Varinder Kaur v. School Management of Guru Harikrishan Public School & Ors

judgment on this count.

¶21It is also argued by the learned counsel for the appellant that at the time when she joined the respondent No. 1/School, there was no common seniority list and it was prepared subsequently and, therefore, such seniority list is hit by Section 109 of DSEA, 1973.

¶22The learned Single Judge has dealt with this argument in the impugned judgment in para 9. The relevant paragraph is reproduced as under:-

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"9(i) Learned counsel for the petitioner argued two further aspects to question the transfer order. First is that, the common seniority list filed was one which is not properly maintained including for the reason that cadre posts which have not to be shown together have been shown together under the same cadre. The second aspect which is argued is by placing reliance upon Rule 109 of the Delhi School Education Act and Rule, 1973 (in short "DSEAR, 1973") that a common seniority list can only be maintained if school had maintained common seniority list even before passing of the DSEAR, 1973.

(ii) Both the aspects urged by the petitioner have no merits because if petitioner questions her position in the seniority list or questions the merit of the common seniority list, then this aspect would be examined when petitioner files proceedings challenging the common seniority list, but that does not mean that a common seniority list is not being maintained by the respondent no. 2/Society of the schools run by it in the name of GHPS. What ought to be the correct seniority in the list, and, not maintaining of a common seniority list, are two totally separate aspects. Once common seniority list is maintained an employee woring in one school can be transferred to another school.

(iii) So far as the second aspect is concerned, the same is also without merit because I do not find on a reading of Rule 109 of the DSEAR, 1973, that only those schools are entitled to maintain a common seniority list who had maintained it prior to passing of the DSEAR, 1973. To give such interpretation, schools opened after the DSEAR, 1973 came into force cannot be allowed to maintain a common seniority list for various schools which are run and effecting transfers from one schools to another although transfer of one employee from one branch to another branch does not in any manner prejudice the service conditions of such employees, and thus which cannot be done. Surely courts cannot

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decide administrative exigencies as to how an employer is to run his organisation by placing a particular employee at a particular place in the organisation. The administrators of the organisation including schools are entitled within their jurisdiction to take a decision as to which employee has to be placed where, and this Court except in the case of clear cut illegality or on account of clear malafides negating the validity of transfer, will not interfere with the transfer orders……."

¶23The issue as to the validity of the seniority list has been left open by the learned Single Judge in the impugned judgment and the appellant has been given the option to challenge it by way of appropriate proceedings. This argument of the appellant is without force.

¶24There is no dispute as to the legal proposition that transfer is an incident of service. Admittedly, at the time when the appellant joined the respondent No. 1/School, she was aware that her job was a transferable job. The next contention and argument of the appellant is that every School is a separate entity and an employee of one School cannot be transferred to another school even though the same Society runs both the Schools. In support of this contention, she has relied on the judgment in the case of Satbir Singh"s case (supra), and it is urged that the learned Single Judge has contradicted his findings in Satbir Singh"s case (supra). It is also urged that the said findings in the Satbir Singh"s case (supra) were upheld by the

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Division Bench of this Court. This argument of the appellant that the earlier view of the learned Single Judge in Satbir Singh"s case (supra) had the approval of the Division Bench of this Court is not correct for the reason that the Letter Patents Appeal against the judgment in Satbir Singh case (Supra), was dismissed without expressing any opinion on the judgment in Satbir Singh"s case (supra). The Division Bench had no occasion to go into the merit/validity of the findings in Satbir Singh"s case in view of the fact that the transfer order, which was the subject matter of dispute, was withdrawn and the parties were put to the original position. It, therefore, cannot be said that the view of learned Single Judge in Satbir Singh"s case (supra) was affirmed by the Division Bench of this Court. It is apparent that the learned Single Judge has discussed in the impugned judgment his earlier view taken in Satbir Singh"s case (supra) and has given the reasons for not agreeing with the conclusion in Satbir Singh"s case (supra).

¶25Another argument is that the findings in Satbir Singh"s case (supra) that an employee of a school cannot be transferred to another school even though run by the same Society were confirmed by the Division Bench of this Court in LPA No. 508/13 in Hamdard Education Society"s case (supra). It is argued that in Hamdard Education Society"s case (supra), the Division

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Bench has clearly held that the employee of a School cannot be transferred to another School even if both the schools are run by the same Society. That in Hamdard Education Society"s case (supra), the Division Bench of this Court has clearly held that"…… the Society establishing the School is not the employer. Each and every school established by a parent society is an independent juristic entity having its own scheme of management and Managing Committee. The employees appointed by the Managing Committee of the School are not the employees of other Schools." It is further urged that in Hamdard Education Society"s case (supra), the Division Bench of this Court has even gone to the extent of holding that the transfer clause in the appointment letters is an absurdity in the employment document and has to be resolved in favour of employee and against the employer for the reason of contra proferentem rule. It is argued that the impugned judgment is erroneous because undue emphasis on the obiter in Hamdard Education Society (supra) ignoring the categorical findings, is uncalled for. It is further urged that the existence of the common seniority list is of no consequence, in view of clear findings of co-ordinate Bench of this Court in Hamdard Education Society"s case (supra).

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¶26The respondents have urged that the findings in Hamdard Education Society"s (supra) do not have binding effect in view of the earlier judgment of the Division Bench in Anand Swarup's case (supra). The learned counsel has relied on paras 9 and 11 of the said judgment. It is argued that in that case despite the fact that the appointment letter did not contain any transfer clause, the Court had upheld the employer's rights to transfer its employee from one school to another School run by the same Society or a Trust holding that such a transfer is not a transfer from one employer to another. It is further argued that in view of the findings of Apex Court in the case of Union of India vs. S.K. Kapur, reported in (2011) 4 SCC 589, the findings in Anand Swarup"s case (supra), which were given in earlier judgment is binding and findings in Hamdard Education Society"s (supra) which are contrary to the findings of the Division Bench in Anand Swarup"s case (supra) were given as the same issue is non est.

¶27We have given thoughtful consideration to the contentions and arguments of the learned counsels for the parties on this point. The Apex Court in the case of Union of India vs. S.K. Kapur, reported in (2011) 4 SCC 589 has clearly held, in para 9 of the judgment, that where a subsequent coordinate Bench of an equal strength wants to take a different

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view from prior decision of a coordinate Bench, then it must refer the matter to a larger Bench and where it is not so done, the prior decision of a coordinate Bench is binding on the subsequent Bench of an equal strength. The Apex Court has held as under:- "9….It is well settled that if a subsequent co-ordinate bench of equal strength wants to take a different view, it can only refer the matter to a larger bench, otherwise the prior decision of a co-ordinate bench is binding on the subsequent bench of equal strength. Since, the decision in S.N.Narula's case (supra) was not noticed in T.V.Patel's case (supra), the latter decision is a judgment per incuriam. The decision in S.N.Narula's case (supra) was binding on the subsequent bench of equal strength and hence, it could not take a contrary view, as is settled by a series of judgments of this Court."

¶28Both in Anand Swarup"s case (supra) and Hamdard Education Society"s case (supra) point in issue was same, i.e. transfer of an employee from one School to another where both the Schools are run by the same Society/Trust and relieving of common seniority list in such transfers. In view of the law propounded by Supreme Court in the S.K. Kapur (supra), the previous judgment of the Division Bench i.e. Anand Swarup"s case (supra) holds the field and is good law on this issue. The coordinate Bench

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of this Court in Anand Swarup"s case (supra) in paragraphs 9, 10 ,11 and 15 has clearly held as under:- " 9. It is not necessary to refer to the various cases cited by the petitioner in his written submissions. It is sufficient to notice the two cases, namely, Shri Ram Foundation and Anr. vs. Directorate of Education and Jawahar Lal Nehru University v. Dr. K.S. Jawatkar (supra),to which he has referred during the course of his submissions. In our view, Shri Ram Foundation and Anr. v. Directorate of Education, when read as a whole does not support the petitioner's case. Reference is invited to the following part of the judgment: "There is no prohibition in the Act for transfer from one School to another. The question of transferability with promotion or without promotion or on the basis of joint seniority are entirely the matters between the employees and the management. Where an employee joins such an institution which is managed by a Society or a Trust he joins the institution with open eyes. He accepts the term of transferability and joint seniority. He might see a benefit in it." In our view, the case of Jawaharlal Nehru University (supra) does not advance the petitioner's case. Firstly, the requirement of consent, express or implied, is for transfer from one employer to another, i.e., from one centre to another. In the instant case, it is the admitted position that both the schools are run by Ramjas Foundation, i.e. the Society, which had employed the petitioner. None of the schools is run as an independent Society or a Trust. It is not a case of transfer from one employer to another.

¶10Learned Counsel for the respondent, in refuting the submissions made by the petitioner, has taken us through the appointment letter; which is silent on the issue of transfer. The

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appointment dated 8.10.1970 has been issued by the Ramjas Foundation. It does not contain any provision for transfer or any prohibition on it.

¶11We may also refer to an earlier letter dated 31.10.1958, which shows that for all the schools run by the Trust, a common seniority list is maintained and objections are invited from teachers with regard to the seniority list, if any. It would show that the Trust has been maintaining a common seniority list much prior to the employment and engagement of the petitioner.

¶15In these circumstances, we hold that there was no legal embargo on the transfer of the petitioner by the respondent Society from its one school to the other and the same is not vitiated by any malafides or extraneous considerations. The challenge to the transfer, therefore, fails. Petition stands dismissed."

¶29In Anand Swarup"s (supra), this Court had upheld the transfer of the employee from one school to another of the same Society i.e. Ramjas Foundation, despite the fact that there was no transfer clause in the appointment letter of the employee. The present case is on better footing. The fact shows that the appointment letter of the appellant contained the transfer clause and she had signed her appointment letter knowing fully well that her post was transferable. Admittedly, a common seniority list is also being maintained by the respondent No. 2. As discussed above, the appellant has also failed to point out any element of malafide or bias on the part of respondents. Admittedly, the place where she has been transferred

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is nearby. Even otherwise, the appellant has not claimed any inconvenience which is likely to be caused to her by travelling to another School.

¶30We find no infirmity and illegality in the impugned judgment. The impugned judgment does not call for any interference. The appeal has no merit and the same along with pending applications is hereby dismissed with no order as to costs.

DEEPA SHARMA (JUDGE)

SIDDHARTH MRIDUL

(JUDGE) FEBRUARY 12, 2018 ss

Page 1 * IN THE HIGH COURT OF DELHI AT NEW DELHI % Decided on: 12.02.2018 + LPA 379/2015 and CM APPL. 10251/2016 VARINDER KAUR ..... Appellant Through: Mr Elanchezhiyan, Mr Manzar Anis and Mr Nasim Anwar, Advs. versus SCHOOL MANAGEMENT OF GURU HARIKRISHAN PUBLIC SCHOOL & ORS ..... Respondents Through: Mr Jasmeet Singh, Ms Astha Sharma and Mr Aditya Madaan, Advs for Respondents 1, 2 and 4. Mr Sanjoy Ghose, ASC and Mr Rhishabh Jetley and Ms Urvi Mohan, Adv for GNCTD (R-3) CORAM: HON'BLE MR. JUSTICE SIDDHARTH MRIDUL HON'BLE MS. JUSTICE DEEPA SHARMA HON'BLE MS. JUSTICE DEEPA SHARMA 1. In the present Letter Patents Appeal, the appellant has challenged the judgment dated 07.05.2015 passed by learned Single Judge in W.P.(C) No. 3061/2014, wherein her petition seeking quashing of transfer and relieving orders dated 28.04.2014 and 02.05.2014 respectively, was dismissed. Page 2 2. The brief facts of the case are that the appellant was appointed as a clerk vide her appointment letter dated 11.02.1997. In the appointment letter, there was a transfer clause. The appointment letter is reproduced herein:- " Guri Harkrishan Public School Fateh Nagar, New Delhi-110018 13-52/96-97/Est. 11thFebruary,1997 MEMORANDUM The performance of Mrs. Varinder Kaur has been reviewed. She is hereby informed that she is placed on Probation as a Clerk in the salary scale of Rs. 975-25-1150/EB-30-1660 with a basic start of Rs. 975/- p.m. The appointment shall be governed by the following terms and conditions: 1. The appointment is on Probation for a period of one year with effect from 10th February, 1997. 2. The service conditions shall be governed by the school rules in force from time to time. 3. The staff is liable to be transferred to any branch run by Guru Harkrishan Public school Society. No transfer can be claimed as a matter of right. 4. On Probation a staff shall signed a service contract as required under Delhi Education Act and Rules. If these terms and conditions are acceptable, you may give your acceptance immediately. Sd/- Kawaljit Kaur Principal Ms. Varinder Kaur" (emphasis ours) Page 3 3. Vide transfer order dated 28.04.2014 issued by respondent No. 2 i.e. Guru Harkrishan Public School (New Delhi) Society, she was transferred to their School at Tilak Nagar. Pursuant to the transfer order, the relieving order dated 02.05.2014 was passed by the respondent No. 1/Guru Harkrishan Public School. 4. In the Writ Petition No. 3061/2014, the appellant has challenged her transfer on the ground that she could not have been transferred from Fateh Nagar School to Tilak Nagar School for the reasons that every School is a separate legal entity and employees of one School cannot be transferred to another School and has relied on the judgment of this Court in the case titled as Satbir Singh vs. Delhi Sikh Gurudwara Management Committee & Anr. in W.P.(C) No. 8060/2007, decided on 01.05.2013. Another ground of challenge is that the common seniority list, prepared by the respondent no. 2, is wrongly prepared as certain cadre posts are wrongly clubbed together. She has also urged that her transfer is malafide occasioned on account of her filing complaints against the Chairman of the Fateh Nagar School who had been harassing her. The transfer being thus mala fide and hence vitiated. Page 4 5. All the contentions of the appellant were controverted by the respondents in their counter affidavit. It has been denied that transfer order was a mala fide order or that she has been harassed by the Chairman. It is submitted that a common seniority list was prepared in respect of all the Schools run by respondent No.2. It is further submitted that the appellant was transferred to another School which is at a distance of 2-3 kilometers from Fateh Nagar School pursuant to the transfer policy of the respondents. 6. It is further alleged that the appellant had indulged herself in acts of indiscipline and has threatened the Principal and the Chairman of respondent No. 1 /School. It wa