ORDER
B.N. Srikrishna, C.J.
1. This appeal has been placed before this Full Bench pursuant to an Order, dated 21st December 2001 made by the Division Bench (K.S. Radhakrishnan and Balakrishnan Nair, JJ.) which was unable to agree with the law laid down in the Judgment of another Division Bench of this Court in Sophia v. Director of Public Instructions, 2001 (2) KLT 761. Since the question to be answered by us has not been formulated in the order of reference, we would prefer to formulate it for convenience. The question to be considered by the Full Bench is the following: “While effecting the transfer of teachers, under Rule 10 of Chapter XIV-A of the Kerala Education Rules, is seniority one of the criteria to be followed”.
2. In order to appreciate the controversy, we would stale1 the requisite bare minimum facts of the case.
3. The appellant and the 3rd respondent are specialist teachers teaching needle work in the second respondent school., which is under the Corporate Management of S.N.D.P. Yogam. The appellant has been transferred from S.N.D.P.H.S.S. Udayamperoor to S.N.V.H.S., Anand in Thiruvananthapuram District and the 3rd respondent has been transferred from S.N.V.H.S., Anand to S.N.D.P.H.S.S., Udayamperoor in Ernakulam District.
4. It is the case of the appellant that this transfer has been done in violation of the seniority norms and only to accommodate the 3rd respondent. On this allegation, the
appellant moved O.P. No. 17416 of 2001 challenging her transfer. The learned Single Judge dismissed the Original Petition by a Judgment, dated 20th June 2001 holding that as the appellant was continuing for the last 4 years, and the 3rd respondent was continuing away from Ernakulam at Thiruvananthapuram, the transfer could not be said to be illegal as contended and was otherwise justified. The appellant filed an appeal against the Judgment of the learned Single Judge, At the hearing of the appeal, a question was raised as to whether the seniority to be kept in mind while effecting transfer of a teacher from one school to another run by the same educational agency. The Judgment of this Court in Sophia’s case (supra) was cited in support to contend that for the purpose of Rule 10 of Chapter XIVA of the KER, seniority was wholly irrelevant as that rule with regard to criterion of seniority is applicable only to Headmasters. The Division Bench (K.S. Radhakrishnan and K. Balakrishnan Nair, JJ.) which heard the appeal was of the view that the proposition of law laid down in Sophia’s case (supra) was not free from doubt because full import to the litera legis had not been given while interpreting it. Rule 10 of Chapter XIVA of KER reads as under:
“10. Transfers.- Where more than one school is under the same Educational Agency, the
Educational Agency may transfer any teacher from one school to another and in deciding on
these transfers the principles followed in Government schools shall be observed to the extent
possible. The principles of transfer shall be as follows:-
(1) The chief and foremost criterion for transfer of Headmaster shall be the seniority.
(2) Every Headmaster shall be allowed to exercise choices of 3 or more schools.
(3) Exceptions to the seniority criterion shall be the bare minimum. Exception shall exclude close relatives of Jawans, Intercast marriage, Physically handicapped, other grounds for special consideration, compassionate grounds, persons who have only one. year of service left for retirement, etc.
(4) Cases coming under administrative interest shall include unsuitability, allegations of corruption, misuse of official position, disciplinary action, incompetence and consistent poor performance.
(5) Cases of deviation from the seniority norms shall be appealable before the Director of Public Instruction; who shall decide the case.
(6) All exceptions to the general rule of seniority put together may not exceed 25 percent transfers.
(7) Mutual transfers on request shall not be entertained.
(8) The number of transfers shall be limited to twice or thrice a year”
5. The referring Division Bench of K.S. Radhakrishnan and K. Balakrishnan Nair, JJ. that the opening sentence of the Rule notes that “the principle followed in Government schools” shall be observed to the extent possible. It is pointed out that as far as Government schools are concerned, there is a Government Order G.O. (tft.)
No. 2672/87/G.Edn., dated 10th September’1987, which, though principally intended to prescribe the norms for transfer and postings of Headmasters and Assistant Educational Officers also prescribes the norms for effecting inter-district and intra-district transfers of teachers. Paragraphs 8 and 9 of this G.O. are relevant and read hereunder:
“8. All exceptions to the general rule of seniority put together may not exceed 25 per cent transfers.
The norms for effecting the transfer of teachers and primary Headmasters within the district by Deputy Directors’ of Education will be similar to the norms followed for the postings of Headmasters. Seniority will be the chief criterion, subject to the minimum variations on public interest, Government policies and compassionate considerations. The reason for variations will be recorded in the file and any genuine grievance will be rectified without delay. Appointment for mutual transfer shall not be entertained. The number of transfers will be limited to twice or thrice a year. Within the district general transfer will be effected before inter-district transfer is effected.
9. Inter-district transfer of teachers. Only 25 per cent of the vacancies arising out of retirement and additional posts alone is meant for inter-district transfer. A register will be kept in all D.D. Offices registering applications showing seniority and category. After registration, transfers to available vacancies will he effected strictly according to seniority. The register will be available for perusal of the applicants. For cases requiring compassionate considerations, the D.D.E. will sent a report stating the circumstances.”
6. A reading of Rule 10 suggests that a transfer from one school to another run by the same educational agency should be carried out by observing the principles laid down by the Government for transfer of teachers. Thus, the rule requires that the principles laid down in paragraphs 8 and 9 to be observed for the purpose of transfer of teachers in Government schools must be followed. Paragraphs 8 and 9 of the G.O., dated 10th September 1987, make it clear that seniority is required to be considered.
7. Learned Counsel for the 3rd respondent, however, strenuously contended that if we were to take the view that seniority is the criterion to be observed while effecting the transfer the rest of the rule would become redundant. It is pointed out that, prior to 4th July 1989, Rule 10 read as under:
“Substituted by G.O.(P)105/89/G.Edn., dated 7th July 1989 published in Gazette, dated 10th July 1989’for’ lOTransfers. Where more than one school is under the same Educational Agency, the Educational Agency may transfer any teacher from one School to another and in deciding on these transfers the principles followed in Government schools shall be observed.”
This rule was amended by G.O. dated 4th July 1989 and now reads as quoted hereinabove. Of the 8 clauses which have now been incorporated in Rule 10, clauses
(1) and (2) talk of Headmasters. It is therefore urged that Sub-rules (3) to (8), which lay down the norms of transfer do so only with regard to Headmasters in whose case alone is the principle of seniority to be kept in mind. In our view, this is not a correct way of reading the rule.
8. A careful perusal of the Government Order, dated 10th September 1987 suggests that, while Rule 10 was amended in the year 1989, most of the principles in the said G.O. were crystallised and formulated into Clauses (1) to (8) of the amended Rule 10. However, the opening sentence of Rule 10 continued as before. This leads to the conclusion that, if there are policy changes made by the Government with respect to the norms of transfer of teachers in Government Schools, they were required to be adopted mutatis mutandis. Since Government policy is never static, and varies from time to time, the rule is so worded as to keep its flexibility so that the changing norms of transfer could be read, mutatis and mutandis, into Rule 10 itself. It is possible to accept the argument of Mr. Kaimal that Clauses (1) and (2) of Rule 10 deal only with Headmasters. But we see no reason to take the view that Clauses (3) to (8), which are generally worded, and are capable of application to Headmasters as well as teachers, would be applicable only to Headmasters. In fact, a better interpretation of Rule 10 is that the rule is intended to govern transfers of both teachers as well as Headmasters. The main body of the rule deals with transfer of teachers by referential adoption of the norms. Clauses (1) and (2) apply to Headmasters, while the rest of the Clauses apply to both Headmasters and teachers. Our considered opinion, therefore, is that Sub-rules (3) to (8) are equally applicable to both categories, that is teachers as well as Headmasters.
9. In this view of the matter, we are unable to agree with the observations made in paras 8 and 10 of the judgment of ihe Division Bench in Saphia v. Director of Public Instructions (supra). The Division Bench held that, as far as aided school teachers are concerned, it is not incumbent upon the management to follow the rule of seniority. The doubt raised by the Division Bench of K.S. Radhakrishnan and K.Balakrishnan Nair, JJ. is quite legitimate. We, too, are of the view that the Division Bench deciding Sophia’s case, 2001 (2) KLT 761 containing the words “and In deciding on these transfers the principles followed in Government schools shall be observed to the extent possible”. Interpreting the rule in the manner as done in Saphia’s case (supra) would completely render otiose the quoted words which are part of Rule 10. To this extent, therefore, we are not inclined to accept the view expressed by the Division Bench in Saphia’s case (supra).
10. There is an incidental issue urged before us with regard to the observations made in para 11 of the judgment in Saphia’s case (supra). Consistent with their interpretation that Clauses (1) to (8) in Rule 10 apply only to Headmasters, the Division Bench in Saphia’s case, 2001 (2) KLT 761 went on to hold that the appeal contemplated
against deviation from the norms, under Clause (5) of Rule 10, would be permissible only in the case of Headmasters. We are unable to agree with this view also. In our view, Clauses (3) to (8) of Rule 10 are generic in nature and are applicable to both categories, i.e. teachers and Headmasters. Even on general principles, we fail to see why a remedy against violation of norms should be permissible only for one category and not to the other. The reasons given in support of the view in paragraph 12 of the judgment in Sophia’s case, 2001 (2) KLT 761 do not appeal to us. We expressly disagree therefrom.
11. In the result we disagree with the proposition of law laid down in the judgment in Sophia’s case (supra) and overrule the same to the extent if it is inconsistent with what we have held in this order.
12. We answer the reference as follows:
“While considering the transfer of a teacher under Rule 10 of Chapter XIV A of the KER, the seniority of the teacher is also a necessary criterion to be observed to the extent possible, as applicable in the case of transfer of teachers in Government schools under the Government orders applicable from time to time.”
Having decided the question referred to us, we direct that the appeal be placed before the appropriate Division Bench for disposal in accordance with the law as laid down by us.