Mini Varghese v. State of Kerala & Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE** **&** **THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN WEDNESDAY, THE 22[ND] DAY OF MAY 2024 / 1ST JYAISHTA, 1946 OP(KAT) NO. 64 OF 2024** **ORDER DATED 25.01.2024 IN OA NO.1817 OF 2023 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** **MINI VARGHESE , AGED 51 YEARS W/O JOSE J GEORGE, WORKING AS HEADMISTRESS, GOVERNMENT LPS AYUR, VELIYAM, KOLLAM (RESIDING AT KOOTTARAZHIKATTHU LOVE DALE, VENGOOR, AYUR, KOLLAM - 691533)** **BY ADVS. V.A.MUHAMMED M.SAJJAD** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT ANNEX II, THIRUVANANTHAPURAM, PIN - 695001** - **2 THE DIRECTOR OF GENERAL EDUCATION, DIRECTORATE OF GENERAL EDUCATION, GENERAL EDUCATION DEPARTMENT, JAGATHY, THIRUVANANTHAPURAM, PIN - 695014** - **3 THE DEPUTY DIRECTOR OF EDUCATION, OFFICE OF DEPUTY DIRECTOR OF EDUCATION,GOVERNMENT BHSS CAMPUS, THEVALLY P.O., KOLLAM, PIN - 691009** OP(KAT) No.64/2024 ..2.. **4 MAYADEVI K., HEADMISTRESS, PADINJATTINKARA GOVERNMENT UPS, PADINJATTINKARA, KOTTARAKKARA , KOLLAM, PIN - 691506** **BY ADVS. N.KRISHNA PRASAD P.SHANES METHAR BHARATH MOHAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No.64/2024 **==> picture [31 x 8] intentionally omitted <==** "CR" ## JUDGMENT ## SHOBA ANNAMMA EAPEN, J. This original petition is filed by the applicant before the Kerala Administrative Tribunal challenging Ext.P3 order of the tribunal dated 25.01.2024 in OA No.1817 of 2023. 2. The petitioner/applicant entered service on 04.02.2004 and was posted at UPS, Kadakkal, Kollam. She filed an application for General Transfer for teachers in the year 2023-24 and was transferred to Anchal GLPS, which was her fifth option. She joined Anchal GLPS on 08.06.2023. While so, a vacancy arose on 26.06.2023 at GLPS, Thevannoor, which was her first option. On coming to know about the vacancy at GLPS, Thevannoor, the petitioner submitted Annex.A2 and A3 requests to the Deputy Director of Education on 27.06.2023 and 05.07.2023 respectively for transfer to GLPS, Thevannoor. Thereafter, as per Annex.A4 order dated 24.07.2023, the petitioner was transferred to GLPS, Thevannoor. While so, the fourth respondent herein OP(KAT) No.64/2024 **==> picture [31 x 8] intentionally omitted <==** challenged Annex.A4 in OA No.1398 of 2023, wherein the tribunal directed the State to consider the representation of the fourth respondent. Thereafter, as per Annex.A8 order dated 10.10.2023, the second respondent was directed to cancel Annex.A4 order and to reinstate the fourth respondent at GLPS, Thevannoor. The grievance highlighted by the petitioner was that while issuing Annex.A8 order, the first respondent did not consider the genuine grounds raised by the petitioner that her husband is suffering from cancer and undergoing treatment at the Regional Cancer Centre (RCC), Thiruvananthapuram. The petitioner also preferred Annex.A10 representation against Annex.A8 order. It was aggrieved by the issuance of Annex.A8 order, the petitioner approached the tribunal. The tribunal, after considering the issue, disposed of the original application directing the respondents to consider the claim of the petitioner for a posting in a more nearer station. Challenging this, the petitioner is before us. 3. We have heard the learned counsel on both sides. 4. The learned counsel for the petitioner submitted that the petitioner, who entered service on 04.02.2004, was promoted as HM in RGM LP School, Cherukara on OP(KAT) No.64/2024 **==> picture [31 x 8] intentionally omitted <==** 19.07.2022. The opted stations of the petitioner are as follows; i. GLPS, Thevannoor under AEO, Veliyam ii. Ayur GLPS under AEO, Anchal iii. Ayur JUPS under AEO, Anchal iv. St.Thomas GLPS, Thrippallaziyam under AEO, Veliyam v. Anchal GLPS under AEO, Anchal vi. GLPS, Ummannoor under AEO, Veliyam The learned counsel for the petitioner submitted that the petitioner was transferred to the fifth opted station, Anchal GLPS under AEO, Anchal. At the time of transfer as above, there was no vacancy at GLPS, Thevannoor. While so, an open vacancy occurred at GLPS, Thevannoor, on 26.06.2023, which is the first opted station of the petitioner. The learned counsel pointed out that in terms of Clause 5 of Ext.P4 transfer norms, if an employee has got posting into his/her second and third option, his/her better option would not be cancelled and he/she ought to be accommodated against the better opted station in the event of occurrence of vacancy in the meanwhile. According to the learned counsel, the petitioner being the senior teacher, the second respondent was right in issuing Annex.A4 transfer order, whereas the issuance of Annex.A8 order is in violation of the General Transfer norms. OP(KAT) No.64/2024 **==> picture [31 x 8] intentionally omitted <==** It is further submitted that the husband of the petitioner is suffering from cancer and is undergoing treatment at RCC, Thiruvananthapuram; and that is the reason why the petitioner had given her first option as GLPS, Thevannoor. It is pointed out that the fourth respondent, who is junior to the petitioner, was temporarily appointed in the GLPS, Thevannoor, as HM. It is further pointed out that it is noting that the husband of the fourth respondent is suffering from cancer, the government had given a posting to the fourth respondent at GLPS, Thevannoor, on compassionate grounds. The learned counsel submitted that the petitioner is also entitled for getting the same option on compassionate grounds since her husband also is a cancer patient and is undergoing treatment at RCC, Thiruvananthapuram as is evident from Annex.A9. Moreover, the petitioner is also having physical ailments as is evident from Annex.A11. Hence, according to the learned counsel, the petitioner is entitled to be posted at GLPS, Thevannoor, as ordered as per Annex.A4. 5. The learned Government Pleader, per contra, submitted that the government took the decision to give a posting to the fourth respondent at GLPS, Thevannoor, on OP(KAT) No.64/2024 **==> picture [31 x 8] intentionally omitted <==** compassionate grounds and passed Annex.A8 order after elaborately considering the gravity of the issues and claim of both the petitioner and the fourth respondent. Therefore, according to the learned Government Pleader, the tribunal is right in passing the impugned order. 6. The learned counsel for the fourth respondent submitted that the fourth respondent was already working at GLPS, Thevannoor, and was temporarily promoted as HM at GLPS, Thevannoor, when vacancy arose on 26.06.2023. According to the learned counsel, after giving options, the petitioner had willingly joined duty at GLPS, Anchal, and she cannot now claim a posting at GLPS, Thevannoor, for the reason that it is her first option. It is further submitted that the husband of the fourth respondent is suffering from cancer and is undergoing treatment at RCC, Thiruvananthapuram, and if she is transferred to any other station, she would be put in great difficulty. According to the learned counsel for the fourth respondent, it was after considering all relevant aspects that the government passed Annex.A8 order, cancelling Annex.A4 order and posting the fourth respondent at GLPS, Thevannoor. OP(KAT) No.64/2024 **==> picture [31 x 8] intentionally omitted <==** 7. We have elaborately considered the rival contentions raised by all parties. The issue, in short, is whether the petitioner, who is senior to the fourth respondent, is entitled to a transfer to her first opted station, viz., GLPS, Thevannoor. 8. The petitioner was promoted as HM in RGM LP School, Cherukara on 19.07.2022 and was later transferred to Anchal GLPS under AEO, Anchal, which was her fifth option, on the basis of her application for General Transfer. After being posted at Anchal GLPS, Anchal, on coming to know about the vacancy that arose in GLPS, Thevannoor, which is her first opted station, she submitted Annex.A2 and A3 representations requesting for a transfer to GLPS, Thevannoor. Accordingly, as per Annex.A4 order, she was transferred to GLPS, Thevannoor. During that time, the fourth respondent, who was PD Teacher at GLPS, Thevannoor, was temporarily promoted as HM and posted at GLPS, Thevannoor, as per Annex.R4(b) dated 04.07.2023. The dispute arose when Annex.A4 order dated 24.07.2023 was passed transferring the petitioner to GLPS, Thevannoor, and transferring the fourth respondent to GUPS, Padinjattinkara OP(KAT) No.64/2024 ..9.. from GLPS, Thevannoor. In this context, it is relevant to refer to Clause (iv) of Ext.P4 General Transfer norms, GO(P) No.3/2017/P&ARD dated 25.02.2017, specifying transfer on compassionate grounds, which reads thus; “4. അനകമമർഹമമയ കമരണങൾ (i) ഗരതരമമയ ഏതതങ�ല� അസഖമമമ (ഗരതരമമയ അസഖങൾ എനത� ഗരതരമമയ മരമഗങളമയ ക മൻസർ, ഹമ$മഗ�, പകമഘമത� എന�വയ� കരൾ, വക എന�വ ദമന� ത.യവർ, അവയവ� മമറ�വയല�ന� വ�മ3യരമയവർ) അപകടമമമ മല� ഒര ജ8വനകമരന� സമയ�യമയ അവശത സ�ഭവ�കകയ� ആയത� മല� ജ8വനകമരന� പരസഹമയത�നമയ� ആശയ�മകണതമയ� വരക. (ii) വ�ദഗ� 3 .�ക�ത മതറമര�ടത� ലഭ മലമതയന� തമഡ�കൽ സർട�ഫ�കറ�തH . അട�സമനത�ൽ വകപതലവൻ സമക തKടതക (iii) ജ8വനകമരൻ�തM ഭമര തയമ (ജ8വനകമര�യമതണങ�ൽ ഭർതമവ�മനമ) ഗരതരമമയ മരമഗ� പ�ട�തപടത� ജ8വനകമരതന പർണമമയ� ആശയ�ച കഴ�യനതമമയ മകമനമ മകൾമകമ മമതമവ�മനമ പ�തമവ�മനമ ജ8വനകമരതH/ജ8വനകമര�യതട സമന�ദ വ� പര�.രണവ� അത നമമപക�തമമതണന� തമഡ�കൽ സർട�ഫ�കറ�തH അട�സമനത�ൽ വകപതലവൻ സമക തKടതമമമൾ. (iv) മമൽKMഞ സമഹ.ര ങള�ൽ പMതKടവ�കന ഉതരവകൾ ഒര വർഷ� പർത�യമക�യത�നമശഷ� പന:പര�മശമ3�മകണതമണ�.” On a perusal of Clause (iv) of Ext.P4 General Transfer norms, it is seen that both the petitioner as well as the fourth respondent are eligible for transfer on compassionate grounds. Clause (v) is regarding options given by the employees, wherein it is stipulated that even though the government servants are transferred to their second or third option, their better option would not be cancelled and they OP(KAT) No.64/2024 **==> picture [37 x 8] intentionally omitted <==** ought to have been accommodated against the better opted station in the event of occurrence of vacancy in the meanwhile. 9. Admittedly, the petitioner is senior to the fourth respondent and her first opted station was GLPS, Thevannoor. At the time of general transfer, the petitioner was transferred to Anchal GLPS, which was her fifth option. After she joined Anchal GLPS, a vacancy arose at GLPS, Thevannoor, which was her first option; and she submitted Annex.A2 and A3 requests for transfer to GLPS, Thevannoor; and accordingly, as per Annex.A4 order dated 24.07.2023, the petitioner was transferred to GLPS, Thevannoor, and the fourth respondent, who had filed a representation to retain her as HM in the GLPS, Thevannoor and was accordingly granted a temporary posting to GLPS, Thevannoor, was transferred to GUPS, Padinjattinkara. Here, a question arises whether priority for transfer has to be given on the basis of compassionate grounds or on the basis of seniority or on the basis of option given. On compassionate grounds, both the petitioner and the fourth respondent deserve a posting at their requested station. However, the petitioner being senior to the fourth OP(KAT) No.64/2024 **==> picture [37 x 8] intentionally omitted <==** respondent and her first opted station was GLPS, Thevannoor, she ought to have been given a posting at the GLPS, Thevannoor. We are surprised how the government has given priority to the fourth respondent when both the petitioner and the fourth respondent stand on the same footing on compassionate grounds and the petitioner is senior to the fourth respondent. In such circumstances, the government cannot accept the request of one and reject the request of another, however, a posting to nearby stations requested by them can be considered taking into account the hardship caused to them by the illness of their spouse. It may be true that there may not be any vacancy at the nearby stations. Nevertheless, as we stated earlier, both the petitioner and the fourth respondent deserve a leniency. 10. On a consideration of the entire facts and circumstances and also taking into account Clauses (iv) and (v) of Ext.P4 General Transfer Norms, we are of the view that the petitioner, who was senior to the fourth respondent and whose first opted station was GLPS, Thevannoor, ought to have given priority and the government has to be directed to give a posting to the petitioner at the GLPS, Thevannoor. OP(KAT) No.64/2024 **==> picture [37 x 8] intentionally omitted <==** Therefore, the original petition is disposed of, as follows; - a) Ext.P3 impugned order of the tribunal and Annexure A8 Government Order are set aside and the appropriate authority is directed to pass orders giving a posting to the petitioner at the GLPS, Thevannoor. - b) The official respondents shall consider a posting for the fourth respondent in a more nearer station than GUPS, Padinjattinkara, when vacancy arises. SD/- ## A. MUHAMED MUSTAQUE JUDGE SD/- SHOBA ANNAMMA EAPEN JUDGE bka/- OP(KAT) No.64/2024 ..13.. ## **APPENDIX OF OP(KAT) 64/2024** ## **PETITIONER ANNEXURES** |**Annexure A-1**|**TRUE COPY OF THE APPLICATION SUBMITTED BY**| |---|---| ||**THE APPLICANT DATED 05-04-2023**| |**Annexure A-2**|**TRUE COPY OF REQUEST TO DEPUTY DIRECTOR OF**| ||**EDUCATION DATED 27.06.2023**| |**Annexure A-3**|**TRUE COPY OF REQUEST TO DEPUTY DIRECTOR OF**| ||**EDUCATION DATED 05.07.2023**| |**Annexure A-4**|**TRUE COPY OF ORDER BEARING NO.**| ||**A2/2357/2023 DATED 24.07.2023**| |**Annexure A-5**|**TRUE COPY OF ORDER BEARING NO. GEDN-**| ||**U3/329/2023GEDN DATED 25.08.2023**| |**Annexure A-6**|**TRUE COPY OF THE HEARING NOTES SUBMITTED**| ||**BY THE APPLICANT DATED 06.09.2023**| |**Annexure A-7**|**TRUE COPY OF THE MEDICAL RECORD DATED**| ||**08.09.2023**| - **Annexure A-8 TRUE COPY OF ORDER BEARING NO. G.O(RT )NO. 6026/2023/G.EDN DATED 10.10.2023** - **Annexure A-9 TRUE COPY OF MEDICAL RECORD ISSUED FROM RCC THIRUVANANTHAPURAM DATED NIL** - **Annexure A-10 TRUE COPY OF REPRESENTATION DATED 11.10.2023** - **Annexure A-11 TRUE COPY OF MEDICAL CERTIFICATE BEARING NO. SPFH/CERT/2023/678 DATED 12.10.2023 ISSUED FROM SP FORT HOSPITAL, THIRUVANANTHAPURAM** - **Annexure R-4(a) TRUE COPY OF JUDGMENT NO. 1398/2023 DATED 27.07.2023** - **Annexure R-4(b) TRUE COPY OF THE RELEVANT EXTRACT OF ORDER NO. A2/2158/2023/DDE DATED 04.07.2023 ISSUED BY THE 2ND RESPONDENT** OP(KAT) No.64/2024 ..14.. - **Annexure R-4(c) TRUE COPY OF TREATMENT CERTIFICATE NO. RCC/2023/TC/3154 DATED 12.07.2023 ISSUED FROM RCC, THIRUVANANTHAPURAM I** - **Annexure R-4(d) TRUE COPY OF THE DISCHARGE SUMMARY OF BONE MARROW TRANSPLANT UNIT DISCHARGE ON 18.05.2018 ISSUED FROM RCC, THIRUVANANTHAPURAM** - **Annexure R-4(e) TRUE COPY OF THE MEDICAL CERTIFICATE / CERTIFICATE OF ILLNESS DATED10.01.2024 ISSUED BY THE CONSULTANT GYNAECOLOGIST OF THE BISHOP BENZIGEN HOSPITAL, KOLLAM** - **Exhibit P-1 TRUE COPY OF THE O.A NO. 1817 OF 2023 FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL WITH ANNEXURE DATED 12.1.2023** - **Exhibit P-2 TRUE COPY OF THE REPLY AFFIDAVIT OF THE 4TH RESPONDENT DATED 25.10.2023** - **Exhibit P-3 TRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL IN O.A. NO. 1817 OF 2023 DATED 25.01.2024** - **Exhibit P-4 TRUE COPY OF THE G.O(P) NO. 3/2017/P & ARD DATED 25.02.2017** - **Exhibit P-5 TRUE COPY OF THE LAST LEAVE APPLICATION DATED NIL** ## **RESPONDENT EXHIBITS** - **Exhibit R4 (a) True copy of the treatment certificate dated 06.01.2024 from RCC** - **Exhibit R4 (b) True copy of the medical certificate dated 10.01.2024 from Bishop Benziger Hospital**