Malathe Devi M v. State of Kerala and Others

1 WPC 11137 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 07TH DAY OF JULY 2020 / 16TH ASHADHA, 1942** **WP(C).No.11137 OF 2020(N)** ## **PETITIONER/S:** **MALATHEE DEVI.M, AGED 48 YEARS, W/O. SATHYAN, KOCHUVEEDU, MELETHUMUZHY, KARIMKUTTIKARA P.O., VAMANAPURAM, THIRUVANANTHAPURAM, H.S.A (MALAYALAM) D.B.H.S VAMANAPURAM, THIRUVANANTHAPURAM.** **BY ADVS. SRI.ALEXANDER JOSEPH SMT.TERESA C. JOSEPH SMT.AKHILASREE BHASKARAN SRI.M.V.SABU** ## **RESPONDENT/S:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** - **2 THE DIRECTOR OF GENERAL EDUCATION THIRUVANANTHAPURAM-695 014.** - **3 THE DISTRICT EDUCATIONAL OFFICER ATTINGAL, THIRUVANANTHAPURAM-695 101.** - **4 THE SECRETARY TRAVANCORE DEVASWOM BOARD, NANTHANCODE, THIRUVANANTHAPURAM-695 001.** - **5 THE HEADMASTER DBHS VAMANAPURAM, THIRUVANANTHAPURAM-695 606.** - **6 K.S.RAMADEVI, HSA (MALAYALAM), DBHSS PARUMALA, KADAPRA, PATHANAMTHITTA-689 603.** - **R1 TO R3- SMT.NISHA BOSE, SENIOR GOVERNMENT PLEADER R4 BY SRI.G.BIJU,SC,TRAVANCORE DEVASWOM BOARD R6 BY ADV. SRI.C.K.RAJASEKHARA PANICKER R6 BY ADV. SRI.R.HARIKRISHNAN (H-308)** - **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON** - **07.07.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** 2 WPC 11137 OF 2020 ## **C.S.DIAS, J.** ## **====================== WP(C) No.11137 of 2020 ====================== Dated this the 7[th] day of July, 2020.** ## **JUDGMENT** The petitioner is aggrieved by Ext P8 order transferring her from the Devaswom Board High School (in short 'DBHS'), Vamanapuram to DBHS, Parumala. She, inter alia, seeks to quash Ext P8 order. 2. It is the case of the petitioner that, she is working as High School Assistant (Malayalam) under the fourth respondent. She is suffering from heart disease and is under treatment in the Sree Chithira Thirunal Institute for Medical Science and Technology, Thiruvananthapuram. The petitioner had submitted an application before the fourth respondent seeking transfer from DBHS, Thrikkariyoor to DBHS, Vamanapuram. Due to the non-consideration of her application, she had filed a revision petition before the first respondent. Again, due to inaction on the part of 3 WPC 11137 OF 2020 the first respondent, the petitioner filed WP(C) 16874/2018 before this Court. This Court by Ext P2 judgment, directed the first respondent to consider the revision petition. Consequently, as per Ext P3 order, the first respondent directed the fourth respondent to consider the petitioner's application for transfer, in the next general transfer. Resultantly, as directed in Exts P2 and P3, the fourth respondent transferred the petitioner to DBHS, Vamanapuram, where she joined on 6.6.2019. During her tenure at the DBHS, Vamanapuram, certain misunderstandings cropped up with the management. The fourth respondent issued a show cause notice to the petitioner, on the allegation that an application was filed by her husband under the Right to Information Act. The petitioner submitted Ext P7 reply, inter alia, stating that she was innocent. However, the respondents 3 to 5 were hostile towards her. Shockingly, on 1.6.2020, the fourth respondent issued Ext P8 order, transferring the petitioner from DBHS, Vamanapuram to DBHS, Parumala. Being aggrieved by 4 WPC 11137 OF 2020 the said transfer, the petitioner has preferred Ext P9 appeal before the second respondent. Notwithstanding Ext P9, the petitioner seeks to quash Ext P8 order or in the alternative to direct the second respondent to consider and dispose of Ext P9 appeal within a time frame. 3. The fourth respondent has filed a counter affidavit, inter alia, contending that the petitioner was transferred as per Ext P8, which is a general transfer order. Pursuant to Ext P8, the sixth respondent was relieved from DBHS, Parumala on 1.6.2020 and she joined DBHS, Vamanapuram on the very same day. Although the petitioner was informed about her transfer, she unauthorizedly absented herself, which fact is suppressed in the writ petition. According to the fourth respondent, the second respondent had directed the fourth respondent to consider the transfer of the sixth respondent during this academic year, in conformity with the seniority as stipulated under Rule 10 (1) of Chapter XIVA of the Kerala Education Rules (in short 'KER'). It is further contended that Ext P1 5 WPC 11137 OF 2020 medical record is only an appointment slip and does not show that the petitioner is suffering from any ailment. Ext P8 being a general transfer order, the same cannot be treated as punitive in nature. Moreover, the sixth respondent had applied for transfer to DBHS, Vamanapuram, as per her seniority, which was considered in accordance with law. Resultantly, the sixth respondent was given preference to the petitioner and Ext P8 order was passed. 4. The sixth respondent has also filed a counter affidavit, inter alia, contending that she has already taken charge at DBHS, Vamanapuram on 1.6.2020. She is a native of Thiruvananthapuram District and has been working at DBHS, Parumala for the last twelve years. She had applied for transfer to her home District on several occasions, but the same was not considered. As per the seniority list published by the fourth respondent, the sixth respondent stands at serial No.56, whereas the petitioner is at serial No.80. Therefore, she has a preferential right to be posted at a School of her choice, as per Rule 10(1) of Chapter 6 WPC 11137 OF 2020 XIVA of the KER. Ext P8 transfer order is issued strictly in compliance with Ext R6 (d), and there is no illegality or arbitrariness, warranting interference by this Court. 5. The petitioner has filed a reply affidavit, inter alia, refuting the allegations in the counter affidavits filed by the respondents 4,5 and 6. The petitioner has contended that although Ext P8 order states to be issued in public interest, the same is an arbitrary exercise of power. The petitioner has produced Ext P11 medical certificate to substantiate that she is undergoing treatment at the Sree Chithira Thirunal Institute for Medical Science and Technology, for cardiac problems. It was after being convinced of the compassionate grounds projected by the petitioner, that she was ordered to be transferred in the last academic year, which has been unsettled in less than a year by Ext P8 transfer order. Hence, the writ petition may be allowed and the petitioner may be directed to be retained at DBHS, Vamanapuram. 6. Heard Sri.Alexander Joseph, the learned 7 WPC 11137 OF 2020 counsel appearing for the petitioner, Sri.Biju Gopalan, the learned Standing Counsel appearing for the respondents 4 and 5, Sri.R.Harikrishnan, the learned counsel appearing for the sixth respondent and Smt.Nisha Bose, the learned Senior Government Pleader appearing for the respondents 1 to 3. 7. The learned counsel for the petitioner argued that Ext P3 order was passed only last year by the fourth respondent, transferring the petitioner to DBHS, Vamanapuram, after considering the petitioner's compassionate grounds. Therefore, the observation in Ext P8, that the transfer is in public interest is fallacious because the same is passed only at the request made by the sixth respondent, that too as directed by the second respondent . In the case of the petitioner, the Government had by Ext P3, directed the fourth respondent to consider her transfer in the last academic year. He also argued that, as the transfer has been made in public interest, as reflected in Ext P8, sub-rule (1) of Rule 10 has no application. It is only sub-rule(3) of Rule 10 that is applicable in this 8 WPC 11137 OF 2020 case, wherein seniority is not a criteria. It is only special consideration/ compassionate grounds, that has to be looked into and be evaluated. In the said circumstances, the fourth respondent ought to have evaluated the special consideration/compassionate grounds of both the petitioner and the sixth respondent before passing an order of transfer. He also contended that Ext P8 is a punitive order in disguise, as the respondents 3 to 5 have been hostile towards the petitioner. He also invited the attention of this Court to Ext P11 and Ext P13 medical records. He prayed that Ext P8 may be set aside and the petitioner may be directed to be retained in DBHS, Vamanapuram. The learned counsel relied on the decisions of the Hon'ble Supreme Court and this Court reported in (i) **Ramadhar Pandey vs State of U.P and others [ 1993 KHC 1065]** (ii) **State of Kerala vs Balakrishnan [1992 KHC 77],** and (iii) **Venkitaramanan Potti vs Travancore Devaswom Board [1993 KHC 346].** 8. The learned Standing Counsel appearing for 9 WPC 11137 OF 2020 the fourth respondent argued that the fourth respondent has passed Ext P8, which is a general order of transfer. As directed by the second respondent, the sixth respondent was given preference to the petitioner, in view of the former's seniority. As the sixth respondent's claim could not be considered in the last academic year, her claim was considered this year, for which the petitioner had to be displaced. Ext P8 order is an incident of service and is passed to meet administrative exigencies. 9. The learned counsel for the sixth respondent contended that, the sixth respondent has been working at DBHS, Parumala for the last twelve years. Ext R6(f) medical certificate substantiates that she has medical ailments. The sixth respondent was given a place of her choice after more than a decade, that too as per her seniority, which is in conformity with Rule 10(1). There is no illegality or arbitrariness in Ext P8 order passed by the fourth respondent. Hence, the writ petition be dismissed. 10. The learned Senior Government Pleader 10 WPC 11137 OF 2020 submitted that Ext P9 appeal is pending consideration before the second respondent. Although an appeal can only be decided by the second respondent, if there is a seniority dispute, if this Court directs the second respondent to consider the special consideration/ compassionate grounds, as that of the petitioner and the sixth respondent, the second respondent will consider Ext P9 and pass appropriate orders within a time frame. 11. The sole point that emerges for consideration in this writ petition is whether Ext P8 order issued by the fourth respondent is justifiable. 12. Rule 10 of Chapter XIVA of the Kerala Education Rules, reads 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 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 11 WPC 11137 OF 2020 minimum. 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. x x x x x x x x x x x (emphasis given) 13. In Ext P8, the reason for transfer is “public interest”. But, in the counter affidavit filed by the fourth respondent it is admitted that the transfer was effected on the basis of the direction issued by the second respondent to consider the request of the sixth respondent in the present academic year, and also considering the seniority of the sixth respondent. 14. It is pertinent to note that Ext P8 does not mention anything other than “public interest”, so as to attract sub-rule(1) of Rule 10. True and trite, that an order of transfer need not be an elaborate and comprehensive one, but, at the same time cannot be a cryptic two worder, especially in the case of this nature, where the fourth respondent has purportedly relied on seniority to displace the petitioner; at least in 12 WPC 11137 OF 2020 their counter affidavit. Hence, according to me, only sub-rule(3) of Rule 10 gets attracted, i.e., inter alia, special consideration/compassionate grounds. 15. It is undisputed that it was pursuant to the request made by the petitioner in the year 2018, and pursuant to Ext P2 judgment and Ext P3 recommendation by the first respondent, that the petitioner's application for transfer was considered, and she was transferred from DBHS, Thrikkariyoor to DBHS, Vamanapuram, where she joined on 6.6.2019. The transfer of the petitioner was granted on the grounds falling within sub-rule (3) of Rule 10. 16. Like a bolt from the blue, Ext P8 was passed on 1.6.2020 issuing marching orders to the petitioner to DBHS, Parumala, in public interest, and the sixth respondent to take her place. It is seen that the petitioner, the sixth respondent and one Latha Kumari were considered for transfer. The fourth respondent felt it fit, that public interest would be served by intertransferring the petitioner and the sixth respondent. 17. The stand of the fourth respondent in Ext P8 13 WPC 11137 OF 2020 order and in its counter affidavit, according to me, is self-contradictory. Naturally the sixth respondent has also supported the stand of the fourth respondent. Though a faint attempt has now been made to contend that, as the sixth respondent is the senior most Teacher under the management, she is entitled to be given a preferential transfer and be posted at DBHS, Vamanapuram, in view of sub-rule(1) of Rule 10, the same is not reflected in Ext P8. 18. Likewise, it is admitted that, both the petitioner and the sixth respondent had made representations in the last academic year, and the fourth respondent considered the claim of the petitioner on special consideration/compassionate grounds, as contemplated under sub-rule(3) of Rule 10, and transferred her to DBHS, Vamanapauram. 19. I am of the firm opinion that, when an employee is transferred from one station to another, particularly on the employee's request under Rule 10(3), the employee has to be given some fixity in the tenure, otherwise it would cause severe prejudice to 14 WPC 11137 OF 2020 the employee and do more harm than good. If the seniority of the sixth respondent was the criteria for displacing the petitioner, the same should have been reflected in Ext P8, which is conspicuously absent. 20. Thus, it is to be presumed that the sixth respondent was transferred and posted at DBHS, Vamanapuram on special consideration/compassionate grounds, as prescribed under sub-rule (3) of Rule 10, where seniority cannot be looked into. 21. In the said situation, the fourth respondent, who invoked the said sub-rule in the last academic year , cannot take a volt-face in this academic year, on the strength of a recommendation by the second respondent, and displace the petitioner, without comparing the special consideration/compassionate grounds of the petitioner and the sixth respondent. As a comparative assessment has not carried out, I hold that Ext P8 order is vitiated and is issued in violation of the principles of natural justice and the wednesbury principles of reasonableness. 22. The fourth respondent, in the transfer of 15 WPC 11137 OF 2020 such nature, ought to have given notice to all the incumbents who staked a claim for a posting at DBHS, Vamanapuram, analysed their comparative special consideration/compassionate grounds, and then passed the order of transfer specifically assigning the reason. The reason “public interest” does not appeal to this Court. 23. However, I abjure from delving deeper into the merits of the matter, being conscience of the fact that the petitioner has preferred Ext P9 appeal, which is pending before the second respondent. 24. Therefore, I confirm the interim order dated 8.6.2020, staying the operation of Ext P8, until such time the second respondent considers and passes orders on Ext P9. 25. Resultantly, I direct the second respondent to consider Ext P9, after affording the petitioner and the sixth respondent or their respective representative an opportunity of being heard, and after considering the respective applications of the petitioner and the sixth respondent on their merits and analyzing the special 16 WPC 11137 OF 2020 consideration/compassionate grounds, as provided under sub-rule(3) of Rule 10 of Chapter XIVA of the KER, and pass appropriate orders on Ext P9 on or before 31.8.2020. The petitioner as well as the sixth respondent are at liberty to file their respective argument notes before the second respondent, if they are not in a position to attend the hearing in person. The writ petition is disposed of as above. **Sd/-** **C.S.DIAS** Sks/7.7.2020 **JUDGE** 17 WPC 11137 OF 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** - **EXHIBIT P1 TRUE COPY OF THE APPOINTMENT CARD ISSSUED BY SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCE AND TECHNOLOGY, TRIVANDRUM.** - **EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 24.5.2018 IN WP(C) NO.16874/2018 OF THE HON'BLE HIGH COURT OF KERALA.** - **EXHIBIT P3 TRUE COPY OF THE ORDER DATED 28.9.2019 OF THE IST RESPONDENT TO THE 4TH RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE MEMO DATED 13.8.2019 OF THE 5TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P5 TRUE COPY OF THE REPLY DATED 14.8.2019 OF THE PETITIONER TO THE 5TH RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE SHOW CAUSE NOTICE DATED 11.3.2020 OF THE 4TH RESPONDENT TO THE PETITIONER.** - **EXHIBIT P7 TRUE COPY OF THE REPLY DATED 18.3.2020 OF THE PETITIONER TO THE 4TH RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE TRANSFER ORDER DATED 1.6.2020 OF THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE COPY OF THE APPEAL DATED 3.6.2020 OF THE PETITIONER TO THE 2ND RESPONDENT. TRUE EXTRACT OF THE NEWS PAPER REPORT** - **EXHIBIT P10** - **TRUE EXTRACT OF THE NEWS PAPER REPORT DATED 30.5.2020 PUBLISHED IN MALAYALA MANORAMA DAILY** **EXHIBIT P11 TRUE COPY OF THE TREATMENT CERTIFICATE DATED 24.6.2020 ISSUED BY THE SENIOR MEDICAL RECORDS OFFICER OF SREE CHITHIRA THIRUNAL INSTITUTE FOR MEDICAL SCIENCE AND TECHNOLOGY, TRIVANDRUM** EXHIBIT P12 **TRUE COPY OF THE COMPLAINT DATED 13.8.2019 MADE BY SRI.ANILKUMAR AND** 18 WPC 11137 OF 2020 ## **MINI, THE PARENTS OF THE STUDENT** **TRUE COPY OF THE PRESCRIPTION SLIP** EXHIBIT P13 **DATED 28.5.2020 ISSUED BY FAMILY HEALTH CENTRE VAMANAPURAM** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT R4(A)** TRUE COPY OF JOINING REPORT OF 6TH RESPONDENT,IN DBHS,VAMANAPURAM,SENT BY 5TH RESPONDENT TO 4TH RESPONDENT. **EXHIBIT R4(B)** TRUE COPY OF RELEVANT ENTRY IN THE DISPATCH REGISTER OF DBHS,VAMANAPURAM. **EXHIBIT R4(C)** TRUE COPY OF ORDER DATED 17.2.2020 ISSUED BY DIRECTOR OF PUBLIC INSTRUCTIONS. **EXHIBIT R6(A)** TRUE COPY OF RELIEVING ORDER DATED 1.6.2020 ISSUED BY THE HEADMISTRESS,DBHSS,PARUMALA TO THE 6TH RESPONDENT **EXHIBIT R6(B)** TRUE COPY OF JOINING REPORT SENT BY THE HEADMASTER,DBHS VAMANAPURAM TO THE SECRETARY,TRAVANCORE DEVASWOM BOARD **EXHIBIT R6(C)** TRUE COPY OF THE SENIORITY LIST ISSUED BY THE SECRETARY,TRAVANCORE DEVASWOM BOARD **EXHIBIT R6(D)** TRUE COPY OF APPLICATION SUBMITTED BY THE HUSBAND OF THE 6TH RESPONDENT BEFORE THE DIRECTOR OF GENERAL EDUCATION,THIRUVANANTHAPURAM DATED 12.6.2019 **EXHIBIT R6(E)** TRUE COPY OF ORDER NO.ET3/7292/2019/DGE/K.DIS.DATED 17.2.2020 ISSUED BY THE DIRECTOR OF GENERAL EDUCATION **EXHIBIT R6(F)** TRUE COPY OF THE MEDICAL CERTIFICATE DATED 26.2.2020 ISSUED FROM S.U.T.HOSPITAL,PATTOM.