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2001 DIGILAW 341 (KER)

Joseph Saphia v. Director of Public Instruction

2001-07-02

K.K.USHA, KURIAN JOSEPH

body2001
Judgment :- Kurian Joseph, J. Transfer is an incidence of service. However, in the case of transfer of aided school teachers and Headmasters, there arise a few questions of general importance on the interpretation of R.10 of Chapter XIV-A of the Kerala Education Rules, 1959 (hereinafter referred to as 'the K.E.R.) for consideration in this case: 1) Is a teacher working in an aided school under a corporate management entitled to insist that transfer should be on the basis of seniority? 2) In case of deviation from the position as stated above, is a teacher entitled to file an appeal before the Director of Public Instruction? 3) What is the position as far as transfer of Headmaster in an aided school under a corporate management is concerned? 2. Petitioner, an aided school teacher, who has been working in B.E.M. High School, Parappanangadi since June, 1997 was transferred after four years as per Ext. P1 proceedings of the Corporate Manager to B.E.M.U.P. School, Codacal, Tirur, a place around 40 KMs. from Parappanangadi. Ext. P1 proceedings would show that the transfer is ordered on "administrative interest". In her challenge to Ext. P1 the petitioner submitted that her transfer is in violation of the norms of seniority and that in any case it is in excess of the 25% exception to the general rule of seniority permitted under the Rules. In fact, the petitioner has filed an appeal as evidenced by Ext. P2 before the 1st respondent-Director of Public Instruction, purporting it to be one under Clause (5) of R.10 of the K.E.R. 3. The learned Single Judge however was of the view that there are conflicting views in the matter of interpretation of R.10 of Chapter XIV-A, K.E.R. and hence referred the matter to Division Bench. 4. However, before referring to those decisions, it is necessary to understand R.10 which is extracted below: "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. 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, intercaste marriage, physically handicapped, other grounds for 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". 5. In Valsa v. State of Kerala (1997 (1) KLT 19), a learned Single Judge of this Court interpreting R.10 held as follows: "R.10 says that the principle 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 Headmaster shall be the seniority. Sub-clause (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) and (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. 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." 6. In Corporate Manager v. State of Kerala (2000 (3) KLT 722) another learned Single Judge however held as follows: "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. In Corporate Manager v. State of Kerala (2000 (3) KLT 722) another learned Single Judge however held as follows: "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. 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 foremost criterion for transfer of Headmaster shall be the seniority. R.10(5) of the Rules 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." The learned Single Judge on the principle of seniority among teachers in the matter of transfer distinguished Valsa's case thus: "In that case, it was held that even though sub-clauses (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-clauses (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." 7. The fact remains that both the abovementioned decisions have been taken up in appeal and are concluded by Bench decisions. Unfortunately, both the decisions are not seen reported. 8. Valsa's case (supra) ended up in Writ Appeal No. 1501 of 1996. On the interpretation of R.10, the Bench was of the view that "The relevant provision is R.10 of Chapter XIV-A of the Kerala Education Rules. It is true that seniority as such is not stated in the rule in respect of teachers, whereas in the case of Headmaster it is specifically mentioned. It may be true to say that R.10 is the final word regarding the transfer and the management is given permission to deviate from the rule in appropriate cases." True, the Bench did not interfere with the decision of the learned Single Judge in that case. However, as already mentioned above, on the interpretation of the rule, the Bench was of the clear view that as far as aided school teachers are concerned, seniority is not stated to be the criterion in the matter of transfer in a corporate management under R.10 of Chapter XIV-A, KER. 9. The latter decision in 2000 (3) KLT 722 was taken before us in W.A.No.1995 of 2000 and the same was dismissed by judgment dated 20.9.2000., In the said decision we have elaborately dealt with the scope of R.10 in the matter of transfer of aided school teachers as well as Headmasters. Though the earlier Division Bench decision in W.A.No.1501 of 1996 arising from 1997 (1) KLT 19 was not placed before us, as a matter of fact, we have applied the statutory position as clearly interpreted by the earlier Bench. We have taken the view that the rule of seniority as provided in R.10 would apply only in the case of transfer of Headmasters. It was held that the transfer of teachers cannot be limited on the basis of their seniority. But when it comes to the transfer of Headmasters, the foremost criterion shall be seniority. We have taken the view that the rule of seniority as provided in R.10 would apply only in the case of transfer of Headmasters. It was held that the transfer of teachers cannot be limited on the basis of their seniority. But when it comes to the transfer of Headmasters, the foremost criterion shall be seniority. We have also observed that it was not necessary for the management to issue notice to the teacher concerned before issuing order of transfer since there was no such procedure contemplated in the norms for transfer applicable to Government School teachers. 10. The emerging position after considering both the judgments is that as a matter of fact there is no conflict between the said decisions. There is only one interpretation of the statutory provision that as far as aided school teachers are concerned, it is not incumbent upon the management to follow the rule of seniority. The same need be followed only in the case of transfer of Headmasters. Hence the contention regarding violation of 25% permitted deviation affecting seniority need not be considered because the petitioner has no right to insist that the transfer should be on the basis of seniority. In the light of the above decisions, it has also to be held that the judgment in Valsa v. State of Kerala (1997 (1) KLT 19) does not reflect the correct position of law. With great respect, we overrule the same. 11. That takes us to the question of maintainability of appeal under Clause (5) of R.10. At the risk of redundancy, it may be seen that an appeal to the Director of Public Instruction is provided in cases of deviation from the seniority norms as far as transfer of aided school Headmasters are concerned. As already held by us, the corporate manager is not bound to follow the seniority norms as far as transfer of aided school teachers are concerned and hence there arises no question of any appeal at the instance of an aided school teacher challenging transfer from one school to another under the same corporate management on any grounds. As far as transfer of Headmasters in aided schools are concerned, since the rule specifically provides that seniority shall be "the chief and foremost criterion", the provision regarding appeal under R.10(5) would apply in case of deviation from the seniority norms. As far as transfer of Headmasters in aided schools are concerned, since the rule specifically provides that seniority shall be "the chief and foremost criterion", the provision regarding appeal under R.10(5) would apply in case of deviation from the seniority norms. However, it has to be specifically seen that under Clause (3) there is a permitted deviation as far as cases of close relatives of Jawans, intercaste marriage, physically handicapped, compassionate grounds, persons having only one year of service left for retirement, on grounds of special consideration etc. Clause (4) providing for transfer under administrative interest including unsuitability, allegations of corruption, misuse of official position, disciplinary action, incompetence and consistent poor performance also would indicate the justifiable grounds for deviation from the norms of seniority. But, as already held by us in. W.A. No. 1995 of 2000, these are factors which a Manager is entitled to take into consideration while transferring aided school teachers or headmasters. 12. We are also of the view that the legislature has consciously provided the provision for appeal only in the case of deviation of norms in the case of Headmasters, as otherwise the Directorate of Public Instruction will be flooded with appeals, if the aided school teachers are provided with right of appeal against their transfers. According to us, the legislature has left that field only to the wisdom, prudence and good conscience of the Corporate Manager. In the above circumstances, we do not find any conflicting position as far as interpretation of R.10 of Chapter XIV-A, K.E.R. is concerned. The petitioner is only an aided school teacher and her grievance regarding transfer to another school violating the norms of seniority does not merit consideration. As there is no appeal provided, there arises no question of directing the 1st respondent to consider Ext. P2 as well. Accordingly we dismiss the Original Petition. However, we make it clear that the dismissal of the Original Petition will not stand in the way of the petitioner representing her grievances before the 2nd respondent-Corporate Manager.