Partly allowed

The Corporate Manager v. the Secretary to Government

Kerala HC10 Aug 2020WP(C)/518/2020

Case brief

AI extract

What is this about?

The court dismissed the Corporate Manager's petition challenging the District Educational Officer's order rejecting teacher transfers to vacancies reserved for protected teachers. Conversely, the petitioner teacher's petition allowing disciplinary action against the transfer and mandating salary payment was allowed.

What did the court decide?

Ext.P5 order upheld; transfers set aside; salary arrears from June 2019 directed to be paid to petitioner within two months.

The Corporate Manager Vs the Secretary to Government — Property and Title | Kerala HC (2020)

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WP(C).21457/2019, WP(C).518/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942

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WP(C).No.21457 OF 2019(F)

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PETITIONER/S:

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PRAKASH JOSEPH.T AGED 44 YEARS S/O. JOSEPH.T.O. CLERK, ST.MARYS HS CHERUPUZHA, RESIDING AT THANNICKAL, PALAVAYAL P.O., (VIA) CHERUPUZHA,KASARAGOD DISTRICT

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BY ADVS.

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SRI.M.SASINDRAN SRI.V.VENUGOPAL

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RESPONDENT/S:

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1 THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM-695 001

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2 THE DISTRICT EDUCATIONAL OFFICER, TALIPARAMBA-670 141,KANNUR DISTRICT

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3 THE DISTRICT EDUCATIONAL OFFICER, KANHANGAD-671 315,KASARAGOD DISTRICT

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4 THE CORPORATE MANAGER, CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF THALASSERY, KANNUR DISTRICT-670 101

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5 JOSE KUTTY JOSEPH,

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CLERK, ST.JOSEPH HS PALAVAYAL, KANHANGAD, KASARAGOD DISTRICT-671 315

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SRI.ARAVINDAKUMAR BABU, GOVERNMENT PLEADER BY ADV. SRI.GEORGE MECHERIL BY ADV. SRI.CYRIAC KURIAN

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.08.2020, ALONG WITH WP(C).518/2020(L), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WP(C).21457/2019, WP(C).518/2020

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE SMT. JUSTICE P.V.ASHA

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MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942

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WP(C).No.518 OF 2020(L)

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PETITIONER/S:

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THE CORPORATE MANAGER CORPORATE EDUCATIONAL AGENCY, ARCH DIOCESE OF THALASSERY,SANDESH BHAVAN,THALASSERY,KANNUR DISTRICT, PIN-670101.

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BY ADV. SRI.GEORGE MECHERIL

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RESPONDENT/S:

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1 THE SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT,SECRETARIAT, THIRUVANANTHAPURAM-695001.

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2 THE DEPUTY DIRECTOR OF EDUCATION, KANNUR,THANA.P.O,KANNUR, PIN-670002.

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3 THE DISTRICT EDUCATIONAL OFFICER, TALIPARAMBA,KANNUR DISTRICT, PIN-670141.

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R1-3 BY GOVERNMENT PLEADER

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OTHER PRESENT:

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SRGP.SRI.ARAVINDAKUMAR BABU

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10.08.2020, ALONG WITH WP(C).21457/2019(F), THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.P.(C) Nos.21457/2019&518/2020

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JUDGMENT

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[ WP(C).21457/2019, WP(C).518/2020 ]

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Dated this the 10^th day of August 2020

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The Corporate Manager of a Corporate educational

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agency, has filed WP(C) No.518 of 2020 challenging Ext.P5 order alleging that the DEO interfered with the transfer orders issued by him without any authority.

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The case of the petitioner is that transfers of

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teachers under its schools are governed by Rule 10 of Chapter XIVA KER and the District Educational Officer or any authority other than Director of Public Instructions is not empowered to interfere with the orders of transfer issued by the Corporate Manager. Ext.P1 series of transfers involve a number of teaching and non-teaching staff. The orders are seen forwarded to the Headmasters of the

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respective Schools, the DEOs at Thaliparamba, Thalassery and Kanhangad and to the concerned staff.

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The DEO as per Ext.P2 order dated 02.08.2019

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cancelled all the 26 transfers stating that the same was in violation of Rules 7(3)(a) and (b) of Chapter XIVA of KER.

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W.P.(C) Nos.21457/2019&518/2020

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The order of transfer included that of Sri.Prakash Joseph as well as Josekutty Joseph, who are petitioner and 5^th respondent respectively in W.P.(C)No.21457 of 2019.

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Aggrieved by Ext.P2 order, the Manager approached the Deputy Director of Education submitting Ext.P3 appeal under Rule 8(5) of Chapter 14A KER. In this appeal it was stated that transfer was ordered without considering whether the School was established or upgraded after 22.05.1979. The Manager stated that though the DEO cancelled the transfers in the light of the order dated 21.06.2019 of DPI, that order does not provide that transfers shall not be granted to the newly opened or upgraded schools and it only says that the salary shall be paid to such teachers who were transferred to newly opened/upgraded school only after protected teachers are appointed in accordance with Rule 7(3)(a) of Chapter 21 KER. By Ext.P4, the Deputy Director of Education addressed the DEO clarifying that the direction of the DPI was that the transfers need be approved only if vacancy is set apart for appointment of protected teachers under rule 7(3)(a) of Chapter 21 and is already filled up by the protected teachers/non teaching staff. It was informed that no vacancy will arise on account of transfer of two teachers

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:5:

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W.P.(C) Nos.21457/2019&518/2020

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between two schools, who were already approved. On the other hand if appointment is made to a regular vacancy in a newly opened or upgraded school, transfer need be approved only in accordance with the provisions contained in Rule 7(1), 7(2) and 7(4) of Chapter 21 KER. It was also informed that transfer to fill up a retirement vacancy shall also be kept in abeyance. Ext.P5 order was passed thereafter referring to the orders passed in Exts.P2 and P4. It was stated that the transfer of serial no.13 to 24 should be regulated and their lien shall be shifted so as to enable them to draw salary. The Corporate Manager challenges this in WP(C) No.518/2020. The learned Senior Counsel appearing for the petitioner submits that going by Ext.P7 judgment, the order passed by the DEO is liable to be set aside.

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Though the learned Senior Counsel for the Manager argued that DEO exceeded his authority in interfering with the transfers, reference no.2 in Ext.P2 order and para 2 of Ext.P2 order would show that the DEO has passed the order Ext.P2 only when the respective Headmasters placed their proposals requesting for approval of the transfers and to permit them to draw salary. The DEO found that the vacancies in additional posts should have been filled up by protected teachers in accordance with Rule 7(3)(a) of

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W.P.(C) Nos.21457/2019&518/2020

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Chapter 21 KER/the vacancy which was set apart for appointment of protected teacher in accordance with rule 7(3)(a) of Chapter 21 KER cannot be filled by transfer. It was stated that as per letter No.4795/2019.H2 dated 21.06.2019 the Director of Public Instructions had directed that transfers to such vacancies can be allowed only if protected teacher is appointed in accordance with rule 7(3) (a) of Chapter 21 KER. However on receipt of Ext.P4 order of the Deputy Director the DEO has modified it and passed Ext.P5 order directing rearrangement in respect of only serial nos.13 to 24.

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Even though the learned Senior Counsel relied on Ext.P7 judgment (produced in WP(C) No.518/2020) it is not clear whether the DEO in that case passed the order while considering the proposals for approval of transfer or the request for payment of salary. Therefore, I do not find that Ext.P7 judgment will stand in the way of the DEO in passing orders with respect to approval of transfers. The corporate managers/any Manager of aided Schools are not expected to fill up the vacancies contrary to the orders and instructions issued by the educational authorities or to circumvent such orders in this manner.

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Under Rule 9 of Chapter III Manager is duty bound to

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W.P.(C) Nos.21457/2019&518/2020

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act in accordance with the provisions in the Kerala Education Act, Rules and orders passed by the educational authorities. In this case the Manager was only directed to comply with the rules and the orders issued by the DPI, seeing that the vacancies in Schools opened/upgraded after 22.05.1979, which were to be kept aside for/filled up by appointment of protected teacher in accordance with the provisions contained in Kerala Education (Amendment) Rules 2016 read with 2019 were filled up by way of transfer. Therefore, I do not find anything illegal in Ext.P5 order.

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It cannot be said that the DEO usurped the powers of the Manager or that of the Director. The authority of the Manager to transfer teaching and non-teaching staff in his school cannot be disputed. But such transfers have to be made against vacancies which can be filled up in accordance with rules so as to enable the teachers to draw salary. If the Manager transfers a teacher to a vacancy which is not established or which cannot be filled up except by appointing protected teachers as provided in Rule 7(3)(a) of Chapter XXI of KER, the teacher transferred to such a vacancy will not be entitled to salary.

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Therefore Ext.P5 order does not warrant any

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interference by this court. WP(C) No.518/2020 is

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W.P.(C) Nos.21457/2019&518/2020

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accordingly dismissed. It is made clear that it would be open to the corporate manager to approach the DEO and submit orders re-arranging the posting of the teaching/nonteaching staff.

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WP(C) No.21457 of 2019

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8. One Mr.Prakash Joseph has filed this writ petition challenging the order dated 29.05.2019 (Ext.P1) by which he is transferred from St.John's High School, Palavayal, Kanhangad to St.Mary's High School Cherupuzha in Thaliparamba educational district against a retirement vacancy and Sri.Josekutty Joseph-the 5 th respondent in that case-was transferred from Marygiri High School, Thaliparamaba in his place. He was transferred by the very same Manager, who is the petitioner in WP(C) No.518/2020. He is aggrieved by the transfer consequent to which he is denied salary and the 5^th respondent who is posted in his place and junior to him is getting salary. The Writ petition was filed complaining that he is not getting salary from June 2019 onwards for the reason that his transfer is to a vacancy in St.Mary's H.S. Cherupuzha, which is a new school opened/upgraded after 22.05.1979 where the vacancy should have been filled up by appointing a protected non teaching staff.

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W.P.(C) Nos.21457/2019&518/2020

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This Court had already passed an interim order on 09.06.2020 directing the Manager to produce the order passed in tune with the order passed by the DEO on 23.07.2019. As the Manager did not take any action pursuant to that another order was passed on 18.06.2020 directing the Manager to pay salary to the petitioner. As the Manager refused to obey that direction also, even after the orders were communicated to him and since the Manager did not enter appearance another order was passed on 23.07.2020 directing the DEO to see that petitioner is posted back to St.John's HS, Palavayal, Knhangad. It is pointed out that even though the DEO passed orders pursuant to that he is not allowed to join duty since the 5^th respondent is appointed there.

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I have already upheld the order passed by the DEO rejecting approval to several of the transfers ordered by the Manager. Therefore Ext.P1 order is set aside.

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This will not prevent the Manager from accommodating the petitioner in any other established vacancy. The DEO shall take steps to see that salary is paid to the petitioner shifting the lien of petitioner to St.John's HS, Palavayal. In case there is any loss caused

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by way of the illegal transfers, the educational

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W.P.(C) Nos.21457/2019&518/2020

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authorities would be free to take steps to recover the same from the Manager. However the petitioner shall be paid salary due to him from the date of his transfer in June 2019. His current salary shall be paid from next month onwards and the arrears shall be paid to the petitioner within another two months.

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In the result W.P.(C) No. 21457 of 2019 is allowed and W.P.(C) No. 518 of 2020 is dismissed.

Sd/-

P.V.ASHA JUDGE

rkc

WP(C).21457/2019, WP(C).518/2020

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APPENDIX OF WP(C) 21457/2019

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1 TRUE COPY OF THE PROCEEDINGS OF THE 4TH RESPONDENT DATED 29.05.2019. EXHIBIT P2 A TRUE COPY OF THE RELEVANT PAGE OF THE ORDER DATED 27.12.2019.

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WP(C).21457/2019, WP(C).518/2020

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APPENDIX OF WP(C) 518/2020

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PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPIES OF TRANSFER ORDERS 13.05.2019 ETC.	THE VIDE	RELEVANT PAGES OF THE ORDER NO.163-19 DATED
EXHIBIT P2	TRUE COPY OF 2/8/2019	THE	NO.B2/3404/2019 DATED
EXHIBIT P3	A TRUE COPY OF THE 2ND RESPONDE	THE NT O	PETITION FILED BEFORE N 16/8/2019
EXHIBIT P4	TRUE COPY OF 10/12/2019 OF EDUCATION ADDRES	THE THE SED	COMMUNICATION DATED DEPUTY DIRECTOR OF TO THE 3RD RESPONDENT
EXHIBIT P5	TRUE COPY OF DATED 27/12/2019	THE OF	ORDER NO.B2/5452/2019 THE 3RD RESPONDENT
EXHIBIT P6	TRUE COPY OF T THE D.E.O.	HE OR	DER DATED 3.1.2020 OF
EXHIBIT P7	TRUE COPY OF TH IN W.P.(C)NO.139	E JU 11/2	DGMENT DATED 12/6/2014 014.

The Corporate Manager v. the Secretary to Government

Case brief

What is this about?

What did the court decide?

The Corporate Manager v. the Secretary to Government

Case brief

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What did the court decide?

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