IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 29TH JULY 2009 / 7TH SRAVANA 1931 WP(C).No. 14891 of 2007(W) --------------------------------------- PETITIONER: ------------------- ASHOK KUMAR, P.D.TEACHER, DIET, ATTINGAL. BY ADVS. MR.S.V.PREMAKUMARAN NAIR, MR.R.T.PRADEEP. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS, OFFICE OF DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. THE DEPUTY DIRECTOR (EDUCATION), THIRUVANANTHAPURAM. 5. THE ASSISTANT EDUCATIONAL OFFICER, ATTINGAL. 6. GEETHAMBIKA .S., HEADMISTRESS, GOVERNMENT L.P.SCHOOL, KADUMBANAD, KATTAKADA, THIRUVANANTHAPURAM. 7. B.THANKAMANI AMMA, HEADMISTRESS, GOVT U.P.S., MATHASSERIKONAM, ATTINGAL, THIRUVANANTHAPURAM. W.P.(C). NO.14891/2007-W: 8. S.GEETHAKUMARI, HEADMISTRESS, T.K.M L.P.S. MANTHURUTHY, PALODE, THIRUVANANTHAPURAM. R1 TO R5 BY SR. GOVT. PLEADER MR. MUHAMOOD .T.T. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14891/2007-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DTD. 02/11/1992 OF DEPUTY DIRECTOR OF EDN. TRIVANDRUM. EXT.P.2: COPY OF THE PROVISIONAL SENIORITY LIST OF DEPARTMENTAL PRIMARY SCHOOL TEACHERS. EXT.P.3: COPY OF THE G.O.(P).NO.36/91 DTD. 02/12/1991. EXT.P.4: COPY OF THE NOTICE DTD. 07/03/07 ISSUED BY DY. DIRECTOR OF EDUCATION, TRIVANDRUM. EXT.P.5: COPY OF THE OBJECTION FILED BY PETITIONER BEFORE DY. DIRECTOR OF EDN., TRIVANDRUM DTD. 27/03/2007. EXT.P.6: COPY OF THE NOTICE DTD. 04/04/2007 OF DY. DIRECTOR OF EDN., TRIVANDRUM DTD. 04/04/07 TO THE PETITIONER. EXT.P.7: COPY OF THE ORDER DTD. 17/04/2007 OF R.4. DY. DIRECTOR. EXT.P.8: COPY OF THE ORDER DT. 13/04/07 BY R.4. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.14891 OF 2007 --------------------------------------- Dated this the 29th day of July, 2009. J U D G M E N T The petitioner herein is working as P.D. Teacher. He was advised by the Public Service Commission pursuant to District wise selection in Kannur District as per advice memo dated 13.02.1986 and he commenced his regular service with effect from 02.06.1986 onwards. Subsequently, he requested for a transfer to Trivandrum District and that was permitted as per order dated 02.11.1992. The said order has been produced as Exhibit P1. 2. Exhibit P2 is the provisional seniority list of Departmental Primary School Teachers who were appointed from 01.01.1986 to 31.12.1990 and the petitioner has been assigned with rank No.85 by reckoning his seniority from the date of commencement in service in Kannur District. The respondents 6, 7 and 8 are ranked as 86, 87 and 89 respectively. 3. The petitioner was issued with a show cause notice by Exhibit P4 to state his objection if any against the proposed W.P.(C) No.14891/2007 2 action to delete his rank number by reckoning his seniority from the date of joining in the transferred district. Exhibit P5 is the copy of the objection submitted by the petitioner. 4. The petitioner was called for a personal hearing on 07.04.2007 by notice dated 04.04.2007 and the notice was served on the petitioner only on 09.04.2007. The respondents 6, 7 and 8 were promoted as per Exhibit P7 order. By Exhibit P8, the petitioner's name has been deleted from the provisional seniority list. In Exhibit P8 the reason stated for deleting the petitioner's name is that as per Government Order dated 02.12.1991 all Inter District Transfer except those against the vacancies to Head quarters will lose seniority. The petitioner was transferred on 02.11.1992. Therefore, he will lose seniority. Even though it is pointed out by the learned counsel for the petitioner that in the order Exhibit P1 it was mentioned that the seniority will be retained, that aspect has also been considered in Exhibit P8 and the view taken is that the same was only a mistake. 5. Learned counsel for the petitioner mainly contended that the deletion of the petitioner's name from the seniority list is in W.P.(C) No.14891/2007 3 violation of the principles of natural justice as he was not given a proper personal hearing. Learned Government Pleader submitted that he was given opportunities twice and then only the order was passed. 6. Whatever that be, the legal position as such is not free from any doubt. The petitioner was transferred on his request to Trivandrum. The appointment of Teachers is on District basis. Therefore, going by the proviso to Rule 27(a) of Part II K.S & S.S.R, the seniority shall be determined with reference to the dates of their joining duty in the new Unit or Department. The Government employees who are dependents of Jawan were eligible for retention of seniority on inter-district transfer upto 01.12.1991. But, this benefit was discontinued with the issuance of G.O.(P) No.36/91 dated 01.12.1991. 7. Even though the learned counsel for the petitioner submitted that going by the non obstante clause to Rule 27, the petitioner is entitled for retention of seniority, going by the specific stipulations in the proviso to Rule 27(a), it cannot be contended that he will retain seniority from the date of his appointment in the original unit. W.P.(C) No.14891/2007 4 8. The further contention raised by the learned counsel for the petitioner is that even though the seniority of the petitioner is reckoned from the date of his transfer to Trivandrum District, he was entitled to be promoted as sufficient number of vacancies were there. The said aspect will have to be considered in the light of the seniority provision that is available in the category of P.D. Teachers in Trivandrum District. At present what has been done is to delete his name from the provisional seniority list. Therefore, even though the challenge against Exhibits P7 and P8 fails, the 4th respondent will consider whether by reckoning the seniority of the petitioner from the date of inter- district transfer he is eligible for promotion. The said claim will be considered in accordance with law and appropriate decision will be communicated to the petitioner within a period of two months from the date of receipt of a copy of this judgment. This writ petition is disposed of as above. T.R. RAMACHANDRAN NAIR JUDGE smp