IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 31ST JULY 2009 / 9TH SRAVANA 1931 WP(C).No. 13985 of 2009(P) ---------------------------------------- PETITIONER(S): ------------------------ SUJI.S, HIGH SCHOOL ASSISTANT (MATHS), SIVAGIRI HIGHER SECONDARY SCHOOL, VARKALA, THIRUVANANTHAPURAM. BY ADV. MR.M.V.THAMBAN RESPONDENT(S): ------------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. SREEKALA.S, HIGH SCHOOL ASSISTANT (MATHS), A.V.HIGHER SECONDARY SCHOOL, KURICHY, KOTTAYAM DISTRICT. 3. THE CORPORATE MANAGER, SNDS TRUST SCHOOLS, SIVAGIRI MUTT, VARKALA. 4. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 5. DISTRICT EDUCATIONAL OFFICER, ATTINGAL. 6. DISTRICT EDUCATIONAL OFFICER,KOTTAYAM. R1, R4 TO R6 BY SR.GOVERNMENT PLEADER SMT. T.B.REMANI R2 BY ADV. MR.JOBI JOSE KONDODY R3 BY ADVS.MR.SAJAN VARGHEESE K., MR.LIJU. M.P. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/07/2009, THE COURT ON 31/07/2009 DELIVERED THE FOLLOWING: Kss WPC.NO.13985/2009 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER NO.EDN.27/2008 DTD.22/10/2008 ISSUED BY THE 3RD RESPONDENT. P2: COPY OF THE JUDGMENT DTD. 20/11/2008 IN WPC.NO.31885/2008. P3: COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE OFFICER. P4: COPY OF THE GO(RT) NO.1836/2009/G.EDN. DTD. 12/05/2009. P5: COPY OF THE G.O.(MS) NO.11/02/G.EDN. DTD. 7/01/2002 ISSUED BY THE GOVT. P6: COPY OF THE HEARING NOTE ON 7/03/2009. P7: COPY OF THE ADDITIONAL HEARING NOTE SUBMITTED ON 28/03/2009. P8: COPY OF THE REPRESENTATION BEFORE THE MANAGER ON 25/06/2007. P9: COPY OF THE G.O.(MS) NO.132/09/G.EDN. DTD. 17/06/2009. P10: COPY OF THE WEDDING CARD IN RESPECT OF THE MARRIAGE OF THE 2ND RESPONDENT DAUGHTER. P11: COPY OF THE CERTIFICATE DTD. 01/07/2009 ISSUED FROM SANKAR MEMORIAL HOSPITAL, KOLLAM. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.13985 of 2009-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 31st day of July, 2009. JUDGMENT An order of transfer issued by the management which culminated in Ext.P4 order passed by the Government, is the subject matter of dispute in this writ petition. The dispute is between the petitioner who is senior and the second respondent. Both of them are working as H.S.A. (Mathematics). 2. The petitioner started his career as U.P.S.A. with effect from 4.6.1990. He was promoted as H.S.A. (Maths) in a leave vacancy from 7.6.1990 to 31.8.1990 and again from 12.9.1990 to 16.11.1990. Later, he was regularly promoted as H.S.A. (Maths) with effect from 1.10.1991 in the A.V. Higher Secondary School, Kurichy by the management. He was transferred to Sivagiri Higher Secondary School, Varkala from 1.4.1996 and continued up to 17.6.2007. Again, he was transferred to Kurichy on 18.6.2007 which was set aside by the Government and later he was transferred to Sivagiri Higher Secondary School from 1.4.2008. 3. The second respondent was initially appointed as U.P.S.A. in a leave vacancy from 25.7.1994 to 12.10.1994. She was regularly appointed as U.P.S.A. from 5.6.1995. She was promoted as H.S.A. against a leave wpc 13985/2009 2 vacancy from 3.12.1996 to 28.2.1997 and was posted to A.V. Higher Secondary School, Kurichy. She was regularly promoted as H.S.A. with effect from 28.7.1998 and was posted to the Higher Secondary School, Sivagiri. She was transferred as per Ext.P1 order dated 22.10.2008, by the management to the Higher Secondary School, Kurichy. Even though the order of transfer was challenged by the second respondent by filing Writ Petition No.31885/2008, this court directed the second respondent herein to agitate the matter before the departmental authorities. Later, she filed a revision petition before the Government as Ext.P3. By Ext.P4, that was allowed by the Government. 4. While admitting the writ petition, this court passed an interim order on 22.5.2009, which is continuing in force. The main ground on which the order of transfer is interfered with by the Government, is that going by G.O.(MS) No.11/2002/G.Edn. dated 7.1.2002, the excess High School Assistants in core subjects in Mathematics have to be adjusted as H.S.A. (English) according to juniority. Therefore, the seniors are to be retained in the core subject itself. Accordingly, the management was directed to observe the criteria of seniority in placing the teachers in their core subject and juniority in adjusting them in the vacancy against H.S.A. (English). Consequential direction was issued to adjust the petitioner as H.S.A. (Maths) and the second respondent as H.S.A. (English). It is mentioned that the order is passed after considering the personal wpc 13985/2009 3 inconveniences and other medical grounds putforth by the second respondent. 5. Heard learned counsel for the petitioner, learned counsel for the second respondent, learned counsel for the Manager and the learned Govt. Pleader. 6. While reiterating the contentions in the writ petition, learned counsel for the petitioner submitted that going by Rule 10 of Chapter XIV- A K.E.R., he being the senior, is entitled to continue in Varkala in preference to the second respondent. It is further pointed out that the benefit of Ext.P5 order dated 7.1.2002 is actually allowable to the petitioner and not to the second respondent. The Government has ordered therein that a new cadre of H.S.A. (English) will be created in a phased manner, without causing retrenchment of existing H.S.As. (core subjects). It is therefore submitted that the petitioner was entitled to be adjusted and retained in the school at Sivagiri even if by adjusting him as H.S.A.(English). It is pointed out that the petitioner is the third in the seniority list of H.S.A. (Maths) and the second respondent is the 6th and the juniormost. Therefore, the second respondent will have to be shifted to the Higher Secondary School, Kurichy. Reliance is placed on the Full Bench decision of this court in Valsa v. Director of Public Instruction (2002 (2) KLT 610 (FB)) to contend that Rule 10 of Chapter XIV-A K.E.R. will prevail and the wpc 13985/2009 4 principle of seniority has to be applied. It is also pointed out that going by the recent Government Order Ext.P9 dated 17.6.2009 the Government has ordered that the teachers who have gained appointment prior to 16.11.2002 under Rule 51-A of Chapter XIV-A K.E.R., as H.S.A. in core subjects, are entitled to be adjusted in vacancies which have arisen after 16.11.2002 in accordance with the subject ratio which prevailed prior to the order dated 7.1.2002. It is therefore submitted that going by the said principle also, the petitioner is liable to be retained. It is further pointed out that earlier the Manager had transferred one Smt. B. Lissy to A.V.H.S.S., Kurichi which was cancelled by the Additional Director of Public Instruction, as it is found in violation of Rule 10 of Chapter XIV-A K.E.R., and therefore the same yardstick will apply to the petitioner. 7. Lastly, it was contended that the Government, while passing Ext.P4, observed that the second respondent is to be retained at Varkala in view of the personal hardships and medical grounds. It is pointed out that the petitioner is also entitled to be retained on the same grounds. 8. Learned counsel for the second respondent contended that even if Rule 10 is applied, there are exceptions to the rule, viz. compassionate and medical grounds and the second respondent had put forth ample evidence before the Government with regard to the said benefit. It is pointed out that the principle applicable for implementing Ext.P5 Govt. Order is attracted only in the case of the second respondent. The learned counsel for the wpc 13985/2009 5 Manager submitted that the order of transfer is perfectly justified and is in tune with the principle of seniority. It is one issue as per the directions issued in the Government Order dated 11.3.2008 concerning the two schools 9. The first question is regarding the principle to be adopted while considering the eligibility for transfer. Rule 10(1) of Chapter XIV-A K.E.R. provides that “the chief and foremost criterion for transfer of Headmaster and teacher shall be the seniority.” Sub-rule (3) provides for exceptions which include compassionate ground and other grounds for special consideration. While interpreting the said rule, it was held by the Full Bench in para 6, as follows: “A reading of R.10 suggests that a transfer from one school to another run by the same educational agency should be carried out by observing the principles laid down by the Government for transfer of teachers. Thus, the rule requires that the principles laid down in paragraphs 8 and 9 to be observed for the purpose of transfer of teachers in Government schools must be followed. Paragraphs 8 and 9 of the G.O. dated 10th September 1987 make it clear that seniority is required to be considered.” It is therefore clear that the principle that should be applied is seniority. Learned counsel for the petitioner made available for perusal a copy of G.O.(Rt) No.1271/08/G.Edn. dated 11.3.2008 which is relied upon by the management while passing Ext.P1 and by ordering transfer of the second wpc 13985/2009 6 respondent. The said Government Order was passed in relation to an order of transfer issued previously by the same management. Ultimately, the Government passed the following order with reference to the principles to be adopted by the management: “Rule 10 Chapter XIV A KER stipulates that in the matter of transfer of teachers from one school to another school under an educational agency the principles followed in Government schools shall be applied. The chief and foremost criterion for the transfer of Headmasters and teachers shall be seniority as laid down in Rule 10(1) Chapter XIV A KER. The Full Bench of the Hon'ble High Court of Kerala in 2002 (2) KLT 610 (FB) has clearly ordered that while considering the transfer of teachers under Rule 10 of Chapter XIV A K.E.R. the seniority of the teacher concerned is also a necessary criterion to be observed to the extent possible as applicable in the case of teachers in Government schools. xxxxxxxxx Hence, the Corporate Manager is directed to take a general decision on the transfer of teachers from one station to another station based on their length of continuous service at a station like general transfer of Government teachers. He shall invite applications for transfer of teachers well in advance during February/March. Teachers who have completed a particular term of continuous service in a particular grade in the outstation, say 3, 5 or more years shall be transferred and posted to his/her home station transferring those who have completed the above said term continuously in a post in that station, or by transferring the juniormost teacher wpc 13985/2009 7 working in a post in his/her home station. This shall be done every year or once in two or three years. As stipulated under Rule 10(2) Chapter XIV A K.E.R 25% of exemptions from this procedure is allowed in very deserving cases. The service rendered consequent on the impugned transfer order of the Corporate Manager dated 15.6.2007 need not be reckoned for counting the seniority of the teachers for this purpose as the order of the Corporate manager is under orders of cancellation.” 10. In fact, this order has been relied upon by the Additional Director of Public Instruction, while cancelling the transfer order of Smt.B. Lissy. A reading of Ext.P4 shows that while interfering with the order Ext.P1, the Government has not considered the effect of G.O.(Rt) No.1271/08/G.Edn. dated 11.3.2008, wherein the Government itself held that the principle under Rule 10(1) as upheld by the Full Bench of this Court in Valsa's case (2002 (2) KLT 610 (FB) has to be adopted. For the sole reason, Ext.P4 cannot be sustained. 11. The further question is whether the view taken by the Government by relying upon G.O.(MS) No.11/2002/G.Edn. dated 7.1.2002 is correct. There are six H.S.A. (Maths) and the second respondent is the juniormost. Going by Ext.P5, there is nothing to show that the juniormost should be adjusted as HSA (English) from among HSA (Maths) teachers. Para 3(a) of the said Govt. Order clearly specified that a new cadre of HSA (English) will be created in the Aided and Government Schools by re- wpc 13985/2009 8 allocating the periods of English now allocated to the core subjects (Maths, Science and Social Studies) in a phased manner, without causing retrenchment of existing HSAs. (core subjects). The two posts of H.S.A. (Maths) in the two schools have been sanctioned as per the staff fixation. Therefore, the petitioner being the third person, has to be adjusted as H.S.A. (English) in terms of seniority. The principle of seniority under Rule 10 of Chapter XIV-A K.E.R. will squarely apply while considering the transfer of teachers. Therefore, the second respondent cannot have a right to be adjusted against the post of H.S.A. (English) at the Higher Secondary School, Sivagiri. Otherwise, it will violate Rule 10. In fact, while cancelling the transfer order of Smt. B. Lissy, H.S.A. (Maths) to Kurichy, the principle adopted is mainly Rule 10 of Chapter XIV-A K.E.R. which is mentioned in Ext.P4. Even if by resort to G.O.(MS) No.11/2008/G.Edn. dated 7.1.2002 (Ext.P5) any retrenchment has to be effected, that can be only of the juniormost and if that be so, the petitioner is liable to be adjusted as H.S.A. (English), evidently. 12. The management has only implemented the Government Order dated 11.3.2008 while ordering the transfer of the second respondent. This aspect was not considered by the Government while passing Ext.P4. Therefore, there was nothing wrong in ordering the transfer of the second respondent. 13. The next question is whether the compassionate grounds raised wpc 13985/2009 9 by the second respondent justifies the order of transfer. There is no specific finding rendered by the Government in Ext.P4 in the matter. The only statement is that the second respondent shall be accommodated as H.S.A. (English) considering the personal inconvenience and other medical grounds putforth by her. The medical grounds justifying her retention, have not been considered on the merits. It is argued by the learned counsel for the second respondent that since those aspects have not been considered by the Government, the matter should be directed to be considered by the Government afresh. The learned counsel for the petitioner also submitted that he has given details regarding medical grounds to justify the retention of his client, in the reply affidavit and the said aspect justifies his retention therein. 14. Therefore, Ext.P4 is quashed. It is held that going by Rule 10 of Chapter XIV-A K.E.R., and on the principle of seniority, the petitioner is liable to be retained in Sivagiri Higher Secondary School, Varkala. The matter is remitted back to the Government only to consider the compassionate and other grounds raised by the second respondent. The respective claims of the parties on such grounds will be considered and the petitioner and second respondent will also be allowed to provide materials in support of his plea for retention on compassionate grounds. Apart from that, learned counsel for the petitioner is relying upon Ext.P9 Government Order, viz. G.O.(MS) No.132/09/G.Edn. dated 17.6.2009 to justify his wpc 13985/2009 10 retention in Varkala. The said aspect also will be considered by the Government. Appropriate orders shall be passed within a period of two months from the date of receipt of a copy of this judgment, after hearing both parties. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/