Valsa v. State of Kerala — 1996 DIGILAW 391 (KER)

Judgment :- C.S. Rajan, J. These two Original Petitions involve common questions and the parties are also the same. Therefore, these two Original Petitions are disposed of by a common judgment. The reference to the parties and exhibits in this judgment will be with reference to the parties in O.P.No. 13135/96. 2. The petitioners working as Needle Work teacher in one of the Schools belonging, to the third respondent, a Corporate management. According to the petitioner, she has approved continuous service in the School from 16.6.81 onwards. She was first posted in SNDP Higher Secondary School, Udayamperoor. On 24.5.86, she was transferred to SNDP High School, Muttathukonam. As per order dated. 2.3.87 she was reported to SNDP Higher Secondary School, Udayamperoor. The 3rd respondent by order dated 19.5.93 transferred the petitioner to SNV High School, Anad. Later by order dated 20.5.95 (Ext. P1), the third respondent transferred her to Udayamperoor. By the same order, the 4th respondent was transferred from Udayamperoor to Anad. 3. The 4threspondent filed an appeal against Ext. P1 order to the second respondent on 8.6.95. The above appeal was disposed of by the second respondent as per Ext. P2 order dated. 28.8.95 holding that the 4th respondent is entitled to be retained at Udayamperoor in accordance with her seniority as laid down in R.10 of Chap. XIV-A KER. The petitioner filed a revision against Ext. P2 before the respondent (Ext. P3). The above revision was rejected by the first respondent confirming Ext. P2 as per Ext. P4 order dt. 17.6.1996. Ext. P4 is under challenge in this Original Petition. 4. O.P. No. 11929/96 has been tiled by the 4th respondent praying for a direction to respondents 1 to 3 to implement Ext. P2 order and also to initiate action against the third respondent under R.7 of Chap. Ill KER for failure to implement Ext. P2 order. According to the 4th respondent, she commenced her service on 7.6.78 in SNDP High School, Aluva. As per order dt. 24.5.86 (Ext. P1 in OP. 11929/96), the post of lower grade Sewing Teacher in SNDP High School, Muttathukonam, where the 4th respondent was working was abolished and the 4th respondent who was a regular teacher was transferred to Udayamperoor with effect from 1.12.1985. Consequently, the petitioner, being the junior most hand was given protection and was allowed to continue in Udayamperoor school. P1 in OP. 11929/96), the post of lower grade Sewing Teacher in SNDP High School, Muttathukonam, where the 4th respondent was working was abolished and the 4th respondent who was a regular teacher was transferred to Udayamperoor with effect from 1.12.1985. Consequently, the petitioner, being the junior most hand was given protection and was allowed to continue in Udayamperoor school. In the year 1995, there was no open vacancy of Needle Work Teacher in the Udayamperoor school. Therefore, the 4th respondent was ordered to be transferred to Anad and in her place the petitioner was brought back to Udayamperoor. (Ext. P2 in OP 11929/96). Against the above order, the 4th respondent filed an appeal which was allowed by the second respondent and was confirmed in revision by the first respondent by the impugned order. The 4th respondent filed the Original Petition because the orders passed by respondents 1 and 2 were not implemented by the third respondent. 5. Sri. N. Sugathan, learned counsel for the petitioner, argued that Exts. P2 and P4 are illegal because they proceeded on a wrong interpretation of R.10 of Chapter XIV-A of KER which reads as follows: "10 Transfers: - Where more than one school is under the same educational agency, the educational agency may transfer any teacher from one school to another and in deciding on these transfers the principles followed in Government Schools shall be observed to the extent possible. The principles of transfer shall be as follows: (1) The chief and foremost criterion for transfer of Headmaster shall be the seniority. (2) Every Headmaster shall be allowed to exercise choices of 3 or more schools. (3) Exceptions to the seniority criterion shall be the bare minimum. Exception shall include close relatives of Jawans, intercast marriage, physically handicapped, other grounds to special consideration, compassionate grounds, persons who have only one year of service left for retirement etc. (4) Cases coming under administrative interest shall include unsuitability, allegations of corruption, misuse of official position, disciplinary action, incompetence and consistent poor performance. (5) Cases of deviation from the seniority norms shall be appealable before the Director of Public Instruction, who shall decide the case. (6) All exceptions to the general rule of seniority put together may not exceed 25% transfers. (7) Mutual transfers on request shall not be entertained. (8) The number of transfers, shall be limited to twice or thrice a year". (6) All exceptions to the general rule of seniority put together may not exceed 25% transfers. (7) Mutual transfers on request shall not be entertained. (8) The number of transfers, shall be limited to twice or thrice a year". According to the learned counsel, the seniority principle contained in R.10(1) is applicable only to transfer of 'Headmasters. In case of transfer of teachers, the principles to be followed are those applicable to the teachers in Government schools. The guidelines issued by the Government are G.O. (P) No. 15/89/P & ARD dt. 22.5.89. Under the above guidelines, a teacher who has completed 3 years of service in a particular station is liable to be transferred. Employees who have put in longer period of service outside a particular station will be given first priority in giving transfer to that station. An employee who has served for a longer period in the home station is liable to be transferred out to give place to an employee who has served lesser period in the home station. Therefore, it is argued that the respective seniority of the petitioner and the 4th respondent is irrelevant. 6. Though the above argument seems to be quite attractive a priori, a close consideration of R.10 will disclose that there is no substance in the above argument. R.10 says that the principles followed in Government schools shall be observed to the extent possible by the educational agency in the matter of transfer of teachers from one school to another. Thereafter, the principles of transfer were enumerated in sub-clauses (1) to (8). Sub-clause (1) says that the chief and foremost criterion for transfer of Head master shall be the seniority. Sub-cl. (2) says that every Headmaster shall be allowed to exercise choices of 3 or more schools. There may not be any quarrel to the proposition that sub-clauses (1) & (2) are applicable to Headmasters. But that does not lead to a conclusion that all the principles enumerated in R.10 are applicable only to transfer of Headmasters. 7. Much reliance has been placed on sub-cl. (3) of R.10 which says that exceptions to the seniority criterion shall be the bare minimum. The exceptions have been enumerated as close relatives of Jawans, intercast marriage, physically handicapped, other grounds for special consideration, compassionate grounds, persons who have only one years of service left for retirement etc. 7. Much reliance has been placed on sub-cl. (3) of R.10 which says that exceptions to the seniority criterion shall be the bare minimum. The exceptions have been enumerated as close relatives of Jawans, intercast marriage, physically handicapped, other grounds for special consideration, compassionate grounds, persons who have only one years of service left for retirement etc. Therefore, there is no question of invoking outside service or home station service as in the case of Government servants to the transfer of aided school teachers. When it says that seniority is the chief and foremost criterion and exceptions to the seniority criterion shall be the bare minimum, I do not think it is possible to hold that seniority is totally irrelevant or immaterial in deciding the legality of the transfer of a teacher. 8. The order of the third respondent dt. 24.5.86 is clear that the 4th respondent was transferred retrospectively to Udayamperoor school with effect from 1.12.85 because of the abolition of the post of Sewing Teacher in the Muttathukonam school. Being a senior hand, the 4th respondent had necessarily to be adjusted against regular vacancy which existed only in the Udayamperoor School. Consequently, the junior most teacher, the petitioner, was given protection and therefore allowed to continue in the above school. Therefore, there was no jurisdiction or necessity to transfer the fourth respondent again to Anad, wherein the petitioner was working so as to facilitate the coming back of the petitioner to Udayamperoor. 9. The 3rd respondent in his counter affidavit has justified its stand stating that the management can ignore the seniority of teachers in effecting transfer. Under R.10(3), such exceptional transfers can go upto 25% of the transfer. According to the third respondent, it was well within their power to transfer the 4th respondent which did not exceed 25%. 10. Again the question is whether the petitioners' case will come under any of the exceptions enumerated in R.10(3). In Ext. P2, the second respondent has come to the conclusion that the special ground enumerated by the Advocate who represented the petitioner will not come under the exceptions stipulated in R.10 of Chapter XIV-A of KER. Therefore, the transfer of the 4th respondent to Anad cannot be justified on the ground that it is an exception to the seniority rule, and it does not exceed the permissible limit. 11. Therefore, the transfer of the 4th respondent to Anad cannot be justified on the ground that it is an exception to the seniority rule, and it does not exceed the permissible limit. 11. Before closing the case, I will advert to one more argument put forward by the learned counsel for the petitioner that an authority exercising the statutory power of revision has an obligation to consider the revision on merit and to pass a speaking order. Otherwise, it will defeat the very purpose of providing are vision to higher authority from the order of a subordinate authority. In Ext. P4 order, the first respondent has stated that there is no necessity to interfere in the matter by Government in view of the proceedings of the Director of Public instruction dt. 28.8.95 (Ext. P2). Therefore, in effect the first respondent was confirming the order of the second respondent. It must be remembered that the first respondent was considering the legality of Ext. P2 order, by which the second respondent has passed an order elaborately considering all the arguments put forward by the parties. When the revisional authority agrees with the views expressed by the appellate authority in a well considered order, I do not think that it is absolutely necessary to pass another detailed order so as to confirm the order of the appellate authority. I do not think Ext. P4 is vitiated by the sole circumstance of not giving any reason while confirming Ext. P2 order, which is really a speaking order. Therefore, O.P. No. 13135/96 is dismissed. In O.P. No. 11929/96 a direction is issued to the second respondent to see that Ext. P2 order is implemented forthwith. The third respondent is well advised to implement Ext. P2 order by transferring the 4th respondent to SNDP Higher Secondary School, Udayamperoor within one month from today. Otherwise, appropriate authorities are free to take any action against the third respondent for disobedience of the orders passed under the KER. The second respondent is also free to direct any of its subordinate officers to implement the above direction. O.P. No. 11929/96-T is disposed of as above.