Allowed

Asha.a.L v. Salini.M.P

Kerala HC20 Dec 2019OP(KAT)/516/2019

Case brief

AI extract

What is this about?

Two teachers contested the retention post at a VHSS implementing NSQF. The High Court upheld the transfer order against the petitioner, ruling that general transfer norms based on outstation service prevailed, as TOT training was unavailable to most teachers at the time the 2019 transfer list was prepared.

What did the court decide?

Order of the Administrative Tribunal set aside. Petitioner's transfer to Veeranakkavu upheld. 1st respondent to join post immediately.

Asha.a.L Vs Salini.M.P — Labour and Industrial Disputes | Kerala HC (2019)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN

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THE HONOURABLE MR.JUSTICE V.G.ARUN

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FRIDAY, THE 20TH DAY OF DECEMBER 2019/29TH AGRAHAYANA, 1941

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OP(KAT).No.516 OF 2019

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AGAINST THE ORDER IN OA NO.2128/2019 DATED 25-11-2019 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/4TH RESPONDENT:

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ASHA.A.L., AGED 42 YEARS, VOCATIONAL TEACHER IN DOMESTIC NURSING, GVHSS, VEERANAKAVU, THIRUVANANTHAPURAM-695572.

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BY ADVS. SRI.A.RAJASIMHAN SMT.P.USHAKUMARI

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RESPONDENTS/APPLICANT & RESPONDENTS 1 TO 3:

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1 SALINI.M.P., AGED 40 YEARS, W/O.SHABU G.S., SREESYLAM, SNRA G-5, PANAVILA, MUKKOLA P.O., THIRUVANANTHAPURAM-695043.

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2 STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001.

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3 DIRECTOR OF GENERAL EDUCATION (VOCATIONAL HIGHER SECONDARY WING), HOUSING BOARD BUILDING, THIRUVANANTHAPURAM-695001.

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OP(KAT).No.516 OF 2019

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4 PRINCIPAL, GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, VEERANAKAVU, THIRUVANANTHAPURAM-695572.

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R1 BY ADV. SRI.S.P.ARAVINDAKSHAN PILLAY R1 BY ADV. SRI.JELSON J.EDAMPADAM SR.GP SRI.ANTONY MUKKATH

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 20.12.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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OP(KAT).No.516 OF 2019

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JUDGMENT

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K. Vinod Chandran, J.

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Two teachers vie for the post of Vocational Teacher in General Duty Assistant [GDA] at Government Vocational Higher Secondary School[VHSS], Veeranakkavu, Thiruvananthapuram. The 1^st respondent was working there, who was proposed to be retained as per Annexure A7 draft transfer list. However, when Annexure A8 final List was published, she stood transferred to another GVHSS in Kollam and the petitioner occupied her place. The 1^st respondent filed an OA before the Tribunal, in which by the impugned order the 1^st respondent was directed to be retained in Veeranakavu. The petitioner challenges the order which upsets her transfer.

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2. We heard Sri.Rajasimhan for petitioner, Sri.Aravindakshan Pillay for 1^st respondent and Sri.Antony Mukkath, Senior

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OP(KAT).No.516 OF 2019 4

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Government Pleader for the State. We also obtained specific instructions as to the manner in which Teachers are deputed for Training of Trainers, [TOT] course, which is essential for teaching courses under the National Skill Qualification Frame Work [NSQF] Scheme. The entire controversy revolves around who among the two has the better credentials to be retained as a Teacher in a VHSS, which has implemented NSQF syllabi.

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3. The petitioner contends that she is

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better qualified having obtained TOT training, which enables her to teach courses under the NSQF Scheme; though after the transfer. It is pointed out that there are not enough TOT Teachers and the transfer norms cannot be implemented in toto. The 1^st respondent however banks on her attendance in various training courses under the NSQF Scheme as also her present status of working in a VHSS, where GDA course under the Scheme has been implemented as evident from Annexure A1. It is

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argued that the training obtained in TOT by the petitioner was overlooking the applications made by various Teachers working in the VHSS stream. It is evident that the petitioner was favoured by a deputation to TOT training, that too after the general transfers were finalised.

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4. The learned Senior G.P seeks to sustain the transfer contending that in a phased manner all the teachers are being imparted TOT training, which however is conducted by the Health Sector Skill Council at New Delhi. As of now, there is nothing, which enables the 1^st respondent to be retained at VHSS Veeranakkavu, argues the State.

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5. The 1^st respondent banks on Annexure A5 transfer norms. Reliance is on the 2^nd paragraph under paragraph 1.3 of the guidelines issued by the Vocational Higher Secondary Department, for general transfers. It is stated therein that NSQF syllabus requires teachers with TOT training, who

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are now posted in such Schools, wherein the syllabi have been implemented. There can also be no posting of teachers without such training to Schools which have implemented NSQF syllabus. It is also stated that as of now a teacher, who is not handling an NSQF course, cannot seek transfer to a school in which NSQF syllabus is being taught. Admittedly, the petitioner was not working in a School having NSQF syllabus. It is also the contention of the 1^st respondent that she is hence better qualified to be retained in the GVHSS, Veeranakkavu, where she has been working for the last few years.

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6. The specific instructions as obtained by the Senior G.P indicates that the petitioner had outstation service of 9458 days and in the general transfer of 2019 she was ranked first for transfer as Vocational Teacher in Domestic Nursing and was hence posted at Veeranakkkavu, in Thiruvananthapuram District, which is her home-

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OP(KAT).No.516 OF 2019 7

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station. The 1^st respondent has zero outstation service and was ranked 3^rd in the rank-list for Domestic Nursing. She had only applied for retention in Veeranakkavu and not opted for any other station. It is also stated by the Director of General Education that NSQF Scheme, a project of the Central Government, has been implemented in 66 VHS Schools in the State. As of now, there is no Teacher available to teach GDA course, who has undergone TOT. TOT is not imparted by the State Government and is imparted by the Sector Skill Councils (SSC). There is no priority in deputing personnel for TOT training and it is based only on the communication obtained from the SSCs. The Government expects all the Teachers to be trained in TOT by the end of the academic year 2019-2020. It is due to the above circumstances that the transfer of Vocational Teachers in 2019, especially in Domestic Nursing was carried out under the general stream.

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OP(KAT).No.516 OF 2019 8

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7. We do not think there was any nepotism in deputing the petitioner for a TOT training. However, that is irrelevant insofar as the transfer orders were finalised before the deputation of the petitioner for TOT. We do not find any reason to not accept the submission of the State that in the peculiar circumstances, the transfer of Vocational Teachers in Domestic Nursing had to be carried out in the general stream without reference to the NSQF syllabi and the batches which implemented such Scheme as also TOT, which training is totally lacking among the larger community of teachers in the State.

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8. When looking at the aspect of the general transfer under the general stream, obviously the petitioner has a better claim for having served longer in stations outside her home District. The 1^st respondent does not have the qualification to be retained in Veeranakkavu, since she had only been associated with the NSQF

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OP(KAT).No.516 OF 2019 9

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Scheme batches without TOT training. In such circumstances, we are of the opinion that the transfer order was perfectly in accordance with the ranking prepared on the basis of outstation service and other norms, excluding that of TOT, which both the Teachers did not have at the time

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of general transfer. On the above reasoning we set aside the order of the Tribunal and reject the OA filed by the 1^st respondent.

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9. Before we leave the matter, we cannot but notice a very distressing aspect of the case. The 1^st respondent was relieved from Veeranakavu on 25.10.2019 and the petitioner joined the post on

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26.10.2019. The OA was allowed on 25.11.2019 and in this O.P there was an interim order of stay granted on 09.12.2019. When we sought a clarification on the TOT from the Government, we came to know that the first respondent had not joined the post, on the strength of the order of the Tribunal to treat her absence as joining time.

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OP(KAT).No.516 OF 2019 10

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There is no such order and the Tribunal only directed that the time taken to issue an order in compliance of the Tribunals order be treated as joining time. The 1^st respondent had refused to join the post to which she was transferred only on account of the pending proceedings, which is not permissible. When a government servant challenges the transfer ordered and before the challenge is made, stands relieved or in cases initiated prior to relieving and stay is declined; he/she should immediately join the post to which transfer has been effected. Otherwise the absence should be reckoned as leave and reduction made from the eligible leave in credit of the employee. In the absence of leave in credit the period should be treated as leave without allowances. The said

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procedure would be followed in this case.

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10. The learned Counsel for the 1^st

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respondent submitted that she had not given any

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other option in the transfer application only

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OP(KAT).No.516 OF 2019 11

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since she was confident of being retained in the School which had the NSQF syllabi and prays for an opportunity to file a representation. If such a representation is made, pointing out any other vacant post, then the Government may consider her request. We make it clear that this is not a direction to grant the request but only one to consider it at the discretion of the Government. Parties to suffer their respective costs.

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Sd/-

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K. VINOD CHANDRAN, JUDGE

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Sd/-

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V.G. ARUN, JUDGE.

//True Copy//

P.A. To Judge

OP(KAT).No.516 OF 2019

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APPENDIX

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE OA NO.2128/2019 FILED BEFORE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXHIBIT P1(A1) TRUE COPY OF GO(MS) NO.56/2018/G.EDN. DATED 9.5.2018 OF GOVT. OF KERALA. EXHIBIT P1(A2) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 7.8.2018. EXHIBIT P1(A2(A)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 18.9.2018. EXHIBIT P1(A-2(B)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 13.11.2018. EXHIBIT P1(A-2(C)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 5.1.2019. EXHIBIT P1(A-2(D)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 23.1.2019. EXHIBIT P1 (A-2(E)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 2.2.2019. EXHIBIT P1(A-2(F)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED NIL. EXHIBIT P1(A-2(G)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED NIL. EXHIBIT P1(A-2(H)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 7.5.2019. EXHIBIT P1(A-2(I)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 18.5.2019. EXHIBIT P1(A-2(J)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 13.8.2019.

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OP(KAT).No.516 OF 2019

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EXHIBIT P1(A-2(K)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 31.8.2019. EXHIBITP1(A-2(L)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 27.9.2019. EXHIBIT P1(A-2(M)) TRUE COPY OF THE DUTY CERTIFICATE OF THE APPLICANT DATED 24.10.2019. EXHIBIT P1(A3) TRUE COPY OF THE CONSOLIDATED STATEMENT PREPARED BY THE APPLICANT SHOWING THE DETAILS OF THE ABOVE TRAINING. EXHIBIT P1(A4) TRUE COPY OF THE TRAINING CALENDAR PUBLISHED BY NATIONAL SKILL DEVELOPMENT CORPORATION. EXHIBIT P1(5) TRUE COPY OF THE NOTIFICATION NO.E7/10750/2018 DATED 5.3.2019. EXHIBIT P1(A6) TRUE COPY OF THE ONLINE TRANSFER APPLICATION OF THE APPLICANT DATED 31.7.2019. EXHIBIT P1(A7) TRUE COPY OF THE CIRCULAR NO.E7/10750/2018 DATED 19.9.2019 ALONG WITH RELEVANT PAGES OF TRANSFER LIST. EXHIBIT P1(A8) TRUE COPY OF THE ORDER NO.E1/4499/19(6) DATED 24.10.2019 OF THE 2ND RESPONDENT. EXHIBIT P1(A9) TRUE COPY OF THE ORDER NO.C1/5641/2019 DATED 23.10.2019 OF THE 2ND RESPONDENT. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT. EXHIBIT P2(R2(A)) TRUE COPY OF THE ONLINE APPLICATION OF THE APPLICANT. EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT FILED BY THE 4TH RESPONDENT. EXHIBIT P3(R4(A)) TRUE COPY OF THE TRAINERS ELIGIBILITY CRITERIA BY THE SKILL INDIAN HEALTH CARE SECTOR SKILL COUNCIL, HSSC.

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OP(KAT).No.516 OF 2019

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EXHIBIT P3(R4(B)) TRUE COPY OF THE FREQUENTLY ASKED QUESTION FOR TRAINERS ISSUED BY THE NATIONAL SKILL DEVELOPMENT CORPORATION. EXHIBIT P3(R4(C)) TRUE COPY OF THE ORDER NO.E/10750/18(4) DATED 25.7.2019 OF THE DIRECTOR OF GENERAL EDUCATION, THIRUVANANTHAPURAM. EXHIBIT P4 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT TO THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT. EXHIBIT P4(A10) TRUE COPY OF THE GAZETTE OF INDIA DATED 27.12.2013. EXHIBIT P4(A11) TRUE COPY OF THE REGISTRATION DETAILS OF THE APPLICANT FOR TOT TRAINING. EXHIBIT P5 TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE 4TH RESPONDENT. EXHIBIT P5(R4(D)) TRUE COPY OF THE VOCATIONAL TEACHER'S QUALIFICATION AND GUIDELINES EXTRACTED FROM THE PORTAL OF PSS CENTRAL INSTITUTE OF VOCATIONAL EDUCATION, BHOPAL. EXHIBIT P5(R4(E)) TRUE COPY OF THE ADDITIONAL SKILL ACQUISITION PROGRAM EXPERIENCE CERTIFICATE ISSUED ON 12.9.2018. EXHIBIT P5(R4(F)) TRUE COPY OF THE CERTIFICATE ISSUED BY HEAD TRAINING, ADDITIONAL SKILL ACQUISITION PROGRAM, HIGHER EDUCATION DEPARTMENT, GOVT. OF KERALA ISSUED ON 12.9.2018. EXHIBIT P6 TRUE COPY OF THE MISC. APPLICATION FILED BY THE APPLICANT. EXHIBIT P6(A12) TRUE COPY OF THE FIRST YEAR MARK LIST OF A STUDENT UNDER NSQF SCHEME ISSUED BY GOVT. OF KERALA. EXHIBIT P7 TRUE COPY OF THE ORDER NO.C 1/7979/2019 DATED 21.11.2019.

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EXHIBIT P8 CERTIFIED COPY OF THE ORDER KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM IN OA NO.2128/2019 DATED 25.11.2019.

Asha.a.L v. Salini.M.P

Case brief

What is this about?

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Asha.a.L v. Salini.M.P

Case brief

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