IMPORTANT POINT
The Memo in question is not in violation of provisions of the Act.

ORDER :

1. The State of Karnataka has filed appeals aggrieved by the 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 2004-2005 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 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 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 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 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 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 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, 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 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 appointed is less, the candidate has to teach Science and Mathematics subjects for 6th 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 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