STATE OF KARNATAKA & ANRversusKRISHNA KUMAR & ORS.

962                      [2019]
              SUPREME COURT     7 S.C.R. 962
                             REPORTS                     [2019] 7 S.C.R.


A                    STATE OF KARNATAKA & ANR.
                                      v.
                        KRISHNA KUMAR & ORS.
                     (Civil Appeal Nos. 4089-4241 of 2019)
B                              APRIL 23, 2019
                [ARUN MISHRA AND NAVIN SINHA, JJ.]
             Education/Educational Institutions: Government primary
      schools – Implementation of Sarava Shikshana Abhiyana Scheme
      – Upgradation of certain primary schools with 8th standard to give
C     effect to the Scheme and referred as Higher Primary Schools –
      Appointment of teachers in the schools – Issuance of Office
      Memorandum by the State Government in the matter of transfer of
      teachers of Higher Primary Schools on ‘mutual basis’ – Challenge
      to – Office Memorandum relating to mutual transfer quashed by
      the tribunal and the High Court – On appeal, held: SSA Scheme
D     was to deal with the primary objective of broad basing education –
      Clause 13 of the Office Memorandum dealt with the mutual transfer
      – There is no provision in the Act and rules with respect to mutual
      transfers – When the provisions of ‘mutual transfer’ which is made
      in Office Memorandum, depends on the volition of an employee,
E     there is no compulsion, it cannot be said to be arbitrary – It is
      ordered only when two incumbents opt for mutual transfer – Thus,
      the provisions of mutual transfer does not militate against the
      provisions of the Act and rules framed thereunder and particularly,
      when it was with respect to SSA Scheme, it was open to making
      certain provisions by way of Office Memorandum – In the absence
F     of statutory provision, the executive instructions would have force
      of law, more so when the SSA is an independent scheme – Thus, the
      tribunal and the High Court erred in law in quashing the same –
      Orders passed by the tribunal as well as by the High Court set
      aside – KCS (Regulation of Transfers of Teachers) Act, 2007.
G           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 4089-
      4241 of 2019.
            From the Judgment and Order dated 09.01.2013 of the High
      Court of Karnataka at Bangalore in Writ Petition Nos. 13334 of 2012
      and 14461-612 of 2012 (S-KAT).
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                                     962
         STATE OF KARNATAKA v. KRISHNA KUMAR                                963


      Basava Prabhu S. Patil, Sr. Adv., V. N. Raghupathy, Ms. Rachitha      A
Hiremath, Parikshit P. Angadi, Chinmay Deshpande, Manendra Pal Gupta,
Advs. for the Appellants.
     Mahesh Thakur, Vijay Kumar, Ms. Vipasha Singh, Dr. Sushil
Balwada, Nandakumar, Palanivehi, Ms. Deepika Nanda Kumar,
Naresh Kumar, Shailesh Madiyal, Sudhanshu Prakash, Advs. for the            B
Respondents.
      The following Order of the Court was passed
                              ORDER
      1. The State of Karnataka has filed appeals aggrieved by the          C
Judgment and Order passed by the Tribunal and affirmed by the High
Court quashing in part the Memo dated 7.4.2010 issued by the State
Government in the matter of transfer of teachers of Higher Primary
Schools on “Mutual Basis”.
       2. The respondents are the teachers appointed in the year 2004-      D
2005 in the Government primary schools where ‘Sarava Shikshana
Abhiyana’ Scheme (in short, “the SSA Scheme”) was being implemented.
The objective of the SSA Scheme is to provide easy access to 8th standard
in the context of universalization of elementary education. In order to
give effect to the scheme certain Government primary schools have
been upgraded with 8th standard and they are referred to as “Higher         E
Primary Schools”. 65% of the salary used to be provided by the Central
Government. Under the said scheme, in order to make the education
broad-based certain Government primary schools were permitted to
impart 8th standard for the benefit and the improvement of educating
children in the rural areas, particularly at the places where very few      F
high schools were existing. This decision was taken by the Government
to encourage the students to continue the 8th standard education in the
rural areas itself, though 8th standard was part of the high school for
which Trained Graduate Teachers used to be appointed.
       3. On 07.04.2010, an Office Memorandum was issued inter alia
                                                                            G
to transfer and posting of teachers in the schools where the SSA Scheme
has been implemented. One of the policy decisions is that those teachers
appointed as primary teachers in the upgraded Government higher
primary schools will continue to work in the SSA Scheme. The primary
teachers appointed under the SSA Scheme shall be transferred to the
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964             SUPREME COURT REPORTS                              [2019] 7 S.C.R.


A     post of Teachers of the same subject under the same project. It is also
      provided that the teachers can submit their applications for ‘mutual
      transfer’ with Teachers of the State Zone with the same pay-scale and
      other benefits.
             4. Certain teachers, aggrieved by clause 13 relating to ‘mutual
B     transfer’ contained in Office Memorandum, dated 07.04.2010 filed an
      original application to the Karnataka Administrative Tribunal, Bangalore.
      The application has been allowed and the said clause of the Office
      Memorandum has been quashed and it has been ordered that transfers/
      postings be made strictly in accordance with the KCS (Regulation of
      Transfers of Teachers) Act, 2007 (in short, referred to as “the Act of
C     2007”) and rules framed thereunder. The State preferred Writ Application
      in the High Court. The same has been dismissed. Hence, the appeal
      has been preferred by the State of Karnataka, by way of Special Leave.
             5. Mr. Basava Prabhu Patil, learned senior counsel, appearing on
      behalf of the State of Karnataka, urged that under the SSA Scheme,
D     certain primary schools were upgraded to higher primary schools, by
      inclusion of 8th class which was not included in the primary schools.
      The hybrid category of higher primary schools was created in order to
      make the education broad-based. The respondents-teachers had been
      appointed with a specific condition that it would be permissible to post
E     them in the schools where the SSA Scheme has been implemented and
      if workload of teaching is less considering the number of students, they
      can be asked to teach 6th and 7th classes also. The specific condition
      mentioned in the order of appointment is as under: -
             “if the workload in the Higher Primary School where
F            appointed is less, the candidate has to teach Science and
             Mathematics subjects for 6 th and 7th standards, to make up
             the workload.”
             6. The learned senior counsel has further pointed out that since
      the hybrid category of higher primary schools was created, the matter
G     was strictly not governed by the provisions of the Act of 2007 and the
      rules framed thereunder and moreover, in order to implement the Sarva
      Shiksha Abhiyan, an independent scheme containing the provisions for
      mutual transfer in Clause 13 of Memo dated 7.4.2010 had been carved
      out, which is based upon the volition of an incumbent in case he opt for
      mutual transfer, then it is permissible for him to avail the aforesaid facility.
H     The other service conditions were not to be adversely affected. The
         STATE OF KARNATAKA v. KRISHNA KUMAR                                   965


salary, as well as the seniority, are not to be adversely affected by mutual   A
transfers in case an incumbent avails the provisions of clause 13. Office
Memorandum dated 07.04.2010 has been issued by the State Government
taking care of the exigency of the SSA Scheme, particularly when such
higher primary schools were not strictly governed by the provisions of
the Act merely on the basis of analogy, the provisions of clause 13 could
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not have been struck down by the Tribunal and the same has been illegally
affirmed by the High Court.
      7. The learned counsel appearing on behalf of the respondents
has contended that considering the findings recorded by the Tribunal in
Paragraphs 17 and 18 of the order, the High Court has found justification
with the same and rightly ordered that the transfer of such teachers           C
could have been ordered in accordance with the provisions of the Act
and 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 the
High Court, is made out. The matter of transfer is governed by the             D
provisions of the Act of 2007 and the rules framed thereunder. It was
not 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 the
considered opinion that the SSA Scheme is an independent scheme and            E
considering its imperative, certain primary schools were upgraded to
and styled as higher primary schools. The Class 8 was also added in
such schools. The hybrid category of primary schools was created to
make the education broad-based in rural areas. Considering the aforesaid
scheme, the matter was strictly not governed by the provisions of the
Act of 2007 and the rules framed thereunder with respect to “higher            F
primary schools”. The SSA Scheme was to deal with the primary
objective of broad basing education. Clause 13 of the Office
Memorandum deals with the mutual transfer. The same is extracted
herein below: -
      “13 MUTUAL TRANSFERS:                                                    G
      a) If the pre-confirmation service period is declared as
      satisfactory, mutual transfer requests of such Teachers will
      be considered. While doing mutual transfer, it should be given
      effect only when cadre and subjects tally.
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966            SUPREME COURT REPORTS                           [2019] 7 S.C.R.


A           b) All the mutual transfer at District, Division, and State level
            to be done at a time.
            c) Teachers who have computerized information through
            internet seeking mutual transfer has to be personally present
            at the Office of the B.E.O. concerned, for the verification of
B           their service details. But for No.1. Teachers transfer, both of
            them have to be present before the Transfer Authority for
            counseling.
            d) Primary and T.G.T. Teachers appointed under SARVA
            SHIKSHANA ABHIYAN shall be transferred to Teachers post
C           of the same subject and appointed under the same project.
            e) S.S.A. and T.G.T. Teachers working under SARVA
            SHIKSHAN ABHIYAN, YOJANE, submit an application for
            mutual transfer with Teachers of state zone with the same
            basic pay or less may be considered for mutual transfer.
D           f) If S.S.A. and T.G.T. Teachers submit an application for
            transfer to vacant posts it may be considered.”
             9. Even assuming that the provisions of the Act of 2007 and rules
      thereunder are applicable, since there is no provision to the contrary
      therein, the provision in question providing for mutual transfer could have
E     been carved out by issuing executive instructions contained in Memo
      dated 7.4.2010. No such provision in the Act and rules has been pointed
      out with respect to mutual transfers. Particularly when the provisions of
      ‘mutual transfer’ which is made in Office Memorandum of 2010, depends
      on the volition of an employee, there is no compulsion, it cannot be said
F     to be arbitrary. It is ordered only when two incumbents opt for mutual
      transfer. Thus, Office Memorandum dated 07.04.2010 could not be
      said to be in violation of the provisions of the Act of 2007 and rules. The
      Tribunal and the High Court both have misdirected themselves in this
      regard.
            10. In our considered opinion, the provisions of mutual transfer
G
      does not militate against the provisions of the Act and rules framed
      thereunder and particularly, when it was with respect to SSA Scheme, it
      was open to making certain provisions by way of Office Memorandum
      dated 07.04.2010. Mere reference to the Act and the rules framed in the
      same does not mean that the provisions have been adopted for all the
H     purposes. In the same Memo the provisions have been carved out for
             STATE OF KARNATAKA v. KRISHNA KUMAR                                967


mutual transfer. In the absence of statutory provision, the executive           A
instructions would have force of law, more so when the SSA is an
independent scheme. The SSA Scheme is funded by the Central
Government and considering its exigency, independent provisions could
have been carved out which is not to be found in the Act of 2007 and the
rules framed thereunder.
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      11. Thus, we find that there is no violation of the provisions of the
Act 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 the
Tribunal as well as by the High Court and in allowing the appeals. The
appeals are, accordingly, allowed. There shall no order as to costs.            C


Nidhi Jain                                                   Appeals allowed.


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