IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 16TH JULY 2010 / 25TH ASHADHA 1932 WP(C).No. 35984 of 2009(P) PETITIONER: --------------- SARASWATHI.V., H.S.A. (HINDI), G.H.S.S. PANAMARAM, PANAMARAM, WYNAD DISTRICT. BY ADV. SRI.M.SASINDRAN RESPONDENT): --------------- 1. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE GOVERNMENT ORDER DATED 27.4.2000. EXT.P2 TRUE COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, SULTHAN BATHERY. EXT.P3 TRUE COPY OF THE CERTIFICATE ISSUED BY THE TAHSILDAR, MANANTHAVADY. EXT.P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 10.9.2004. EXT.P5 TRUE COPY OF THE APPLICATION DATED 25.2.2008 SUBMITTED BY THE PETITIONER FOR INTER DISTRICT TRANSFER. EXT.P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER. EXT.P7 TRUE COPY OF THE ORDER DATED 27.1.2009. EXT.P8 TRUE COPY OF THE CIRCULAR DATED 9.4.2008. EXT.P9 TRUE COPY OF THE JUDGMENT DATED 16.8.2005 IN W.P.(C) NO.22605 OF 2005. EXT.P9(A) TRUE COPY OF THE ORDER DATED 30.9.2005. EXT.P10 TRUE COPY OF THE GOVERNMENT ORDER DATED 30.3.1996. EXT.P11 TRUE COPY OF THE CERTIFICATE DATED 5.2.2005 SHOWING THE SERVICE OF THE PETITIONER IN HILL TRACK AREA. EXT.P11(a) TRUE COPY OF THE CERTIFICATE DATED 5.2.2005 SHOWING THE SERVICE OF THE PETITIONER IN HILL TRACK AREA. EXT.P11(b) TRUE COPY OF THE CERTIFICATE DATED 15.2.2008 SHOWING THE SERVICE OF THE PETITIONER IN HILL TRACK AREA. EXT.P11(c) TRUE COPY OF THE CERTIFICATE DATED 17.2.2005 SHOWING THE SERVICE OF THE PETITIONER IN HILL TRACK AREA. EXT.P12 TRUE COPY OF THE CERTIFICATE SHOWING THAT THE MANANTHAVADY TALUK IS A REMOTE AREA. EXT.P13 TRUE COPY OF THE GOVERNMENT ORDER DESCRIBING THE REMOTE AREAS FOR THE PURPOSE OF TRANSFER. EXT.P14 TRUE COPY OF THE SENIORITY LIST PUBLISHED BY THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE CIRCULAR NO.A1/43189/09 DATED 30.6.2009. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 35984 OF 2009 P ------------------------------------------------------ Dated this the 16th day of July, 2010 JUDGMENT The petitioner is aggrieved by the denial of inter-district transfer to her. According to her, she is senior to many persons included in Ext.P14 final seniority list for inter-district transfer of HSA (Hindi) teachers. The case of the petitioner is that her service in Wynad District prior to 7.7.2003 was not taken note of while fixing the seniority in Ext.P14 seniority list. The petitioner made a representation, Ext.P6, dated 15.12.2008. That representation was considered by the Director of Public Instructions and Ext.P7 order dated 27.1.2009 was passed holding against the contention put forward by the petitioner. Therefore, the petitioner has filed this Writ Petition for the following reliefs: “(i) Issue a writ of certiorari or any other writ order to quash Ext.P7. (ii) To issue a writ of mandamus or any other writ order or direction to the 2nd respondent to grant Inter District Transfer to the petitioner as H.S.A. (Hindi) forthwith in the existing vacancy. W.P.(C) NO.35984 OF 2009 :: 2 :: (iii) To command the 2nd respondent to fill up the existing and next arising vacancies by Inter District Transfer to make up the strength of the Inter District Transferees 30% of the cadre strength. (iv) To declare that the petitioner is entitled to get Inter District Transfer to Ernakulam District in an existing or next arising vacancy. (v) To issue a writ of certiorari or any other writ or order to quash Ext.P13 in so far as it does not takes in the total service of the petitioner as 13 years and 2 months, reckoning the primary service and the remote area service. (vi) To issue any other writ order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case.” 2. The petitioner is working as H.S.A.(Hindi) in G.H.S.S., Panamaram in Wynad District. She was initially appointed as full time Junior Hindi Teacher in the primary school on 15.6.1999. On 7.7.2003, she was promoted to the post of H.S.A.(Hindi). It is stated that the petitioner had worked in hilly/remote areas from 15.6.1999 to W.P.(C) NO.35984 OF 2009 :: 3 :: 6.6.2006 in G.H.S.S. Panamaram, G.H.S.S. Koleri, G.H.S.S. Meenangadi and G.H.S.S. Vellamunda. It is stated that these Schools are in Wynad District and in hilly/remote areas. The petitioner relies on Ext.P1 Government Order, G.O.(P)No.13/2000/P & ARD dated 27.4.2000, wherein it was held that two years' service in hilly/remote areas shall be treated as three years' service for the purpose of transfer. Therefore, according to the petitioner, her service from 15.6.1999 to 6.6.2006 in such hilly/remote areas is to be computed taking into account Ext.P1 Government Order. 3. The Government issued G.O.(P)No.12/04/P & ARD dated 10.9.2004 (Ext.P4) providing guidelines for Minimum Tenure Policy for Government employees of the State. Clauses 7 and 8 in Ext.P4 are relevant, which read as follows: “7. Service in all the cadres in the same district shall be considered for transfer to own district or opted district. 8. Service in more than one district shall be considered as a whole for transfer to home district/opted district. (Service in different cadres also has to be considered as a whole)” W.P.(C) NO.35984 OF 2009 :: 4 :: The contention of the petitioner is that if her services as full time Junior Hindi teacher and as H.S.A.(Hindi) in Wynad District are taken into account, she would have been placed at a higher place in Ext.P14 final seniority list for inter-district transfer. It was not done and her service in Wynad District as H.S.A alone was taken note of while preparing the final seniority list. 4. As stated earlier, challenging Ext.P14 final seniority list, the petitioner submitted Ext.P6 representation dated 15.12.2008 to the Director of Public Instructions. Since there was delay in considering the representation, the petitioner had filed W.P.(C) No.94 of 2009 before this Court. It is stated that that Writ Petition was disposed of directing the Director of Public Instructions to dispose of the representation expeditiously. The Director of Public Instructions, thereafter, issued order No.A(3)3038/2009/DPI. Dated 27.1.2009 (Ext.P7) rejecting the contention raised by the petitioner and holding thus: “The matter has been examined in detail with reference to Ext.P2 and contentions raised at the time of W.P.(C) NO.35984 OF 2009 :: 5 :: hearing and it is understood that there is no provision to take the period of service rendered as Junior (Hindi) Teacher for the purpose of inter district transfer as HSA as per the circular No.A1-23949/08/DPI dated 9.4.08.” The Director of Public Instructions relied on the earlier circular dated 9.4.2008 (Ext.P8). According to the petitioner, Ext.P8 circular, to the extent to which it was sought in aid in Ext.P7, is contrary to Ext.P4 Government Order dated 10.9.2004. It is submitted that paragraph 10 of Ext.P8 circular indicates that the general guidelines issued as per G.O.(P)No.12/04/P&ARD dated 10.9.2004 (Ext.P4) shall also be followed for inter-district transfer of teachers. In paragraph 13 of Ext.P8, it is stated that “length of continuous service in the present category in the present District is the criterion for seniority”. The petitioner submits that paragraph 13 of Ext.P8 is relevant only for the purpose of promotion and not for the purpose of inter-district transfer. The counsel submits that if clause 13 in Ext.P8 is to be taken as relevant for inter-district transfer, it is clearly against the specific provision in Ext.P4 Government Order. 5. The petitioner relies on Ext.P9 judgment in W.P.(C) No.22605 of 2005, wherein Ext.P4 Government Order (Ext.P3 W.P.(C) NO.35984 OF 2009 :: 6 :: marked therein) vis-a-vis a circular issued by the Director of Public Instructions was considered and it was held thus: “If Ext.P3 is found to be applicable to teachers, then clause 8 of Ext.P3 certainly refers to inter-district transfers. As per clause 8 “service in more than one district shall be considered as a whole for transfer to home district/opted district (Service in different cadres also has to be considered as a whole). Para 10 of Ext.P6 circular issued by the D.P.I certainly indicates that completion of five years of service in the present category in the District recruitment or the District in which the incumbent is presently working is a pre- requisite for getting inter-district transfer. But Ext.P6 circular issued by the DPI cannot override Ext.P3 G.O.” 6. I am of the view that clause 13 in Ext.P8 applies only for the purpose of considering seniority for promotion and not for considering the request for inter-district transfer. If it is to be taken that clause 13 of Ext.P8 applies for considering the seniority for inter- district transfer, that clause would go against the specific provision in Ext.P4 Government Order. It is well settled that a circular cannot override a Government Order. If Ext.P4 Government Order is applicable, then Ext.P7 order passed by the Director of Public W.P.(C) NO.35984 OF 2009 :: 7 :: Instructions cannot be sustained. Accordingly, I quash Ext.P7 order passed by the Director of Public Instructions. The Director of Public Instructions shall dispose of the matter afresh within a period of two months, after considering Ext.P6 representation submitted by the petitioner and after affording an opportunity of being heard to the petitioner and any other affected party. The petitioner shall produce a copy of the Writ Petition, copy of the counter affidavit and reply affidavit along with exhibits and also a certified copy of the judgment before the Director of Public Instructions. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/