OP(KAT)262/18 and connected cases

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE A.M.BABU** **MONDAY ,THE 20TH DAY OF AUGUST 2018 / 29TH SRAVANA, 1940** ## **OP(KAT).No. 262 of 2018** **OA 905/2018 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 18-06-2018** ## **PETITIONERS/RESPONDENTS IN OA:** **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **2 DIRECTOR OF HIGHER SECONDARY EDUCATION DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHINAGAR, THIRUVANANTHAPURAM, PIN - 695 001.** ## **BY GP SRI.ANTONY MUKKATH** ## **RESPONDENTS/APPLICANTS IN OA** **1 ANEESHA S.P. W/O. JERALD WILLS, HSST MALAYALAM, G.H.S.S.MALAMPUZHA, PALAKKAD, PIN - 678 651, RESIDING AT T.C.18/654(1) KAITHARAKKONAM ROAD, AARAMADA P.O., THIRUVANANTHAPURAM, PIN - 695 032.** - **2 RAJANI RAJ W/O. SHINE DINESH, HSST COMMERCE, G.H.S. PERASSANNUR, MALAPPURAM, RESIDING AT** 2 ## **OP(KAT)262/18 AND CONNECTED CASES** **KRISHNATHEERTHAM, PULIMATH P.O., KARETTE, THIRUVANANTHAPURAM, PIN - 695 612.** **3 SREEJA C.K. W/O. ARUNKUMAR C.O., HSST POLITICAL SCIENCE, GOVERNMENT GIRLS HIGHER SECONDARY SCHOOL, B.P. ANGADI, TIRUR, MALAPPURAM, PIN - 676 102, RESIDING AT NEELAMBARI, T.C.17/208(3), VNRA - 208A, VIVEKANANDA NAGAR, PANGODE, TIRUMALA P.O., THIRUVANANTHAPURAM, PIN - 695 006.** **4 KISHORE K. KOCHAYYAN S/O. A.KUMARAN, HSST POLITICAL SCIENCE, G.H.S.S.PURATHUR, MALAPPURAM, RESIDING AT KOCHAYYATHU RAJABHAVAN, PADINJATTAKKARA P.O., THEVALAKKARA, KOLLAM, PIN - 690 524.** **BY ADVS. SRI. S.P. ARAVINDAKSHAN PILLAY SMT. K.N. REMYA SMT. L. ANNAPOORNA SMT. N. SANTHA SRI. PETER JOSE CHRISTO SRI. S.A. ANAND SRI. V. VARGHESE** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20.08.2018, ALONG WITH OP(KAT). 260/2018, OP(KAT). 313/2018, OP(KAT). 270/2018, OP(KAT). 269/2018, OP(KAT). 268/2018, OP(KAT). 266/2018, OP(KAT). 265/2018, OP(KAT). 264/2018, OP(KAT). 263/2018, OP(KAT). 261/2018, OP(KAT). 258/2018, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** ## **OP(KAT)262/18 AND CONNECTED CASES** 3 ## JUDGMENT Ravikumar, J 1.This bunch of Original Petitions, except OP(KAT) 313/2018, arise from a common order passed by the Kerala Administrative Tribunal on 18.6.2018 in a batch of Original Applications. They are filed by the State of Kerala and its officers. The party respondents in these Original Petitions who were the applicants before the Tribunal filed the said Original Applications for alleviating the grievances in relation to and against the provisional list for general transfer of HSST/HSST(junior) for the year 2018-2019 in different subjects published as per Circular No.ADC.6/105059/2018/HSE dated 4.6.2018. Hereafter, in this judgment those applicants who are party respondents in one or the other of the above OPs are described only as 'party respondents'. The petitioners in O.P. (KAT)313/2018 who were applicants in O.A. ## **OP(KAT)262/18 AND CONNECTED CASES** ## 4 (EKM).1586/2018 are aggrieved by the dismissal of the said OA taking note of the directions in the common order dated 18.6.2018, impugned in the other Original Petitions. Virtually the petitioners therein seek for finalization of the provisional order of transfer published as per the aforesaid circular dated 4.6.2018. In the said circumstances, these Original Petitions were heard jointly and are being disposed of by this common judgment. 2.Admittedly the party respondents and petitioners in OP(KAT).No.313/2018 are all working in transferable post either in the category of HSST or in the category of HSST (Junior), in different subjects under the Higher Secondary Education Department. The Directorate of Higher Secondary Education invited applications for effecting general transfer for the year 2018-2019 by circular dated 9.3.2018. Subsequent to the receipt of applications, the Director prepared the ## **OP(KAT)262/18 AND CONNECTED CASES** ## 5 impugned provisional list for effecting transfer under different quotas such as, compassionate quota, priority quota and general quota. In the statement dated 13.8.2018 filed on behalf of the first petitioner (wrongly stated as first respondent) it is stated that out of the total number of vacancies in each subject 10% is set apart for compassionate transfer and 20% is set apart for priority transfer as per GO(P).No.06/2017/G.Edn dated 03.4.2017 which is Annexure-A4 of Ext.P1 in OP(KAT).No.258/2018. The provisional list was published as per circular No.ADC.6/105059/2018/HSE dated 4.6.2018 and as noticed earlier the party respondents are having grievance against the same. They sought either cancellation or modification of the same and above all they ventilated grievance against the manner in which transfers are proposed to be effected purportedly in adherence to the aforesaid Annexure-A4 dated 3.4.2017 in the aforesaid OAs. ## **OP(KAT)262/18 AND CONNECTED CASES** ## 6 3. Earlier, raising grievances against the list prepared for general transfer of year 2015-16, several employee belonging to the aforesaid categories viz., HSST/HSST(Jr) approached the Tribunal by filing OA(E)No.648, 695 and OA.Nos.1115, 1260, 1276, 1367, 1742, 1744 and 1802 of 2015. Taking note of the grievances and contentions raised in those OAs, the Tribunal as per common order dated 1.10.2015 directed consideration of the grievances by the Government and in that regard to form a committee to look into all aspects and to evaluate the procedures thus adopted and for such other matters. In implementation of the directions, Government had constituted an expert committee to conduct a study as per G.O(Rt).4757/2015/G.Edn. Dated 7.10.2015 to examine all the aspects regarding the general transfer of HSST/HSST(Junior). The committee thus constituted had conducted detailed study and issued certain specific directions and ## **OP(KAT)262/18 AND CONNECTED CASES** 7 thereupon, Government had issued G.O. (Rt).5035/2015/G.Edn dated 26.10.2015. The said order dated 26.10.2015 produced as Ext.P3 in O.P.(KAT).No.258/2018 would reveal that the recommendations of the expert committee made for the purpose of mending the anomalies and mistakes in the transfer list were incorporated therein and Government had directed the Direcotr of Higher Secondary Education to rectify the anomalies/mistakes occurred in the transfer order in accordance with the directions of the Committee and to publish the final General Transfer list. It is submitted by both sides that consequently, final general transfer list was prepared and transfers were effected. Essentially, the grievance of the party respondents is that the said recommendations made by the expert committee which were accepted and acted upon, were given a go-by while formulating transfer guidelines as per G.O.(P).No.06/2017 G.Edn dated 3.4.2017. In fact, their contentions are that though they ## **OP(KAT)262/18 AND CONNECTED CASES** ## 8 are not virtually aggrieved by the said guidelines enunciated thereunder, they are aggrieved by the manner of its implementation. The contentions raised by them in the aforesaid OAs which culminated in the common order dated 18.6.2018 were upheld by the Tribunal. As per the said common order, the Tribunal had disposed of the OAs from which the captioned Original Petitions arise, except O.A.1586/2018 from which O.P.(KAT).313/2018 arises, directing the Government to consider the contentions raised by the applicants. In that regard, the applicants therein were permitted to prefer detailed representations before the 1[st] respondent detailing their grievances on various points. A time limit of two weeks was prescribed for preferring such representations. Government was directed to consider such representations in the light of the observations made in the said common order dated 18.6.2018 and directions in G.O. (Rt).5035/2015/G.Edn dated 26.10.2015 as well ## **OP(KAT)262/18 AND CONNECTED CASES** ## 9 as the findings of the Tribunal in its earlier common order in O.A.1019/2017 and connected cases dated 20.12.2017 and to pass appropriate orders within a further period of four weeks. Upon receipt of such orders from the Government, the Director of Higher Secondary School Education is to issue a draft transfer list in accordance with the changed/revised list and before finalising the same, ten days time to prefer objections against such draft general transfer list also has to be given. Going by the common order after considering the objections, on merits, final list is to be published on or before 31.8.2018. It is aggrieved by the said common order dated 18.6.2018 that the State of Kerala and the Directorate of Higher Secondary School Education have filed the above mentioned Original Petitions. As noticed earlier, O.P.313/2018 has been filed challenging the order of dismissal of O.A.1586/2018 passed on the basis of the common order dated 18.6.2018. ## **OP(KAT)262/18 AND CONNECTED CASES** ## 10 4.We have heard the learned Government Pleader, the learned counsel appearing for the party respondents as also the learned counsel appearing for the petitioner in OP(KAT).313/2018. 5.Virtually, the learned Government Pleader, the learned counsel for the petitioners as also the party respondents reiterated the contentions they raised before the Tribunal. The learned Government Pleader further contended that the Tribunal had failed to consider the factum of absence of any challenge against the transfer guidelines/transfer norms enunciated by the Government as per G.O.(P).No.06/2017 G.Edn dated 3.4.2017 in any of the aforementioned Original Applications. Therefore, according to the learned Government Pleader, there was absolutely no reason of justification for interfering with the provisional list of general transfer prepared and published by the ## **OP(KAT)262/18 AND CONNECTED CASES** ## 11 Director of Higher Secondary School Education and also to issue further directions as per the common order dated 18.6.2018. The learned counsel appearing for the petitioners in OP(KAT).313/2018 also endorsed the said contentions. Per contra, the learned counsel appearing for the party respondents contended that though the applicants had not raised grievances against the transfer norms enunciated under G.O.(P).No.06/2017 G.Edn dated 3.4.2017, they had raised grievances against the manner in which they are proposed to be implemented. In fact, the proposal for implementation as reflected in the provisional transfer list that constrained them to approach the Tribunal by filing the Original Applications that culminated in the impugned common order dated 18.6.2018. The learned counsel appearing for them further contended that the Tribunal, upon giving due consideration to all the attending circumstances, its earlier decisions and ## **OP(KAT)262/18 AND CONNECTED CASES** ## 12 relevant Government Orders, had issued directions well within its jurisdiction and therefore the exercise of power of judicial review by this Court is absolutely uncalled for. 6. Before adverting to the rival contentions, it is only befitting to refer to certain aspects as also decisions relating transfer. Norms of transfer have been enunciated by the Government for the guidance of its officers who are acting as transferring authorities. The power of transfer should be exercised reasonably and fairly in the best interest of administration. Essentially, the guidelines are formulated to eschew the element of arbitrariness in exercise of the power of transfer by the officers who are vested with such powers. Survey on authorities on the subject would reveal that the consistent view of this Court as also the Hon'ble Apex Court is that transfer is an incident of service and therefore, no employee ## **OP(KAT)262/18 AND CONNECTED CASES** ## 13 could claim immunity from transfer or also claim that he/she should be posted at a particular place of his/her choice. At the same time when the power of transfer is exercised without jurisdiction, without due regard to the interest of administration or requirement of justice or in cases of perverse exercise or abuse of power, the jurisdiction of this Court is wide enough to strike down the order passed in its exercise. In Philipose Abraham v. State of Kerala (2007 (4) KLT 699) , a Division Bench of this Court held that orders of transfer of Government servants like any other administrative or executive orders are passed invariably on administrative purposes or public interest and therefore such orders are normally outside the purview of judicial review by courts except when an order of transfer is made by incompetent person or contrary to Rules or done on mala fides or for collateral purposes. In Soman v. State of Kerala (2006 (1) KLT SN 54), a learned Single Judge of this Court held ## **OP(KAT)262/18 AND CONNECTED CASES** 14 that as far as administrative matters like transfers and postings are concerned, State shall have enough freedom to make proper arrangements. But, such freedom or discretion shall not be unbridled. In other words, the exercise of discretion shall not be arbitrary or resulting in negation of justice or violation of Article 14 of the Constitution of India. It is also worthy to refer to the decision of the Hon'ble Apex Court in Union of India and others v. S.L.Abbas (1993 (4) SCC 357). The learned Government Pleader drew our attention to paragraph 8 therein. It reads thus :- “The jurisdiction of the Central Administrative Tribunal is akin to the jurisdiction of the High Court under Article 226 of the Constitution of India in service matters. This is evident from a perusal of Article 323-A of the Constitution. The constraints and norms which the High Court observes while exercising the said jurisdiction apply equally to the Tribunal created under Article 323-A. (We find it all the more surprising that the learned Single Member who passed the impugned order is a former Judge of the High Court and is thus aware of the norms and constrains of the writ jurisdiction). The Administrative tribunal ## **OP(KAT)262/18 AND CONNECTED CASES** ## 15 is not an appellate authority sitting in judgment over the orders of transfer. It cannot substitute its own judgment for that of the authority competent to transfer. In this case, the Tribunal has clearly exceeded its jurisdiction to interfering with the order of transfer. The order of the Tribunal reads as if it were sitting in appeal over the order of transfer made by the Senior Administrative Officer (competent authority).” 7. Relying on the decision of the Hon'ble Apex Court in S.L.Abbas 's case (supra) the learned Government Pleader submitted that the Administrative Tribunal is not an appellate authority to sit over the judgment or the orders of transfer passed by competent authority and a scanning of the impugned common order dated 16.8.2016 would reveal that the Tribunal had acted as an appellate authority and therefore the impugned order calls for interference. 8. Before proceeding further, it is only appropriate to keep reminded ourselves that this Court also could not act as an appellate Court and the source of power of this court for ## **OP(KAT)262/18 AND CONNECTED CASES** 16 dealing with orders passed by the Administrative Tribunal emanates from the judgment of the Apex Court in L.Chandrakumar v. Union of India (1997 (3) SCC 261) and it is only the power of judicial review. 9. It is evident from the arguments advanced by the learned counsel appearing for the party respondents that essentially grievance of the party respondents is against the manner in which transfers are proposed to be effected under compassionate quota as also priority quota during the general transfer. Evidently, they drew attention of the Tribunal to the verdict in the batch of Original Applications raising grievances against the proposed general transfer for the year 2015-16 that constrained the 1[st] petitioner/State of Kerala to constitute a committee to examine all aspects regarding general transfer of HSST/HSST (Juniors). A perusal of G.O. (Rt).5035/2015/G.Edn dated 26.10.2015 (Ext.P3 ## **OP(KAT)262/18 AND CONNECTED CASES** ## 17 in OP(KAT).258/2018) would reveal that upon considering the various recommendations made by the said expert committee Government had directed the Director of Higher Secondary Education to effect general transfer for that year following such recommendations. Having accepted the recommendations of the committee constituted by the Government as per the aforesaid G.O. Dated 26.10.2015 and effected general transfers accordingly, there is absolutely no reason for ignoring the same while effecting general transfer this year despite the framing of the transfer norms for the year 2018-19 as per G.O.(P).06/2017/G.Edn dated 3.4.2017. Such contentions raised successfully before the Tribunal were reiterated before us to resist the challenge against the impugned common order, made by the petitioners herein. While the petitioners contend that non-adherence with such recommendations of the expert committee could not be a reason for interfering with the ## **OP(KAT)262/18 AND CONNECTED CASES** ## 18 proposed general transfers for the current year the party respondents would contend that if the recommendations of the expert committee which was strictly enforced during the year 2015-16 were ignored it would result in excessive transfers under compassionate grounds quota and priority grounds quota. It is also their submission that on accepting the recommendations of the expert committee, as can be seen from the G.O.(Rt).5035/2015/G.Edn dated 26.10.2015, for the purpose of effecting transfer on compassionate grounds, revenue district was treated as the unit. At the same time, a perusal of the guidelines enunciated in G.O.(P).No.06/2017 G.Edn dated 3.4.2017 would reveal that nothing is specifically mentioned therein regarding the change of unit viz, change of unit as State instead of revenue district. In this context, it is to be noted that the contention of the learned Government Pleader is that since the unit for appointment of HSST/HSST(Jr) is State, general transfer can ## **OP(KAT)262/18 AND CONNECTED CASES** ## 19 also be effected only by treating the State as one unit. According to us, a careful perusal of the provisional general transfer list which was interfered with by the Tribunal, would reveal that even the guidelines enunciated under G.O.(P).No.06/2017 G.Edn dated 3.4.2017 were not properly adhered to besides totally ignoring the recommendations of the expert committee as accepted under G.O. Dated 26.10.2015. The learned government Pleader, in tune with his earlier submissions, further submitted that since State is treated as the Unit subject-wise availability of vacancies in the State for general transfer was ascertained and what is proposed thereafter through the draft transfer list is only to fill up such vacancies by effecting transfer based on seniority and eligibility. In short, the contention is that the permissible number of vacancies available under compassionate quota as also priority quota was also identified taking into account the availability of the ## **OP(KAT)262/18 AND CONNECTED CASES** ## 20 vacancies in the State as a whole in each subject and therefore the apprehension that effecting transfers as proposed would exceed the permissible limit under different quotas, got no basis. 10. Bearing in mind the said rival contentions and realizing the fact that the power available to this Court is only the power to judicially reviewing the order passed by the Tribunal, we will examine the tenability of the challenge against common order dated 18.6.2018. Needless to say that the fate of OP(KAT).313/2018 would depend upon the decision on the same. 11. It is discernible from the order dated 18.6.2018 that the Tribunal had taken into account various aspects including its own earlier order in OA.1019/2017 and connected matters and G.O.(Rt).5035/2015/G.Edn dated 26.10.2015 issued by the Government after considering the recommendations made by the ## **OP(KAT)262/18 AND CONNECTED CASES** ## 21 expert committee constituted by it while passing the said order. After referring to clause (4) of paragraph 6 of G.O. (Rt).5035/2015/G.Edn dated 26.10.2015 (Ext.P3 in OP(KAT).No.258/2018) as can be seen from paragraph 11 of the impugned order, the Tribunal observed thus :- “As envisaged in the guideline, vacancies for resorting transfer on compassionate ground should be calculated in district wise, which should not exceed 10% of the total vacancies. Therefore, the compassionate transfers already granted should be reviewed by the committee constituted vide GO(Rt) 4226/15/G.Edn dated 18.9.2015 for the purpose. The case of those teachers who are retained on compassionate ground should also be reviewed by the committee constituted as per the above Government Order dated 18.9.2015 and should be brought under the 10% quota earlier mentioned. In any case the compassionate transfer should not be exceed 10% of the total vacancies in a district for transfer on compassionate grounds. The priority list prepared by the Committee constituted (vide GO(Rt) 4226/15/G.Edn dated 18.9.2015 should be published in website for the full knowledge of all concerned. The priority list of exempted categories mentioned in clause 2(X) in GO(P) 143/2015/G.Edn dated 27.5.2015 should also be published in the website.” 12. At this juncture, it is relevant to note that the learned Government Pleader, with ## **OP(KAT)262/18 AND CONNECTED CASES** 22 reference to the afore-extracted paragraph, had also raised contention that the Tribunal ought not have been insisted for scrupulous adherence or even for considering, GO(Rt).5035/15/G.Edn dated 26.10.2015 for the purpose of effecting general transfer for the current year. According to the learned Government Pleader, the said G.O was issued only for the purpose of effecting general transfer for the year 2015-16 and therefore it was open to the Government to deviate from it and to formulate guidelines in the subsequent years and evidently, while formulating new transfer guidelines, a conscious decision was taken by the Government not to follow G.O.(Rt).5035/2015/G.Edn dated 26.10.2015. It is reflected from the transfer guidelines enunciated under G.O.(P).No.06/2017 G.Edn dated 3.4.2017. In short, according to the learned Government Pleader, as per the impugned common order dated 18.6.2018, the Tribunal had interfered with the transfer guidelines and thereby, stepped beyond its ## **OP(KAT)262/18 AND CONNECTED CASES** 23 jurisdiction. 13. During the course of arguments various contentions as mentioned above, were raised and responding to the contentions, this Court made certain observations and put some pointed questions which constrained the petitioners viz., the official respondents before the Tribunal to file statement dated 9.8.2018 and another statement dated 13.8.2018. Along with such statements, various documents were produced as Annexures, evidently, to support the contentions raised to challenge the order passed by the Tribunal dated 18.6.2018. 14. Having gone through the order dated 18.6.2018 of the Tribunal, we are of the considered view that it is only appropriate to consider it in the light of the decision of the Apex Court in S.L.Abbas 's case (supra) to find out as to whether the Tribunal had stepped outside its jurisdiction or exceeded its jurisdiction. In ## **OP(KAT)262/18 AND CONNECTED CASES** 24 view of the said decision, it is evident that the jurisdiction of an Administrative Tribunal is is akin to the jurisdiction of this Court under Article 226 of the Constitution of India in service matters, subject to the limitations specifically mentioned therein. The said declaration in regard to the position of the Administrative Tribunal is relevant for the purpose of considering the contentions and issues involved in the cases on hand, more particularly, on the question whether the observations and directions of the Tribunal based on G.O.(Rt).5035/2015/G.Edn dated 26.10.2015 can be said to be beyond its jurisdictional power. A bare perusal of the said GO would reveal that the said G.O dated 26.10.2015 was issued in respect of transfer in Higher Secondary Education Department pursuant to the study of the recommendations and directions of the expert committee constituted based on the order of the Kerala Administrative Tribunal in OA. Nos 648,695, 1115, 1260, 1276, ## **OP(KAT)262/18 AND CONNECTED CASES** ## 25 1367, 1742, 1744 and 1802 of 2015 and for the purpose of complying with the orders passed thereon by the Tribunal. It would also reveal that it had come to the notice of the Government that many anomalies and mistakes had crept in the order of general transfer concerned and it is to emend them, especially taking note of the common order in O.A.No.648/2015 and connected cases that Government had constituted an expert committee, and upon studying its report, issued directions to the Director of Higher Secondary Education to follow the directions in the said report specifically mentioned in paragraph 6 of the said G.O dated 26.10.2015. In such circumstances, how can the contentions of the learned learned Government Pleader that the said directions issued taking note of the recommendations of the expert committee, are not to be looked into at all after the issuance of G.O dated 3.4.2017 be countenanced ? Such directions of the expert committee, directed to ## **OP(KAT)262/18 AND CONNECTED CASES** 26 be followed by the Government, would reveal that they cannot simply be taken as matters which had relevance only during the year 20152016 and pale into insignificance thereafter. Being a model employer, the Government cannot be heard to contend or permitted to contend that directions of a committee constituted by it and accepted by it to correct anomalies and mistakes capable of discriminating its employees need be followed only in one particular year and they would become irrelevant in the following years. If anomalies and mistakes persuaded the Government to constitute a committee and later on to follow its recommendations for the purpose of mending them creep in the provisional transfer orders in the subsequent years there is no reason for not looking into such directions to correct such similar or analogous anomalies and mistakes or to avoid recurrence of anomalies and mistakes in the succeeding years. In the contextual situation it is worthwhile to refer ## **OP(KAT)262/18 AND CONNECTED CASES** 27 to paragraph 6 of Ext.P3 in OP(KAT).258/2018 viz., the G.O dated 26.10.2015 and the same reads thus:- “The committee considered the grievances and examined those that require rectification/correction. After having examining the anomalies/mistakes, committee decided to give following directions to carry out rectification and completion of the transfer process in a fair, transparent and foolproof manner vide 6[th] paper above. (1).The existing vacancies of Higher Secondary School Teachers set apart for General Transfer shall be published in website. The teachers who have completed the respective station more than five years, shall be treated as open vacancy. (2). The teachers who opt Home Districts and those who are thrown out from Home Districts should be given opportunity to exercise option to their district and schools of their choice. (3). Seniority of the teachers shall be the criteria for allotment of schools of their choice in accordance with the option exercised. (4). As envisaged in the guideline, vacancies for resorting transfer on compassionate ground shall be calculated in district wise, while should not exceed 10% of the total vacancies. Therefore, the compassionate transfers already granted should be reviewed by the committee constituted vide GO(Rt)No.4226/15/G Edn dated 18.9.2015 for the purpose. The case of those teachers who are retained on compassionate ground should also be reviewed by the committee constituted as per the above Government Order dated 18.9.2015 and should be brought under the 10% quota earlier mentioned. In any case the compassionate transfer should not be exceed 10% of the total vacancies in a district for transfer on compassionate grounds. The priority list prepared by the ## **OP(KAT)262/18 AND CONNECTED CASES** 28 Committee constituted (vide GO(Rt)No.4226/15/G.Edn dated 18.9.2015) should be published in website for the full knowledge of all concerned. The priority list of exempted categories mentioned in clause 2(X) in G.O. (P).No.143/2015/G.Edn dated 27.5.2015 should also be published in the website.” 15. The said directions to carry out rectification and completion of the transfer process in a fair, transparent and foolproof manner as per the report of the expert committee and extracted in paragraph 6 of Ext.P3 in OP(KAT).258/2018 viz., G.O dated 26.10.2015 would definitely eschew the element of arbitrariness in the matter of general transfer and they would also enable the Government and its officers competent to effect transfer in a flawless, fair and appropriate manner. A perusal of the impugned order dated 18.6.2018 perused by the Tribunal would reveal that taking note of the aforesaid G.O dated 26.10.2015 and the directions contained therein and the alleged anomalies and mistakes crept in the provisional list for transfer dated ## **OP(KAT)262/18 AND CONNECTED CASES** 29 4.6.2018, the Tribunal had formed an opinion that adherence to the directions in the G.O dated 26.10.2015 would rectify the mistakes in the provisional list for general transfer and therefore, thought it fit to compel the official respondents before it to look into the G.O dated 26.10.2015 and also to effect appropriate corrections to redress the grievances which according to the Tribunal got some substance. The directions of the Tribunal referred to hereinbefore would reveal that they were actually the outcome of such consideration. In such circumstances the question is while issuing such directions whether the Tribunal had stepped beyond its jurisdiction. True that in the light of the decision of the Apex Court in S.L.Abbas' s case, the Administrative Tribunal cannot act as an appellate authority. It is evident from the G.O dated 26.10.2015 that for the purpose of effecting transfer on compassionate grounds, the vacancies are to be calculated district- ## **OP(KAT)262/18 AND CONNECTED CASES** 30 wise and it to ensure that it would not exceed 10% of the total vacancies for a particular district such transfers already granted under the said quota have to be reviewed. Unless such vacancies are identified district-wise how is it possible to conduct a review so as to bring it within the prescribed percentage. On a careful consideration of the transfer norms in G.O dated 3.4.2017, we do not find anything therein indicating that the unit for transfer on compassionate grounds, was changed from revenue district to State. The learned Government Pleader drew our attention to clause (iv) in paragraph 6 of G.O.06/2017/E.Edn dated 3.4.2017 to canvass the position that virtually the unit was changed and converted as State. It reads thus :- “ ആകക അനുകമമ്പാർഹമമ്പായ സ്ഥലമമ്പാറ്റങ്ങൾ സ്ഥലലംമമ്പാറ്റങ്ങളുകട 10% ആയയി നയിജകപ്പെൂടുത്തുന്നതലം ഇത്തരലം സ്ഥലലംമമ്പാറ്റങ്ങൾ വർഷലം തതമ്പാറലം .” പുനപരയിതശമ്പാധയിതക്കേണ്ടതമമ്പാണണ ## **OP(KAT)262/18 AND CONNECTED CASES** 31 (Emphasis added). 16. True that going by clause (iv) of paragraph 6 of G.O. Dated 3.4.2017, as extracted above, it is evident that only 10% of the possible vacancies are available for effecting transfer on compassionate grounds. More particularly, a perusal of the directions issued by the Government in G.O dated 26.10.2015 and also in the G.O dated 3.4.2017 would reveal that transfers on compassionate grounds are required to be reviewed yearly. In other words, it would reveal that the requirement to review transfers effected on compassionate grounds made mandatory as per G.O dated 26.10.2015 has been retained in G.O dated 3.4.2017. But, nothing is on record to show that before drawing the provisional transfer list impugned by the applicants who are party respondents in the captioned OPs such reviews were undertaken. In such circumstances, we do not find any reason to interfere with the ## **OP(KAT)262/18 AND CONNECTED CASES** 32 observations of the Tribunal emphasizing the requirements to undertake review even in the case of priority quota. It is to be noted that even if it is taken the number of vacancies available under compassionate quota and priority quota available in the State are ascertained correctly then also, if such persons entitled to be considered under those quota are allotted emmasse or in huge numbers to any particular district it will certainly diminish the chances of general quota candidates to get transfer to the place of their choice. In such circumstances, if it is done without considering review of earlier transfers effected under those quota it would further hamper chances of general quota candidates. Taking into account all such aspects we are of the view that the Tribunal was justified in counting all such aspects while passing the impugned common order dated 18.6.2018. Considering the directions and also taking into account all the aforesaid aspects, ## **OP(KAT)262/18 AND CONNECTED CASES** 33 we do not find any reason to hold that the Tribunal had stepped beyond its jurisdiction in passing the common order dated 18.6.2018 and actually what the Tribunal had directed is only to take into account all such aspects to alleviate the grievances of persons claiming transfer, including under the general quota. When directions were issued for consideration of various aspects in the aforesaid manner and to prepare only a draft transfer list and to provide opportunity to raise objections before finalizing the draft transfer list viz., the provisional transfer list, in our view, it cannot be styled as an order passed beyond jurisdiction. Shortly stated, we do not find any reason to interfere with the common order dated 18.6.2018 passed by the Tribunal as the petitioners have failed to bring out any illegality or perverseness in the said order. Accordingly, the challenge against the same is repelled. ## **OP(KAT)262/18 AND CONNECTED CASES** 34 17. Since OA.1586/2018 from which OP(KAT). No.313/2018 arose, was dismissed based on the common order dated 18.6.2018, OP(KAT) 313/2018 must also fail in its challenge against the order dated 8.8.2018 passed by the Tribunal. Ordered accordingly. The learned counsel for the petitioners therein contended that the dismissal of the Original Petitions shall not stand in the way of consideration of the claim for transfer of the petitioners therein who are also aspirants for transfer under the general quota and it is submitted that in fact, the petitioners therein were also included in the list of provisional transfer challenged before the Tribunal. It is a fact that besides the petitioners many others similarly situated must have been included in the provisional transfer list. We make it clear that we have not made any observation regarding the entitlement of the petitioners therein or such similarly situated persons for transfer. Essentially their right would also be subject to the ## **OP(KAT)262/18 AND CONNECTED CASES** 35 outcome of the consideration which is now to be made by the official respondents/petitioners in the other Original Petitions in the light of the observations made by this Court as also the Tribunal. In such circumstances, it is made clear that on issuance of provisional transfer list such persons shall also have the right to raise objections and grievances, as has been granted to the applicants in the OAs culminated in the common order dated 18.6.2018. Taking note of the fact that the filing of the captioned Original Petitions against the common order dated 18.6.2018 and also against the order dated 8.8.2018 and their pendency made the finalization of the list for transfer of HSST/HSST (junior) before 31.8.2018 impossible, it is only appropriate to grant further time for the Government and its officers competent to implement the directions and to prepare a final list for transfer of HSST/HSST (junior). Hence, it is ordered that time limit scheduled by the Tribunal as per the ## **OP(KAT)262/18 AND CONNECTED CASES** 36 common order dated 18.6.2018, for the different stages/processes would commence only from the date of receipt of a copy of this judgment. It is made clear that the outer limit for publishing the final list of transfer would also stand extended and accordingly, it is fixed as 25th October, 2018. Subject to the above the Original Petitions are disposed of. Sd/- C.T.RAVIKUMAR Judge A.M.BABU Judge Sd/- Mrcs/21.8. ## **OP(KAT)262/18 AND CONNECTED CASES** 37 ## APPENDIX ## EXHIBITS P1A TRUE COPY OF THE O.A.905/2018 ALONG WITH A1 TO A7(b) BEFORE THE HON'BLE KAT P2TRUE COPY OF THE INTERIM ORDER DATED 11.6.2018 OF THE HON'BLE KAT IN O.A.905/2018 P3TRUE COPY OF THE M.A.1208/2018 BEFORE THE HON'BLE KAT P4TRUE COPY OF THE COMMON ORDER OF THE TRIBUNAL IN OA.A.1019/2017 AND CONNECTED CASES DATED 20.12.2017 P5TRUE COPY OF THE REPLY STATEMENT OF THE 2ND PETITIONER P6TRUE COPY OF THE FINAL ORDER DATED 18.6.2018 IN O.A.905/2018 /True Copy/ P.S.To Judge