Partly allowed

The Corporate Manager v. State of Kerala

Kerala HC11 Dec 2017WP(C)/24985/2017

Case brief

AI extract

What is this about?

The High Court set aside a Government order imposing disciplinary action on a school manager for unnotified procedural failures regarding teacher transfers. The court balanced intervention rights of transferred teachers against the college authority's internal management powers within the Kerala Education Rules. Relief was remitted to the Government for reconsideration.

What did the court decide?

The Government order directing disciplinary action against the Manager was set aside. The Government was directed to entertain the transfer applications within two months.

The Corporate Manager Vs State of Kerala — Pension and Retirement Benefits | Kerala HC (2017)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN

¶4

MONDAY, THE 11TH DAY OF DECEMBER 2017 / 20TH AGRAHAYANA, 1939

¶5

WP(C).No. 24985 of 2017

¶6

PETITIONER:

¶7

THE CORPORATE MANAGER DEVADAR SCHOOLS, MANNATHIPOIL P.O., MALAPPURAM DISTRICT-679 332.

¶8

BY ADVS.SRI.M.P.ASHOK KUMAR

¶9

SRI.P.C.GOPINATH

¶10

SMT.BINDU SREEDHAR SMT.MANJU S. PANICKER

¶11

RESPONDENT(S):

¶12

1. STATE OF KERALA, REP. BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM-695 001.

¶13

2. DIRECTOR OF PUBLIC INSTRUCTION, TRIVANDRUM-695 001.

¶14

3. SHEEJA P.V, U.P.S.A., DEVADAR U.P. SCHOOL NEDIYIRUPPU, NEDIYIRUPPU P.O., KONDOTTY, MALAPPURAM DISTRICT-673 638.

¶15

4. SRI. SAJI RAJ K.P, U.P.S.A., S.A.U.P. SCHOOL, CHELOD, MANNATHIPOYIL P.O., MALAPPURAM DISTRICT-673 637.

¶16

R1 & R2 BY SENIOR GOVERNMENT PLEADER SRI.E.S.ASHRAF R3 BY ADVS. SRI.ANOOP JOSEPH SRI.K.B.ARUNKUMAR SMT.ZERENE LINDA MITCHEL SMT.NEETHU SATHEESH SMT.K.K.DAJULA R4 BY ADV. SRI.ZAKEER HUSSAIN

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2017 ALONG WITH WPC.25270/2017 & WPC.31778/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

mbr/

¶19

WP(C).No. 24985 of 2017

¶20

APPENDIX

¶21

PETITIONERS' EXHIBITS:

¶22

EXT. P1	: PHOTOCOPY	OF THE TRANSFER ORDER DATED 1.8.2016.
EXT. P2	: PHOTOCOPY 2ND RESPON	OF THE ORDER DATED 2.12.2016 ISSUED IN THE NAME OF DENT.
EXT. P3	: PHOTOCOPY	OF THE REVISION BEFORE THE GOVERNMENT DATED 19.12.2016.
EXT. P4	: PHOTOCOPY	OF THE STAY ORDER DATED 30.12.2016.
EXT. P5	: PHOTOCOPY	OF THE ARGUMENT NOTE DATED 26.1.2017.
EXT. P6	: PHOTOCOPY	OF THE ORDER DATED 6.7.2017.

¶23

RESPONDENTS' EXHIBITS:

¶24

EXT.R3A:	TRUE COPY OF THE JUDGMENT IN WPC.26287/2016 DATED 7.9.2016 PASSED BY THE HONOURABLE HIGH COURT OF KERALA.
EXT.R3B:	TRUE COPY OF THE ORDER DATED 2.12.2016 PASSED BY THE ADDITIONAL DIRECTOR OF PUBLIC INSTRUCTIONS SETTING ASIDE THE TRANSFER ORDER OF THE RESPONDENT NO.3.
EXT.R3C:	TRUE COPY OF THE COMPLAINT DATED 5.7.2016 SUBMITTED BY THE 3RD RESPONDENT'S HUSBAND TO THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.
EXT.R3D:	TRUE COPY OF THE TRANSFER ORDER DATED 25.5.2016 PASSED BY THE PETITIONER TRANSFERRING SRI.DEEPAK S.M. FROM SHASTHRIYAR U.P.SCHOOL TO DEVADAR U.P.SCHOOL AND SMT.PRIYA .U.M FROM DEVADAR U.P.SCHOOL TO SHASTHRIYAR U.P.
EXT.R3E:	TRUE COPY OF THE LETTER DATED 23.5.2017 SUBMITTED BY THE RESPONDENT NO.3 TO THE PETITIONER.
EXT.R3F:	TRUE COPY OF THE REPRESENTATION DATED 17.7.2017 GIVEN BY THE 3RD RESPONDENT TO THE PETITIONER ASKING TO REINSTATE HER IN THE SASTHRIYAR U.P.SCHOOL, AT CHELOD.

/TRUE COPY/

P.S.TO JUDGE

mbr/

ANU SIVARAMAN, J.

¶29

W.P.(C). Nos. 24985, 25270 & 31778 of 2017

¶30

Dated this the 11^th day of December, 2017

¶31

J U D G M E N T

¶32

The documents and the parties have been referred to as in W.P.(C) No.24985/17 for convenience unless specifically mentioned. W.P.(C) No.24985/2017 is filed by the Corporate Manager of Devadar Schools. W.P.(C) Nos.25270 & 31778 of 2017 are filed by two teachers who have been mutually transferred to schools under the management of the said Corporate Manager by Ext.P1 order. The Corporate Manager had issued Ext.P1 order dated 1.8.2016 transferring the 3^rd respondent to the Devadar U.P.School, Nediyiruppu in the Kondotty Sub District. The 4^th respondent was transferred to the Sasthriyar U.P. School, Chelod (Nilambur Sub District) in the vacancy created by the transfer of the 3^rd respondent. It is submitted that when the 3^rd respondent was transferred, W.P. (C) No.26287/2016 came to be filed before this Court. Pursuant to a direction contained therein, an appeal was

¶33

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 2

¶34

preferred by the 3^rd respondent before the DPI. Ext.P2 order is passed by the Additional Director of Public Instructions on 02.12.2016. Though it is stated that the 3^rd respondent was

¶35

transferred on administrative grounds, no administrative grounds were made out for the said transfer. The 4^th respondent had submitted an application for transfer to the Sasthriyar U.P. School, Chelod. It is stated in the order that no material to show the administrative ground for transferring the 3^rd respondent had been produced by the Manager. The Manager had taken a contention that the 3^rd respondent had enrolled her own children in other CBSE school. It is stated in Ext.P2 that this cannot be a reason for taking any action against the 3^rd respondent. Taking note of all these facts, the transfer of the 3^rd respondent from Sasthriyar U.P. School, Chelod was set aside.

¶36

The Petitioner/Manager had preferred a revision before the Government as against Ext.P2 order. It is stated that pending the revision, the order of the Additional DPI was stayed by Ext.P4 order dated 30.12.2016, after the parties were heard. By Ext.P6 order dated 06.07.2017, the

¶37

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 3

¶38

Government considered the fact that the 4^th respondent had met with an accident on 29.8.2013. It was found that he had submitted a request for transfer only on 23.05.2016. It is stated that the mutual transfer order was issued on 1.8.2016, during the middle of the academic year. On these grounds and on the ground that there was no material to show that there was any administrative reason for the transfer of the 3^rd respondent out of the Sasthriyar U.P. School, Chelod, the order of DPI was upheld by the Government. However, the Government went on to direct the DPI to take appropriate action against the school manager for the failures as per Note 3 under Rule 35 of Chapter XIV-A of Kerala Education Rules. The Manager Challenges the order of the DPI as well as the Government and contends that the collateral direction to take action against the Manager in terms of Rule 35 of chapter XIVA of Kerala Education Rules is completely unjustifiable in this case. It is contended that the said finding of the Government is not preceded with any notice and the said action is therefore completely unsustainable.

¶39

Heard learned counsel for the petitioners, the

¶40

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 4

¶41

learned Government Pleader and the learned counsel appearing for respondents 3 and 4 who are the petitioners in the other writ petitions.

¶42

The learned counsel for the petitioners contends that the provision for appeal under Rule 10 Sub Rule (5) of Chapter XIV A KER is confined to the question of violation of seniority and no other matters can be taken in appeal before the DPI. It is further submitted that Rule 10 Sub Rule (3) provides the grounds on which transfers made without reference to the seniority of teachers i.e., on compassionate grounds and special grounds are available to the Manager for making transfers without reference to seniority. It is further contended that the 3^rd respondent is a graduate with B.Ed and she could not have been accommodated against the vacancies of LPSA arising in any of the schools under the corporate management and she had been transferred to the D.A.U.P. School only because the post of UPSA was available there to accommodate. It is further contended that no copy of appeal preferred before the DPI had been served on the petitioners before orders are passed by the Additional DPI. Petitioners

¶43

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 5

¶44

had also taken grounds that the Additional DPI had not been

¶45

delegated for the powers to consider an appeal under Rule 10 Sub Rule (5) of Chapter XIV A KER and that the orders passed by the Additional DPI is unjustifiable.

¶46

The learned Government Pleader contended that the Additional DPI had been delegated with powers to hear the appeals under Rule 10 Sub Rule (5) of Chapter XIV A KER and is competent to issue such orders. It is further stated that though the Manager was put on notice, the Manager could not produce any material to show that the transfer of the 3^rd respondent was necessitated due to any administrative grounds including unsuitability, allegations of corruption, misuse of official position, disciplinary action, incompetence and consistent poor performance. It is therefore stated that since the transfer of the 3^rd respondent from the Sasthriyar U.P. School, Chelod, was found to be without any reason, there is no vacancy to accommodate the 4^th respondent also. With regard to the further finding in Ext.P6 Government Order that the petitioner/Manager is liable to be proceeded against in terms of Rule 35 Chapter XIV-A KER, the learned Government

¶47

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 6

¶48

Pleader contends that since the petitioner had taken steps to transfer out the 3^rd respondent without any administrative grounds it amounts to violation of the provisions contained

¶49

under Rule 10 Chapter XIV-A KER and therefore the Government would be competent to issue such orders.

¶50

The learned counsel appearing for the 3^rd respondent would contend that the 3^rd respondent had approached the DPI, seeking an interference with the order of the transfer on the ground that the transfer order issued was not in accordance with law. It is the contention of the 3^rd

¶51

respondent that going by seniority she would not be liable to transferred out. It is stated that there were no administrative grounds to transfer out the 3^rd respondent and no such material had been produced before any of the authorities. It is also contended that the Manager had taken up a specific contention before both the authorities that the transfer was because the petitioner had not enrolled her children in the school run by the Corporate Manager. It is also contended that Ext.P1 order of transfer had been given effect to and though the orders had been set aside, the 3^rd respondent is

¶52

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 7

¶53

continuing to work in the Devadar School, Nediyiruppu.

¶54

The learned counsel appearing for the 4^th respondent would contend that 4^th respondent had undergone

¶55

an accident in 2013 and he was unable to carry out his teaching duties in a school which is far away from the place of permanent residence. When he found that it was difficult for him to carry out his duties on daily basis, he had preferred a request for transfer to the Sasthriyar U.P. School, Chelod. It is stated that the said request for transfer was accompanied by a medical certificate and that the said transfer was clearly on compassionate grounds and there is no reason for disturbing the 4^th respondent who is now working at Chelod.

¶56

I have considered the contentions advanced on all

¶57

sides. As regards the findings of the Government in Ext.P6 Government Order to the effect that the petitioner/Corporate Manager is liable to be proceeded in terms of Rule 35 of Chapter XIV A KER, I am of the opinion that the said finding, which is rendered without specific notice on the point and as collateral to an issue of mutual transfer of teachers cannot be sustained. The said finding contained in Ext.P6 is therefore

¶58

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 8

¶59

unsustainable and is liable to be set aside. With regard to the contentions of the Manager that the issue of mutual transfer has been wrongly interfered by the DPI as well as the Government in Exts.P2 and P6 orders, I am of the opinion that the 3^rd respondent who had a specific case that she was not liable to be transferred out if seniority was taken note of as a criteria for transfer was fully competent to raise the issue in an appeal before the DPI. Even if the 4^th respondent is eligible to be transferred to the Sasthriyar U.P. School, Chelod on compassionate grounds, the issue whether the 3^rd respondent ought to have been moved out, is an issue which the educational authorities should consider on merits. The contention raised by the petitioner/Manager that the appeal was incompetent and cannot be sustained. However, the Government in Ext.P6 has gone beyond the scope of the appellate power under Rule 10(5) as also the revisionary power which could have been exercised under Rule 92, Chapter XIV A KER.

¶60

In the above view of the matter, Ext.P6 order of the Government is set aside. The Government shall consider

¶61

W.P.(C). Nos. 24985, 25270 & 31778 of 2017 9

¶62

whether the 3^rd respondent can be accommodated in any available or arising vacancy in the Sasthriyar U.P. School, Chelod or any of the neighbouring schools so as to give a quietus to the entire issue. The petitioner as well as respondents 3 and 4 shall be heard and orders shall be passed by the Government in this regard, within a period of two months from the date of receipt of a copy of this judgment.

¶63

These writ petitions are disposed of accordingly.

¶64

Sd/- ANU SIVARAMAN JUDGE

¶65

rmm/16/12

¶66

// True Copy //

¶67

P.A. To Judge

The Corporate Manager v. State of Kerala

Case brief

What is this about?

What did the court decide?

The Corporate Manager v. State of Kerala

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Muraleedharan C.A. Vs State of Kerala

Dr.R.Gangadharan Nair Vs University of Kerala

Georgekutty M.P Vs Mahatma Gandhi University

Dr. Sophiammal Nattar P. Vs Deputy Director of Collegiate Education

Elizabeth Mani Vs State of Kerala

Mariya Rincy Vs the Principal Secretary, Higher Education Department