IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 18TH MARCH 2011 / 27TH PHALGUNA 1932 WP(C).No. 33635 of 2010(D) ----------------------------------- PETITIONER: ------------------- SARASWATHI.V,H.S.A.(HINDI), G.H.S.S.PANAMARAM,PANAMARAM, WAYNAD DISTRICT. BY ADVS. SRI.M.SASINDRAN, SRI.V.VENUGOPAL. RESPONDENTS: ------------------------ 1. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM-I. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM-I. R1 & R2 BY GOVERNMENT PLEADER SRI. T.T. MUHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.33635/2010-D: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE GOVERNMENT ORDER DTD. 27/04/2000. EXT.P.2: COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, SULTHAN BATHERY. EXT.P.3: COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, MANANTHAVADY. EXT.P.4: COPY OF THE GOVERNMENT ORDER DTD. 10/09/2004. EXT.P.5: COPY OF THE APPLICATION DTD. 25/02/2009 SUBMITTED BY THE PETITIONER FOR INTER DISTRICT TRANSFER. EXT.P.6: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER. EXT.P.7: COPY OF THE ORDER DTD. 27/01/2009. EXT.P.8: COPY OF THE CIRCULAR DTD. 09/04/2008. EXT.P.9: COPY OF THE JUDGMENT DTD. 16/08/2005 IN W.P.(C).NO.22605/2005. EXT.P.9.A: COPY OF THE ORDER DTD. 30/09/2005. EXT.P.10: COPY OF THE GOVERNMENT ORDER DTD. 30/03/1996. EXT.P.11: COPY OF THE CERTIFICATE DTD. 17/02/2005 SHOWING THE SERVICE OF THE PETITIONER IS IN HILL TRCK AREA. EXT.P.11.A: COPY OF THE CERTIFICATE DTD. 05/02/2005 SHOWING THE SERVICE OF THE PETITIONER IS IN HILL TRACK AREA. EXT.P.11.B: COPY OF THE CERTIFICATE DTD. 05/02/2008 SHOWING THE SERVICE OF THE PETITIONER IS IN HILL TRACK AREA. EXT.P.11.C: COPY OF THE CERTIFICATE DTD. 17/02/2005 SHOWING THE SERVICE OF THE PETITIONER IS IN HILL TRACK AREA. EXT.P.12: COPY OF THE CERTIFICATE SHOWING THAT THE MANANTHAVADY TALUK IS A REMOTE AREA. EXT.P.13: COPY OF THE GOVERNMENT ORDER DESCRIBING THE REMOTE AREAS FOR THE PURPOSE OF TRANSFER. EXT.P.14: COPY OF THE SENIORITY LIST PUBLISHED BY THE R.1. EXT.P.15: COPY OF THE JUDGMENT IN W.P.(C).NO.35984/2009 DTD. 16/07/2010. W.P.(C). NO.33635/2010-D: EXT.P.16: COPY OF THE ORDER NO. A3/23755/10/DPI/K. DIS. DTD. 22/10/2010. EXT.P.17: COPY OF THE G.O.(P).NO.11/2010/P & ARD DTD. 27/03/2010. EXT.P.18: COPY OF THE NOTIFICATION NOTIFYING THE VACANCY OF H.S.A. (HINDI) IN KUTTAMPUZHA GOVERNMENT HIGHER SECONDARY SCHOOL PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 29/01/2011. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.S. TO JUDGE. Prv. T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.33635 Of 2010-D ----------------------------------------------------- DATED THIS THE 18th DAY OF MARCH, 2011 J U D G M E N T An applicant for inter district transfer in the cadre of HSA(Hindi) is the petitioner herein. This is a fourth round litigation as far as the petitioner is concerned. 2. The petitioner is working as HSA(Hindi) in the G.H.S.S., Panamaram. She is seeking for an inter district transfer to Ernakulam District. Initially, the petitioner was appointed as a Full Time Junior Hindi Teacher as per advice by the Public Service Commission dated 31.5.1999 and joined the school on 15.6.1999. The promotion to the post of HSA(Hindi) was on 7.7.2003. 3. The method of appointment includes inter district transfer to the 30% cadre strength and being a native of Ernakulam District, the petitioner, based on her length of service, both as Junior Hindi Teacher as well as HSA(Hindi), submitted Exhibit P5 application. The same was submitted before the Deputy Director of Education. According to the petitioner, she is having nine years, eight months and seven days service plus half of the service in the hill track area, i.e., four years and 10 months and thereby making the total service W.P.(C)No.33635/10 -2- for the purpose of reckoning seniority for inter district transfer as 14 years 6 months as on the date of application. 4. The petitioner approached this Court earlier by filing W.P. (C)No.94/09 wherein this Court directed the 2nd respondent to consider and pass orders on the representation. The representation was rejected as per Exhibit P7 order. It was rejected based on a circular issued by the Director of Public Instructions as per Exhibit P8. This Court by Exhibit P9 judgment had held that the circular cannot override the Government Order Exhibit P4 and accordingly, it was declared that Exhibit P4 Government Order will govern the field. In implementation of Exhibit P9 judgment, the petitioner therein was granted inter district transfer as per Exhibit P9(a). Exhibit P15 is a true copy of the judgment in W.P.(C)No.35984/2009 wherein this Court directed the matter to be reheard and after hearing the parties the Director of Public Instructions passed Exhibit P16 order which is under challenge in this Writ Petition. 5. The learned counsel for the petitioner submitted that in the light of Exhibit P10 order passed by the Government, it can be seen that the seniority will have to be reckoned after counting the length of service in all the categories together. The Director of Public W.P.(C)No.33635/10 -3- Instructions in Exhibit P16 took the view that length of service as HSA(Hindi) alone need be reckoned in the light of the later Government Order. Copy of the said Government Order has been produced as Exhibit P17. 6. The seniority list has been produced as Exhibit P14 wherein the petitioner is shown as Sl.No.17. The same will show that it was prepared based on the service as HSA(Hindi) alone. It is pointed out that if the entire length of service is reckoned, the petitioner will have to be arrayed as rank No.1. 7. The respondents have filed a statement and a counter affidavit. The sum and substance of the contentions in the counter affidavit is that in the light of Exhibit P17 Government Order, what is reckonable is the service in the HSA cadre alone and therefore the view taken by the Director of Public Instructions is correct. 8. The question, therefore, depends upon the true effect of Exhibit P17 Government Order. Going by Clause (7) of Exhibit P4, service in all the cadres in the same district shall be considered for transfer to own district or opted district. The same is the general guideline issued for minimum tenure policy for Government employees in the State. In Exhibit P17, the said Government Order W.P.(C)No.33635/10 -4- stands mentioned as item (2). 9. After referring to these Government Orders, in paragraph No.2 it is stated that in every district the HSAs recruited by direct recruitment will have only lesser service in the particular District than those appointed by promotion from the lower category even though direct recruitees are senior in the cadre. Such a situation will not arise in the case of employees in other Departments and it will adversely affect the prospect of those HSAs who have completed five years in the cadre. Accordingly, the Government ordered that inter district transfer will be granted on completion of five years service in the present category in which they are applicants for such transfer in the district of recruitment or in the district in which he/she is working consequent on inter district transfer from another district. The respondents therefore contend that in the light of Exhibit P17 Government Order, the total length of service as HSA alone can be reckoned. 10. Shri M.Saseendran, the learned counsel appearing for the petitioner, submitted that the above interpretation is not in tune with the Government Order Exhibit P4 which has not been superseded in Exhibit P17. The intention of the Government, W.P.(C)No.33635/10 -5- according to the learned counsel, is only that there will be a minimum service of five years as HSA and that the minimum service thus prescribed is only to ensure that direct recruitees are not prejudiced as against promotees. 11. On a reading of Exhibit P17, it can be seen that the problem confronted by the Government was the fate of direct recruitees who may be appointed in a district pursuant to the advise made by the Public Service Commission. As against promotees their tenure will be lesser. It is in this context that it was specified in the Government Order that inter district transfer will be granted on completion of five years service in the present category. That can only mean that only after completion of five years in the HSA cadre, a person can make an application for inter district transfer. The method of fixing seniority in terms of Exhibit P4 has not been given a go bye even in Exhibit P17. 12. In that view of the matter, the service of the petitioner in the other categories are liable to be reckoned. Therefore, Exhibit P16 is quashed. There will be a direction to the 1st respondent- Deputy Director of Education to recast the seniority list Exhibit P14 after reckoning the service of the petitioner as Junior Language W.P.(C)No.33635/10 -6- Teacher-Hindi also. It is pointed out by the petitioner in the affidavit filed along with I.A.No.4992/11 that five vacancies of HSA(Hindi) is going to arise in different schools in Ernakulam District on 31.3.2011. They are in G.H.S.S., Manjapra, M.G.M. H.S.S., Nayathodu, G.H.S.S., Athanikkal, G.H.S.S., Kongorppally and G.H.S.S., Panayappally. Therefore, appropriate action will be taken in the light of the above findings by the 1st respondent to recast the seniority list accordingly. Thereafter if the petitioner will be Sl.No.1 in the ranked list, then the application for grant of inter district transfer will be allowed and appropriate orders will be passed in that regard within a period of one month. It is made clear that the same will be against the 30% quota for inter district transfer. The Writ Petition is disposed of as above. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn