Corporate Manager Central Board of Anglo Indian Education, Perumanoor, Kochi v. Elizabeth Ivy Beveria and Others

## IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT: ## THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE MR. JUSTICE A.M.BABU # THURSDAY, THE 12TH DAY OF JANUARY 2017/22ND POUSHA, 1938 WA.No. 2288 of 2016 IN WP(C).28581/2016 -------------------------------------------JUDGMENT IN WP(C) 28581/2016 DATED 26.10.2016 APPELLANT/4TH RESPONDENT IN WPC: ------------------------------------------------------------------ CORPORATE MANAGER CENTRAL BOARD OF ANGLO INDIAN EDUCATION, PERUMANOOR, KOCHI-682015. BY ADVS.SRI.P.CHANDRASEKHAR SRI.SOORAJ T.ELENJICKAL SMT.MARY RESHMA GEORGE SMT.V.A.HARITHA SMT.SANDHYA R.NAIR SMT.P.M.MAZNA MANSOOR SRI.C.R.SYAMKUMAR ## RESPONDENTS/PETITIONER AND RESPONDENTS 1 TO 3 IN WPC: ------------------------------------------------------- ## 1. ELIZABETH IVY BEVERIA LOWER PRIMARY SCHOOL ASSISTANT, LORETTO ANGLO INDIAN HIGH SCHOOL, LATHS, MOOLANKUZHI, SOUDI, KOCHI-682001. ## 2. STATE OF KERALA REPRESENTED BY SECRETARY TO THE GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001. ## 3. DIRECTOR OF PUBLIC INSTRUCTIONS ## JAGATHI, THIRUVANANTHAPURAM-695001. 4. DISTRICT EDUCATIONAL OFFICER ERNAKULAM-682035. ## WA.No. 2288 of 2016 -2- BY ADV. SRI.M.A.FAYAZ BY GOVERNMENT PLEADER E.S. ASHRAF THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 12-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## WA.No. 2288 of 2016 ## APPENDIX ## ANNEXURES A1TRUE COPY OF THE ORDER NO.1835/2016/K DIS DATED 30.8.2016 A2TRUE COPY OF THE SENIORITY LIST OF LPSAS IN THE SCHOOLS OF THE APPELLANT A3TRUE COPY OF THE LIST OF RULE 51A CLAIMANTS IN THE SCHOOL A4TRUE COPY OF RELEVANT PAGES OF THE ATTENDANT REGISTER OF OLSAILPS, KUNJITHAI A5TRUE COPY OF THE RELEVANT PAGES OF THE ATTENDANT REGISTER OF LAIHS, SAUDI //True copy// P.S to Judge ## **K.SURENDRA MOHAN & A.M.BABU, JJ** - - - - - - - - - - - - - - - - - - - - W.A.2288 of 2016 - - - - - - - - - - - - - - - - Dated : 12[th] January, 2017 - - - - - - - - - - - - - - - - - - - - - - - - ## **JUDGMENT** ## K.Surendra Mohan,J 1.The Corporate Manager who was the 4[th] respondent in W.P.(C).2851/2016 is in appeal against the judgment dated 26.10.2016 of the learned Single Judge. As per the judgment appealed against, the writ petition has been disposed of directing the appellant to pass fresh orders with regard to the deployment of the teachers who had become excess as per the staff fixation order for the years 2014-15 and 2015-16. During the crucial staff fixation, seven teachers became excess due to fall of divisions. The appellant is the Corporate Manager of an educational agency that owns 11 schools. Therefore, the teachers who were rendered excess were deployed in order to accommodate them, at the other schools under the same Management. The 1[st] respondent was **WA.2288/2016** 2 working as a Lower Primary School Assistant (LPSA) at the LAIHS, Moolankuzhi, Saudi. The staff fixation orders referred to above, related to the said school. The 1[st] respondent and the other teachers were rendered surplus, at the said school. The 1[st] respondent was accommodated at the OLSAILPS, Kunjithai. 2.According to the 1[st] respondent, she is a person who has more than 26 years of service as a teacher. The school at which she has been accommodated is about 45 Kms away and she has to travel by two jankars, to reach there. Her complaint is that, while she has been deployed to a distant place, all her juniors have been accommodated at schools that are close to LAIHS, Moolankuzhi, Saudi. Thus, the appellant who is the Corporate Manager is alleged to have acted with mala fides in deploying her to a distant location. The contentions of the 1[st] respondent were disputed by the appellant who was the 4[th] respondent in the writ petition. According to him, he had challenged the staff **WA.2288/2016** 3 fixation order before the Deputy Director, in appeal, which was pending. However, in the meantime, the surplus teachers have been accommodated in the vacancies that were available in the other schools under the corporate management. Pursuant to an interim order of this Court, the 1[st] respondent was also accommodated in an established vacancy, at Kunjithai. While she was initially accommodated in the vacancy of a Head Teacher, the said order was subsequently modified by accommodating her in an established vacancy. 3.The learned Single Judge considered the respective contentions and found that the teachers who were rendered surplus consequent to the staff fixation orders had to be accommodated in schools of their choice on the basis of their seniority, following the principles that govern the transfer of teachers in Rule 10 Chapter XIV A, KER. Since the teachers who became surplus had been accommodated without following the said **WA.2288/2016** **==> picture [7 x 9] intentionally omitted <==** principles, the appellant has been directed to pass fresh orders with regard to the deployment of the surplus teachers, in accordance with the principles set out in Rule 10 Chapter XIV A, KER. It is the said judgment that is under challenge in this appeal. 4.Sri.P.Chandrasekhar, who appears for the appellant, submits that the learned Single Judge was not justified in setting aside the orders evidenced by Ext.P4, R4(l) and R4(n) respectively and issuing the directions that are under challenge. It is contended that, in the first place the appellant is the Manager of an aided school and a private authority who was not amenable to the writ jurisdiction of this Court. The impugned proceedings were not liable to be questioned or set aside on the grounds of violation of Article 14 or any of the other fundamental rights. The counsel places reliance on the decision of the Apex Court in Satimbla Sharma and Others v. St.Paul's Senior Secondary School and Others **WA.2288/2016** 5 (2011 (3) KHC 813) : (2011 (13) SCC 760) in support of the above propositions. The counsel for the 1[st] respondent immediately intervenes to point out that the said decision was rendered with respect to an unaided private minority school whereas in the present case, the school is an aided one, governed by the provisions of a statute. The learned counsel also places reliance on the decision in State of Tamil Nadu and Others v. K.Shyam Sunder and Others (2011 KHC 4667 : 2011 (8) SCC 737). The 1[st] respondent was not entitled to claim any relief as sought for in the writ petition. According to the learned counsel, by setting aside the orders passed by the Appellate Authority, a lot of confusion has been created. The educational agency has 11 schools and a total staff of 57 teachers. It would be a cumbersome procedure to call for the choice of schools of teachers and to pass fresh orders after hearing all of them. It is pointed out that, no prejudice has been caused to any of the teachers by the impugned orders **WA.2288/2016** 6 for the reason that, not one of them has been send out. Each one of them has been accommodated in the vacancies available under the same corporate management. No teacher has a right to claim that she would work only in a particular place. Therefore, the counsel seeks interference with the judgment appealed against. 5.Advocate M.A.Fayaz appears for the 1[st] respondent. According to the learned counsel, the 1[st] respondent is a teacher who has put in more than 26 years of service. She is aged more than 52 years and is approaching her retirement. The appellant is antagonistic towards her for the reason that she has been complaining against him to the educational authorities. It is for the said reason that she was posted at a distant place while teachers who were far junior to her were accommodated at nearby schools. The procedure adopted by the Manager was in violation of the principles stipulated by the Kerala Education **WA.2288/2016** 7 Act and the Rules thereunder. Rule 10 Chapter XIV A, KER stipulates that, transfer of teachers among the schools under the same educational agency has to be done on the basis of the principles of seniority as well as choice of each teacher. Such principle is applicable while deploying teachers who are rendered surplus as a result of staff fixation orders also. The appellant had, in violation of the said principle, deployed teachers in accordance with his own whims and fancies. Such action was violative of the statutory provision. It is for the said reason that, the learned Single Judge has interfered with the same and what has been directed is only to pass fresh orders. Therefore it is contended that, absolutely no prejudice has been caused to the appellant by the direction issued by the learned Single Judge. - 6.Heard. The basic facts are not in dispute. Consequent to the staff fixation orders for the years 2014-15 and 2015-16, seven teachers **WA.2288/2016** 8 who were working at the LAIHS, Moolankuzhi, Saudi, a school coming under the management of the appellant, were rendered surplus. It is not in dispute that, the petitioner is the senior most among the teachers who were so rendered surplus. It is also not in dispute that, all the teachers who were so rendered surplus have been accommodated in the vacancies available in the various schools owned by the educational agency. The dispute is only with respect to the places to which the teachers were so posted. The 1[st] respondent was initially posted in the Head Teacher's vacancy at the OLSAILPS, Kunjithai. Since the Government order that was applicable stipulated that the Head Teacher's vacancy was to be filled up by posting a protected teacher, the appellant issued Ext.R4(n) order shifting the 1[st] respondent and posting her against a regular vacancy to which another LPSA had been posted. According to the Manager, the LPSA, who was so shifted was the junior most teacher under the Corporate **WA.2288/2016** **==> picture [7 x 9] intentionally omitted <==** management. Therefore it is contended that, the 1[st] respondent was accommodated in a regular vacancy and that she had no cause for complaint thereafter. However, according to the learned counsel for the 1[st] respondent, Ext.R4(l) specifically provides that the said order would take effect only from 19.9.2016. This, according to the counsel is for the reason that the teacher who had been shifted had been drawing salary from 1.4.2016 onwards. It is therefore contended that, the said order does not, provide any solution to the problem that has been created. We notice that, subsequently by another order, which is produced as Ext.R4(n), the date of effect of Ext.R4(l) has been modified and it has been provided that the order would take effect only from 1.4.2016. According to the learned counsel for the appellant, the judgment appealed against, by setting aside the orders, Ext.R4(l) and (n) along with Ext.P4, has created a situation where the 1[st] respondent has not been accommodated in any post from **WA.2288/2016** 10 1.4.2016. However, we do not find any merit in the said contention for the reason that, the learned Single Judge has stated specifically in the judgment that the said orders were being set aside only for the purpose of facilitating the Corporate Manager to issue fresh orders deploying teachers in accordance with the principles stipulated by Rule 10 Chapter XIV A, KER. 7.We have gone through the pleadings as well as the documents produced. We find that teachers who were junior to the 1[st] respondent were accommodated at places closer to LAIHS, Saudi, while the 1[st] respondent had been posted to a distant place. It is not in dispute that, all the teachers have become surplus consequent to the staff fixation orders issued simultaneously. Therefore, the teachers had to be accommodated on the basis of their seniority and the principles stipulated by Rule 10 Chapter XIV A. Rule 10 Chapter XIV A stipulates that the chief and foremost **WA.2288/2016** **==> picture [13 x 9] intentionally omitted <==** criterion for transfer of a teacher shall be the seniority. A teacher should also be permitted to exercise choice of his/her own. Admittedly, no such procedure was followed. In fact, the criterion on the basis of which the teachers who became surplus were deployed to various schools, is not forthcoming. The only explanation that the Manager has is that, all the teachers have been accommodated at the various schools under the educational agency where there were vacancies. The direction of the learned Single Judge to follow a criterion for the postings and the direction to effect such posting on the basis of the criterion in Rule 10, Chapter XIV A, cannot be found fault with. The question of violation of fundamental rights or of being amenable to the writ jurisdiction of this Court for the said reason, does not arise in the present case for the reason that, the educational agency of the appellant is functioning in accordance with the provisions of the Kerala Education Act, 1958 and the Rules thereunder. Any violation ## **WA.2288/2016** **==> picture [13 x 9] intentionally omitted <==** of law, is amenable to correction in exercise of jurisdiction under Article 226 of the Constitution of India. Apart from the above, we do not find that, any prejudice has been caused to the appellant by the judgment appealed against. The direction is only to effect postings of the teachers who are rendered surplus in accordance with the provisions of the statute. The appellant can have no grievance against the said direction. - 8.For the above reasons, we find no grounds to interfere with the judgment appealed against. The appeal fails. It is accordingly dismissed. Sd/- ## **K.SURENDRA MOHAN Judge** ## **Sd/A.M.BABU Judge** Mrcs/13.1.2017 //True copy// P.S to Judge