Josephine Sherly Paul W/o P. Mathai v. The Corporate Manager, CMS SCHOOLS, CSI Diocese, Madhya Kerala, Kottayam; District Educational Officer, Kottayam; Deputy Director (Education), Kottayam; District Educational Officer, Thiruvalla; Director of Public Instructions, Thiruvananthapuram; SMT. Alice Paul, Lower Grade Full Time Hindi Teacher, CMS High School, Pallom; State of Kerala, represented by the Secretary to Government, General Education Department, Government Secretariat, Thiruvananthapuram; The Principal, CMS Higher Secondary School, Mallappally

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 12TH MARCH 2008 / 22ND PHALGUNA 1929** **OP.No. 38429 of 2002(Y)** **----------------------------------** **PETITIONER:** - **-------------------** **JOSEPHINE SHERLY PAUL W/O. P.MATHAI, PLATHARAYIL HOUSE, PARUMPUZHA P.O., KOTAYAM-686032 PRESENTLY LOWER GRADE HINDI TEACHER, C.M.S. HIGHER SECONDARY SCHOOL, MALLAPPALLY, PATHANAMTHITTA DIST.** ## **BY ADV. SRI.M.V.THAMBAN.** **RESPONDENTS:** **------------------------** **1. THE CORPORATE MANAGER, C.M.S.SCHOOLS, C.S.I. DIOCESE MADHYA KERALA, KOTTAYAM** **2. THE DISTRICT EDUCATIONAL OFFICER, KOTAYAM.** **3. DEPUTY DIRECTOR (EDUCATION) KOTTAYAM.** **4. DISTRICT EDUCATIONAL OFFICER, THIRUVALLA** **5. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM** **6. SMT. ALICE PAUL, LOWER GRADE FULL TIME HINDI TEACHER, C.M.S.HIGH SCHOOL, PALLAM, KOTTAYAM.** **7. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO THE GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **8. THE PRINCIPAL, C.M.S.HIGHER SECONDARY SCHOOL, MALLAPPALLY.** **BY GOVT. PLEADER SRI. T.T. MOHAMOOD, ADV. SRI. S. SUBASH CHAND, ADV. SRI.BABU VARGHESE.** **THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 08/02/2008, THE COURT ON 12/03/2008 DELIVERED THE FOLLOWING:** **O.P. NO. 38429/2002-Y:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P.1: COPY OF THE ORDER NO. B6/11474/K. DIS. DTD. 14/02/2000 ISSUED BY THE R.2.** **EXT.P.2: COPY OF THE ORDER NO. B4-2695/2000-K. DIS. DTD. 02/09/2000 ISSUED BY THE R.3.** **EXT.P.3: COPY OF THE GOVT. ORDER G.O. (MS). NO. 275/99/G. EDN. DTD. 09/11/1999.** **EXT.P.4: COPY OF THE JUDGMENT DT. 11/10/2001 IN O.P. NO. 29063/2000 OF THE HONOURABLE HIGH COURT OF KERALA.** **EXT.P.5: COPY OF THE ORDER NO. DP4/91464/01/K. DIS. DT. 25/01/2002 ISSUED BY THE D.P.I.** **EXT.P.6: COPY OF THE ORDER NO. DP4/12393/02/D. DIS. DT. 23/10/2002 ISSUED BY THE D.P.I.** **EXT.P.7: COPY OF THE REPRESENTATION DT. 07/11/2002 SUBMITTED BY PETITIONER BEFORE THE R.8.** **EXT.P.8: COPY OF THE REPRESENTATION DT. 19/11/2002 SUBMITTED BY PETITIONER BEFORE THE R.1.** ## **EXT.P.9: COPY OF THE LETTER DTD. 25/11/2002 ISSUED BY THE R.1.** **EXT.P.10: COPY OF THE LETTER DT. 02/12/2002 SUBMITTED BY THE PETITIONER TO THE R.1.** **EXT.P.11: COPY OF THE APPOINTMENT ORDER DTD. 31/10/1998 ISSUED BY THE MANAGER.** **EXT.P.12: COPY OF THE APPOINTMENT ORDER DTD. 05/06/2000 ISSUED BY THE MANAGER.** **EXT.P.13: COPY OF THE ORDER NO. ET4-152506/2002/K. DIS. DTD. 25/01/2003 ISSUED BY THE D.P.I.** **EXT.P.14: COPY OF THE ORDER NO. D. 1246/2002 DTD. 16/04/2002 ISSUED BY THE ASSISTANT EDUCATIONAL OFFICER, CHERTHALA.** ## **RESPONDENT'S EXHIBITS:** ## **EXT.R1.A: COPY OF THE PROCEEDINGS ORDER NO. 2597/A/2000 DTD. 26/05/2000 ISSUED BY THIS RESPONDENT.** **EXT.R1.B: COPY OF THE ORDER NO. 4897/2002 DTD. 08/02/2002 PASSED BY THE MANAGER.** **EXT.R1.C: COPY OF THE ORDER NO. D. 1246/2002 DTD. 16/04/2002 ISSUED BY A.E.O.** **EXT.R1.D: COPY OF THE ORDER NO. B1/1937/2002/K. DIS. DTD. 07/05/2002 ISSUED BY THE DY. DIRECTOR (EDN.) KOTTAYAM.** **O.P. NO. 38429/2002-Y:** **EXT.R1.E: COPY OF THE ORDER NO. 5203/2002 DTD. 03/06/2002 OF THE CORPORATE MANAGER.** **EXT.R1.F: COPY OF THE NOTICE ISSUED BY THE PRINCIPAL TO THE PETITIONER.** **EXT.R1.G: COPY OF THE LETTER NO. 5259/2002 DTD. 14/06/2002 ISSUED BY THIS RESPONDENT TO THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **EXT.R1.H: COPY OF THE LETTER NO. 6718/2002 DTD. 31/10/2002 ISSUED BY THIS RESPONDENT TO THE PETITIONER.** **EXT.R1.I: COPY OF THE NOTICE DTD. 05/11/2002 ISSUED TO THE PETITIONER.** **EXT.R1.J: COPY OF THE LETTER NO. 6791/2002 DT. 25/11/2002 ISSUED BY THIS RESPONDENT TO THE PETITIONER.** **EXT.R1.K: COPY OF THE REPORT DTD. 20/11/2002 ISSUED TO THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **EXT.R1.L: COPY OF THE REPORT DTD. 23/11/2002 ISSUED TO THE DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM.** **EXT.R1.M: COPY OF THE REPORT OF THE PRINCIPAL OF THE SCHOOL DTD. 18/11/2002.** **EXT.R6.A: COPY OF THE JUDGMENT DTD. 14/12/2001 PASSED BY THIS HONOURABLE COURT IN R.P. NO. 588/2001.** **EXT.R6.B: COPY OF THE JUDGMENT PASSED BY THIS HONOURABLE COURT IN O.P. NO. 29063/2000.** **EXT.R6.C: COPY OF THE ORDER DTD. 08/02/2002 ISSUED BY THE R.1. IN IMPLEMENTATION OF EXT.P.5. ORDER.** **EXT.R6.D: COPY OF THE JUDGMENT DTD. 07/03/2002 PASSED BY THIS HONOURABLE COURT IN O.P. NO. 6594/2002.** **EXT.R6.E: COPY OF THE ORDER DTD. 07/05/2002 ISSUED BY THE DEPUTY DIRECTOR (EDUCATION) KOTTAYAM.** **EXT.R6.F: COPY OF THE JUDGMENT DTD. 15/11/2002 PASSED BY THIS HONOURABLE COURT IN O.P. NO. 26923/2002.** **EXT.R6.G: COPY OF THE ORDER DTD. 25/01/2003 PASSED BY THE R.5.** **EXT.R6.H: COPY OF THE APPROVED APPOINTMENT ORDER OF THE PETITIONER DTD. 02/11/1998.** ## **//TRUE COPY//** ## **P.A. TO JUDGE.** **prv.** ## S.SIRI JAGAN, J. ================== ## O.P.No.38429 of 2002 ================== Dated this the 12[th] day of March, 2008 ## J U D G M E N T The petitioner is a Lower Grade Hindi Teacher, now working in C.M.S. Higher Secondary School, Mallappally, one of the schools owned by a Corporate Educational Agency, of which the 1[st] respondent is the Manager. She seeks resolution of a long standing dispute among her, the 1[st] respondent Manager and the 6[th] respondent, another Lower Grade Hindi Teacher, now working in the C.M.S. High School, Pallom, another school owned by the same Educational Agency, in which the Manager has taken a stand against the petitioner and in favour of the 6[th] respondent. The grievances of the petitioner have been substantially redressed by interim orders of this Court dated 28.2.2003 and 6.4.2005 in this original petition. As such, presently, the grievances of the petitioner narrow down to two, namely, her claim for transfer to the C.M.S. High School, Pallom, in the place of the 6[th] respondent and her claim for salary for the period from 12.2.2002 to 4.3.2003, during which period, according to the 2 o.p.38429/02 petitioner, she was not allowed to join duty, whereas according to the Manager, she willfully abstained from joining duty. 2. The petitioner's case has a chequered history which started on 5.7.95. From 5.7.95 to 1.11.1998 she was working in various schools under the same educational agency in temporary vacancies, approval of which appointments were delayed but ultimately granted by the educational authorities. But in the meantime the 1[st] respondent effected other appointments which were approved earlier than that of the petitioner. By order dated 31.10.1998, the petitioner was appointed in a temporary vacancy in Mallappally School with effect from 2.11.1998. While she was working in the temporary vacancy, the Manager appointed other junior teachers in regular vacancies in violation of Ext.P3 Government Order, which stipulated that leave substitutes shall be regularised against the first arising permanent/regular vacancy in the respective schools in the order of seniority. The 6[th] respondent and one Sri.N.P. Reji, juniors to the petitioner were so appointed while the petitioner was still working against a temporary vacancy. By a petition dated 1.11.1999 the petitioner complained to the D.E.O., Cherthala, that the 6[th] respondent, a 3 o.p.38429/02 fresh hand was appointed against a regular vacancy in the K.M.U.P.School, Kalavancode overlooking the preferential claim of the petitioner. The petitioner filed another complaint before the D.E.O. Kottayam also when the 6[th] respondent was accommodated against a regular vacancy at the Pallom School. The D.E.O., Kottayam, the 2[nd] respondent herein, heard all parties and by Ext.P1 order dated 14.2.2000, directed the 1[st] respondent-Manager, to appoint the senior-most better claimant against the regular vacancy at Pallom and to adjust the 6[th] respondent in another School. Subsequently, by Ext.P12 order dated 5.6.2000, the petitioner was appointed in a regular promotion vacancy with effect from 5.6.2000. In the meanwhile, the Manager filed appeal against Ext.P1 order and the Deputy Director of Education, Kottayam, by Ext.P2 order dated 2.9.2000, rejected the same directing the Manager to appoint the senior teacher, the petitioner, in the first arising vacancy. In O.P. No.29063/2000 filed by the petitioner, originally this Court directed the Manager to implement Exts.P1 and P2 orders. However, later the same was reviewed and the 5[th] respondent, Director of Public Instruction, was directed to dispose of the 4 o.p.38429/02 revision petitions filed by the Manager and the 6[th] respondent. Pursuant thereto, the D.P.I. passed Ext.P5 order dated 25.1.2002 directing the Manager to shift the petitioner against the permanent/regular vacancy which arose first and to make suitable arrangements of posting of teachers against sanctioned posts so as to enable the petitioner and the 6[th] respondent to claim salary without further delay. Subsequently, the petitioner was appointed with effect from 2.11.1998 at the Kalavancode School by order dated 8.2.2002. By Ext.P14 order dated 16.4.2002, the A.E.O., Cherthala, refused to approve the same on the ground that the appointment was against the order of the D.P.I. Later the Manager transferred the petitioner to the Mallappally School by order dated 3.6.2002. 3. According to the petitioner, when she reported for duty at Mallappally, she was not allowed to join duty by the Principal, allegedly on the instructions of the Manager. The petitioner alleges that one retired teacher, Smt. Thankamma was engaged to take classes in place of the petitioner. Petitioner complained to the D.P.I. who passed Ext.P6 order dated 23.10.2002, directing the Manager to issue urgent instructions to admit the petitioner 5 o.p.38429/02 to duty in the School and to conduct enquiry against the Principal to take action for mal-administration. The Manager was directed to take steps to get the arrear salary of the petitioner sanctioned with effect from 2.11.1998 at the earliest. The petitioner alleges that in spite of Exts.P5 and P6, the Manager did not do anything. Petitioner filed Ext.P7 request dated 7.11.2002 before the Principal to allow her to mark attendance and to draw and disburse her salary from 2.11.1998. She filed Ext.P8 request dated 19.11.2002 before the Manager requesting action against the Principal. However, by Ext.P9 dated 25.11.2002 intimating her that she has not joined duty despite repeated requests, she was unauthorisedly absent and directing her to join duty. She filed Ext.P10 reply explaining that she is not being allowed to join duty. It is under the above circumstances, the petitioner has ## filed this original petition seeking the following reliefs: “i. to issue a writ of mandamus or any other writ, or order or direction calling for the records leading upto Ext.P12 and quash Ext.P9: ii. to issue a writ of mandamus or other writ or order directing as follows: a) to direct the 8[th] respondent to allow the petitioner to sign the attendance register from 12.2.2002 onwards and allow her to work in the school for the time being. 6 o.p.38429/02 b) to take action against the 8[th] respondent for engaging unauthorised teachers to take classes in the 8[th] respondent's school in the place of petitioner. c) to direct the Manager to implement Ext.P5 order by the D.P.I. by posting the petitioner to C.M.S.H.S. Pallam immediately and draw and disburse salary from 2.11.1998 onwards; d) to direct the 5[th] respondent to enquire into the illtreatment meted out by the petitioner in the hands of the 1[st] and 8[th] respondents and initiate appropriate action against the 1[st] and 8[th] respondents. e) to direct the respondents to draw and disburse salary to the petitioner from 2.11.1998 within 12% interest. f) to direct the respondents to post the petitioner immediately to the C.M.S. High School Pallom giving preference contemplated under Rule 10(1) Chapter XIVA KER and order No.PT4/91464/01/K.Dis dated 25.1.2002 of the DPI.” 4. In his counter affidavit, the 1[st] respondent Manager would take the stand that posting of teachers is the prerogative of the Manager, which cannot be questioned by the teachers. He submits that on 2.11.1998 two vacancies of Lower Grade Hindi Teacher (FT) arose; one regular vacancy in the Kalavancode School and a temporary vacancy in the Mallappally School. According to him, although as the senior claimant the petitioner was entitled to be appointed in the regular vacancy, on her verbal request she was accommodated in the temporary vacancy at Mallappally and one Smt.Rachel James was posted in the 7 o.p.38429/02 Kalavancode School in the regular vacancy from 2.11.1998, who was later transferred to Puthupally School from 1.6.1999. The 6[th] respondent was appointed in the Kalavancode School, where she continued up to 6.10.1999. When a regular vacancy arose at Pallom School, the 6[th] respondent was transferred to that vacancy with effect from 7.10.1999, which was prior to Ext.P3 Government Order which stipulated that leave substitutes shall be regularised against the 1[st] arising regular/permanent vacancy. The 1[st] respondent alleges that it was only then that the petitioner started complaining about posting. However, by Ext.R1(a) dated 26.5.2000, the petitioner was accommodated in a regular vacancy in the Mallappally School itself by creating a regular vacancy by transferring another teacher Smt. Sherly Thomas. The Manager would contend that although the problems should have stopped there, the petitioner chose to embark on a series of litigation. 5. In compliance with Ext.P5 order of the D.P.I. dated 25.1.2002, by Ext.R1(b) order dated 8.2.2002, the petitioner was appointed in the Kalavancode School, since the same was the first arising vacancy to which the petitioner could have been 8 o.p.38429/02 accommodated. But the petitioner did not join duty there and the A.E.O., by Ext.R1(c) order dated 16.4.2002 refused to approve the said appointment. The 1[st] respondent claims that the arrangement made by Ext.R1(b) order was approved by the Deputy Director by Ext.R1(d) dated 7.5.2002. However, for the convenience of the petitioner, by Ext.R1(e) order dated 3.6.2002, the petitioner was transferred to Mallappally School. The 1[st] respondent alleges that the petitioner refused to join duty there, in spite of Ext.R1(f) direction to join duty there, dated 11.6.2002, which was reported to the D.P.I. by Ext.R1(g) dated 14.6.2002. Under the said circumstances, at the request of parents of the students, Smt. V. Thankamma, a retired teacher was engaged to take classes for the students. The Manager submits that despite Exts.R1(h), R1(i) and R1(j) the petitioner refused to join duty. He further submits that as directed in Ext.P6 order of the D.P.I., an enquiry was conducted and Exts.R1(k) and R1(l) reports were forwarded to the D.P.I. He therefore submits that at present there is no vacancy at Pallom and in next arising vacancies posting in accordance with seniority would be considered. On these averments, the Manager seeks to justify his actions. o.p.38429/02 9 6. The 6[th] respondent has filed a counter affidavit supporting the case of the Manager and taking the stand that her transfer to Pallom has been validly made and is not liable to be interfered with. 7. The respondents 3 and 5 also have filed counter affidavits in which also the right of the petitioner to be appointed to a regular vacancy in preference to the 6[th] respondent is not disputed. But they would submit that since the 1[st] vacancy arose at Kalavancode School, in accordance with Ext.P5, the petitioner is entitled to be accommodated only there and her claim for transfer to Pallom is not valid since transfer is the prerogative of the Manager. But the counter affidavits do not throw any light on the dispute as to who is at fault in the matter of the petitioner's not joining duty at Mallappally. 8. A reply affidavit has been filed by the petitioner refuting the averments in the counter affidavits. She would submit that since the A.E.O. refused approval for her appointment at Kalavancode, she could not have joined duty there. According to her, therefore, the first vacancy is at Pallom and therefore, she has a right to be appointed in that vacancy. 10 o.p.38429/02 She also submits that since under Rule 10 of Chapter XIVA, the chief and foremost criterion for transfer is seniority, she being senior to the 6[th] respondent had a right to be transferred to Pallom in preference to the 6[th] respondent. She reiterates that she could not join duty at Mallappally since she was not permitted to do so by the Principal, on the instructions of the Manager, in the pretext of want of relieving order from Kalavancode School. 9. Before considering the rival contentions it is necessary to advert to what happened during the pendency of the original petition pursuant to interim orders of this Court. In view of the dispute as to the reasons for the petitioner joining duty at Mallappally, in C.M.P. No.64929/2002, this Court passed the following order dated 28.2.2003: “Heard both sides. This is a petition for payment of salary to the petitioner in the post of Lower Grade Hindi Teacher from 02.11.1998. The 1[st] respondent submits that the petitioner has not so far joined duty at C.M.S. Higher Secondary School, Mallappally, pursuant to Ext.R1(e. The petitioner denies the said allegation and it is asserted by her that when she reported, she was not admitted to duty in the above said school, by the 8[th] respondent under the pretext that she has not produced the relieving order from the previous school. 2. The petitioner shall report before the 8[th] respondent on 11 o.p.38429/02 05.03.03 along with a copy of this order. In that event, the said respondent shall admit the petitioner to duty in that school without insisting for any other documents such as relieving order. The 8[th] respondent shall claim the salary legally due to the petitioner by presenting appropriate bills before the 4[th] respondent within two weeks from the date of receipt of a copy of this order. In that event, the 4[th] respondent will pass those salary bills in accordance with law without delay.” ## Pursuant thereto, the petitioner joined duty on 4.3.2003. Still, salary of the petitioner was not disbursed. Therefore, this court again passed the following order dated 6.4.2003. “Advocate Shri Babu Varghese, learned counsel for respondent No.1 submits that the salary payable to the petitioner for the period from November 2, 1998 to June 4, 2000 has to be disbursed by the Assistant Educational Officer, Cherthala and the salary for the period from June 5, 2000 to February 11, 2002 has to be disbursed by the District Educational Officer, Thirvualla. Having heard learned counsel for the parties and having regard to the facts and circumstances, the following interim directions are issued: i. The Assistant Educational Officer, Cherthala is directed to disburse the salary of the petitioner for the period from November 2, 1998 to June 4, 2000 within six weeks from the date of receipt of a copy of this order. ii. Similarly, District Educational Officer, Thiruvalla, shall disburse the salary payable to the petitioner for the period from June 5, 2000 to February 11, 2002 within six weeks from the date of receipt of a copy of this order. iii. However, salary for the disputed period, viz. from February 12, 2002 to March 4, 2003 shall not be disbursed to the petitioner for the time being. iv. The Assistant Educational Officer and the District Educational Officer shall disburse the salary to the petitioner on condition that she executes a bond before the officers concerned, undertaking to repay the said amount to the department, if ultimately it is found that she is not entitled to get the same. 12 o.p.38429/02 v. As far as the salary for the period from March 5, 2003 onwards is concerned, the District Educational Officer, Thiruvalla shall take immediate steps to disburse the same to the petitioner. The entire arrears shall be paid to the petitioner within three months from the date of receipt of a copy of this order. vi. The Director of Public Instructions shall ensure that the Assistant Educational Officer, Cherthala and the District Educational Officer, Thiruvalla comply with the above directions. 2. Advocate Shri. Babu Varghese, learned counsel for the Manager submits that the Head Masters of the respective schools where the petitioner had worked shall do the needful promptly. This submission is recorded. 10. In view of the above developments only two issues remain to be decided in this case. The first is as to because of whose fault the petitioner was kept out of service from 12.2.2002 to 4.3.2003 and whether the petitioner is entitled to salary for the said period. The second is as to whether the petitioner is entitled to transfer to the Pallom school in preference to the 6[th] respondent. 11. From the facts narrated above it is for everybody to see that there is some bad blood between the petitioner and the 1[st] respondent Manager. It is not disputed that by Ext.R1(b) order dated 8.2.2002 the petitioner was posted at Kalavancode School, that she did not join there and that the said appointment was refused to be approved. Thereafter by Ext.R1(e) order dated 13 o.p.38429/02 3.6.2002, she was again transferred to Mallappally School. The petitioner's allegation is that she was not allowed to join duty there insisting on a relieving order from Kalavancode School. According to her, since the petitioner never joined at Kalavancode School and the said appointment was not approved by the A.E.O., she could not have produced a relieving order from that School. On the other hand, the Manager contends that the petitioner refused to join duty at Mallappally. But significantly he is silent as to whether or not a relieving order from the Kalavancode School was insisted upon. At the same time in Ext.R1(g) letter dated 14.6.2002 from the Manager to the D.P.I. it is stated thus: “........ It is understood that M/s. Josephine Sherly Paul has not reported for duty so far in CMS HSS Mallapally with relieving order from the Headmistress K.M.U.P. School Kalavancode.” (underlining supplied) Again in Ext.R1(k) letter dated 20.11.2002 from him to the D.P.I., he again states thus: “2. On enquiry, it is learnt that the Principal was wholeheartedly willing to admit Smt. Josephine Sherly Paul in C.M.S. Higher Secondary School, Mallappally with effect from 6.6.2002 as ordered in this office order No.5203/02 dated 3.6.2002 eventhough the teacher does not produce the relieving order from the parent school. ie. K.M.U.P. School, Kalavancode”. (underlining supplied) 14 o.p.38429/02 Again in Ext.R1(l) letter dated 23.11.2002 to the D.P.I., he again states: “........The Principal requested several times to join even without the relieving order .........”. From the above it is fairly evident that at some point of time the Manager and the Principal had insisted on the petitioner producing the relieving order, which the petitioner could not have produced since she never joined at Kalavancode School. It is also pertinent to note that although in the letters addressed to the D.P.I., it was stated that the petitioner was asked to join duty without the relieving order, in none of the communications namely, Exts.R1(h), R1(i), R1(j) and Ext.P9 addressed to the petitioner, it was stated so. At the same time, the petitioner has been complaining repeatedly that she is not being permitted to join duty, as is clear from Ext.P7 and Ext.P10. She had also filed complaints before the D.P.I. on several occasions as is clear from Ext.P6 order dated 23.10.2002, in which the D.P.I. had directed the Manager to conduct an enquiry into the allegation. The order of this Court dated 28.2.2003 would show that she had made the very same complaint before this Court. These circumstances 15 o.p.38429/02 are sufficient to come to the conclusion that the petitioner was willing to join duty, and did everything in her capacity in that regard. Although the above circumstances would cast a strong suspicion that the Principal and the Manager were acting in a manner prejudicial to the interest of the petitioner and I am inclined to hold in favour of the petitioner, I am giving the benefit of doubt to the 1[st] respondent, by not directing the Government to recover the salary to be paid to the petitioner, from the Manager and the Principal, in view of the fact that the Government did not have to pay salary to another teacher in the place of the petitioner. Therefore, I direct that the petitioner's service for the period from 12.2.2002 to 4.3.2003 at C.M.S. Higher Secondary School Mallappally be regularised and salary for the said period also be disbursed to the petitioner. The competent educational officer among the respondents shall pass orders approving the said period of service also within one month from the date of receipt of a copy of this order. On receipt of the same, the Principal shall draw and disburse the salary of the petitioner for the said period along with her salary for the succeeding month. Needless to say, the interim orders are made 16 o.p.38429/02 absolute and shall form part of this judgment. 12. The other question to be considered is as to whether the petitioner is entitled to be accommodated at the Pallom School in preference to the 6[th] respondent. As admitted by all respondents, the petitioner is the senior claimant. The Manager claims that the petitioner was accommodated in the temporary vacancy as verbally desired by the petitioner. The same is stoutly denied by he petitioner. The Manager could not substantiate that contention by any material on record. It is settled law that when there is a senior claimant available, a junior claimant could not have been appointed without complying with the procedure prescribed in the note to Rule 51A of Chapter XIV-A of the K.E.R. The least the manager ought to have done is to get something in writing from the petitioner, if the petitioner had in fact desired to be accommodated in the temporary vacancy instead of the regular vacancy, which admittedly had not been done. In the absence of the same the averment of the Manager cannot be taken on face value. 13. The Manager would then contend that as per Ext.P5 order, the petitioner was to be accommodated in the vacancy 17 o.p.38429/02 which occurred first. He would submit that the first vacancy which occurred is at the Kalavancode school, to which post the petitioner was appointed, but she did not join there and thereafter, she was transferred to Mallappally. According to him, it is the manager's prerogative to transfer teachers. Compassionate ground is the reason stated for accommodating the 6[th] respondent at Pallom. This is echoed by the 6[th] respondent also. Respondents 3 and 5 would also contend that it is the prerogative of the Manager to transfer teachers from one school to other under the same educational agency. 14. Even if the first vacancy which arose is at Kalavancode, it remains a fact that the appointment of the petitioner to that post has not been approved by the Assistant Educational Officer. Therefore, the petitioner was transferred to Mallappally. Even if the 1[st] vacancy was at Kalavancode school, in view of the peculiar circumstances of the case it has to be decided as to who is entitled to be transferred to the vacancy which arose at the Pallom school. 15. Now let us see whether there is an absolute discretion vested with the Manager to transfer teachers to any school under 18 the educational agency. Transfers in aided schools are governed by Rule 10 of Chapter XIV-A of the KER. Prior to the amendment of the Rule by G.O(P).105/89/G.Edn. dated 4.7.1989 the Rule read thus: “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 on these transfers the principles followed in Government schools shall be observed.” ## By the abovesaid amendment Rule 10 was substituted 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 and teacher shall be the seniority. - (2). Every Headmaster and teacher 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, inter caste 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 19 o.p.38429/02 not exceed 25% transfers. - (7). Mutual transfers on requests shall not be entertained. - (8). The number of transfers shall be limited to twice or thrice a year.” Originally sub Rule 1 did not contain the words “and teacher”, which were added only by G.O(P).93/05/G. Edn. dated 19.3.02 published in gazette dated 30.3.05. Prior to these amendments there were some decisions of this court upholding the right of the manager to make transfers of teaches according to his discretion. But a Division Bench of this court had occasion to consider the real import of this rule, in _**Valsa v. Director of Public Instructions**_ [2002 (2) KLT 610]. The Division Bench held thus in paragraphs 6 and 8 thus: “6. A reading of R.10 suggests that a transfer from one school to another run by the same educational agency should be carried out by observing the principles laid down by the Government for transfer of teachers. Thus, the rule requires that the principles laid down in paragraphs 8 and 9 to be observed for the purpose of transfer of teaches in Government schools must be followed. Paragraphs 8 and 9 of the G.O., dated 10[th] September 1987, make it clear that seniority is required to be considered. ## xxx xxx xxx xxx 8. A careful perusal of the Government Order, dated 10[th] September 1987 suggests that, while R.10 was amended in the year 1989, most of the principles in the said G.O. were crystallised and formulated into clauses (1) to (8) of the amended R. 10. However, the opening sentence of R.10 continued as before. This leads to the conclusion that, if there are policy changes made by the Government 20 o.p.38429/02 with respect to the norms of transfer of teachers in Government Schools, they were required to be adopted _mutatis mutandis_ . Since Government policy is never static, and varies from time to time, the rule is so worded as to keep its flexibility so that the changing norms of transfer could be read, _mutatis_ and _mutandis_ , into R.10 itself. It is possible to accept the argument of Mr.Kaimal that clauses (1) and (2) of R. 10 deal only with Headmasters. But we see no reason to take the view that clauses (3) to (8), which are generally worded, and are capable of application to Headmasters as well as teachers, would be applicable only to Headmasters. In fact, a better interpretation of R.10 is that the rule is intended to govern transfers of both teachers as well as Headmasters. The main body of the rule deals with transfer of teachers by referential adoption of the norms. Clauses (1) and (2) apply to Headmasters, while the rest of the clauses apply to both Headmasters and teachers. Our considered opinion, therefore, is that sub-rules (3) to (8) are equally applicable to both categories, that is teachers as well as Headmasters.” The Rule specifically states that “the chief and formost criterion for transfer of teacher shall be seniority” and “exception to the seniority criterion shall be minimum”. Therefore, while effecting transfers the Manager is bound to follow the norms prescribed in the rules and deviations also shall only be in accordance with the Rule. 16. In this case the petitioner and the 6[th] respondent vie with each other for transfer to C.M.S. High School, Pallom. Undisputedly the petitioner is the senior among the two. Therefore, the petitioner had a better claim for transfer to that school when the admitted vacancy arose in which the 6[th] respondent was accommodated. Both the Manager and the 6[th] 21 o.p.38429/02 respondent would attribute compassionate grounds for preferring the 6[th] respondent. The Manager simply states that 6[th] respondent was given transfer to Pallom school on compassionate ground without stating as to what that compassionate ground was. The 6[th] respondent states thus in her counter affidavit. “.... I most humbly submit that I had requested for a transfer on compassionate ground from KM UP School, Cherthala to CMS High School, Pallom. My aged parents were ailing at that time and there were nobody at home to look after them. My representation was considered by the 1[st] respondent as per the provisions contained in Rule 10(3) of Chapter XIV-A KER and I was granted a transfer and posting in C.M.S. High School, Pallom on compassionate grounds.....” Aged parents are not exactly a rarity. Many teachers would have them living. As such that cannot be sufficient ground to overlook the seniority criteria stipulated in Rule 10. In any event going by the tense of the verb used in the sentences in the counter affidavit of the 6[th] respondent quoted above, it is clear that, that contingency is no longer existing. That being so, I am satisfied that at least now the petitioner can be accommodated at C.M.S. High School, Pallom, if necessary, by shifting the 6[th] respondent. Accordingly, I direct the 1[st] respondent to accommodate the petitioner at C.M.S.High School, Pallam, if necessary by shifting the 6[th] respondent from that school. But this need be done from o.p.38429/02 22 June 2008 onwards when the new academic year starts. The original petition is disposed of as above. sdk+ Sd/S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge 23 o.p.38429/02 S.SIRI JAGAN, J. ================ O.P.No.38429 of 2002-Y ================ J U D G M E N T 12[th] March, 2008