition is filed by respondents 2 and 3 therein against Ext.P7 order of the Tribunal. 4. Heard the learned Central Government Standing Counsel for the petitioners. ## 5. In the decision in **L.Chandra Kumar** v. **Union of India** reported in **AIR 1997 SC 1125** the Hon'ble Apex Court held that the decisions of Tribunals, whether created pursuant to Articles 323A or 323B of the Constitution, would be subject to scrutiny in exercise of power of judicial review before the Division Bench of their respective High Courts under Article 226/227 of the Constitution of India. Judicial review is a process of which the High Court exercises its supervisory O.P.(CAT)No.197/2018 8 jurisdiction over the proceedings and decisions of inferior Courts, Tribunals and other bodies or persons who carry out quasi judicial functions or who are charged with the performance of public acts and duties. The power of judicial review is concerned with reviewing not the merits of the decision, in respect of which the application for judicial review is made, but the decision making process itself and it is thus different from an appeal. It is the fundamental mechanism for keeping the public authority, inferior courts or Tribunals within due bounds and upholding the rule of law and at any rate, it is not meant for substituting its own decision for that of the public authority, inferior courts or Tribunals concerned. In the decision in **Rajesh Aswathi** v. **Nand Lal Jaiswal [(2013) 1 SCC 501]** it was held that judicial review, as the words imply, is not an appeal from a decision, but a review of the manner in which the decision was made. 6. Bearing in mind the scope of judicial review we will consider the challenge against the order in O.A.No.935/2015 of the Tribunal. We have already referred to factual position obtained in the case on hand and the decision of the Tribunal taken with reference to the factual and legal position. Evidently, the Tribunal considered two aspects. The first of which was whether the request of the first respondent herein/the applicant made as per Annexure-A6 O.P.(CAT)No.197/2018 9 representation on receipt of Annexure-A5 order, requesting for a change in the place of posting under Annexure-A5 amounts to refusal of the promotion as PGT and the second one, of course, depended on the answer to the first one, was whether or not the first respondent is entitled to the additional facility to be rendered in the matter of posting of Government employees who have differently abled dependents in the light of Annexure-A22 O.M. dated 6.6.2014 issued by the Ministry of Personnel, Public Grievances and Pensions, Department of Personnel and Training. 7. The indisputable fact is that when the first respondent was given promotion as PGT (History) as per Annexure-A3 order dated 22.9.2008 he declined it assigning his absolute necessity to take care of his son who is a differently abled child. Consequently, the order of his promotion was withdrawn and it is thereafter that upon the recommendation of the DPC he was again promoted as PGT as per Annexure-A5 order dated 23.4.2015. The Tribunal has also taken note of the genuineness of the factum of his son being a differently abled child as revealed from Annexure-A13 to A19. Ground (iv) would reveal that the petitioners herein did not dispute the fact that the first respondent's son is a differently abled child. The said ground (iv) would only reveal that their contention is that wife of the first O.P.(CAT)No.197/2018 10 respondent is the Vice-Principal of JNV, Kottarakkara in Kollam District and the child is residing with her. Evidently, their contention appears to be that in such circumstances, the wife of the first respondent could take care of the differently abled child. We have already taken note of the age of the son of the first respondent. He was 21 years old, as on the year 2015. Considering his age we find it very difficult to digest the aforesaid contention of the petitioners. Paragraph 4 of the impugned Ext.P7 order would reveal that his son was admitted to a school for mentally challenged children at Pampady in Kottayam and that his child was receiving medical care in various hospitals in Kottayam/Ernakulam districts. In the said paragraph it was remarked, "As per O.M.No.42011/3/2014-Estt (Res.) dated 6.6.2014, copy of which is available at Annexure-A22 it is specifically mentioned that support system is a relevant factor in the process of rehabilitation and such rehabilitation being a continuous process, shifting of the caretaker should not be treated as a matter of routine." The Tribunal went on to hold that the first respondent is entitled to preferential treatment in the matter of posting by virtue of his being the father of a differently abled child in terms of Annexure-A22. From the materials on record, we do not find any reason at all to hold that the finding of the Tribunal on the second aspect, mentioned as above, viz., with respect to the eligibility O.P.(CAT)No.197/2018 11 of the first respondent to get the benefit flowing from Annexure-A22 is either perverse or unreasonable. 8. Now, we will consider the main contention of the petitioners. In fact, it was that which was considered by the Tribunal as the first aspect. The question is whether the petitioners are correct in contending that the first respondent had refused the promotion as PGT ordered in his favour as well, as per Annexure-A5. It is their precise contention that Annexure-A6 tantamounts to refusal of the promotion offered to him. While considering Annexure-A22, we reminded the maxim ' _Ratio legis est anima legis_ ', which means 'The reason of the law is the soul of the law'. While considering the demand that 'a Government employee who is the caretaker of a disabled child may not have to suffer due to displacement by means of routine transfer/rotational transfer', Annexure-A22 O.M. dated 6.6.2014 was issued. The O.M.reads thus:- - "...... This demand has been made on the ground that a Government employee raises a kind of support system for his/her disabled child over a period of time in the locality where he/she resides which helps them in the rehabilitation. 2. The matter has been examined. Rehabilitation is a process aimed at enabling persons with disabilities to reach and maintain their optimal physical, sensory, intellectual, and psychiatric or a social functional level. The support system comprises of preferred linguistic O.P.(CAT)No.197/2018 12 zone, school/academic level, administration, neighbours, tutors/special educators, friends, medical care including hospitals, therapists and doctors, etc. Thus, rehabilitation is a continuous process and creation of such support system takes years together. 3. Considering that the Government employee who has disabled child serve as the main care giver of such child, any displacement of such Government employee will have a bearing on the systemic rehabilitation of the disabled child since the new environment/set up could prove to be a hindrance for the rehabilitation process of the child. Therefore, a Government servant who is also a care giver of disabled child may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints. The word 'disabled' includes (i) blindness or low vision (ii) hearing impairment (iii) locomotor disability or Cerebral Palsy (iv) leprosy cured (v) mental retardation (vi) mental illness and (vii) multiple disabilities. 4. Upbringing and rehabilitation of disabled child requires financial support. Making the Government employee to choose voluntary retirement on the pretext of routine transfer/rotation transfer would have adverse impact on the rehabilitation process of the disabled child." Thus, a scanning of Annexure-A22 would be the reason for its issuance and it forms the very soul of the said 'Office Memorandum'. We are of the considered view that if the contention of the petitioners is accepted, then it will defeat the very soul of Annexure-A22 Office Memorandum, especially in the absence of administrative constraints. O.P.(CAT)No.197/2018 13 9. We have already noted that the Tribunal had in fact, considered the question whether Annexure-A6 tantamounts to refusal of the promotion offered to the first respondent/the applicant as PGT or whether it amounts only a prayer for a preferential posting. On a scanning of Annexure-A6 the Tribunal arrived at the conclusion that at no stretch of imagination Annexure-A6 could be treated as refusal of the offer of promotion made to the first respondent as per AnnexureA5. We are of the considered view that a bare perusal of Annexure-A6 itself would make it amply clear that what the first respondent herein had prayed for was only a posting at JNV, Kottayam as PGT (History) in view of the existence of a vacancy, taking note of the fact that as per Annexure-A5 the first respondent who was then working as TGT was promoted as PGT along with certain other TGTs and he was posted as PGT (History) at JNV, Bellari. In such circumstances, when indisputably what was requested under Annexure-A6 was a posting at JNV, Kottayam in Kerala State pointing out a vacancy of PGT (History) it cannot be taken that it amounts to refusal of promotion. It is to be noted that the first respondent herein who was working as TGT was not asking for a posting at JNV, Kottayam as TGT, but a posting as PGT which is the promotion post, obviously pointing out a vacancy in the post of PGT (History). In the said circumstances, the conclusion and consequential O.P.(CAT)No.197/2018 14 finding of the Tribunal that Annexure-A6 would not tantamount to refusal of promotion to the post of PGT cannot be said to be perverse or illegal and at the same time, it can only be said to be the lawful conclusion based on the materials on record. It is to be noted that the first respondent got a differently abled son, in his twenties. As the caretaker of the said child when he sought for a convenient posting so as to enable him to continue to take care of his differently abled son, by way of Annexure-A6 representation before the Commissioner, the mere fact that pending the proceedings the Deputy Commissioner required him to join at the transferred place pursuant to the promotion within a specified time, with dire consequences in case of failure to join duty, will not and cannot be a ground to say that on expiry of the specified period the failure to join duty could be treated as refusal of promotion. It is in this context that Annexure-A22 O.M. dated 6.6.2014 assumes relevance. The Tribunal has considered the scope of the said O.M. We have also adverted to the same hereinbefore. On such consideration, we are of the considered view that non-consideration of the O.M., in the circumstances obtained in this case in the matter of consideration of Annexure-A6, would defeat the very soul of the said Office Memorandum. In such circumstances, it can only be held that the Tribunal was perfectly right in taking into account the O.M. based on O.P.(CAT)No.197/2018 15 the request made by the first respondent in Annexure-A6 and holding that the request is one for posting in the category of PGT and not one amounting to refusal of promotion and consequently, in considering the eligibility of the first respondent to the benefits flowing from AnnexureA22. We have already taken note of the fact that the petitioners are not actually disputing the fact that the first respondent got a differently abled son and, as can be seen from ground (iv) of the original petition, the stand is that the wife of the first respondent who is working as Vice-Principal of JNV, Kottarakkara could take care of the said son. Considering the age of the differently abled son of the first respondent (as on 27.1.2015 he was 21 years old going by Annexure-A16) the said contention of the petitioners is only to be rejected and it was rightly rejected by the Tribunal. 10. We have also taken note of the fact that on 30.8.2017, after taking into account the submission made on behalf of the petitioners herein/the respondents therein that the post of PGT (History) at JNV, Kottayam was filled up, the Tribunal had ordered to keep an existing post of PGT (History) at JNV, Alappuzha vacant. Finding that the said post ordered to be kept vacant was very much available, in the circumstances expatiated above the Tribunal thought it fit to issue a further direction to post the first respondent against that O.P.(CAT)No.197/2018 16 post. We have no hesitation to hold that taking into account the purpose for which Annexure-A22 O.M. was issued by the Government of India and the factual position obtained in this case the petitioners ought to have honoured the verdict of the Tribunal instead of venturing to get it set aside. In the decision in **Roshan Deen** v. **Preethilal** reported in **AIR 2002 SC 33** the Hon'ble Apex Court held, "Writ Court not to erase justice in name of correcting error of law". Furthermore, it was held therein that the power conferred on the High Court under Articles 226 and 227 of the Constitution of India is to advance justice and not to thwart it and that the very purpose of such constitutional power is that no man should be subjected to injustice by violating the law. The look out of the High Court is, therefore, not merely to pick out an error of law through an academic angle, but to see whether injustice has resulted on account of any erroneous interpretation of law. 'If justice became the byproduct of an erroneous view of law the High Court is not expected to erase such justice in the name of correcting the error of law', it was further held. In the case on hand, we have absolutely no doubt that the byproduct of the decision of the Tribunal is nothing but justice and hence, merely because the Tribunal on its own ordered for a posting of the first respondent as PGT (History) at JNV, Alappuzha, the impugned Ext.P7 order of the Tribunal invites no interference in O.P.(CAT)No.197/2018 17 exercise of the power of judicial review. In that view of the matter, this Original Petition must fail and consequently, it is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **V.G.ARUN Judge** TKS O.P.(CAT)No.197/2018 18 ## **APPENDIX OF OP (CAT) 197/2018** ## **PETITIONER'S ANNEXURE** **EXHIBIT P1 TRUE COPY OF THE ORIGINAL APPLICATION NO.180/935/2015 FILED BY THE 1ST RESPONDENT ALONG WITH ANNEXURES.** **EXHIBIT P2 TRUE COPY OF THE M.A.180/663/2017 IN O.A.NO.180/00935/2015 ALONG WITH ANNEXURES.** - **EXHIBIT P3 TRUE COPY OF THE M.A.180/875/2017 IN O.A.NO.180/00935/2015 ALONG WITH ANNEXURES.** - **EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT FILED BY THIS PETITIONER IN O.A.NO.180/00935/2015 ALONG WITH ANNEXURES.** - **EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THIS 1ST RESPONDENT IN O.A.NO.180/00935/2015.** - **EXHIBIT P6 TRUE COPY OF THE M.A.NO.1017/2017 FILED BY THIS PETITIONER IN O.A.NO.180/00935/2015 ALONG WITH ITS ANNEXURE.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 04/10/2018 IN OA 180/00935/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **EXHIBIT P8 TRUE COPY OF THE O.M.NO.22034/3/81-ESST.(D) ISSUED BY GOVT. OF INDIA DATED 1.10.1981.** TKS