IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 24TH SEPTEMBER 2010 / 2ND ASWINA 1932 WP(C).No. 12152 of 2009(L) PETITIONER: --------------- AMBIKA KUMARI B., HSA (HINDI), GVHSS MOGRAL, P.O.MOGRAL, KASARGOD DISTRICT, (NOW UNDER DEPUTATION IN SARVA SIKSHA ABHIYAN AT VARKALA BRC, VARKALA. P.O., THIRUVANANTHAPURAM. BY ADV. SRI.KALEESWARAM RAJ RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 4. DEPUTY DIRECTOR OF EDUCATION, KASARAGOD. GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION FOR TRANSFER IN THE PRESCRIBED FORM TOGETHER WITH THE COVERING LETTER BY THE PRINCIPAL, GVHSS, MOGRAL. EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 20.2.2007 FILED BY THE PETITIONER BEFORE THE FOURTH RESPONDENT TOGETHER WITH DOCUMENTS. EXT.P3 TRUE COPY OF THE CIRCULAR NO.A1-91610/96/DPI DATED 1.1.1997. EXT.P4 TRUE COPY OF THE JUDGMENT DATED 4.9.2007 ;IN W.P.(C) NO.26218 OF 2007. EXT.P5 TRUE COPY OF THE ORDER DATED 24.1.2008 ISSUED BY THE THIRD RESPONDENT. EXT.P6 TRUE COPY OF THE APPLICATION FOR TRANSFER OF TEACHERS DATED 20.2.2008 FILED BY THE PETITIONER. EXT.P7 TRUE COPY OF THE LETTER DATED 20.2.2008. EXT.P8 TRUE COPY OF THE JUDGMENT DATED 25.8.2008 IN W.P.(C)NO.12128 OF 2008. EXT.P9 TRUE COPY OF THE ORDER DATED 4.11.2008. EXT.P10 TRUE COPY OF THE LETTER DATED 24.2.2009. EXT.P11 TRUE COPY OF THE REPLY DATED 20.2.2009. RESPONDENTS' EXHIBITS: EXT.R3 SENIORITY LIST FOR INTER DISTRICT TRANSFER FOR THE YEAR 2009-10. //TRUE COPY// AHZ/ K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 12152 OF 2009 L ------------------------------------------------------ Dated this the 24th day of September, 2010 JUDGMENT The petitioner is working as High School Assistant (Hindi) in G.V.H.S.S., Mogral in Kasaragod District. She belongs to Thiruvananthapuram. The petitioner submitted an application for inter district transfer to Thiruvananthapuram. She had filed W.P.(C) No.26218 of 2007, which was disposed of as per Ext.P4 judgment dated 4.9.2007, directing the Deputy Director of Education to consider the application submitted by the petitioner. The Deputy Director of Education passed Ext.P5 order dated 24.1.2008 rejecting the application submitted by the petitioner. 2. The petitioner submitted a representation dated 20.2.2008 to the Director of Public Instruction pointing out the circumstances in which she is placed and making a claim for inter district transfer. She had also made an application for inter district transfer in the proper form on 20.2.2008. The petitioner filed W.P.(C) No.12128 of 2008 alleging that her claim was not being considered and to quash W.P.(C) NO.12152 OF 2009 :: 2 :: the order dated 24.1.2008 passed by the Deputy Director of Education. W.P.(C) No.12128 of 2008 was disposed of as per Ext.P8 judgment dated 25.8.2008, directing the Director of Public Instruction, Thiruvananthapuram to consider and dispose of the request made by the petitioner expeditiously. The Director of Public Instruction, Thiruvananthapuram, in compliance with Ext.P8 judgment, passed Ext.P9 order dated 4.11.2008 rejecting the claim of the petitioner. The relevant portion of Ext.P9 order reads as follows: “The Ext.P7 representation and the contentions raised at the time of hearing have been examined in detail on the basis of relevant orders. Only 20% of the vacancies earmarked for Inter District shall be filled up through compassionate ground. Even the 1st person under the general category awaiting Inter District Transfer could not be given transfer, since no vacancies are available. In the above circumstances, the request for the Inter District Transfer to Thiruvananthapuram District cannot be considered now. The Ext.P7 representation is rejected. The direction of Hon: High Court in their Judgment dt.25.08.08 in W.P.(C) No.12128/08 (R) is thus complied with.” W.P.(C) NO.12152 OF 2009 :: 3 :: The petitioner challenges in this Writ Petition Ext.P9 order and also Ext.P5 order dated 24.1.2008 passed by the Deputy Director of Education. 3. In the counter affidavit dated 7th August, 2009 filed by the third respondent, it is stated that the petitioner is at present working in Thiruvananthapuram District from 5.3.2009 on deputation. It was also pointed out in the counter affidavit that though the petitioner deserves inter district transfer under compassionate ground, there are other applicants who are placed above in the seniority list for inter district transfer on compassionate grounds. The petitioner is serial No.4 in the list. Only after giving transfer to the other three persons, the petitioner can be granted inter district transfer. The details and the method as to how inter district transfer is being made has also been stated in detail in the counter affidavit. 4. On 6.11.2009, an order was passed by this Court directing the respondents to file an additional counter affidavit stating the number of vacancies set apart for inter district transfer. The order reads as follows: W.P.(C) NO.12152 OF 2009 :: 4 :: “Respondents will file an additional counter affidavit as to the number of vacancies set apart for the inter district transferees and transfers to be ordered on compassionate appointment. The number of vacancies filled up from the said quota will also be indicated. Post after two weeks.” 5. An additional counter affidavit was filed on behalf of the third respondent, in which, it is stated as follows: “It is submitted that as per the rules and the Government orders in force the method of appointment of HSA(Hindi) is 30% by direct recruitment, 30% by inter-district transfer, 30% by promotion from the category of P.D.Teachers and 10% by transfer from qualified ministerial staff. It is submitted that the staff strength as on 15.7.2009 to the post of HSA(Hindi) is 180. The total number of direct recruit working is 150. The total number of inter-district transfer is 18. The remaining 12 vacancies are occupied by the promotees and by transfer appointees. In the earlier years appointment were being made taking into account of the vacancies of occurring in each years and thus the direct recruits are far in excess of the quota ear-marked for the direct recruitment. It is true that quota ear-marked for inter-district transferees are not filled up. But it is W.P.(C) NO.12152 OF 2009 :: 5 :: submitted that there are no vacancies in the year 2009- 10 for filling up the quota ear-marked for inter-district transferee. It is further submitted that out of the 30% quota ear-marked for inter-district transferee, 50% is filled up from general category in accordance with the seniority, 30% from the preferential category such as Scheduled Caste/Scheduled Tribes, Ex-servicemen Inter-caste marriage, etc. and the other 20% from compassionate ground. Hence 11 posts are to be filled up from the compassionate grounds. At present there are 11 number of persons working in the above quota. Hence the petitioner cannot be appointed in the above quota. Moreover in the seniority list of the inter district transfers to the post HSAs (Hindi) reveals that the petitioner is Sl.No.27. A true copy of the list prepared by the 3rd respondent is produced herewith and marked as Ext.R3. 3. The petitioner is Sl.No.4 in the list prepared for inter-district transfer on compassionate grounds by the Director of Public Instruction. Hence the petitioner's case can be considered only if there are more than 20 vacancies ear-marked for inter district transfer at present there are no vacancies existing after the staff fixation order was issued in the year 2009-10. It is submitted that 4 posts in the staff fixation year 2009- 2010. Hence there were no vacancies available during W.P.(C) NO.12152 OF 2009 :: 6 :: the current academic year 2009-2010. In the absence of any vacancies at present the inter-district transferees are not entitled for appointment. The inter-district transferees can be appointed only after retrenching the direct recruits who are working in excess of the quota.” 6. On a careful consideration of the pleadings, the materials produced by either side and the arguments put forward by the counsel for the petitioner as well as the learned Government Pleader, I am of the view that the relief prayed for by the petitioner cannot be granted. It cannot be said that Exts.P5 and P9 orders are erroneous or unsustainable. In the quota earmarked for inter district transfer, different categories are to be provided. The petitioner being No.4 in the list for inter district transfer on compassionate grounds and the other three persons having not been appointed, there is no ground for interfering with Exts.P4, P5 and P9. The Writ Petition lacks merits and it is accordingly dismissed. The dismissal of the Writ Petition will not de-bar the applicant from making an application for inter district transfer at the appropriate time. If such an application is filed, the claim of the petitioner shall be considered properly and keeping in mind the facts and circumstances of the case. The dismissal of the Writ Petition will not also affect the right W.P.(C) NO.12152 OF 2009 :: 7 :: of the petitioner to get inter district transfer when her turn comes as per the list prepared, during the currency of the list. (K.T.SANKARAN) Judge ahz/