IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 WP(C).No. 16378 of 2008(Y) -------------------------------------- PETITIONER: ------------------ N.VASUDEVAN NAIR, HSA (NS), CATHOLICATE HSS, POTHUKKAL, MALAPPURAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENTS: ---------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, THIRUVANANTHAPURAM. 3. THE CORPORATE MANAGER, SOST, MOUNT TABO, PATHANAPURAM, KOLLAM DISTRICT-689 695. 4. SUSAN GEORGE, HSA (NATURAL SCIENCE), ST.STEPHEN'S HIGH SCHOOL, PATHANAPURAM-PO, KOLLAM. 5. SR.ANNAKUTTY, HSA (NS), MTD HS MALOOR, PATHANAPURAM, KOLLAM DISTRICT. GOVERNMENT PLEADER SRI.AJ.VARGHESE FOR R1, R2 ADV. SRI.BABU VARGHESE FOR R3, R5 SRI.M.S.UNNIKRISHNAN FOR R4 SMT.S.KARTHIKA FOR 4 SRI.M.R.ANISON FOR R4 SMT.K.P.GEETHA MANI FOR R4 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15/09/2008,THE COURT ON 19/09/08 DELIVERED THE FOLLOWING: Rs/ ANTONY DOMINIC, J. =============== W.P.(C) NO. 16378 OF 2008 Y ==================== Dated this the 19th day of September, 2008 J U D G M E N T The prayer in this writ petition is to quash Ext. P7, an order passed by the 1st respondent. 2. The facts of the case are that the petitioner is an H.S.A. (Natural Science) working under the 3rd respondent, the Corporate Manager, having high schools in Malappuram, Kollam and Wayanad Districts. In the academic year 2007-08 while the petitioner was working in the MTDM H.S., Maloor, Pathanapuram, the DEO, Kottarakkara issued Ext. P1 Staff Fixation Order, Note (I) of which was to the following effect: “Consequent on the reduction of one class division, one post of HSA is reduced. As per GO(MS) No. 11/02/G./Edn. dt. 7.1.02 there is one excess hand each in HSA (NS) and HSA (Maths). Hence the Manager is requested to adjust the excess junior teachers to available vacancies under the management in order to satisfy the subject requirement.” 3. Consequently, the Manager issued Ext. P2 by which transfers and postings were ordered with effect from 15.7.2007. The juniormost teacher in the category under the corporate WPC 16378/08 :2 : management was identified and accordingly Smt. D. Annamma who was then working as HSA (NS) in the Catholicate H.S.S. Pothukal (Malappuram) was reverted and posted as UPSA in a retrenchment vacancy. The petitioner who was the excess teacher in the MTDMHS, Maloor was posted in the vacancy of Smt.D.Annamma in the Catholicate H.S.S., Pothukal. 4. Contending that the petitioner was not the junior most to be transferred as ordered in Ext. P2 and that it was either of respondents 4 and 5 who were juniors to the petitioner in the category of H.S.A. (N.S) to be transferred consequent on Ext. P1, petitioner filed a writ petition before this Court as W.P.(C) No. 25962/07. That writ petition was disposed of relegating the petitioner to pursue the statutory remedy before the 2nd respondent. Accordingly, the petitioner moved the 2nd respondent, who by Ext. P3 set aside Ext. P2 and held that the norms relating to transfer require that the senior teacher is not liable to be transferred retaining the junior teacher and that the petitioner was senior to respondents 4 and 5 in Natural Science and therefore, he was not liable to have been transferred. WPC 16378/08 :3 : 5. Against Ext. P3, the manager filed revision before the 1st respondent which was disposed of by Ext. P4. In Ext. P4, the 1st respondent ordered that the 5th respondent who has been given the benefit of Rule 10(6) of Chapter XIV A KER be retained at MTDHS, Maloor, Pathanapuram on humanitarian grounds and the petitioner be transferred to St. Stephen's H.S., Pathanapuram by shifting the junior most teacher from that school to Catholicate High School, Pothukal, Malappuram District. This order was passed without hearing the 4th respondent who was the junior most teacher in the St. Stephen's H.S., Pathanapuram. The 3rd respondent thereafter issued Ext. P5 implementing Ext. P4 transferring the 4th respondent to Catholicate High School, Pothukal. 6. At that stage, the 4th respondent filed a writ petition before this Court as W.P.(C) No. 7250/08. That writ petition was disposed of by Ext. P6 judgment setting aside Exts. P4 and P5 on the ground that Ext. P4 order was passed without hearing the 4th respondent and directed that all parties be heard and fresh orders be passed. Though the petitioner filed W.A. No. 584/08 against Ext. P6 judgment, that was dismissed by Ext. R4(a) judgment. WPC 16378/08 :4 : Accordingly, the matter was heard and Ext. P7 order was passed by the 1st respondent by which Ext. P2 transfers and postings ordered by the Manager, was upheld by the 1st respondent. It is challenging this order the writ petition was filed. 7. Counsel for the petitioner mainly contended that the petitioner is senior to respondents 4 and 5 and therefore when a teacher is to be transferred consequent on Ext. P1, seniority has to be reckoned on a corporate basis and if so, it is either of respondents 4 or 5 who is liable to be transferred to the vacancy at Catholicate H.S., Pothukal. It is contended that the fact that it is corporate seniority which is liable to be reckoned has been accepted by the manager on account of the fact that though the excess vacancy was at MTDMHS, Maloor, the junior most teacher reverted was D. Annamma, HSA (NS) in Catholicate H.S.S., Pothukal in Malappuram District. It is submitted that since this criterion was rightly accepted by the manager, he cannot thereafter transfer the petitioner applying the school-wise seniority. It is also contended that the 5th respondent could not have been given the protection of Rule 10(6) of Chapter XIV A, KER as such protection was permissible WPC 16378/08 :5 : only when general transfers are effected. 8. On the other hand, the 4th respondent would contend that the division fall occurred in M.T.D.M. H.S., Maloor and that she being a teacher working in the St. Stephen's H.S., Pathanapuram ought not to be disturbed. It is also her contention that she is a senior teacher in the school and therefore she is not liable to be transferred. The manager, on the other hand would contend that they have only implemented Ext. P1 Staff Fixation Order issued by the DEO. According to him, the petitioner was the excess teacher and the vacancy having arisen in Catholicate H.S.S., Pothukal, he was rightly transferred to that school. 9. I have considered the submissions made by the counsel for the petitioner, the counsel for respondents 3 and 4 and also the learned Govt. Pleader. 10. As already noticed, it is the contention of the petitioner that the schools of the educational agency should be treated as one unit and that he being senior in the category of HSA (NS), is not liable to be disturbed though the division fall was in his school. Though this contention of the petitioner was raised before the 1st WPC 16378/08 :6 : respondent, Ext. P7 shows that this aspect has not even been adverted to. 11. In order to answer the aforesaid contention of the petitioner, a reference to Rule 35 of Chapter XIV A, K.E.R. is necessary. This rule provides that if the Educational Agencies have schools in more than one Revenue District they shall be constituted into one unit and a common seniority list shall be prepared for all the schools in the unit together. According to the 3rd respondent, Ext.R3(a) is the common seniority list which is being followed by them. Parties are also not at variance that when a vacancy terminates necessitating the relief of a teacher, senior hands shall ordinarily be retained in preference to junior hands, vide Rule 51, Chapter XIV A, KER. 12. As is evident from Ext. R3(a) seniority list, the 5th respondent, the petitioner and the 4th respondent are at Sl. Nos. 114, 116 and 123 respectively. Since the seniority list in question has not been disputed, this Court can only go by the seniority as it is obtaining in Ext. R3(a) seniority list. If that be so, the claim of the petitioner can only be as against the 4th respondent, she being WPC 16378/08 :7 : admittedly junior to the petitioner and 5th respondent being senior to him. 13. This claim is also sustainable only if the whole schools of the corporate agency are taken as one unit. The very fact that the junior most teacher reverted was working at Catholicate H.S.S., Pothukal, Malappuram District, shows that the 3rd respondent Manager had chosen to follow the entire corporate seniority as the basis. If that was the basis adopted, necessarily therefore, for transfer purposes also, corporate seniority ought to have been followed. Having chosen corporate seniority for retrenchment, there is absolutely no justification for adopting a different yardstick when it comes to transfer alone. If that be so, petitioner being senior to the 4th respondent, it was the 4th respondent who ought to have been transferred to Catholicate H.S.S., Pothukal, Malappuram District and the petitioner should have been accommodated in the post vacated by the 4th respondent at St.Stephen's High School, Pathanapuram. This is precisely what has been ordered in Ext. P4 which was also implemented by the manager by Ext. P5. The Government have not given any reason for upsetting Exts. P4 and P5 WPC 16378/08 :8 : and they have conveniently omitted to deal with the valid contentions raised by the petitioner. 14. For the aforesaid reasons I find it impossible to uphold Ext. P7 and the said order shall stand set aside. 15. Since I have accepted Ext. R3(a) seniority list as the one binding on the parties it is not necessary for me to consider the contention raised by the petitioner that the 5th respondent was not entitled to the benefit of Rule 10(6) of Chapter XIVA, K.E.R., as she in any case is senior to the petitioner. 16. Necessarily therefore, Exts. P4 and P5 shall be implemented by the 3rd respondent Manager. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE jan/Rp