SUVITHA S v State of Kerala & Others

**WP(C) NO. 24247 OF 2021 1** ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V WEDNESDAY, THE 1[ST] DAY OF DECEMBER 2021 / 10TH AGRAHAYANA, 1943** ## **WP(C) NO. 24247 OF 2021** ## **PETITIONER/S:** SUVITHA S, AGED 42 YEARS, W/O. SAJI P.S., ANUSREE, THANNIMOODU, KARINGANNOOR P.O., OYOOR, NOW WORKING AS CLUSTER RESOURCE CENTRE (CRC) CO-ORDINATOR, BLOCK RESOURCE CENTRE (SAMAGRA SHIKSHA KERALAM), CHATHANOOR, KOLLAM DISTRICT, PIN691 572. BY ADV PAULSON THOMAS ## **RESPONDENT/S:** 1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 THE DIRECTOR OF GENERAL EDUCATION, GENERAL EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, JAGATHY, THIRUVANANTHAPURAM, PIN-695 005. 3 STATE PROJECT DIRECTOR, SAMAGRA SHIKSHA KERALAM, THIRUVANANTHAPURAM, PIN-695 001. 4 DISTRICT PROJECT CO-ORDINATOR, SAMAGRA SHIKSHA KERALAM, KOLLAM, PIN-691 001. **WP(C) NO. 24247 OF 2021 2** 5 BLOCK PROGRAMME CO-ORDINATOR, BLOCK RESOURCE CENTRE (BRC), CHATHANOOR, KOLLAM, PIN-691 572. SRI BIJOY CHANDRAN, SR GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 01.12.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 24247 OF 2021** **3** ## **JUDGMENT** The petitioner is presently working as a Cluster Resource Centre (CRC) Coordinator at Block resource Center (BRC) Chathannoor. She has approached this Court impugning Exhibit P1 order of transfer as per which she has been transferred to BRC Punalur. 2. The petitioner contends that CRCs come under the Samagra Shiksha Abhiyan (SSA), which is now renamed as Samagra Shiksha Keralam (SSK), which is a Central Government sponsored scheme. It was while working as HSA (Maths) at KPM Higher Secondary School, Cheriyavelinelloor, that she was retrenched from service for want of vacancy in the year 2016. She was deployed to the Government Higher Secondary School, Yeroor in 2016. Thereafter, she is stated to have worked in various Schools. According to the petitioner, the place to which she has been transferred is about 45 km away from BRC Chathannoor and is about 60 km away from her residence. The petitioner asserts that the norms that were to be followed by the respondents have not been followed. She also asserts that it was after working in faraway places that the petitioner was finally transferred to BRC Chathannoor and she took charge on 23.10.2010. She also contends that she is having vertigo and **WP(C) NO. 24247 OF 2021 4** Meniere’s disease and that her parents are also sick and ailing. In the said circumstances, she has submitted Exhibit-P4 representation before respondents 1, 2 and 3. The petitioner contends that it is with a view to satisfy certain union leaders that the petitioner has been transferred and according to her, the proceedings are actuated by mala fides. It contended that there is still a vacancy at Chathannoor and the petitioner should be permitted to continue at Chathannoor itself. It is in the afore factual backdrop that the petitioner has approached this Court seeking the following reliefs: - “i. set aside Exhibit-P1 transfer of the petitioner from BRC, Chathanoor to BRC Punalur. - ii. or in the alternative direct the 1st respondent to consider and pass orders on Exhibit-P4. - iii. issue any other writ, order or direction as deemed fit by this Honourable Court.” 3. A statement has been filed by the 4th respondent controverting the assertions made by the petitioner in the writ petition. It is stated that the petitioner is an aided School Teacher from KPMHSS, Cheriyavelinalloor, Kottarakkara, who was deployed for want of sanctioned post of HSA (Maths) in the School. It is stated that the petitioner is expected to perform duty at any place. There are about 12 BRCs in Kollam District, which are organising **WP(C) NO. 24247 OF 2021 5** multiple programmes. It is further stated that the petitioner, who was working in BRC, Chathannoor with effect from 23.10.2020 as CRC Coordinator and was transferred to BRC Punalur as per Exhibit-P1, considering the needs of a subject expert at BRC Punalur and based on the request received from the Co-ordinator Punalur. It is stated that BRC Punalur is located in a rural area and is comprised of remote tribal areas. It is also asserted that the transfer was made in good faith to make good the lack of a subject expert. The respondents contend that the assertions in the writ petition that norms have been violated are not correct. It is also stated that the ailments which are stated to have afflicted the petitioner are not grave enough for the petitioner to contend that she cannot be transferred. It is further stated that there are two vacancies of CRC Co-ordinators existing in BRC Punalur and the remaining 4 CRC Co-ordinators working there are language Teachers. It is due to the need of BRC Punalur that the petitioner was transferred. 4. A reply affidavit has been filed by the petitioner to the statement filed by the 4th respondent. In the reply affidavit, it is stated that Exhibit-P6, which details the duties attached to the CRC Co-ordinators are non-teaching works and therefore the assertions in the counter affidavit that the petitioner **WP(C) NO. 24247 OF 2021 6** being an HSA (Maths) is required at BRC, Punalur cannot be sustained. The petitioner has also given the details of certain BRCs, wherein there are HSA (Maths) Teachers, who according to the petitioner, could have been accommodated at Punalur. It is also stated that without accommodating those Teachers, it was not upon the respondents to transfer the petitioner, who is a lady. 5. I have heard the submissions of Sri Paulson Thomas, the learned counsel appearing for the petitioner and the learned Government Pleader. 6. I have considered the submissions advanced and have gone through the records. The petitioner impugns Ext.P1 order as per which she has been transferred from the BRC, Chathannoor to the BRC, Punalur. The Apex Court as well as this Court have consistently held that the transfer is one of the incidences of service and it is also one of the conditions of implied service. Orders of service of a government servant like any other administrative or executive orders are passed invariably for administrative purposes or in public interest. Such orders are normally outside the purview of judicial review of courts, except under circumstances like the transfer order passed by an incompetent person, a transfer made contrary to the rules and regulations, a transfer vitiated by malafides of a collateral purpose. It is also well settled **WP(C) NO. 24247 OF 2021** **7** that the appointing authority has the inherent right to transfer a government employee from one place to another depending upon the exigencies of service and they are the sole authority to take a decision on who is to be transferred, on what ground to be transferred and to which place the employee is to be transferred. The only caveat is that the power must be exercised honestly, with utmost bonafides, reasonably and in public interest. If the transferred employee is able to make out that the exercise of power is based on extraneous considerations or for oblique motives, it would amount to a malafide and colourable exercise of power. (See **Philipose Abraham v. State of Kerala and Ors.** [2008 (1) KLJ 517]. 7. In the instant case, the petitioner has raised a feeble contention that the teachers union having allegiance to the ruling political front is behind the transfer and that the transfer is vitiated by extraneous considerations. As held by the Apex Court, in **Rajneesh Khajuria v. Wockhardt Ltd. and Another** [(2020) 3 SCC 86], allegations of malafide are easier to levy than to prove. It was held that he who seeks to invalidate or nullify any act or order must establish the charge of bad faith, abuse or misuse by the authority of its powers. In the case on hand, the petitioner, except for making a bald allegation, has not placed before this Court any material to establish mala **WP(C) NO. 24247 OF 2021** **8** fides. 8. Having considered the entire facts, I am of the view that the petitioner has not made out any case for interfering with Ext.P1 order. 9. At this stage, Sri.Paulson Thomas, the learned counsel submitted that the petitioner has submitted Ext.P4 representation before respondents 1 to 3 and requested that necessary directions be issued to the 3rd respondent to consider the same and take a decision sympathetically. I am of the view that there cannot be any impediment in considering the said request. In the light of the discussion above, I am of the view that the petitioner has not made out a case for interfering with Ext.P1. However, there will be a direction to the 3rd respondent to consider Ext.P4, if the same has not been disposed of to date and take a decision expeditiously, at any rate, within a period of one month from the date of receipt of a copy of this judgment. This writ petition is disposed of. SD/- ## **RAJA VIJAYARAGHAVAN V** **JUDGE** DSV **WP(C) NO. 24247 OF 2021 9** ## **APPENDIX OF WP(C) 24247/2021** PETITIONER (S) EXHIBITS: Exhibit P1 TRUE COPY OF ORDER NO.SSK 2/1060/2021 DATED 28.10.2021 ISSUED BY THE DISTRICT PROJECTION CO-ORDINATOR, S.S.K. KOLLAM. Exhibit P2 TRUE COPY OF THE ORDER NO.SSK.2/1060/2021 DATED 26.10.2021 ISSUED BY DISTRICT PROJECT COP-ORDINATOR, SSK, KOLLAM. Exhibit P3 TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR. JOHN PANICKER, SANTHWANA HOSPITAL, THIRUVANANTHAPURAM TO THE PETITIONER. Exhibit P4 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE RESPONDENTS 1 TO 3 DATED 1.11.2021. Exhibit P5 TRUE COPY OF MODIFIED TRANSFER ORDER NO.SSK 2/1060/2021 DATED 28.10.2021 ISSUED BY THE DISTRICT PROJECTION CO-ORDINATOR, S.S.K. KOLLAM. - Exhibit P6 TRUE COPY OF THE RELEVANT PAGES FROM THE HANDBOOK OF CRC CO-ORDINATORS. Exhibit P7 TRUE COPY OF THE GUIDELINES FOR POSTING OF RETRENCHED TEAHCERS NO H(2)35985/2016/DPI DATED 8.8.2016. - Exhibit P8 TRUE COPY OF THE LIST OF CRC CO-ORDINATORS IN KOLLAM DISTRICT RESPONDENT (S) ANNEXURES: ANNEXURE R4(a) TRUE COPY OF THE LETTER DATED 23.10.2021 OF THE BLOCK PROJECT CO-ORDINATOR, PUNALUR