Case Note & Summary
The State of Karnataka appealed against the judgment of the Karnataka High Court which affirmed the Karnataka Administrative Tribunal's order quashing Clause 13 of the Office Memorandum dated 07.04.2010. The clause provided for mutual transfer of teachers appointed under the Sarva Shiksha Abhiyan (SSA) Scheme. The respondents were teachers appointed in 2004-2005 in government primary schools upgraded to higher primary schools under the SSA Scheme, which aimed to universalize elementary education by adding 8th standard in rural areas. The Tribunal and High Court held that transfers must be governed strictly by the KCS (Regulation of Transfers of Teachers) Act, 2007 and rules, and the mutual transfer clause was invalid. The Supreme Court, however, found that the SSA Scheme is an independent scheme and the hybrid category of higher primary schools is not strictly governed by the Act of 2007. The mutual transfer provision is voluntary and based on the volition of employees, thus not arbitrary. In the absence of statutory provisions, executive instructions have force of law. The Court set aside the orders of the Tribunal and High Court, allowing the appeals and upholding Clause 13 of the Office Memorandum.
Headnote
A) Service Law - Transfer of Teachers - Mutual Transfer - Sarva Shiksha Abhiyan Scheme - KCS (Regulation of Transfers of Teachers) Act, 2007 - The Supreme Court held that the SSA Scheme is an independent scheme and the matter of transfers under it is not strictly governed by the Act of 2007. Clause 13 of the Office Memorandum providing for mutual transfer, being voluntary and not compulsory, is not arbitrary and does not violate the Act or rules. Executive instructions have force of law in the absence of statutory provisions. (Paras 8-10)
B) Service Law - Executive Instructions - Force of Law - In the absence of statutory provision, executive instructions have force of law, especially when the SSA Scheme is an independent scheme funded by the Central Government. The Office Memorandum dated 07.04.2010 could carve out provisions for mutual transfer not found in the Act of 2007. (Para 10)
Issue of Consideration
Whether Clause 13 of Office Memorandum dated 07.04.2010 providing for mutual transfer of teachers under Sarva Shiksha Abhiyan Scheme is violative of the KCS (Regulation of Transfers of Teachers) Act, 2007 and rules framed thereunder.
Final Decision
Appeals allowed. Orders of the Karnataka Administrative Tribunal and the High Court set aside. Clause 13 of Office Memorandum dated 07.04.2010 upheld. No order as to costs.
Law Points
- Executive instructions have force of law in absence of statutory provision
- Mutual transfer provision not arbitrary if based on volition
- SSA Scheme is independent scheme not strictly governed by KCS (Regulation of Transfers of Teachers) Act
- 2007
Case Details
2019 LawText (SC) (4) 126
Civil Appeal No(s). 4089-4241 of 2019 [@ Special Leave Petition (C) Nos. 35469-621 of 2014]
State of Karnataka & Anr.
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Nature of Litigation
Civil appeal against judgment of High Court affirming Tribunal's order quashing clause of Office Memorandum regarding mutual transfer of teachers under SSA Scheme.
Remedy Sought
State of Karnataka sought setting aside of Tribunal and High Court orders quashing Clause 13 of Office Memorandum dated 07.04.2010.
Filing Reason
Teachers appointed under SSA Scheme challenged Clause 13 of Office Memorandum providing for mutual transfer, claiming it violated the KCS (Regulation of Transfers of Teachers) Act, 2007.
Previous Decisions
Karnataka Administrative Tribunal allowed the original application and quashed Clause 13; High Court dismissed the writ petition affirming the Tribunal's order.
Issues
Whether Clause 13 of Office Memorandum dated 07.04.2010 providing for mutual transfer of teachers under SSA Scheme is violative of the KCS (Regulation of Transfers of Teachers) Act, 2007 and rules framed thereunder.
Submissions/Arguments
State argued that SSA Scheme is an independent scheme and the hybrid category of higher primary schools is not strictly governed by the Act of 2007; mutual transfer is voluntary and not arbitrary.
Respondents argued that transfers must be governed by the Act of 2007 and rules, and the Office Memorandum cannot override statutory provisions.
Ratio Decidendi
The SSA Scheme is an independent scheme and the matter of transfers under it is not strictly governed by the KCS (Regulation of Transfers of Teachers) Act, 2007. The mutual transfer provision in Clause 13 is voluntary and based on the volition of employees, thus not arbitrary. In the absence of statutory provisions, executive instructions have force of law.
Judgment Excerpts
The SSA Scheme is an independent scheme and considering its imperative, certain primary schools were upgraded to and styled as higher primary schools.
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 been carved out by issuing executive instructions contained in Memo dated 7.4.2010.
In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme.
Procedural History
Teachers filed original application before Karnataka Administrative Tribunal challenging Clause 13 of Office Memorandum dated 07.04.2010. Tribunal allowed the application and quashed the clause. State filed writ petition before High Court, which was dismissed. State then filed Special Leave Petition before Supreme Court, which was converted into Civil Appeal.
Acts & Sections
- KCS (Regulation of Transfers of Teachers) Act, 2007:
