IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1060 of 2008()
1. THE CORPORATE MANAGER, CMS SCHOOLS,
... Petitioner
2. THE PRINCIPAL,
Vs
1. JOSEPHINE SHERLY PAUL, W/O.P.MATHAI,
... Respondent
2. THE DISTRICT EDUCATIONAL OFFICER,
3. THE DEPUTY DIRECTOR (EDUCATION)
4. THE DISTRICT EDUCATIONAL OFFICER,
5. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
6. SMT.ALICE PAUL,
7. STATE OF KERALA, REPRESENTED BY THE
For Petitioner :SRI.BABU VARGHESE
For Respondent :SRI.S.SUBHASH CHAND
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :02/11/2009
O R D E R
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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W.A. Nos.1060 and 1063 of 2008
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Dated this, the 2nd day of November, 2009
JUDGMENT
Balakrishnan Nair, J.
These appeals are directed against the judgment of
the learned Single Judge in O.P.No.38429 of 2002 filed by the
first respondent, Smt.Josephine Sherly Paul. W.A.No.1060 of
2008 is treated as the main case for the purpose of referring
to the parties and the exhibits.
2. The first respondent is at present working as
Lower Grade Hindi Teacher in the C.M.S. Higher Secondary
School at Mallappally. There was dispute concerning her
posting at Kalavankode in Cherthala, her re-transfer to
Mallappally and the alleged non-joining duty etc. But, in view
of the judgment of the learned Single Judge, which is under
appeal, the only dispute that survives for consideration by the
Division Bench is concerning the claim of the first respondent
WA Nos.1060 and 1063 of 2009
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for transfer to CMS High School at Pallom. The claim of the
first respondent for payment of salary for the period from
12.2.2002 to 4.3.2003 has been resolved to the satisfaction of
the first respondent. Since the Government did not file any
appeal against the judgment, we need not go into the said
part of the decision of the learned Single Judge. But, in the
judgment under appeal, there is a direction to accommodate
the first respondent/writ petitioner at CMS High School,
Pallom, if necessary by transferring the 6th respondent. In
view of the said direction, W.A.No.1060 of 2008 is preferred
by the Manager of the Corporate Educational Agency and the
Principal of CMS Higher Secondary School, Mallappally and
W.A.No.1063 of 2008 by the 6th respondent.
3. According to the first respondent/writ petitioner,
she is senior and therefore, by virtue of Rule 10(1) of Chapter
XIV-A of Kerala Education Rules, she is entitled to get posting
at Pallom. The above said rule permits deviation from the
seniority rule to the extent of 25%. The deviation can be
WA Nos.1060 and 1063 of 2009
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made to make the transfer on compassionate grounds. The
sixth respondent was transferred to Pallom overlooking the
seniority of the first respondent on compassionate grounds.
The learned Single Judge interfered with the transfer based on
the finding that transfer order does not spell out the reason
for transferring the sixth respondent. The learned Single
Judge also took the view that presence of aged parents cannot
be a ground for overlooking the seniority rule, as aged
parents are there in all families. Attacking the above finding
of the learned Single Judge, the learned counsel for the
appellants, submitted that the father of the sixth respondent
is critically ill with heart disease and her mother is physically
challenged. Therefore, it is not a case of presence of aged
parents alone, but there are special grounds for showing
compassion. So, the learned Single Judge should not have
interfered with the said order, it is submitted. The learned
counsel for the first respondent/writ petitioner, on the other
hand, pointed out that, the sixth respondent though junior has
been continuing at Pallom for the last several years whereas
WA Nos.1060 and 1063 of 2009
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first respondent has got only two years for retirement and so,
at the fag end of her service, she is entitled to be given a
posting in her native place. The first respondent also pointed
out that she has also parents who are more aged than the
parents of the sixth respondent.
4. The Manager is bound to issue transfer orders
having regard to the seniority of the incumbents involved,
ordinarily. If special grounds are available, the Manager can
deviate from the seniority rule, upto an extent of 25%.
Regarding the said deviation, an aggrieved teacher has a right
of appeal before the Director of Public Instruction. This Court
while exercising the power of judicial review, can examine
whether the order was within jurisdiction. Normally, this
Court should not have entertained a writ petition filed against
a communication issued by the Manager. Not that no writ will
lie against a Manager, but there are other forums to consider
the grievance raised by the petitioner. This Court, grappling
with the issue of pendency of cases, should not normally
WA Nos.1060 and 1063 of 2009
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entertain matters which could be effectively considered by
statutory authorities and forums and should confine itself
dealing with matters which this Court alone can handle. Of
course, if the learned Single Judge has found that the transfer
order was effected by the Manager without jurisdiction, then
the interference may be sustained. Broadly there is no
dispute that Manager has jurisdiction to order transfer as the
one ordered in this case. But, while exercising that power, he
may stray out of jurisdiction by considering irrelevant matters
or omitting to consider relevant matters. But, we find there is
no jurisdictional error in this case. Therefore, the direction of
the learned Single Judge to post the first respondent in the
place of sixth respondent was not warranted having regard to
the limited scope of the power of judicial review exercised by
this Court. But, whether the decision of the Manager in
favour of the sixth respondent is justifiable on facts can be
considered by the appellate authority. The said authority can
look into the factual disputes involved in the case and weigh
the relevant merits of the contentions of the parties and issue
WA Nos.1060 and 1063 of 2009
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appropriate orders. So, the remedy of the first respondent
against the refusal of the Manager to post her at Pallom and
the decision to retain there the sixth respondent who is
relatively junior to her, can be challenged by filing an appeal
under Rule 10(5) of Chapter XIV-A, of the K.E.R. before the
D.P.I. Since the matter was pending before this Court for a
long time, it is ordered that, if the first respondent files an
appeal within one month from today, against the omission of
the Manager to post her at Pallom, the D.P.I. shall hear and
dispose of the appeal as expeditiously as possible, after
affording an opportunity of being heard to the first
respondent, the Manager and the sixth respondent, without
being influenced by anything said in the judgment of the
learned Single Judge.
5. The first respondent has got a case that because of
the interim order passed by this Court, the monetary benefits
payable to her as per the judgment under appeal have
not so far been released. If that be so, the respondents 4 and
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5 shall take necessary steps to release the monetary benefits
payable as per the judgment under appeal to the first
respondent within two months from the date of production of
a copy of this judgment. If the pay revision benefits have not
so far been released, the said respondents shall also take
steps to release the pay revision arrears due to her.
With the above directions, the Writ Appeals are
disposed of.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
P. Bhavadasan,
Judge.
DK.
(True copy)