IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 8TH SEPTEMBER 2009 / 17TH BHADRA 1931 WP(C).No. 8086 of 2009(E) ---------------------------------------- PETITIONER(S): ------------------------- C.APPUKKUTTY, SENIOR LECTURER, DISTRICT INSTITUTE FOR EDUCATION & TRAINING(DIET) MAYAPPADY,KASARGODE, RESIDING AT CHEMBANPADATH HOUSE, KARAKURISSI.P.O., MANNARKKAD,PALAKKAD. BY ADV. DR.GEORGE ABRAHAM RESPONDENT(S): ------------------------ 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. STATE OF KERALA-REPRESENTED BY THE, SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT,GOVERNMENT SECRETARIAT-TRIVANDRUM. 3. THE PRINCIPAL, DISTRICT INSTIUTUTE FOR EDUCATION &TRAINING(DIET), ANAKKARA,PALAKKAD. R1 TO R3 BY GOVERNMENT PLEADER MR.BINOY CHANDRAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8086/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE LETTER ISSUED BY THE PRINCIPAL DTD. 27.5.08. P2:- COPY OF THE LETTER ISSUED BY THE PRINCIPAL ON 1.4.08. P3:- COPY OF THE REQUEST SUBMITTED BY THE PETITIONER ALONG WITH THE PRESCRIBED PROFORMA DTD. 7.4.08. P4:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 5.6.08. P5:- COPY OF THE DISCHARGE SUMMARY OF THE PETITIONER ISSUED BY THE AMRITA INSTITUTE OF MEDICAL SCIENCE, ERNAKULAM. P6:- COPY OF THE JUDGMENT DTD. 20.1.09 IN WPC. 2129/08. P7:- COPY OF THE G.O.(RT) 950/09/GEN. EDN. DTD. 4.3.09. P8:- COPY OF THE G.O.(MS) NO.7/09/GEN. EDN. DTD. 16.1.09. P9:- COPY OF THE REQUEST OF TRANSFER MADE BY SRI. GIRIJAKUMARAN PILLAI, SENIOR LECTURER. P10:- COPY OF THE GOVERNMENT ORDER, G.O. (RT) NO.1972/09 DTD. 23.5.09. P11:- COPY OF THE PERTAINING TO THE PETITIONER OBTAINED UNDER THE RIGHT TO INFORMATION ACT, DTD. 22.4.09. P12:- COPY OF THE ACKNOWLEDGMENT DTD. 30.4.08 RECEIVED BACK FROM THE OFFICE OF THE HONOURABLE DEPUTY SPEAKER. P13:- COPY OF THE LETTER ISSUED BY THE DIRECTOR OF PUBLIC INSTRUCTIONS DTD. 8.4.09. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.8086 of 2009-E - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of September, 2009. JUDGMENT The petitioner who is on the verge of retirement, i.e. on 31.3.2010, is aggrieved by the denial of the request for transfer from Kasaragod to Palakkad, as per Ex.P10. The particulars relating to the petitioner show that the petitioner is a native of Palakkad district. He entered service in the Education Department as H.S.A. (Natural Science) on 13.2.1984 in Trivandrum District and by inter district transfer in the year 1991 he was transferred to Palakkad. Later, he obtained promotion to the post of Lecturer, DIET and he was posted at DIET, Palakkad. Even though he was transferred on 1.4.2005 and posted as Lecturer at DIET, Trichur, he was transferred back to Palakkad later, wherein he continued upto 6.4.2008. 2. The petitioner was promoted as Senior Lecturer and a consequential posting was given to him at DIET, Kasaragod as per order dated 19.3.2008. He took charge on 7.4.2008 and is continuing there. 3. The petitioner had been requesting for a transfer back to Palakkad mainly on medical grounds. Ext.P3 is the application for transfer. Ext.P4 is a further representation submitted by him. He is said to be a cardiac patient wpc 8086/2009 2 who is undergoing treatment at Amritha Institute of Medical Science, Ernakulam which is evidenced by Ext.P5. Earlier, the petitioner approached this court by filing W.P.(C) No.2129/2008 and as per Ext.P6 judgment, this court directed the 2nd respondent to consider his claim. The claim was rejected as per Ext.P7 mainly on the ground that there is no vacancy in Palakkad in the particular faculty, viz. DRU. The only vacancy in Palakkad is that of Senior Lecturer (PSTE). Ext.P8 is the Govt. Order whereby guidelines have been prescribed for transfer in DIET. 4. Pursuant to the interim order passed by this court, the Government passed Ext.P10 order on 23.5.2009. The Government was of the view that even though the petitioner has pointed out that one Shri S. Shri Girijakumaran Pillai has requested for a transfer to DIET, Kollam, the said request could not be considered for want of vacancy. It is also found in Ext.P10 that the petitioner is not entitled for change of faculty and his application for transfer will be considered at the time of general transfer. This is under attack in the writ petition. 5. The petitioner has produced the relevant documents leading to the issuance of the Govt. Order, Ext.P11 to contend that the request was favourably considered by various functionaries, but in the final order alone a different view was taken. wpc 8086/2009 3 6. Learned counsel for the petitioner submitted that even going by the admitted facts, there is a vacancy of Senior Lecturer in PSTE, Palakkad. There is no embargo, according to the petitioner, to accommodate him in the said vacancy, as at no point of time the appointments were being made only with persons working in the particular faculty. It is further submitted that the petitioner is having the required qualification and the members of different faculties are eligible to teach in any other faculty and therefore merely because the petitioner is working in the faculty DRU, that will not disentitle him for claiming accommodation in the other faculty, viz. PSTE. Support is sought for the said argument from Ext.P13 which is a detailed report forwarded by the Director of Public Instruction to the Government when his request for a transfer was being considered. 7. I find force in the above submission. Ext.P13 will reveal the following facts: There is a seniority list of lecturers from different faculties for the purpose of promotion. There is no faculty-wise seniority list of lecturers. Promotion to senior lecturers are from the common seniority list ignoring the subjects of the lecturers. The qualifications for the post of Senior Lecturer are the following: “A (i)Masters Degree in Humanities/Social Science/Sciences. (ii) MEd. with specialization in Child Psychology or wpc 8086/2009 4 B (i) Masters Degree in Child Psychology/Child Development. (ii) Degree/Diploma Certificate in Teacher Education (Preferably Elementary Education.)” It is also recorded in Ext.P13, that the petitioner has much more experience in the field of DIET teaching and also have the required qualifications as above. It is further stated that he is right enough to handle the Pre Service Teacher Education and therefore he is eligible to be posted against the PSTE faculty. The fact that the petitioner is due to retire from service shortly, is also stated in Ext.P13. 8. In the light of the above factual position, the view taken in Ext.P10 has to be analysed. In Ext.P10 the Government was of the view that the change of faculty cannot be considered since the petitioner has not completed 9 years in the particular faculty. True that there is such a clause in Ext.P8 guidelines, but if the promotion of senior lecturers is only based on a common seniority list which is not dependent upon the faculty in which they are working, there cannot be any objection to post the petitioner in PSTE in the existing vacancy. As rightly pointed out by the learned counsel for the petitioner, the Government has not considered the details contained in Ext.P13 report of the Director of Public Instruction in the matter. The wpc 8086/2009 5 request of the petitioner ought to have been considered consistent with his qualification also. If the promotion of senior lecturer is only based on the date of occurrence of vacancies in different faculties and from the common seniority list ignoring the fact that the promotees belong to different faculties, then there cannot be any embargo as far as the posting of the petitioner in PSTE is concerned. 9. Since the above aspects have not been considered by the Government, Ext.P10 is quashed. There will be a direction to pass a fresh order in the light of the observations and findings made above. The fact that the petitioner is due to retire from service on 31.3.2010 and that he has got various ailments, also will be considered while passing orders. Appropriate orders shall be passed within a period of six weeks from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/