Ajitha P., Principal vs State of Kerala and The Director of Higher Secondary

K.T. Sankaran, J.—The petitioner, while working as Higher Secondary School Teacher, was promoted as Principal, by Ext.P1 order dated 1.8.2009. The petitioner was posted as Principal in Government Higher Secondary School, Manathana, Kannur. She was working as Higher Secondary School Teacher in Government H.S.S. Vellur before her promotion. She submitted Ext.P2 representation dated 7.8.2009 requesting for a transfer to any of the four schools mentioned therein. In Ext.P2, the petitioner stated that she is the daughter of a freedom fighter and that she has got some privilege in getting transfer to the place of request. In the first option mentioned in Ext.P2, it was also pointed out that the post of Sr. HSST, Botany was vacant in that school. The learned Counsel for the petitioner submitted that the subject relating to the petitioner being Botany, there was no difficulty in accommodating the petitioner in that school as Principal.

As per G.O.(Rt) No. 1400/10/Gl.Edn. dated 27.3.2010(Ext.P4), 233 Higher Secondary School Teachers were promoted as Principals in Government Higher Secondary Schools. As per G.O.(Rt) No. 1399/10/Gl.Edn. dated 27.3.2010 (Ext.P5) 31 Higher Secondary School Principals who were appointed as per Ext.P1 were transferred and posted at the places indicated in Ext.P5. The petitioner was not included in Ext.P5 though she had made a request for transfer. It is pointed out that in the schools opted by the petitioner in Ext.P2 representation, juniors of the petitioner were appointed as per Ext.P5 order. Pointing out these facts, the petitioner submitted Ext.P7 representation dated 29th March, 2010 to the first respondent. Since Ext.P7 was not being disposed of, the petitioner filed W.P.(C) No. 11514/2010, which was disposed of as per Ext.P8 judgment dated 5th April 2010, directing the first respondent to consider and pass orders on Ext.P7 representation as expeditiously as possible and at any rate before the next general transfers. After Ext.P8 judgment, applications were called for, for general transfer and the petitioner submitted Ext.P8(a) application in the prescribed proforma.

The first respondent passed Ext.P9 order dated 7.6.2010 rejecting Ext.P7 representation submitted by the petitioner. The reasons stated by the first respondent for rejection of the request of the petitioner are the following:

The Director, Higher Secondary Education has already invited applications for transfer from Principals of Government Higher Secondary Schools. A large number of teachers including the petitioner have applied for transfer. These applications can be considered by Government only at the time of appointment of Principals against the existing vacancies, for administrative reasons. Individual applications for transfer cannot be considered at this juncture as the respondents have to consider the claims from persons senior to the petitioner is any, and other administrative factors while processing transfer request. The application submitted by the petitioner for transfer in the prescribed proforma can be effected on its merits as and when transfers of Principals are considered by Government.

In the circumstances, the Exhibit-P7 representation from the petitioner cannot be considered at present and hence rejected.

Ext.P9 is under challenge in this Writ Petition.

The reliefs prayed for in the Writ Petition are the following:

i) to issue a writ of certiorari or any other writ or order to quash Ext.P9.

ii) to issue a writ of mandamus or any other writ order or direction to the first respondent to grant transfer to the petitioner to one of the schools opted in Ext.P7.

ii) to declare that the Ext.P5, in so far as it does not grant transfer to the petitioner to one of the stations opted in Ext.P2 is invalid.

iii) to command the first respondent to effect transfer of Principals before filling up the existing vacancies of Principals by any other method.

iv) to issue any other writ order or direction as this Hon''ble Court may deem fit in the facts and circumstances of the case."

In the counter affidavit, the following defences are stated.

As far as Higher Secondary Schools are concerned, the Principals must have to teach their students in concerned subjects. All schools do not offer all subjects. Hence Principals cannot be posted and transferred to schools of their choice. Government have appointed 490 Principals in Government Higher Secondary Schools as per the aforesaid G.O. Further, 233 Principals were appointed by G.O. (Rt) No. 1400/10/Gl.Edn. dated, 27/03/2010. While issuing the appointment orders to the 233 teachers as Principals, some transfers were necessitated to accommodate fresh hands in the Select list because of subject constraints. Transfers given to 31 teachers by G.O.(Rt) 1399/10/Gl.Edn. dated, 27/03/2010 are not general transfers as stated by the petitioner. These transfers were made due to administrative reasons. The fact is that no Principals in Government Higher Secondary Schools are entitled for general transfer as they have not completed one year in their present stations.

It is also contended in the counter affidavit thus:

The DPC(H) for preparing the select list for appointment to the Principals in the existing vacancies consequent on retirement on 31.3.2010, will be convened shortly and once the select list of 2010 is prepared, the pending transfer requests from the Principals including that of the petitioners will be considered.

The further contention is that the question of seniority also is to be considered while effecting transfer and seniors of the petitioner have to be accommodated first.

There is nothing in Ext.P9 to indicate that the first respondent considered any of the matters which constituted the defence in the counter affidavit. Ext.P9 proceeds on the basis that in spite of order passed by this Court in Ext.P8, the matter cannot be considered by the first respondent. The reasons stated in Ext.P9 for rejection of the request are far from satisfactory. There was no proper disposal at all of Ext.P7 as per Ext.P9 order. In Ext.P7 representation, the petitioner had specifically stated the following:

Based on the seniority the petitioner was promoted as Principal per order dated 1-8- 2009 and posting was given at G.H.S.S. Manathana, which is about 125 Kms situated in a remote area. The petitioner is residing at Vellur, in the Northern part of Kannur District and the posting was about 125 kms, in a school situated in the south- eastern part of the District. At home, the aged mother-in-law in her late eightees and children who requires care of the petitioner is living. Since there were vacancies in nearby schools at the time of posting at Manathana the petitioner has submitted a representation on 7.8.2009 praying for granting posting at those nearby schools. The schools opted by the petitioner''s are G.H.S.S. Chayyoth, Govt. V.H.S.S. Kalliassery, Govt. Town H.S.S. Kannur and G.H.S.S. Chala. It has been promised that the representation would be considered without any delay. To the great surprise of the petitioner, now orders have been issued on 27.3.2010, filling up the vacancies opted by the petitioner by appointing other Principals, who were far juniors to the petitioner. In G.H.S.S. Chayyoth, Sri. Prakasan T.V is transferred and appointed as Principal vide Sl. No. 30 in the order G.O.(Rt) No. 1399 dated 27.3.2010. The said Prakasan is Sl. No. 914 in the seniority list dated 25.4.2004 and hence junior to the petitioner. Similarly, in Government V.H.S.S. Kalliassery Smt. Reetha V. has been posted as Principal on promotion vide Sl. No. 100 in the G.O.(Rt) No. 1400 dated 27.3.2010. The above said Reetha is Sl. No. 1208 in the seniority list dated 25.4.2004 and thus far junior to the petitioner. Similarly, in Government Town Higher Secondary School Kannur, which is also a station opted by the petitioner, Smt. Sreeja P. has been posted as Principal vide Sl. No. 64 in the G.O.(Rt) No. 1400 dated 27.3.2010. The above said Sreeja is Sl. No. 1165 in the seniority list dated 25.5.2004 and thus far junior to the petitioner. It is clear from the above that the petitioner''s claim is overlooked, that even in utter violation of the seniority position. It is also relevant to note that Smt. Reetha V., who is posted in G.V.H.S.S. Kalliassery is hailing from Trivandrum and a posting at Manathana would not take any difference as far as Smt. Reetha V., is concerned. Apart from that there are two more vacancies arising in the nearby place of the residence of the petitioner that is in G.G.H.S.S. Payyannur and in G.H.S.S. Kunhimangalam, on account of the retirement of the Principals on 31.3.2010.

Nothing is stated in Ext.P9 about the above mentioned contentions taken by the petitioner in Ext.P7 representation.

For the aforesaid reasons, Ext.P9 order is liable to be quashed and it is accordingly quashed. The first respondent shall consider the matter afresh and pass appropriate orders taking into account all the contentions raised by the petitioner in Ext.P7 representation. The stand taken by the Government that the matter will be considered only at the time of general transfer is unsustainable. The question whether Ext.P5 order passed ignoring the legitimate claims of the petitioner requires to be considered as directed by this Court in Ext.P8 judgment. That has to be done, irrespective of the questions to be considered at the time of general transfer. The first respondent has to do the same and there is no escape from doing so. The first respondent shall consider Ext.P7 representation afresh within a period of one month from the date of receipt of a copy of this judgment. The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the first respondent. Since I have directed Ext.P7 to be considered afresh, the reliefs prayed for in the Writ Petition challenging the legality of Ext.P5 is left open. All the contentions of the petitioner are also left open.

The Writ Petition is allowed to the extent indicated above.