IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 11TH JULY 2011 / 20TH ASHADHA 1933 WP(C).No. 53 of 2010(F) ---------------------------------- PETITIONER(S): ------------------------- THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, DIOCESE OF MANANTHAVADY, PASTORAL CENTRE, MANANTHAVADY P.O. BY ADVS. SRI.V.M.KURIAN SRI.MATHEW B. KURIAN SRI.K.T.THOMAS RESPONDENT(S): ---------------------------- 1. GOVERNMENT OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION THIRUVANANTHAPURAM. 3. THE DISTRICT EDUCATIONAL OFFICER, WYNAD DISTRICT. 4. SMT.O.M.KARMALEETHA, W/O.MAMACHAN M.THOMAS, MANJAMATTAM HOUSE, HOUSE NO.X/12, KALPATTA P.O., WYNAD DISTRICT. (HSA (SS) ST.JOSEPH'S HIGHER SECONDARY SCHOOL KALLODY, P.O.EDAVAKA, MAMANANTHAVADY-670 645). 5. SRI.K.C.CHERIYAN, H.S.A.(SS), ASSUMPTION HIGH SCHOOL, SULTHAN BATHERI P.O., WYNAD DISTRICT. R1 TO R3 BY GOVT. PLEADER SMT.NISHA BOSE R4 BY ADV. SRI.JOSE PALLATTUKARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11/07/2011, ALONG WITH WPC NO. 8042 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss W.P.(C) NO.53/2010 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE GENERAL TRANSFER ORDER DT. 1.6.2009 ISSUED BY THE PETITIONER. P2:- COPY OF THE RELIEVING ORDER DT. 1.6.2009. P3:- COPY OF THE POSTING CERTIFICATE DTD. 1.6.2009. P4:- COPY OF THE REPORT DTD. 16.6.2009 OF THE HEADMASTER, ST.JOSEPH'S HIGH SCHOOL, KALLODI. P5:- COPY OF THE APPEAL PETITIN DTD. 4.6.2009. P6:- COPY OF THE ORDER DTD. 1.7.09 PASSED BY THE 2ND RESPONDENT. P7:- COPY OF THE REVISION PETITINO DTD. 9.7.2009 SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT. P8:- COPY OF THE ORDER DTD. 11.11.2009 PASSED BY THE IST RESPONDENT. P9:- COPY OF THE CERTIFICATE DTD. 29.6.2009 ISSUED BY THE ASSISTANT ENGINEER , PWD ROADS SECTION, MANANTHAWADY SHOWING THE DISTANCE. P10:- COPY OF THE REPORT DTD. 21.3.2009 SUBMITTED BY THE HEADMISTRESS TO THE CORPORATE MANAGER. P11:- COPY OF THE REPORT DTD. 26.3.2009 OF THE DEPUTY CHIEF SUPERINTENDENT. P12:- COPY OF THE LETTER GIVEN BY THE STUDENT DONY VARGHESE TO THE 4TH RESPONDENT. P13:- COPY OF THE LETTER GIVEN BY DONY VARGHESE TO THE HEADMISTRESS. P14:- COPY OF THE PROCEEDINGS DTD. 28.8.08 OF THE SCHOOL ADVISORY COUNCIL IN THE MATTER. RESPONDENT'S EXHIBITS R4(c):- COPY OF THE ORDER NO.B3/3283/10 DTD. 7.7.2010 ISSUED BY THE 3RD RESPONDENT. TRUE COPY P.A. TO JDUGE tss T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.53/2010-F & 8042/2011-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 11th day of July, 2011 J U D G M E N T W.P.(C).No.53/2010 is filed by the Corporate Manager of an Educational Agency challenging the order passed by the Director of Public Instruction cancelling the transfer of the fourth respondent and the further order passed by the Government as per Ext.P8. The fourth respondent is the petitioner in W.P.(C).No.8042/2011 where the prayer is to implement the above two orders. She has been working as High School Assistant (Social Science) in Assumption H.S., Sulthan Bathery, Wayanad. By order dated 01/06/2009 (a copy of which is produced as Ext.P1 in both the writ petitions), she was transferred to St.Josephs High School as part of General Transfer. The fifth respondent was transferred in her place. It is the case of the petitioner that after Ext.P1 order of transfer was issued, relieving order was issued as per Ext.P2, a copy of which is produced in W.P.(C). No.53/2010. 2. But in the meanwhile, she filed an appeal before the Director of Public Instruction raising various grounds including her difficulty to travel 120 kms (up and down) by three vehicles as well as illness of her husband W.P.(C). Nos.53/2010 & 8042/2011 -:2:- who was suggested treatment at Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram. 3. For convenience, I am adverting to the facts and the documents as available in W.P.(C). No.53/2010. Heard the learned counsel for the petitioner and the learned counsel for the fourth respondent. 4. The learned counsel for the petitioner invited my attention to the order passed by the Director of Public Instruction as per Ext.P6 and contended that the order of transfer is interfered with only on the ground that she had to travel 120 kms and that her husband is a chronic heart patient. It is submitted that both the grounds cannot be accepted. My attention was invited to Ext.P9 certificate issued by the Assistant Engineer of the P.W.D Roads Section, Mananthawady showing the distance between the two places which are approximately 34.215 kms and 32 kms by travelling through different points. It is further pointed out that even the medical certificate produced by the fourth respondent herein as Ext.P2 ( a copy of which is produced in W.P.(C). No.8042/2011) will show that the said certificate is only of the month of October, 2009 and, therefore, the interference of order of transfer on the plea that her husband was under treatment cannot be accepted. The learned counsel for the fourth W.P.(C). Nos.53/2010 & 8042/2011 -:3:- respondent submitted that the orders passed cannot be said to be illegal or arbitrary. 5. Evidently, Rule 10 of Chapter XIV A Kerala Education Rules provides for transfer of teachers. Going by the same, the principles for transfer which are relevant are those followed in Government Schools. It is provided in Sub-clause (4) that the cases coming under administrative interest shall include unsuitability, allegations of corruption, misuse of official position, disciplinary action, incompetence, and consistent poor performance. A reading of the order of the Director of Public Instruction shows that the order was interfered with mainly for the reason that the Manager could not prove any administrative grounds. For this purpose, the report of the District Educational Officer was relied upon. This aspect was considered in the light of the allegation that the daughter of the fourth respondent was carrying duly filled up answer scripts. The said allegation was found against the Manager by the Director of Public Instruction. The other grounds stated are that the teachers have the right to exercise three options and the transfers to such schools shall be done on the basis of seniority. It was found that the Manager had not observed any norm and there was no mention in the transfer order that the transfer is on W.P.(C). Nos.53/2010 & 8042/2011 -:4:- administrative ground. Finally, it was found that the transfer of a female teacher beyond 120 kms away from her residence especially when her husband is chronic heart patient is unjust, improper and unnecessary and cannot be justified. 6. The Government while considering the matter in Ext.P8, in the appeal filed by the Management, was of the view that normally when transfers are effected, the rule of seniority has to be followed in the light of Rule 10 of Chapter XIV A K.E.R and also in the light of the Full Bench decision of this Court in Valsa v. Director of Public Instructions [2002 (2) KLT 610 (FB)]. Apart from that, the Government was also of the view that the order of the Director of Public Instruction is valid as it was passed after considering the personal and family problems of the fourth respondent. 7. Learned counsel for the Management submitted that in the light of Ext.P9 it can be seen that the allegation that she had to travel beyond 120 kms up and down is not correct. 8. Evidently, Ext.P9 was not produced before the Government or before the Director of Public Instruction by the Manager. Still, when the contention raised by the petitioner is considered in the light of the general principles applicable as far as the transfers are concerned, it can be seen that W.P.(C). Nos.53/2010 & 8042/2011 -:5:- the Director of Public Instruction and the Government were of the considered view that being a lady teacher if she is transferred to a distant place it will be unjust, especially since the health problems of the husband are also pointed out. Of course, there may be some variations in the distance that was claimed by the petitioner going by Ext.P9. But, both the Government as well as the Director of Public Instruction have found that the transfer order is not justified in the light of various problems raised by the fourth respondent including necessity to travel through different routes by different vehicles as well as the health problems of her husband. Of course, in the matter like this, this Court may not be justified in assessing the factual background and disturbing the findings of facts in the absence of strong circumstances to show that the authorities have travelled beyond their jurisdiction. Judged in the light of the above, I do not find any reason to interfere with the orders issued by the Director of Public Instruction and the Government. Apart form that, the order of transfer was issued was issued on 01/06/2009, nearly, two years back. 9. For all these reasons, I do not find any reason to interfere with the impugned orders. Therefore, W.P.(C). No.53/2010 is dismissed. W.P.(C).No.8042/2011 will therefore stand allowed. There will be a W.P.(C). Nos.53/2010 & 8042/2011 -:6:- direction to the Manager to implement the orders passed by the Director of Public Instruction and the Government. Learned counsel for the fourth respondent, who is the petitioner in W.P.(C). No.8042/2011, then submitted that she was not getting salary as she was not permitted to rejoin duty even though the transfer order was cancelled. The fourth respondent will be free to move the Department with regard to the said complaint. 10. The learned counsel for the petitioner in W.P.(C).No.53/2010 pointed out that in the operative portion of the order impugned, the Government has held that payment of salary and allowances to the teacher, namely the fourth respondent will be in compliance with Rule 7(4) of Chapter III of Kerala Education Rules. Since I have allowed the fourth respondent to raise the claim regarding salary before the District Educational Officer, a decision will be taken with regard to the same after notice to the Manager also. To that extent, the direction in the impugned order that the arrears of salary will be paid in terms of Rule 7(4) of Chapter III of Kerala Education Rules is vacated. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms