IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR FRIDAY, THE 8TH AUGUST 2008 / 17TH SRAVANA 1930 WP(C).No. 18827 of 2004(N) -------------------------- PETITIONER: ------------ J.ABDUL SATHAR, S/O.YOONUS LABBA, AGED 47 YEARS, HIGH SCHOOL ASSISTANT (ENGLISH), ST.JOSEPH'S HIGH SCHOOL, KULATHOOR PATHANAMTHITTA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE ASSISTANT EDUCATIONAL OFFICER, PARASSALA, TRIVANDRUM DISTRICT. 4. THE CORPORATE MANAGER, CORPORATE MANAGEMENT OF SCHOOLS, ARCH DIOCESE OF CHANGANASSERY EDUCATIONAL AGENCY, CHANGANASSERY-1. 5. THE HEADMASTER, ST.GEORGE L.P.SCHOOL, AMBOORI, TRIVANDRUM DISTRICT. G.P. SMT.SMITHA SUKUMARAN FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/08/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: P1: TRUE COPY OF ORDER OF R2 DT.23.4.96. P2: TRUE COPY OF JUDGMENT IN O.P. NO.12651/1996-F DT.25.10.2000. P3: TRUE COPY OF ORDER OF R3 DT.16.1.2001. P4: TRUE COPY OF G.O. DT.25.5.2001. P5: TRUE COPY OF G.O. DT.19.9.2002. P6: TRUE COPY OF G.O. DT.19.1.2001. P7: TRUE COPY OF JUDGMENT IN O.P. NO.2180/1972 DT.27.7.1972. TRUE COPY PA TO JUDGE C.N.RAMACHANDRAN NAIR, J. .................................................................... W.P.(C) No.18827 of 2004 .................................................................... Dated this the 8th day of August, 2008. JUDGMENT The W.P. is filed for direction to the respondents to give salary to the petitioner for the period 1.11.1995 to 14.7.1997. Salary was denied to the petitioner for this period for the reason that he did not accept the transfer given to him from St.George School, Amboori to St.Mary's School, Vaipur. The transfer was said to have been made because a full time teacher in Arabic was not required at the St.George School, Amboori on account of fall of division. In fact after transferring the petitioner, a part time teacher by name Subaida was taken and she worked and was paid salary as a part time teacher. Instead of going and joining at the St.Mary's School, Vaipur, petitioner contested the transfer before the D.P.I. Even though he succeeded in one stage, Government reversed the order of D.P.I. and upheld the transfer. However, petitioner did not go and join the St.Mary's School at Vaipur and continued at St.George School, Amboori. When petitioner challenged the order of the Government in O.P. No.12651/1996, this court in the said O.P. passed an order in C.M.P. No.22222/1996 holding that petitioner's continuation at the St.George School, Amboori is at his own risk 2 and will be paid salary only if the O.P. is allowed. The scope of the interim order is that if petitioner's transfer was found to be illegal by this court, then only petitioner is entitled to salary. In fact since petitioner was a full time teacher, petitioner cannot be accommodated unless a full time teacher's post is available in the school. During the period petitioner remained transferred, admittedly there was only a part time teacher's vacancy available in the school and petitioner was accommodated in the very same school as and when regular vacancy again arose in the school on account of increase in division i.e. on increase of student strength. Going by the interim order issued by this court, petitioner is not entitled to salary for this period. Even though counsel for the petitioner has relied on G.O. 80/86, the same only protects service of full time teachers on account of fall in division. This G.O. has no application because the very same management provided employment to the petitioner by transfer to another school of their's. Therefore, the Government Order has no application. Petitioner took a risk by not accepting transfer and when the transfer was found to be justified, petitioner's claim for salary for the period he has not worked cannot be granted. The W.P. is therefore devoid of any merit and is dismissed. C.N.RAMACHANDRAN NAIR Judge pms