Research › Search › Judgment

Kerala High Court · body

2005 DIGILAW 563 (KER)

The Corporate Manager v. Geno George

2005-08-23

K.A.ABDUL GAFOOR, K.HEMA

body2005
Judgment :- Abdul Gafoor, J. Impugning the transfer of a teacher, the first respondent in W.A.No.1646/05, the Parent Teachers’ Association as well as the teacher filed writ petitions before this court. Those writ petitions were disposed of by a common judgment. That common judgment is impugned in these two writ appeals by the manager, who effected the transfer. The manager is aggrieved because of the directions contained in the judgment to continue the interim order already passed, at the time of admission of W.P.(C) No.16761/2005, until the directions in the judgment are complied with. 2. It is contended by the appellant manager that the teacher, who had been continued in a particular school for more than a decade was transferred to another school in the nearby district under the same management. In such circumstances, it could not have been stayed and such stay could not have been directed to be continued. It is further submitted that the parties agreed before the learned single Judge for a direction to the Government to dispose of the representations filed by the writ petitioners challenging the transfer effected by the appellant. The appellant also agreed for such a course of action, but made it clear that the interim order should not be made absolute. So the parties were relegated to Government but maintaining the interim order. This is the grievance of the appellant. 3. It is submitted that such a direction contained in the impugned judgment is a real interference with the transfer order. Though a vague allegation of mala fide has been made in the writ petition nothing could be substantiated. The learned single Judge also did not find any mala fides. The competence of manager to effect a transfer was also not under challenge. Therefore no ground for interference had been disclosed. In such circumstances, interference, though to a limited extent, to an order of transfer was unnecessary. Relying on the decision reported in State of U.P. v. Gobardhan Lal (2004(11) SCC 402, it is contended that the transfer is an incidence of service and that unless any malafide is proved an order of transfer cannot be interfered with. Yet another ground for interference is the competence of the authority who passed the transfer order. That also was not urged in the writ petition. Yet another ground for interference is the competence of the authority who passed the transfer order. That also was not urged in the writ petition. In such circumstances, the interference, though to a limited extent, by maintaining the interim order passed at the time of the admission of the Writ Petition until the disposal of the representation was not proper, it is submitted. It is further submitted that transfer of a teacher from one school to another under the appellant management is only an administrative matter and cannot affect public interest. In place of the imcumbent transferred another competent teacher has been provided as the substitute. Therefore, no public interest is impaired by reason of that transfer. Relying on the decision reported in Zee Telefilms Ltd. and Anr. V. Union of India and ors. (2005 (4) SCC 649) it is contended that when a private body exercised its public function, the aggrieved person has a remedy by way of writ petition under Article 226, only if the action is in relation to a matter affecting public interest. The transfer of a teacher from one school to another does not thus involve any public duty cast on the manager under the KER. So no reason for interference on that ground also has been revealed. 4. The writ petition could have been disposed of on merit. But when it was disclosed that the writ petitioners have represented their grievance before the Government, the appellant also conceded for a dictum for disposal of such representation with notice to the parties. By reason of that, the interim order passed at the stage of admission of the writ petitions could not have been maintained. There was specific submission in that regard. That was overlooked, it is contended. 5. The counsel for the respondents, the PTA and the teacher transferred contends that, this court will have always the discretion to keep in abeyance an order against which the parties are relegated to appropriate alternate remedy. Manager is an authority in terms of the KER to manage the schools and authorised to pass appropriate orders including appointment of teachers, promotion of teachers, transfer of teachers and to handle disciplinary action. Whenever such orders affect the interest of any incumbent, the incumbent will have a right to redress the grievance. Manager is an authority in terms of the KER to manage the schools and authorised to pass appropriate orders including appointment of teachers, promotion of teachers, transfer of teachers and to handle disciplinary action. Whenever such orders affect the interest of any incumbent, the incumbent will have a right to redress the grievance. An order of transfer is one issued by the manager as empowered in terms of rule 10 Chapter XIV-A KER. No separate appeal is provided for except under sub rule (5), limiting the ground only to the violation of seniority rule. Such a ground is not available in this case. Therefore appropriate remedy statutorily available is a revision petition under Rule 92 Chapter XIV-A KER. When such a representation has been filed before Government, which can properly interfere with the order of the manager, necessarily this court will relegate the parities to such appropriate remedy and maintain the status quo or pass appropriate orders in order to protect the interest of the parties concerned until the alternate remedy has exhausted. That is what has been done in this case. The respondent submits therefore that there is no reason at all for interference with the impugned judgment. If at all the matter had been argued, it could have been substantiated, the respondents submit that, the substitute in place of the 1st respondent in W.A.No.1646/05 was not competently trained to perform the duties discharged by the teacher transferred. He was not trained in scouts. The teacher transferred had been appointed as the master trainer for scout. This was not attempted to be substantiated before the learned single judge because as the parties were relegated to the statutory authority. Therefore there is nothing for interference, it is submitted. 6. The learned counsel for the appellant is perfectly justified to submit that the competence of the appellant to effect the transfer is not disputed. Learned counsel also is perfectly justified to submit that a transfer which is the incidence of an incumbent in service can be interfered with only when mala fide is proved. In the absence of such ground no interference is possible. The reliance placed on the decision in State of U.P. v. Gobardhan Lal (2004 (11) SCC 402) is well footed. 7. Interference by the court against an order of an administrative authority results in quashing the order. In the absence of such ground no interference is possible. The reliance placed on the decision in State of U.P. v. Gobardhan Lal (2004 (11) SCC 402) is well footed. 7. Interference by the court against an order of an administrative authority results in quashing the order. As per the impugned judgment the transfer order had never been quashed. The legality of the order has been directed to be examined by the statutory authority. It has been disclosed before the learned single Judge that the representation in that regard had been filed before the government. Of course at that stage the appellant had submitted that he is amenable for such course of action, provided the interim order is not extended or made absolute. The interim order is not extended or made absolute indefinitely. Exercise of the power vested with the learned single Judge under Article 226 in order to render justice for the parties for an interregnum cannot be termed as an interference with the transfer order. Interference or otherwise of the transfer order is absolutely left to the statutory authority. The submissions that one incumbent transferred is qualified for imparting instruction on scout and the imcumbent who is substituted is not so trained might have weighed with the learned single Judge to maintain status quo until the Govt. decides on the issue. In such circumstances, we are of the view that the direction of the learned single Judge to maintain the interim order passed pendent elite, until the statutory authority passes appropriate order, cannot be said to be interference with the transfer order to attract the dictum laid down in Zee telefilms Ltd. and anor. V. Union of India and Ors. (2005 (4) SCC 649). We make it clear that the learned single Judge has not interfered with the transfer order. We find no reason to interfere with the impugned judgment. Appeal is fail and are dismissed.