1 BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT DATED: 19.09.2011 C O R A M THE HONOURABLE MR.JUSTICE S.MANIKUMAR W.P.(MD) No.10660 of 2011 and M.P.(MD).Nos.1 to 3 of 2011 K.Kavitha ... Petitioner Vs. 1.The State of Tamil Nadu, rep. by its Secretary, Department of School Education, Fort St. George, Chennai - 9. 2.The Director of Elementary Education, College Road, Chennai -6. 3.The District Elementary Educational Officer, Madurai, Madurai District. 4.The Assistant Elementary Educational Officer, Madurai East Union, No.1, Kamala Street, Thalakulam, Madurai-02. 5.The Headmaster, Panchayat Union Middle School, Thatchanendal, Madurai East union, Madurai - 625 020. 6.The Headmaster, Panchayat Union Middle School, Kabeer Nagar, Madurai East Union, Madurai - 625 020. 7.S.V.Shanthi. ... Respondents Petition filed under Article 226 of the Constitution of India praying for a Writ of Certiorarified Mandamus, calling for the records relating to the impugned order of transfer issued by the 3rd respondent District Elementary Educational Officer, in favour of the 7th respondent S.V.Shanthi vide Na.Ka.No.2073/A5/2011, dated 03.09.2011, quash the same and further direct the respondents 1 to 4 to consider forthwith the petitioner for the post of BT Assistant in English in the 6th respondent Panchayat Union Middle School at Kabeer Nagar, Madurai East Union, Madurai - 625 020, by way of transfer for which the petitioner is legally entitled to. For petitioner .. Mr.Isaac Mohanlal For respondents 1 to 4 .. Mr.S.Chandra Sekar, Government Advocate ORDER Alleging that the District Elementary Educational Officer, Madurai has not followed the guidelines issued in G.O.Ms.(1D).No.259, School Education -E1 Department, dated 09.09.2011, issued by the State Government as well as the proceedings, dated 13.09.2011, issued by the Director of Elementary Education, Chennai, the second respondent herein, while issuing the order of transfer, dated 03.09.2011, issued in respect of the 7th respondent, the petitioner has approached this Court. https://hcservices.ecourts.gov.in/hcservices/ 2 2.Perusal of the impugned order, dated 03.09.2011, issued to the 7th respondent shows that earlier she was working as B.T. Assistant (English) in Panchayat Union Middle School, Nonthilingapuram, Kottampatti Panchayat Union and that on request, she has been transferred as Teacher in Panchayat Union Middle School, Kabeer Nagar, Madurai East Union. When the request of the 7th respondent for transfer has been considered, it has been made clear that since she has sought for transfer from one Union to another, she would be placed, as junior most teacher in the union to which she is transferred and that she would not be paid travelling allowance. According to the petitioner, she has been promoted and posted in Panchayat Union Middle School, Thatchanendal, Madurai East Union, the fifth respondent herein, with effect from 01.06.2010. She has further submitted that though, as per G.O.Ms.(1D).No.259, School Education -E1 Department, dated 09.09.2011, preference would be given for transfers within the Panchayat Union/Municipality/Corporation, the District Elementary Educational Officer, Madurai, has transferred the 7th respondent as teacher to Panchayat Union Middle School, Kabeer Nagar, Madurai East Union, due to which, the right of the petitioner to opt for appointment as teacher in the said school has been taken away. For the abovesaid reasons, she has prayed to quash the transfer order. 3.Heard the learned counsel for the parties and perused the materials available on record. 4.The transfer guidelines issued in G.O.Ms.(1D).No.131, School Education -E1 Department, dated 28.04.2010, is for the academic years 2010-2011. As stated supra, perusal of the impugned order shows that on the representation of the 7th respondent, who was earlier working as B.T. Assistant, Panchayat Union Middle School, Kottampatti Union, she has been transferred to Panchayat Union Middle School, Kabeer Nagar, Madurai East on 03.09.2011 by the District Elementary Educational Officer, Madurai and that she has been directed to be placed, as Junior most in the transferred union. Besides transfer, TA was not allowed to her. 5.The contention of the learned counsel for the petitioner that G.O.Ms.(1D).No.259, School Education -E1 Department, dated 09.09.2011, has not been followed is wholly misconceived, as the guidelines for counselling issued in the matter of transfer for teachers of various Unions, can be followed only after the date of issuance of the said G.O. and the consequential proceedings, dated 13.09.2011, of the Director of School Education Department. The guidelines issued in G.O.Ms.(1D).No.259, School Education -E1 Department, dated 09.09.2011, cannot be retrospectively applied from the commencement of the academic year, i.e. June, 2011. The transfer guidelines issued by the Government in the matter of counselling can be applied only at the time of counselling, i.e., general transfers. After the general counselling is over in 2010, following G.O.Ms.(1D). No.131, School Education,- E1, Department, dated 28.04.2010, then G.O.Ms.No.10, issued by the Government in the matter of transfer will come into operation. Guidelines issued for counselling can be made applicable only for that specific purpose and it cannot be made applicable after the counselling is over. Otherwise, there would be two sets of guidelines in the matter of transfer. 6.In the case on hand, after completion of the counselling in the year 2010, i.e., after following the counselling guidelines issued under https://hcservices.ecourts.gov.in/hcservices/ 3 G.O.Ms.(1D).No.131, School Education -E1 Department, dated 28.04.2010, the 7th respondent has made a representation for transfer to Panchayat Union Middle School, Kabeer Nagar, Madurai East and considering her representation, transfer has been effected, subject to the condition that she would be placed as Junior most teacher in the transferred union. In such circumstances, the petitioner probably with an expectation that she can opt for appointment in Panchayat Union Middle School, Kabeer Nagar, Madurai East, has come to an erroneous conclusion, as if her right to opt in the counselling to be held on 16.09.2011, has been taken away by transfer of the 7th respondent. The vacancies, which are available on the date of counselling, alone can be opted by those called for counselling. If a post had already been filled up, it would not be included in the list of vacancies. Expecting that the post of teacher in Panchayat Union Middle School, Kabeer Nagar, Madurai East, should be kept vacant, till the date of counselling, ie., on 16.09.2011, and that the petitioner should be provided with an opportunity to exercise her option for filling up of the said post, she has preferred the writ petition. The writ petition is wholly misconceived. Transfer is an incidence of service. Nobody can claim that he/she should be given a particular post. As long as the post carries the same scale of pay with the same conditions anybody, who is working in a transferable post, can be transferred. Here is a case, where the 7th respondent, even before the commencement of the general transfer through counselling, has sought for transfer, forgiving her right to seniority and has joined the school, which the petitioner had expected to be vacant, till she exercises her option. The post cannot be kept vacant till the petitioner chooses to opt during counselling. There is no infringement of any legal or statutory right, warranting issuance of any writ, as prayed for. Hence, the writ petition is dismissed. Consequently, connected miscellaneous petitions are also dismissed. No costs. SD ASST REGISTRAR ( AS ) /TRUE COPY/ SUB ASST REGISTRAR gcg To 1.The Secretary, Department of School Education, Fort St. George, Chennai - 9. 2.The Director of Elementary Education, College Road, Chennai -6. 3.The District Elementary Educational Officer, Madurai, Madurai District. 4.The Assistant Elementary Educational Officer, Madurai East Union, No.1, Kamala Street, Thalakulam, Madurai-02. 5.The Headmaster, Panchayat Union Middle School, Thatchanendal, Madurai East union, Madurai - 625 020. 6.The Headmaster, Panchayat Union Middle School, Kabeer Nagar, Madurai East Union, Madurai - 625 020. 1CC TO MR. ISAAC MOHANLAL, ADVOCATE, SR: 32081: DM:2011:SEPTEMBER:20:: W.P.(MD) No.10660 of 2011 19.09.2011 3P:8C:; https://hcservices.ecourts.gov.in/hcservices/