IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 4TH MARCH 2008 / 14TH PHALGUNA 1929 WP(C).No. 7250 of 2008(K) ------------------------- PETITIONER: --------------- SUSAN GEORGE, HSA (NATURAL SCIENCE) ST. STEPHEN'S HIGH SCHOOL, PATHANAPURAM P.O., KOLLAM. BY ADV. SMT.S.KARTHIKA RESPONDENTS: ------------------ 1. STATE OF KEARALA REP. BY ITS SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, TRIVANDRUM. 2. THE CORPORATE MANAGER, SOST, MOUNT TABO, PATHANPURAM, KOLLAM DISTRICT – 689 695. 3. N. VASUDEVAN NAIR, HSA (NS), CATHOLICATE HSS, POTHUKKAL, MALAPPURAM DISTRICT – 679 334. 4. SR. ANNAKUTTY, HSA (NS), MTD HS MALOOR, PATHANAPURAM P.O., KOLLAM DISTRICT. BY ADV. SRI.GEORGE POONTHOTTAM SRI. BABU VARGHESE SR. GOVERNMENT PLEADER SRI. T.T. MAHMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 7250 of 2008 APPENDIX EXT.P1: COPY OF THE RELEVANT PAGE OF THE STAFF FIXTION ORDER OF THE ACADEMIC YEAR 2007-2008. EXT.P2: COPY OF THE ORDER DATED 17.8.2007 ISSUED BY THE 2ND RESPONDENT. EXT.P3: COPY OF THE THE ORDER DATED 17.9.2007 ISSUED BY THE DPI. EXT.P4: COPY OF THE G.O.(RT) 686/08/GL. EDN. DATED 6.2.2008. EXT.P5: COPY OF THE THE ORDER DATED 25.2.2008 ISSUED BY R2. EXT.P6: COPY OF THE APPOINTMENT CARD OF THE VIJAYA HOSPITAL, KOTTARAKKARA DTD 28.2.2008. EXT.P7: COPY OF THE CERTIFICATE DTD 27.2.2008 ISSUED BY THE PRINCIPAL, ST. STEPHEN'S HSS. 3RD RESPONDENT'S EXHIBITS EXT.R3(a): COPY OF THE JUDGMENT IN W.P.(C) NO.30182/2007 DTD 11.10.07. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ------------------------------------ W.P.(C)No.7250 OF 2008 ---------------------------------------- Dated this the 4th day of March, 2008 JUDGMENT The petitioner is a High School Assistant (Natural Science) in a School managed by the 2nd respondent – Corporate Manager, under whom there are several Schools. One of the Schools is the MTDM HS, Maloor. For the academic year 2007-2008, the DEO, by Ext.P1 staff fixation order, found that one post of HSA (Natural Science) is in excess. Therefore the Manager was directed to “adjust the excess junior teachers to available vacancies under the management in order to satisfy the subject requirement”. Pursuant thereto, by Ext.P2 order, the 3rd respondent herein, who was one of the HSAs(Natural Science) in the said School was transferred to another School under the same educational agency, namely, Catholicate HSS, Pothukal, against the vacancy caused by reversion of one Smt. D. Annamma, HSA (Natural Science), who was reverted as UPSA. The 3rd respondent herein challenged the said transfer before the Director of Public Instruction. This Court in W.P.(C) No.25962/07 W.P.(c) No.7250/08 2 directed disposal of the appeal filed by the 3rd respondent in this regard. Pursuant thereto, the Director of Public Instruction took up the matter for hearing and after hearing the petitioner herein and respondents 2, 3 and 4, passed Ext.P3 order setting aside the transfer of the 3rd respondent and directing the Manager to revise the transfer order, posting the junior teachers with immediate effect. While doing so, the Director of Public Instruction undertook the exercise of deciding as to the seniority position among the three teachers involved. Challenging Ext.P3 order, the Manager filed a revision petition before the Government. This Court by judgment, in W.P.(C) No.30182/07 filed by the Manager, directed disposal of revision petition filed by the Manager. Pursuant thereto, Ext.P4 order has been passed whereby the Government directed that the 4th respondent be retained in MTDM HS, Maloor on humanitarian grounds and the 3rd respondent be transferred to St. Stephen's HS, Pathanapuram by shifting the junior most teacher from that School to Catholicate HS, Pothukal, Malappuram District. The petitioner was the junior most teacher working in St. Stephen's HS, Pathanapuram. Therefore in compliance with Ext.P4 order, the W.P.(c) No.7250/08 3 Manager passed Ext.P5 order, whereby the petitioner was transferred to CHS, Pothukal. The petitioner is challenging Exts.P4 and P5 orders in this writ petition. Several contentions are raised by the petitioner against Exts.P4 and P5 orders, one of which is that before passing Exts.P4 and P5 orders, the petitioner has not been afforded an opportunity of being heard. Although the petitioner has raised other contentions as to the competency of the Government to order transfer of teachers and as to whether Rule 55 or Rule 10 is the applicable provision etc., since I am inclined to allow this writ petition on the ground that the petitioner has not been heard in the matter, I am considering only that issue in this writ petition. 2. The 3rd respondent would contend that it is not necessary to hear the petitioner at all in the matter. He would submit that in Ext.P4 order there is no direction to transfer the petitioner at all. What has been directed in Ext.P4 is only that Rule 10 of Chapter XIVA of the Kerala Education Rules should be followed, which states that transfer shall be strictly in accordance with seniority. For directing the Manager to follow rules in the KER, it is not necessary to hear the petitioner is the contention raised. W.P.(c) No.7250/08 4 3. I have heard the learned counsel for the petitioner, the learned counsel for the 2nd respondent – Manager, the learned counsel for the 3rd respondent and the learned counsel for the 4th respondent. 4. From Ext.P3, which is the order against which, the Manager has filed revision, which resulted in Ext.P4 order, it is clear that the Director of Public Instruction has passed Ext.P3 order after hearing Advocate for the 3rd respondent herein namely, Sri. N. Vasudevan Nair, the petitioner herein namely, Smt. Susan George and the 2nd respondent herein namely, the Corporate Manager. When the revision against Ext.P3 order is being considered by the Government, I am of opinion that, all the parties, who were heard while passing Ext.P3 order also has to be heard, especially when Ext.P4 order resulted in an adverse direction against the petitioner herein which was not there in Ext.P3 order. Admittedly the petitioner has not been heard by the Government while passing Ext.P4 order. Therefore I am satisfied that Ext.P4 order is violative of principles of natural justice in as much as the petitioner has not been afforded an opportunity of being heard while passing Ext.P4 order. W.P.(c) No.7250/08 5 Accordingly Ext.P4 order is quashed. Consequently, Ext.P5, which has been issued in compliance with Ext.P4 is also quashed. The matter is remanded to the 1st respondent for fresh consideration in accordance with law, after affording an opportunity of being heard to the petitioner and respondents 2, 3 and 4. Fresh orders in this regard shall be passed as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE Acd W.P.(c) No.7250/08 6