IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 5262 of 2009(C) ------------------------------------- PETITIONER: ------------------- PREETHIMOL T.R., PHYSICAL EDUCATION TEACHER, (HIGH SCHOOL), G.H.S.PAKKAM, P.O.PAKKAM, KASARGOD. BY ADV. MR.KALEESWARAM RAJ. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, HIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KAASARTGOD. R1 TO R3 BY GOVT. PLEADER MR. A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/03/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: prv. P.N.RAVINDRAN, J. ====================================== W.P.(C)No.5262 of 2009 ====================================== Dated this the 5th day of March 2009 JUDGMENT Heard Sri.Kaleeswaram Raj, the learned counsel appearing for the petitioner and Sri.A.J.Varghese, the learned Government Pleader appearing for the respondents. 2. The petitioner is presently working as Physical Education Teacher in G.H.S., Pakkam in Kasargod District. She entered service in the year 1997 in Malappuram District and since January 2002, is working as Physical Education Teacher in G.H.S.Pakkam in Kasargod District. 3. During the academic year 2008-2009, the petitioner requested for transfer either to G.H.S.S., Kakkat, G.F.V.H.S.S., Cheruvathur or GHSS, Bella East - all in Kasargod District. The said application was not considered. The petitioner thereupon filed W.P.(C) No.34708 of 2008 in this Court. By Ext.P5 judgment delivered on 25.11.2008, this Court directed the Deputy Director of Education, Kasargod to consider the request made by the petitioner and pass orders thereon within four weeks from the date on which the petitioner produces a certified copy of the judgment along with a copy of the writ petition. 4. The petitioner had in the meanwhile submitted Ext.P4 representation dated 15.11.2008 pointing out that an open vacancy of Physical Education Teacher exists in G.H.S.S., W.P.(C)No.5262 of 2009 2 Kuttamath and therefore she may be transferred to the said school. As directed by this Court, the Deputy Director of Education considered the petitioner's request for transfer to either of the three schools, viz. G.H.S.S., Kakkat, G.F.V.H.S.S., Cheruvathur and GHSS, Bella East. By Ext.P6 order passed on 18.12.2008, the Deputy Director of Education rejected the petitioner's requests. Ext.P6 is under challenge in this writ petition, wherein the petitioner seeks a writ in the nature of mandamus commanding the third respondent to transfer and post her as Physical Education Teacher in G.H.S.S., Kakkat or in G.F.V.H.S.S. Cheruvathur or in GHSS, Kuttamath. 5. The Deputy Director of Education, Kasargod has in Ext.P6 stated that there is no vacancy of Physical Education Teacher in any of the three schools, viz. G.H.S.S., Kakkat, G.F.V.H.S.S., Cheruvathur and GHSS, Bella East. As regards the petitioner's request for transfer to GHSS, Kuttamath, the Deputy Director of Education has stated that the petitioner had not included the said school in the choice of schools given by her at the time of general transfer in the year 2008-2009 and that there are other applicants also who have sought a transfer to the said school. The Deputy Director of Education has also stated that the petitioner's request for transfer to G.H.S.S., Kakkat, G.F.V.H.S.S., Cheruvathur and GHSS, Bella East will be considered as and when vacancies arises W.P.(C)No.5262 of 2009 3 in the said schools, in accordance with the norms governing transfer. 6. In my considered opinion, the challenge to Ext.P6 is without merit. As rightly pointed out by the Deputy Director of Education, solely because a post is lying vacant at GHSS, Kuttamath, the petitioner cannot claim that she should be given a posting in that school. There will be many other claimants for the said post. The petitioner cannot claim that without considering the claims of others, she should be accommodated in that school. As held by the Apex Court in State of U.P. v Gobhardan Lal (2004(11) SCC 402), this Court exercising jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over the decision taken by the transferring authority, assess the niceties of the situation and substitute its decision in the place of the decision of the transferring authority. The transferring authority is the best judge of the sitution and unless it is shown that the action of the transferring authority is vitiated by mala fides or is in violation of any statutory rule, this Court cannot interfere with the decision of the transferring authority. 7. In the instant case, the petitioner does not allege that Ext.P6 order is vitiated by mala fides. She claims preference as the wife of a serving soldier. The Apex Court has in State of U.P. v Gobhardan Lal (supra) held that guidelines governing transfer do W.P.(C)No.5262 of 2009 4 not confer any enforceable right on government servant and that they have been issued only for the sake of guidance. In these circumstances, I find no merit in the challenge to Ext.P6. The learned Government Pleader appearing for the respondents however submits that the petitioner's request for transfer to any one of the four schools referred to in Ext.P6 will be considered at the time of general transfer for the academic year 2009-2010, and a decision taken in accordance with law. In the view that I have taken I dismiss this writ petition without prejudice to the petitioner's right to have her request for transfer considered at the time of the general transfer for the academic year 2009-2010. P.N.RAVINDRAN, JUDGE css/