LEGAL ISSUE: Whether the State Government can allow mutual transfers of teachers under the Sarva Shiksha Abhiyan (SSA) scheme through executive orders, or if such transfers must be governed strictly by the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007.
CASE TYPE: Service Law
Case Name: State of Karnataka & Anr. vs. Krishna Kumar & Ors.
[Judgment Date]: April 23, 2019
Date of the Judgment: April 23, 2019
Citation: 2019 INSC 406
Judges: Hon’ble Mr. Justice Arun Mishra and Hon’ble Mr. Justice Navin Sinha
Can a government scheme like the Sarva Shiksha Abhiyan (SSA) have its own rules for teacher transfers, or must it always follow the state’s general transfer laws? The Supreme Court of India addressed this question in a case concerning the transfer of teachers in Karnataka’s higher primary schools. The court had to decide whether the state government could allow mutual transfers of teachers under the SSA scheme through executive orders, or if such transfers must be governed strictly by the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007. The judgment was delivered by a two-judge bench comprising Hon’ble Mr. Justice Arun Mishra and Hon’ble Mr. Justice Navin Sinha.
Case Background
The case revolves around teachers appointed under the Sarva Shiksha Abhiyan (SSA) scheme in Karnataka. This scheme aimed to improve elementary education by upgrading certain primary schools to “higher primary schools,” which included 8th standard. These schools were partially funded by the Central Government. In 2010, the State Government issued an Office Memorandum that included a clause allowing for mutual transfers of teachers within the SSA scheme. Some teachers challenged this clause, arguing that all teacher transfers should be governed by the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007.
The teachers were appointed in 2004-2005 in Government primary schools where the SSA scheme was implemented. These schools were upgraded to include 8th standard, becoming “Higher Primary Schools”. The SSA scheme was created to provide education in rural areas where high schools were scarce. The teachers were appointed with a condition that if the workload was less, they would have to teach 6th and 7th standards as well.
Timeline:
| Date | Event |
|---|---|
| 2004-2005 | Teachers appointed in Government primary schools under the SSA scheme. |
| 2010 | Office Memorandum issued by the State Government, including clause 13 for mutual transfers of teachers. |
| 7.4.2010 | Office Memorandum issued by the State Government regarding transfer and posting of teachers in schools implementing the SSA Scheme. |
| 2012 | Original application filed by teachers in the Karnataka Administrative Tribunal, challenging clause 13 of the Office Memorandum. |
| 2013 | High Court dismissed the Writ Application filed by the State Government. |
| 23-04-2019 | Supreme Court of India allowed the appeals filed by the State of Karnataka. |
Course of Proceedings
The teachers, aggrieved by clause 13 of the Office Memorandum dated 07.04.2010, which allowed mutual transfers, filed an original application before the Karnataka Administrative Tribunal. The Tribunal quashed this clause, stating that transfers should be made according to the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007, and its rules. The State then appealed to the High Court, which upheld the Tribunal’s decision. The State of Karnataka then filed a Special Leave Petition in the Supreme Court.
Legal Framework
The core legal issue involves the interpretation and application of the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007, and its relationship with the executive orders issued by the State Government. The Act of 2007 provides a framework for the transfer of teachers. The State Government argued that the SSA scheme is an independent scheme, and therefore, the rules for transfer under the scheme can be different from the Act. The Office Memorandum dated 07.04.2010 was issued to address the specific needs of the SSA scheme, particularly the mutual transfer of teachers.
The relevant provision from the Office Memorandum dated 07.04.2010, clause 13, is as follows:
“13 MUTUAL TRANSFERS:
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.
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 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 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.
f) If S.S.A. and T.G.T. Teachers submit an application for transfer to vacant posts it may be considered.”
Arguments
Arguments by the State of Karnataka:
- The State argued that the SSA scheme is a distinct initiative aimed at broadening education in rural areas by upgrading primary schools to higher primary schools.
- The teachers appointed under the SSA scheme were specifically designated to work in these upgraded schools.
- The State contended that the Act of 2007 does not strictly apply to higher primary schools under the SSA scheme.
- The State argued that Clause 13 of the Office Memorandum, which allows for mutual transfers, was a necessary measure to implement the SSA scheme effectively.
- The State emphasized that mutual transfers are based on the volition of the teachers and do not adversely affect their service conditions, salary, or seniority.
- The State also argued that in the absence of any specific statutory provision, the executive instructions in the Office Memorandum would have the force of law.
- The State submitted that the Tribunal and the High Court erred in striking down clause 13 of the Office Memorandum.
Arguments by the Respondent Teachers:
- The teachers argued that all transfers, including those under the SSA scheme, should be governed by the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007 and the rules framed under it.
- The teachers contended that the Office Memorandum dated 07.04.2010, which allowed mutual transfers, was not permissible in view of the statutory provisions.
- They supported the Tribunal’s decision, which was affirmed by the High Court, that transfers should be made in accordance with the Act of 2007 and the rules framed under it.
Submissions by Parties
| Main Submission | Sub-Submissions | Party |
|---|---|---|
| Applicability of the Act of 2007 | The SSA scheme is an independent scheme and not governed by the Act of 2007. | State of Karnataka |
| Applicability of the Act of 2007 | The Act of 2007 and the rules framed thereunder should govern all teacher transfers, including those under the SSA scheme. | Respondent Teachers |
| Validity of the Office Memorandum | Clause 13 of the Office Memorandum is a valid measure to implement the SSA scheme effectively. | State of Karnataka |
| Validity of the Office Memorandum | The Office Memorandum dated 07.04.2010 is not permissible in view of the statutory provisions. | Respondent Teachers |
| Mutual Transfers | Mutual transfers are based on the volition of the teachers and do not adversely affect their service conditions. | State of Karnataka |
| Mutual Transfers | Transfers should be done as per the Act of 2007 and not through the Office Memorandum. | Respondent Teachers |
| Executive Instructions | In the absence of a statutory provision, the executive instructions in the Office Memorandum would have the force of law. | State of Karnataka |
Issues Framed by the Supreme Court
The Supreme Court did not explicitly frame issues in a separate section. However, the core issue that the court addressed was:
- Whether the provisions for mutual transfer of teachers under the SSA scheme, as outlined in Clause 13 of the Office Memorandum dated 07.04.2010, were valid, or if such transfers should be strictly governed by the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007 and the rules framed thereunder.
Treatment of the Issue by the Court
The following table demonstrates how the Court decided the issue:
| Issue | Court’s Decision | Reason |
|---|---|---|
| Whether mutual transfers under the SSA scheme should be governed by the Act of 2007 or the Office Memorandum. | The Court held that the Office Memorandum was valid and the Act of 2007 did not strictly apply to mutual transfers under the SSA scheme. | The Court reasoned that the SSA scheme is an independent scheme with its own exigencies, and the provision for mutual transfer was based on the volition of the teachers. |
Authorities
The Supreme Court did not explicitly cite any cases or books in its judgment. The Court’s reasoning was primarily based on the interpretation of the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007, and the Office Memorandum dated 07.04.2010, along with the objectives of the SSA scheme.
The legal provisions considered by the court were:
- Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007: This Act provides the general framework for teacher transfers in Karnataka.
- Office Memorandum dated 07.04.2010: This executive order contained the provisions for mutual transfers of teachers within the SSA scheme.
Authorities Considered by the Court
| Authority | Court | How Considered |
|---|---|---|
| Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007 | State Legislature | The Court held that the Act was not strictly applicable to the SSA scheme for mutual transfers. |
| Office Memorandum dated 07.04.2010 | State Government | The Court upheld the validity of the Office Memorandum, specifically Clause 13 regarding mutual transfers. |
Judgment
How each submission made by the Parties was treated by the Court?
| Submission | Party | Court’s Treatment |
|---|---|---|
| The SSA scheme is an independent scheme and not governed by the Act of 2007. | State of Karnataka | Accepted. The Court agreed that the SSA scheme is independent and has its own exigencies. |
| The Act of 2007 and the rules framed thereunder should govern all teacher transfers, including those under the SSA scheme. | Respondent Teachers | Rejected. The Court held that the Act did not strictly apply to mutual transfers under the SSA scheme. |
| Clause 13 of the Office Memorandum is a valid measure to implement the SSA scheme effectively. | State of Karnataka | Accepted. The Court upheld the validity of Clause 13. |
| The Office Memorandum dated 07.04.2010 is not permissible in view of the statutory provisions. | Respondent Teachers | Rejected. The Court found no violation of the Act in the Office Memorandum. |
| Mutual transfers are based on the volition of the teachers and do not adversely affect their service conditions. | State of Karnataka | Accepted. The Court agreed that the mutual transfer scheme was not arbitrary. |
| Transfers should be done as per the Act of 2007 and not through the Office Memorandum. | Respondent Teachers | Rejected. The Court held that the Office Memorandum was valid for mutual transfers under the SSA scheme. |
| In the absence of a statutory provision, the executive instructions in the Office Memorandum would have the force of law. | State of Karnataka | Accepted. The Court agreed that executive instructions would have the force of law in the absence of a specific statutory provision. |
How each authority was viewed by the Court?
The Court considered the following authorities:
- Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007: The Court held that the provisions of this Act did not strictly apply to the mutual transfers under the SSA scheme.
- Office Memorandum dated 07.04.2010: The Court upheld the validity of this executive order, specifically clause 13, which allowed for mutual transfers of teachers under the SSA scheme.
What weighed in the mind of the Court?
The Supreme Court’s decision was primarily influenced by the following factors:
- Independence of the SSA Scheme: The Court recognized that the SSA scheme is an independent initiative with its own specific objectives and requirements. This independence allowed the State Government to create specific provisions for teacher transfers that were not strictly bound by the general transfer rules.
- Volition of Employees: The Court emphasized that the mutual transfer provision in the Office Memorandum was based on the voluntary choice of the teachers. Since it was not a mandatory transfer, it was not considered arbitrary.
- Absence of Statutory Provision: The Court noted that the Act of 2007 did not contain any specific provisions regarding mutual transfers. In the absence of such a provision, the executive instructions issued by the State Government had the force of law.
- Objective of Broad-Based Education: The Court acknowledged that the SSA scheme aimed to provide broad-based education in rural areas. The mutual transfer provision was seen as a measure to facilitate this objective.
| Reason | Percentage |
|---|---|
| Independence of the SSA Scheme | 35% |
| Volition of Employees | 25% |
| Absence of Statutory Provision | 25% |
| Objective of Broad-Based Education | 15% |
Fact:Law Ratio
| Category | Percentage |
|---|---|
| Fact | 40% |
| Law | 60% |
Logical Reasoning
Start: SSA Scheme Implemented, Upgraded Primary Schools
State Issues Office Memorandum with Mutual Transfer Clause (Clause 13)
Teachers Challenge Clause 13, Claiming Act of 2007 Should Apply
Tribunal Quashes Clause 13, High Court Affirms
Supreme Court Considers: Is SSA Independent? Does Act of 2007 Apply?
Supreme Court Rules: SSA is Independent, Mutual Transfers are Voluntary, Act of 2007 Does Not Strictly Apply
Conclusion: Clause 13 of Office Memorandum is Valid, Appeals Allowed
Judgment
The Supreme Court held that the provisions for mutual transfer of teachers under the SSA scheme, as outlined in Clause 13 of the Office Memorandum dated 07.04.2010, were valid. The Court reasoned that the SSA scheme was an independent scheme with its own exigencies and that the provisions for mutual transfers were based on the volition of the teachers. The Court also noted that the Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007, did not contain any specific provisions regarding mutual transfers. In the absence of a statutory provision, the executive instructions issued by the State Government had the force of law.
The Court stated:
“In our considered opinion, 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 dated 07.04.2010.”
The Court further observed:
“In the absence of statutory provision, the executive instructions would have force of law, more so when the SSA is an independent scheme.”
The Court also noted:
“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 to be arbitrary.”
The Supreme Court set aside the orders passed by the Tribunal and the High Court and allowed the appeals filed by the State of Karnataka.
Key Takeaways
- The Supreme Court upheld the validity of mutual transfers for teachers under the SSA scheme through executive orders.
- The Court recognized the SSA scheme as an independent initiative with its own specific needs.
- Executive instructions can have the force of law in the absence of specific statutory provisions.
- Mutual transfers based on the volition of employees are not considered arbitrary.
- The Karnataka Civil Services (Regulation of Transfers of Teachers) Act, 2007, does not strictly apply to mutual transfers under the SSA scheme.
Directions
The Supreme Court did not give any specific directions, other than setting aside the orders of the Tribunal and the High Court, and allowing the appeals filed by the State of Karnataka.
Development of Law
The Supreme Court’s decision clarifies that specific schemes like the SSA can have their own transfer rules, especially when the existing statutory framework does not address specific needs like mutual transfers. This ruling establishes that executive orders can have the force of law in the absence of specific statutory provisions, especially when dealing with independent schemes. This judgment also confirms that mutual transfers based on the volition of employees are not arbitrary.
The ratio decidendi of the case is that in the absence of a specific statutory provision, the executive instructions would have the force of law. The Court also held that the provisions of mutual transfer do not militate against the provisions of the Act and rules framed thereunder, particularly when it was with respect to the SSA Scheme.
Conclusion
In conclusion, the Supreme Court allowed the appeals filed by the State of Karnataka, setting aside the orders of the Tribunal and the High Court. The Court held that the Office Memorandum dated 07.04.2010, which allowed for mutual transfers of teachers under the SSA scheme, was valid. The Court recognized the SSA scheme as an independent initiative and upheld the validity of the executive instructions in the absence of specific statutory provisions. This judgment provides clarity on the extent to which government schemes can have their own rules and regulations, and the validity of executive orders in the absence of specific statutory provisions.