IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN THURSDAY, THE 15TH OCTOBER 2009 / 23RD ASWINA 1931 WA.No. 1077 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.10639/2009 Dated 06/04/2009 .................... APPELLANT/PETITIONER ------------------------ S.KRISHNAKUMARI, HSA (MATHS), D.B.H.S.S. THIRUVALLA, RESIDING AT MULLACKAL HOUSE, THAZHATHUVADAKARA P.O., KANGAZHA, KOTTAYAM DISTRICT-686 541. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI SRI.M.R.ANISON RESPONDENTS/ RESPONDENTS -------------------------- 1. STATE OF KERALA, REP.BY ITS SECRETARY TO GOVT., GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DISTRICT EDUCATIONAL OFFICER, KANJIRAPPALLY. 3. THE DISTRICT EDUCATIONAL OFFICER, THIRUVALLA. 4. THE TRAVANCORE DEVASWOM BOARD, NANDANKODU P.O., THIRUVANANTHAPURAM, REP.BY ITS SECRETARY. 5. M.SURESH, HSA (MATHS), D.B.H.S. KANGAZHA, KOTTAYAM DISTRICT. ADV. SRI.MATHEW JOHN (K) FOR R5 SRI.AJEESH K.SASI FOR R5 SRI.K.N.VENUGOPALA PANICKER FOR R4 GOVERNMENT PLEADER FOR R1-3 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ. --------------------------------- W.A. No. 1077 OF 2009 --------------------------------- Dated this the 15th day of October, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The appellant was the writ petitioner. The respondents herein were the respondents in the Writ Petition. 2. The brief facts of the case are the following: The appellant and 5th respondent were High School Assistants (Maths) working in the schools managed by the 4th respondent. The appellant has continuous service as HSA (Maths) from 1.6.1988. The 4th respondent has continuous service as HSA from 30.10.1997. The appellant was working in Devaswom Board Higher Secondary School, Thiruvalla from 1.6.2000 and the 4th respondent was working in Devaswom Board High School, Kangazha from 1999. 2. The appellant submitted a representation claiming transfer to D.B.H.S. Kangazha. While ordering transfer, during the academic year 2008-2009, the said request was allowed by W.A. No.1077/2009 2 the Manager as per Ext.P1 order dated 27.5.2008. The appellant was transferred as HSA (Maths) to Kangazha and in her place the 4th respondent was posted at Thiruvalla. Later, apparently, because of the objections raised by the D.E.O., Kanjirappally and D.E.O., Thiruvalla, the Manager cancelled their transfer by Ext.P2 order dated 18.9.2008. The appellant moved this Court and as per the direction of this Court, the Manager reconsidered the matter and by Ext.P3 order dated 30.10.2008, he stuck to the stand taken in Ext.P2. Challenging Ext.P3, the appellant preferred Ext.P4 revision before the Government under Rule 92 of Chapter XIVA of the Kerala Education Rules. In the meantime, the D.E.O., Kanjirappally, passed Ext.P5 order declining to approve the posting of the appellant as HSA (Maths) in D.B.H.S, Kangazha. The date of the order given in Ext.P5 is 29.5.2008. But, in that order, the 2nd letter referred is dated 17.9.2008. Therefore, the date of the order must be a mistake and the correct date appears to be 29.9.2008. Challenging Ext.P5, the appellant preferred Ext.P6 revision before the Government. As per the direction of this Court, the Government considered both the revisions together and dismissed them by Ext.P7 order dated 3.3.2009. Challenging Exts.P2, P3, P5 and W.A. No.1077/2009 3 P7 orders, the Writ Petition was filed. The learned Single Judge, after hearing both sides, dismissed the Writ Petition. Hence, this appeal. 3. We heard the learned counsel on both sides. The stand of the D.E.O. is that once the appellant is transferred from D.B.H.S.S. Thiruvalla, the resultant vacancy has to be filled up by an HSA (English). As per the staff fixation order, there are two sanctioned posts for HSA (English). At present, there is only one HSA (English) is working. Therefore, the transfer vacancy should go to HSA (English). If the said contention is accepted, a fresh HSA (English) will be appointed and the result will be that the junior most HSA (Maths) will face reversion. The Government Order creating HSA (English) has since been substituted by Rule 6.I. in Chapter 23 of the K.E.R. The said rule reads as follows: “6.I. Sanctioning of posts of High School Assistant (English): Notwithstanding anything contained in any other rule in this Chapter the post of High School Assistant (English) shall be sanctioned on the basis of the periods allocated to English, observing minimum subject requirement. W.A. No.1077/2009 4 Note:- Subject to any general order that may be issued by the Government, the above rule shall be implemented in a phased manner without causing retrenchment of existing High School Assistants (core subjects) as on 7 th January, 2002, and observing the minimum subject requirements.” 4. The new post can be created without disturbing existing teachers in the core subjects. In other words, normally the post of HSA (English) should be filled up when open clear vacancies are available for the same. Here what was available was only a transfer vacancy, arising out of mutual transfer of two High School Assistants. So, the insistence of the Educational Officer that said vacancy should also filled up by an HSA (English) is unsupportable in law. The stand of the Government upholding the above view is also unsustainable. By mutual transfer, no vacancy is created and therefore, there is no question of appointing any HSA (English). If an HSA (English) is appointed, the same will create an anomalous position, which we have already mentioned, that the junior most HSA (Maths) would be thrown out of service. So, the basic premise based on which Ext.P1 was cancelled and the same was upheld by higher authorities is unsupportable in law. Therefore, the impugned W.A. No.1077/2009 5 orders are quashed and Ext.P1 to the extent it concerns the transfer of the appellant and 4th respondent is restored. But, if the 5th respondent has got any grievance against Ext.P1, he will be free to invoke the statutory remedy available to him under the K.E.R. against it. 5. Both sides submitted that because of the pendency of the Writ Petition and the Writ Appeal, the salary due to the appellant and the 5th respondent has not been released. Now, that the dispute concerning the transfer has been finally settled by this Court, the concerned Controlling Officers of the appellant and the 5th respondent shall settle their claim for salary in accordance with law and release the amount found due to them, as arrears of salary, within one month from the date of production of a copy of this judgment. The Writ Appeal is allowed as above. (K.BALAKRISHNAN NAIR, JUDGE) (P.BHAVADASAN, JUDGE) ps