IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1077 of 2009()
1. S.KRISHNAKUMARI,
... Petitioner
Vs
1. STATE OF KERALA, REP.BY ITS
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE DISTRICT EDUCATIONAL OFFICER,
4. THE TRAVANCORE DEVASWOM BOARD,
5. M.SURESH,
For Petitioner :SMT.S.KARTHIKA
For Respondent :SRI.MATHEW JOHN (K)
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :15/10/2009
O R D E R
K. BALAKRISHNAN NAIR & P.BHAVADASAN, JJ.
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W.A. No. 1077 OF 2009
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Dated this the 15th day of October, 2009
J U D G M E N T
~~~~~~~~~~~
Balakrishnan Nair, J.
The appellant was the writ petitioner. The respondents
herein were the respondents in the Writ Petition.
2. The brief facts of the case are the following:
The appellant and 5th respondent were High School
Assistants (Maths) working in the schools managed by the 4th
respondent. The appellant has continuous service as HSA
(Maths) from 1.6.1988. The 4th respondent has continuous
service as HSA from 30.10.1997. The appellant was working in
Devaswom Board Higher Secondary School, Thiruvalla from
1.6.2000 and the 4th respondent was working in Devaswom
Board High School, Kangazha from 1999.
2. The appellant submitted a representation claiming
transfer to D.B.H.S. Kangazha. While ordering transfer, during
the academic year 2008-2009, the said request was allowed by
W.A. No.1077/2009 2
the Manager as per Ext.P1 order dated 27.5.2008. The appellant
was transferred as HSA (Maths) to Kangazha and in her place
the 4th respondent was posted at Thiruvalla. Later, apparently,
because of the objections raised by the D.E.O., Kanjirappally and
D.E.O., Thiruvalla, the Manager cancelled their transfer by
Ext.P2 order dated 18.9.2008. The appellant moved this Court
and as per the direction of this Court, the Manager reconsidered
the matter and by Ext.P3 order dated 30.10.2008, he stuck to
the stand taken in Ext.P2. Challenging Ext.P3, the appellant
preferred Ext.P4 revision before the Government under Rule 92
of Chapter XIVA of the Kerala Education Rules. In the
meantime, the D.E.O., Kanjirappally, passed Ext.P5 order
declining to approve the posting of the appellant as HSA (Maths)
in D.B.H.S, Kangazha. The date of the order given in Ext.P5 is
29.5.2008. But, in that order, the 2nd letter referred is dated
17.9.2008. Therefore, the date of the order must be a mistake
and the correct date appears to be 29.9.2008. Challenging
Ext.P5, the appellant preferred Ext.P6 revision before the
Government. As per the direction of this Court, the Government
considered both the revisions together and dismissed them by
Ext.P7 order dated 3.3.2009. Challenging Exts.P2, P3, P5 and
W.A. No.1077/2009 3
P7 orders, the Writ Petition was filed. The learned Single Judge,
after hearing both sides, dismissed the Writ Petition. Hence, this
appeal.
3. We heard the learned counsel on both sides. The
stand of the D.E.O. is that once the appellant is transferred from
D.B.H.S.S. Thiruvalla, the resultant vacancy has to be filled up
by an HSA (English). As per the staff fixation order, there are
two sanctioned posts for HSA (English). At present, there is only
one HSA (English) is working. Therefore, the transfer vacancy
should go to HSA (English). If the said contention is accepted, a
fresh HSA (English) will be appointed and the result will be that
the junior most HSA (Maths) will face reversion. The
Government Order creating HSA (English) has since been
substituted by Rule 6.I. in Chapter 23 of the K.E.R. The said
rule reads as follows:
“6.I. Sanctioning of posts of High School
Assistant (English): Notwithstanding anything
contained in any other rule in this Chapter the
post of High School Assistant (English) shall
be sanctioned on the basis of the periods
allocated to English, observing minimum
subject requirement.
W.A. No.1077/2009 4
Note:- Subject to any general order
that may be issued by the Government, the
above rule shall be implemented in a phased
manner without causing retrenchment of
existing High School Assistants (core
subjects) as on 7th January, 2002, and
observing the minimum subject requirements.”
4. The new post can be created without disturbing
existing teachers in the core subjects. In other words, normally
the post of HSA (English) should be filled up when open clear
vacancies are available for the same. Here what was available
was only a transfer vacancy, arising out of mutual transfer of two
High School Assistants. So, the insistence of the Educational
Officer that said vacancy should also filled up by an HSA
(English) is unsupportable in law. The stand of the Government
upholding the above view is also unsustainable. By mutual
transfer, no vacancy is created and therefore, there is no
question of appointing any HSA (English). If an HSA (English) is
appointed, the same will create an anomalous position, which we
have already mentioned, that the junior most HSA (Maths) would
be thrown out of service. So, the basic premise based on which
Ext.P1 was cancelled and the same was upheld by higher
authorities is unsupportable in law. Therefore, the impugned
W.A. No.1077/2009 5
orders are quashed and Ext.P1 to the extent it concerns the
transfer of the appellant and 4th respondent is restored. But, if
the 5th respondent has got any grievance against Ext.P1, he will
be free to invoke the statutory remedy available to him under the
K.E.R. against it.
5. Both sides submitted that because of the pendency of
the Writ Petition and the Writ Appeal, the salary due to the
appellant and the 5th respondent has not been released. Now,
that the dispute concerning the transfer has been finally settled
by this Court, the concerned Controlling Officers of the appellant
and the 5th respondent shall settle their claim for salary in
accordance with law and release the amount found due to them,
as arrears of salary, within one month from the date of
production of a copy of this judgment.
The Writ Appeal is allowed as above.
(K.BALAKRISHNAN NAIR, JUDGE)
(P.BHAVADASAN, JUDGE)
ps