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2000 DIGILAW 455 (KER)

Corporate Manager v. State of Kerala

2000-08-25

G.SASIDHARAN

body2000
JUDGMENT : The petitioner is the Corporate Manager of L.M.S. Schools owned by the South Kerala Diocese of Church of South India, a minority community. The Diocese owns schools situated in difference parts of Trivandrum and Kollam Districts. The schools are aided schools governed by the provisions of the Kerala Education Act and the Rules. Ext. P2 is the order by which 25 High School Assistants/Language Teachers including respondents 3 to 6 were transferred. Respondents 3 to 6 and certain others transferred under Ext. P2 filed representations before the second respondent - Director of Public Instruction - to set aside the order of transfer. The representations submitted before the second respondent were disposed of directing the teachers to make individual representations to the Manager and the Manager was directed to consider and dispose of the representations. 2. Exts. P5 to P8 are copies of representations submitted by respondents 3 to 6 before the petitioner. On considering those representations in the light of the direction given by the second respondent, the petitioner arrived at the decision that there is no ground to modify the order of transfer in the case of respondents 3 to 6 and as per Exts. P9 to P12 rejected their representations. 3. Respondents 3 to 6 filed appeals/petitions before the second respondent against Exts. P9 to P12 orders passed by the petitioner. Notice was issued by the second respondent to the petitioner to appear for hearing the appeals/petitions filed by respondents 3 to 6. The petitioner appeared before the second respondent in connection with those matters and the second respondent issued Exts. P16 and P17 orders quashing the transfer orders of respondents 3 to 6. Exts. P16 and P17 are under challenge in this Original Petition. 4. The Corporate Educational agency is competent to transfer teachers from one school to another as per the provisions contained in R. 10, Chapter XIVA of the Kerala Education Rules (hereinafter referred to as “the Rules”). The provision in the above Rule is that in effecting such transfers the principles followed in Government schools shall be observed to the extent possible. The rule does not say that transfer of teachers can only be made in accordance with the principles followed in Government schools. But what it provides is that as far as possible principles followed in Government schools shall be observed in the case of transfer of teachers in aided schools. The rule does not say that transfer of teachers can only be made in accordance with the principles followed in Government schools. But what it provides is that as far as possible principles followed in Government schools shall be observed in the case of transfer of teachers in aided schools. The above rule provides that principles of transfer shall be as stated in that rule. R. 10 of the Rules envisages that the chief and formost criterion for transfer of Headmaster shall be the seniority and that every Headmaster shall be allowed to exercise choices of three or more schools. Exceptions to the seniority criterion shall be the bare minimum and exception shall include close relatives of jawans, intercast marriage, physically handicapped, other grounds for special consideration, compassionate grounds, persons who have only one year of service left for retirement etc. Transfer can also be made under administrative interest and it shall include unsuitability, allegations of corruption, misuse of official position, disciplinary action, incompetence and consistent poor performance. 5. Ext. P1 is the guidelines for general transfer in respect of Government servants. General transfer has to be made in all departments once in a year before 15th May. The provision in the guidelines is that a person who has not completed three years of service in a particular station should not be transferred. It also provides that a person need not be transferred from a station for the sole reason that he has completed three years in that station. Such a person can be transferred from that station when another person who has completed three years in a particular station asks for transfer to that station. The guidelines also envisages transfer on public interest. 6. R. 10(5) of the Rules says that cases of deviation from the seniority norms shall be appealable before the Director of Public Instruction who shall decide the case. The above provision would indicate that the appellate power of the Director of Public Instruction is limited to cases of deviation from the seniority norms. 6. R. 10(5) of the Rules says that cases of deviation from the seniority norms shall be appealable before the Director of Public Instruction who shall decide the case. The above provision would indicate that the appellate power of the Director of Public Instruction is limited to cases of deviation from the seniority norms. s The case of the petitioner is that as per the above rule, seniority has to be strictly complied with in matters of transfer only in the case of Headmasters and there is no provision which says that in transferring teachers also seniority has to be taken into account and hence this is a case in which the Director of Public Instruction has no authority to interfere in appeal. It is true that in R. 10 of the Rules, it is not mentioned that seniority will be the criterion for effecting transfer of teachers. What the Rule provides is that the chief and formost criterion for transfer of Headmaster shall be the seniority. 7. The question whether seniority has any relevance in the matter of effecting transfers of teachers was considered by this Court in Valsa v. State of Kerala, 1997 (1) K.L.T. 19 . In that case, it was held that even though sub-cls. 1 and 2 of R. 10 of the Rules which mentions about seniority in the matter of transfers are applicable to Headmasters, that does not mean that all the principles enumerated in R. 10 are applicable only in the case of transfer of Headmasters. This Court held that the mere fact that sub-cls. 1 and 2 are made applicable to Headmasters does not lead to the conclusion that seniority is totally irrelevant or immaterial in deciding the legality of transfer of teachers. That only means that seniority can be taken into account in effecting transfers. Since Exts. P16 and P17 orders which are challenged in this Original Petition were made by the Director of Public Instruction cancelling the orders of transfer issued by the petitioner-Manager, the question which arises for consideration is whether the Director of Public Instruction in appeal can set aside those orders. As pointed out earlier, R. 10(5) of the Rule limits the appellate power of the Director of Public Instruction in cases of deviation from the seniority norms. As pointed out earlier, R. 10(5) of the Rule limits the appellate power of the Director of Public Instruction in cases of deviation from the seniority norms. That provision would clearly indicate that the Director of Public Instruction can interfere in appeal when deviation from the seniority norms is made for effecting transfers. As per R. 10, seniority has to be considered only in respect of transfer of Headmasters. There is no specific provision in R. 10 which says that effecting transfers of teachers also should be strictly in accordance with seniority. In R. 10 of the Rules, there is no provision to consider seniority in the matter of transfer of teachers. That being the position, it cannot be said that there is deviation from seniority norms in effecting transfer of teachers and for that reason there can be no appeal in respect of that matter before the Director of Public Instruction. Even though in the decision referred to above, it is stated that seniority cannot be said to be irrelevant in effecting transfer of teachers, that decision cannot be understood as one which said that in cases where seniority is not considered in effecting transfer of teachers, those matters will be cases which would come under R. 10(5) of the Rules for the purpose of appeal. 7. A reading of Exts. P16 and P17 would go to show that those orders were made by the Director of Public Instruction by saying that seniority norms were not being complied with. In Sashikumar v. State of Kerala, 1998 (2) K.L.T. 330 , a two Judge Bench of this Court held that transfer of an employee is part of conditions of service and the employees are bound to obey the orders of transfer and work in the place where they have been transferred and posted and that transfers from one establishment to another is an incident of service and that the employer is the best judge to decide whether transfer has to be made or not. This is a case in which the petitioner who is competent for effecting transfer effected transfer of respondents 3 to 6 by issuing orders. Thereafter, as directed by the Director of Public Instruction after considering the representations given by respondents 3 to 6 a decision was arrived at that there was no need for reconsidering the transfer effected. Then Exts. This is a case in which the petitioner who is competent for effecting transfer effected transfer of respondents 3 to 6 by issuing orders. Thereafter, as directed by the Director of Public Instruction after considering the representations given by respondents 3 to 6 a decision was arrived at that there was no need for reconsidering the transfer effected. Then Exts. P16 and P17 orders were made by the second respondent, Director of Public Instruction whose appellate power is limited to cases of deviation from seniority norms. Hence, Exts. P16 and P17 orders are liable to be quashed. The Original Petition is accordingly allowed, quashing Exts. P16 and P17 orders.