IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 12TH NOVEMBER 2010 / 21ST KARTHIKA 1932 WP(C).No. 30034 of 2010(D) ---------------------------------------- PETITIONER(S): -------------------- P.K.SHAMLA BEEVI(SHALU BAIJU), W/O.S.BAIJU, AGED 34 YEARS, HIGHER SECONDARY SCHOOL TEACHER(MATHS), GOVERNMENT HIGHER SECONDARY SCHOOL, PALLICKAL, (VIA) KILIMANOOR, THIRUVANANTHAPURAM. BY ADV. SRI.V.A.MUHAMMED RESPONDENT(S): -------------------------- 1. THE STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM-1. 3. SMT.PREETHAKUMARI, HSST (MATHS), GOVERNMENT HIGHER SECONDARY SCHOOL MEDICAL COLLEGE-695011, THIRUVANANTHAPURAM. R1 & R2 BY GOVT. PLEADER SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/11/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss K.T.SANKARAN, J. ------------------------------ W.P.(C).No.30034 OF 2010 ------------------------------ Dated this the 12 th day of November, 2010 JUDGMENT Though notice was served on the respondents, there is no appearance for the third respondent. Government Pleader appears for respondents 1 and 2. 2. The case of the petitioner is the following: The petitioner is working as Higher Secondary School Teacher(Mathematics) in Government Higher Secondary School, Pallickal in Thiruvananthapuram District. The petitioner belongs to Muslim community. She married Baiju, who belongs to Christian community. According to the transfer norms contained in GO(P) No.22/09/P & ARD dated 30.12.2009, intercaste married employees have got preferential right for transfer. The petitioner submitted Ext.P3 application for transfer for the year 2010. Schools of preference were also shown in Ext.P3 application. The petitioner filed WP(C) W.P.(C).No.30034 OF 2010 2 No.19583 of 2010 apprehending that her application for transfer would not be considered. That Writ Petition was disposed of as per Ext.P5 judgment dated 23 rd June, 2010 directing the first respondent to consider and pass orders on the application for transfer. Thereafter, the first respondent passed Ext.P6 order dated 16.8.2010 rejecting the request made by the petitioner. The rival contender was the third respondent. Her contention was accepted by the first respondent. 3. The case of the Writ Petitioner is that Ext.P6 Government Order contains incorrect facts, which led to the erroneous order. The learned counsel for the petitioner also submitted that the first respondent did not properly consider Ext.P2 G.O.(P) No.22/2009/ P & ARD dated 30 th December, 2009. To show that the first respondent arrived at the conclusion on the basis of incorrect facts, the following statements have been made in paragraphs 11, 12 and 13 in the Writ Petition, which are W.P.(C).No.30034 OF 2010 3 extracted below: 11. In the 2nd Paragraph of the Government Order, it is stated that the 3rd Respondent Smt.P.S.Preethakumari informed that she entered service in July 2003 as HSST in Mathematics through by transfer appointment in Government Higher Secondary School, Chavara in Kollam District and completed 5 years service and applied for general transfer to Trivandrum District and opted GHSS Medical College, Trivandrum and obtained transfer. Government Order says that Smt.P.S.Preethakumari was transferred to the home station i.e. Trivandrum District after the completion of 5 years at Chavara, Kollam. 12. Factual position is that Smt.P.S. Preethakumari got appointment through by transfer from HSA as HSST in Maths in GHSS Chavara in 2003. From this School, she was transferred to her home station GHSS Azhoor, Trivandrum (around 10 km from home) in 2008. She applied for general transfer from GHSS Azhoor, Trivandrum during 2009-2010. Therefore, the claim of Smt.P.S.Preethakumari and the acceptance of her claim in Government Order shows that 'after completion of 5 years she applied for general transfer to Trivandrum District and opted as GHSS Medical College as first option from GHSS Chavara, Kollam' is wrong. From GHSS Azhoor, Trivandrum she applied for general transfer during 2009-2010. Then, she had only less than 3 years service in GHSS, Azhoor, Trivandrum and it is noted in the provisional transfer list published by DHSE. This list shows that she has only 207 days as service in the present School and she doesn't belong to any priority category under the rules of transfer. Therefore, she has no claim to get transfer. The 5th Paragraph of Government Order says that both W.P.(C).No.30034 OF 2010 4 the Petitioner and Smt.P.S.Preethakumari have only less than 3 years service in the respective station, they are continuing at present and hence both of them may not be disturbed. Here, respective stations are GHSS, Pallickal and GHSS, Azhoor. But the Government Order purposefully made GHSS Medical College, Trivandrum as the respective station of Smt.P.S.Preethakumari. It is certainly misleading the malafide. The 4th paragraph of the Government Order says that 'Government vide G.O.(P) No.6/07/P & ARD dated 4.1.2007 have ordered that those Government employees who have entered inter- caste marriage will be posted at the station'. In the 6th paragraph of the same order, it says that 'Government have examined the matter in detail with respect to the existing rules and different Government Orders found that the claim of the petitioner to get transfer to Government Higher Secondary School, Trivandrum no merit'. 13. Here, the petitioner wish to point out the following real facts with proof:- As per G.O.(P) No.6/07/P & ARD dated 4.12.2007 inter-caste married employees are eligible for preference in posting and transfer to the same station. The factum of inter-caste marriage of the petitioner is not in dispute. The 3rd paragraph of G.O(Rt) No.599/2009/G.Edn. dated 5.2.2009 says that 'the main prayer of the petitioner in WP(C) No.36007/08(J) is to issue direction to the 2nd respondent to transfer her to any of the Higher Secondary Schools in Trivandrum City on the ground that she is a native of Trivandrum District and she belongs to an inter-caste married person'. Till this moment, this was not considered by the authority. There were number of vacancies in Trivandrum city during 2009-2010. But the petitioner did not get transfer to any of those vacancies in Trivandrum city. Smt.P.S.Preethakumari has got less than 3 years service in GHSS Azhoor, Trivandrum, W.P.(C).No.30034 OF 2010 5 her home station. Hence she has no merit to get transfer to GHSS Medical College, Trivandrum in preference to the petitioner.” 4.The learned counsel for the petitioner submitted that if the statements made in Paragraph 11, 12 and 13 in the Writ Petition are true, Ext.P6 order is liable to be interfered and it would be clear that Ext.P6 order is not just and proper. 5. Pointing out that in Ext.P6, erroneous conclusion was arrived at on the basis of incorrect facts, the petitioner submitted Ext.P7 request dated 5.9.2010 to review Ext.P6 order. Ext.P7 is pending consideration. 6. The reliefs prayed for by the petitioner in the Writ Petition are the following: i) issue a writ of mandamus or other appropriate writ, order or direction commanding the 2nd respondent to grant transfer to the petitioner to any one of the stations of her choice as contained in Ext.P3 application, W.P.(C).No.30034 OF 2010 6 ii) call for the records relating to Ext.P6 and quash the original of the same by the issue of a writ of certiorari or other appropriate writ or order. ii) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st respondent to effectively consider and pass appropriate orders upon Ext.P7 after affording an opportunity of being heard to the petitioner within a time limit. iv) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case. 7. To arrive at a finding as to whether the contentions put forward by the petitioner in paragraphs 11, 12 and 13 are correct, decision on the facts is required. The third respondent has not entered appearance and therefore her case with respect to the contention put forward in paragraphs 11, 12 and 13 could not be ascertained. Even if a counter affidavit is filed by respondents 1 and 2, it would not be helpful to resolve the controversy involved in the case. If the conclusion in Ext.P6 order is arrived at on the basis of incorrect facts, as pointed out in paragraphs 11, 12 and 13 of the Writ Petition, it is highly necessary for W.P.(C).No.30034 OF 2010 7 the first respondent to pass appropriate orders after hearing both parties. Now, the petitioner has submitted Ext.P7 request to review the order and it is pending disposal. Therefore, I am of the view that the proper course would be to direct the first respondent to consider the matter afresh. If it is found that the facts stated in Ext.P6 order are incorrect, as pointed out in paragraphs 11, 12 and 13 of the Writ Petition, the first respondent shall pass fresh orders notwithstanding the fact that Ext.P6 order was passed. If so, Ext.P7 application would be liable to be allowed and appropriate orders should be passed by the first respondent. On the other hand, if it is found that the contentions put forward in paragraphs 11, 12 and 13 of the Writ Petition are not true, it is not necessary to pass any order contrary to Ext.P6 order. In other words, the direction in the Writ Petition to the first respondent is to ensure that correct facts were taken into account to arrive at the conclusion and if a mistake has occurred, the W.P.(C).No.30034 OF 2010 8 first respondent is bound to correct the same. 8. The first respondent shall afford an opportunity of being heard to the petitioner and the third respondent and shall pass appropriate orders as expeditiously as possible, and at any rate within a period of one month from the date of receipt of a copy of the judgment. The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the first respondent. K.T.SANKARAN, JUDGE. cms