IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN THURSDAY, THE 15TH JANUARY 2009 / 25TH POUSHA 1930 WA.No. 1928 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.16378/2008 Dated 19/09/2008 .................... APPELLANT/ 4TH RESPONDENT ------------------ SUSAN GEORGE, HSA (NATURAL SCIENCE), ST.STEPHEN'S HIGH SCHOOL, PATHANAPURAM P.O., KOLLAM. BY ADV. SMT.S.KARTHIKA SRI.M.S.UNNIKRISHNAN SMT.K.P.GEETHA MANI SRI.M.R.ANISON SRI.P.S.ABHISHEK SMT.KAVYA.P. SRI.PRASAD.K. RESPONDENTS /PETITIONER & RESPONDENTS 1 TO 3 & 5 ----------------------- 1. N.VASUDEVAN NAIR, HSA (NS ) CATHOLICATE HSS, PUTHUKAL, MALAPPURAM DISTRICT. 2. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 4. THE CORPORATE MANAGER, SOST, MOUNT TABO PATHANAPURAM, KOLLAM DISTRICT - 689 695. 5. SR.ANNAKUTTY, HSA ( NS ), MTD HS MALOOR, PATHANAPURAM, KOLLAM DISTRICT. ADV. SRI.GEORGE POONTHOTTAM FOR R1 GOVT.PLEADER, SRI.NOBLE MATHEW FOR R2 AND R3. SRI.BABU VARGHESE FOR R4. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & K.SURENDRA MOHAN, JJ. ---------------------------------------- W.A.No.1928 OF 2008 ---------------------------------------- Dated this the 15th day of January, 2009 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The 4th respondent in the writ petition is the appellant and the writ petitioner is the 1st respondent. The 3rd respondent is managing five schools, out of which one is in Malappuram District, another one is in Wayanad District and the remaining three are in Kollam/Pathanamthitta Districts. During the academic year 2007-2008 there was, interalia, reduction of one post of has (Natural Science) in MTDM H.S, Maloor and since there was not creation of any additional post of HSA in any other school, the junior most HSA has to be retrenched. Having regard to subject requirement in various schools, the Manger has chosen to revert the junior most HSA (Natural Science) working in the school at Malappuram, though the reduction in vacancy was in the school at Maloor. To fill up the resultant vacancy in the Malappuram school, the Manager has chosen to transfer the 1st respondent/writ petitioner retaining the W.A. No.1928/2008 2 appellant, who is an HSA (Natural Science), admittedly junior to him. The 1st respondent aggrieved by the said order (Ext.P2) issued by the Manager moved the Director of Public Instructions. The said Officer issued Ext.P3 order directing to effect the transfer going by seniority of HSA (Natural Science) for the purpose of filling up the vacancy in the Malappuram school. The said order was affirmed by the Government also by Ext.P4. Later, the management issued consequential orders as per Ext.P5. While so, the appellant herein, who was affected by those orders, approached this Court and the learned Single Judge directed the Government to reconsider the matter with an opportunity to present her case and also hearing the other affected persons. In obedience to that direction, Ext.P7 order was passed restoring Ext.P2 and setting aside Ext.P3. The 1st respondent herein, challenged that order by filing W.P.(C) No.16378/2008. The learned Single Judge, after hearing both sides, set aside Ext.P7 holding that the same does not contain any reason for deviating from the seniority rule. It was found that as per Ext.R3(a), seniority list produced by the Manager, the 1st respondent was admittedly senior to the appellant herein. W.A. No.1928/2008 3 Aggrieved by the said judgment, the present appeal is filed by the 4th respondent therein. 2. The learned counsel for the appellant submitted that when transfer is made pursuant to a teacher becoming surplus in a school, the junior most in that school should be transferred. Even if there is another junior teacher (appellant) working in some other school, who is junior to the junior most in the affected school, as there is no reduction of vacancy in the appellant's school, there is no reason to disturb her going by the mandate of Rules 51 and 55 of Chapter XIV A of the K.E.R. Further, she claims, she was entitled to get exemption from transfer in view of Rule 10 (6) of Chapter XIV A, K.E.R. So, the order of the Government, Ext.P7, was issued validly and therefore the judgment under appeal is liable to be reversed. 3. We heard the learned counsel appearing for the respondents including the learned Government Pleader. When an Educational Agency is having more than one school, the seniority of teachers is reckoned taking all the schools as one unit. That is the reason, why the junior most HSA (Natural W.A. No.1928/2008 4 Science) though working in the Malappuram school has been retrenched and posted as UPSA. When the Manager considers who should be transferred to that school he is bound to go by seniority in view of Rule 10(1) which reads as follows: “10. Transfers:- Where more than one school is under the same Educational Agency, the Educational Agency may transfer any teacher from one school to another and in deciding on these transfers the principles followed in Government Schools shall be observed to the extent possible. The principles of transfer shall be as follows:- (1) The chief and formost criterion for transfer of Headmaster (and teacher) shall be the seniority.” 4. It is a statutory right conferred on the teachers of the aided schools. In Government service, it is well settled that courts can interfere with a transfer, if only, it is found to be vitiated by malafides or contrary to any statutory provisions. Those principles are not applicable when the validity of the transfer of a teacher in an aided school is considered, where the manager is bound to go by the mandate of Rule 10(1). So, going by the admitted seniority position, the DPI rightly interfered with the transfer and the Government affirmed it also by Ext.P4. W.A. No.1928/2008 5 Going by Ext.P7, we fully agree with the view taken by the learned Single Judge that the same does not contain any reason for changing the stand of the Government reflected in Ext.P4 or for reversing Ext.P3. So, it has been rightly quashed by learned Single Judge. Therefore, we agree with the reasons and conclusions of the learned Single Judge. Accordingly, the writ appeal fails and it is dismissed. (K.BALAKRISHNAN NAIR, JUDGE) (K.SURENDRA MOHAN, JUDGE) ps