WP(C)/25395/2024 of BIJU KURIAKOSE Vs STATE OF KERALA on 11 April 2025

J U D G M E N T

~ ~ ~ ~ ~ ~ ~ ~ ~ The petitioner seeks to declare that Ext.P3 order is arbitrary and unsustainable to the extent of transferring the petitioner from MGM HSS, Engapuzha to MPM HSS, Chungathara.

2. The petitioner entered service as UPST on 05.06.1995 in MPM HSS, Chungathara. The said appointment was approved by the educational authorities. The petitioner was later promoted as High School Teacher (English) with effect from 09.06.1999. On 31.05.2006, the petitioner was transferred from MPM HSS, Chungathara to MGM HSS,

: 4 : Engapuzha.

3. The petitioner states that on 06.06.2023, he was served with a general transfer order dated 05.06.2023 of the 4th respondent-Manager transferring him from MGM HSS, Engapuzha in Kozhikode District to MPM HSS, Chungathara in Malappuram District as HST (English). The 5th respondent, who was working at Chungathara was transferred to the post of HST (English) in MGM HSS, Engapuzha. The 5th respondent is junior to the petitioner.

4. The petitioner states that he has approved service from 05.06.1995 and he is permanently settled in Kodenchery with his family and aged mother. The petitioner's mother is bedridden. Presence of the petitioner is necessary in his family. The petitioner is also suffering from Lumbar Disc Prolapse and Physician has advised him to avoid work involving travelling and standing for long hours.

5. The petitioner states that as per Rule 10 Chapter XIVA KER, in effecting transfers, principles followed in

: 5 : Government School shall be observed to the extent possible. The chief and foremost criterion for transfer of Headmaster (Teacher) shall be the seniority. As per Rule 10, the petitioner is not liable to be transferred. Ext.P3 transfer order is therefore arbitrary. After joining MPM HSS, Chungathara, the petitioner submitted Ext.P5 statutory appeal before the 2nd respondent- Director of General Education. This Court, in W.P.(C) No.20165/2023, directed the 2nd respondent to consider the appeal and pass orders.

6. The 2nd respondent held that transfer of the petitioner is as per the provisions laid down. The appeal was dismissed as per Ext.P7 order dated 21.12.2023. The petitioner filed Ext.P8 revision before the 1st respondent. After hearing the petitioner and the Manager, the 1st respondent dismissed the revision petition filed by the petitioner as per Ext.P10 order. The petitioner submits that the allegations contained in Ext.P10 that the petitioner did not assist the Headmaster during the admission period is incorrect. The

: 6 : petitioner therefore seeks to set aside Exts.P3, P7 and P10 and to direct the respondents to post the petitioner to MGM HSS, Engapuzha as HST (English).

7. The 4th respondent-Manager resisted the writ petition filing counter affidavit. The 4th respondent states that the Headmaster of the School submitted activity report of the petitioner as per letter dated 23.05.2023. The letter indicated that the petitioner did not support the HM as a Senior Assistant of the School. The petitioner could not lead the staff of the School without any Division or Groups. The petitioner acted as a Leader of one group and shown discrimination in allotting work among Teachers. The petitioner did not attend the School during midsummer for admission of pupils. The petitioner has not completed the lessons as per curriculum even when the District Panchayat conducted special drive as 'Vijayolsavam'.

8. I have heard the learned counsel for the petitioner and the learned Senior Government Pleader

: 7 : representing respondents 1 to 3. I have also heard the learned counsel for the 4th respondent.

9. The petitioner joined service as UPST on 05.06.1995 in MPM HSS, Chungathara which appointment was approved by the educational authorities. The petitioner was promoted as High School Teacher (English) on 09.06.1999. On 31.05.2006, the petitioner was transferred from MPM HSS, Chungathara to MGM HSS, Engapuzha. The petitioner has been working at Engapuzha since 31.05.2006.

10. On 06.06.2023, the petitioner was served with transfer order dated 05.06.2023 whereunder the 4th respondent-Manager transferred the petitioner from MGM HSS, Engapuzha to MPM HSS, Chungathara. The 5th respondent, who is junior to the petitioner, was transferred from Chungathara to Engapuzha.

11. Engapuzha, where the petitioner was working, is in Kozhikode District whereas Chungathara, where the petitioner is now transferred, is in Malappuram District.

: 8 : The petitioner is permanently settled in Kodenchery with his family and aged mother. The petitioner's mother is bedridden. The petitioner is suffering from Lumbar Disc Prolapse. The Doctor has advised him to avoid work involving travelling and standing for long hours.

12. The reasons advanced by the Manager for effecting transfer is that the activity report of the Headmaster indicated that the petitioner did not support the HM as a Senior Assistant of the School. The petitioner could not lead the staff of the School without Division or Groups. The petitioner has acted as leader of one Group. It is alleged that the petitioner has shown discrimination in allotting work among Teachers. It is further stated that the petitioner did not attend the School during the midsummer for admission of pupils. He has not completed the lessons as per curriculum.

13. If the afore allegations are true, those allegations may constitute misconduct for which the petitioner can be proceeded against and be punished. However, on that

: 9 : ground, if the petitioner is transferred to a far away place, it would amount to punitive transfer. In the circumstances of the case, the transfer of the petitioner cannot be termed as in administrative exigencies.

14. As per Rule 10 Chapter XIVA KER, the Manager is to follow the principles followed in Government Schools to the extent possible. The prime criterion for transfer shall be seniority. The 5th respondent, who is transferred and posted at the station where the petitioner has been working, is junior to the petitioner. The petitioner is therefore entitled to succeed.

15. Exts.P3, P7 and P10 orders are therefore set aside. The 4th respondent is directed to retain the petitioner at MGM HSS, Engapuzha. The writ petition is disposed of as above. Sd/- N. NAGARESH, JUDGE aks/09.04.2025

: 10 : APPENDIX OF WP(C) 25395/2024 PETITIONER’S EXHIBITS Exhibit P1 A TRUE COPY OF THE APPOINTMENT ORDER DATED 05/06/1995 ISSUED BY THE 4TH RESPONDENT Exhibit P2 A TRUE COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT DATED 09/06/1999 Exhibit P3 A TRUE COPY OF THE ORDER NO CMD/TR/331/23 DATED 05/06/2023 Exhibit P4 A TRUE COPY OF THE MEDICAL REPORT OF THE PETITIONER DATED 12/03/2018 Exhibit P5 A TRUE COPY OF THE APPEAL DATED 09/06/2023 FILED BY THE PETITIONER BEFORE THE 2ND RESPONDENT Exhibit P6 A TRUE COPY OF THE JUDGMENT DATED 21/06/2023 ISSUED BY THIS HON’BLE COURT IN WP(C) 20165 OF 2023 Exhibit P7 A TRUE COPY OF THE ORDER DATED 21/12/2023 ISSUED BY THE 2ND RESPONDENT ON THE EXHIBIT P5 APPEAL PREFERRED BY THE PETITIONER Exhibit P8 A TRUE COPY OF THE REVISION FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT Exhibit P9 A TRUE COPY OF THE JUDGMENT OF THIS HON’BLE COURT IN WP(C) 1737 OF 2024 DATED 16/01/2024 Exhibit P10 A TRUE COPY OF THE ORDER G.O(P)

: 11 : 3415/2024/GEDN DATED 30/05/2024 ISSUED BY THE 1ST RESPONDENT Exhibit P11 A TRUE COPY OF THE DEATH CERTIFICATE OF THE FATHER OF THE PETITIONER DATED 10/04/2023 EXHIBIT P12 A TRUE COPY OF THE JUDGMENT DATED 30/10/2023 IN WP(C) 28547/2023 Exhibit P13 A TRUE COPY OF JUDGMENT REPORTED AS CORPORATE MANAGER V BEENA HILKUSHI SR, 2023(7) KHC 489 RESPONDENTS’ EXHIBITS Exhibit R4(a) TRUE COPY OF THE ACTIVITY REPORT DATED 23.05.2023 Exhibit R4(b) TRUE COPY OF THE LETTER DATED 30.05.2023