PRESENT: THE HONOURABLE MR.JUSTICE ANTONY DOMINIC &
THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN
MONDAY,THE 20TH DAY OF OCTOBER
2014/28TH ASWINA, 1936
OP(KAT).No. 90 of 2014 (Z)
AGAINST THE ORDER IN OA 8/2014 of KERALAADMINISTRATIVETRIBUNAL,
THIRUVANANTHAPURAM DATED 11-02-2014
PETITIONER/APPLICANT IN O.A.:
K.R. PAVITHRAN HEADMASTER,
GOVERNMENT HIGHER SECONDARY SCHOOL SOUTH EZHIPPURAM, SOUTH VAZHAKULAM (P.O)
ERNAKULAM DISTRICT, PIN:683105.
BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL
(PRANAVAM) SRI.K.R.GANESH
RESPONDENTS/RESPPONDENTS IN O.A.:
1. STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT GENERAL EUDCATION DEPARTMENT,
SECRETARIAT THIRUVANANTHAPURAM.
2. THE DIRECTOR OF
PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM. BY ADV. SRI.K.A.JALEEL, ADDL. ADVOCATE
GENERAL SR. GOVERNMENT PLEADER SRI JOE KALLIATH
JUDGMENT
ANIL K. NARENDRAN, J.
The petitioner is the
applicant in O.A.(EKM)No.8/2014 on the file of the Kerala Administrative
Tribunal. The said O.A. was filed to set aside Annexure A8 Government order
dated 31/1/2014, by which the Government upheld Annexure A5 order dated
17/6/2013 of the Director of Public Instruction, the 2nd respondent herein, to
the extent of transferring one Shajimon D. as the Headmaster of Government
Higher Secondary School, South Ezhippuram (hereinafter referred to as 'GHSS,
South Ezhippuram') in order to transfer the petitioner out of that school. The
Kerala Administrative Tribunal dismissed the said Original Application, by
Exhibit P7 order dated 11/2/2014, holding that the Tribunal in its jurisdiction
cannot sit in appeal over the finding of the Government that the petitioner is
engaging in partisan activities among the teachers, parents and students,
against the interest of the school; especially when
none of the legal rights of the petitioner, who is liable to be posted anywhere
in the State under
Rule 32 of the Kerala State and Subordinate Service Rules
(hereinafter referred to as 'the KS & SSR'), is affected. The Tribunal has
also taken note of the fact that, the Government in Annexure A8 order have directed
the 2nd respondent to consider the request, if any, made by the petitioner for
a convenient posting as Headmaster of any school other than GHSS, South
Ezhippuram, or as Assistant Educational Officer. It is aggrieved by Exhibit P7
order passed by the Tribunal in O.A.(EKM)No.8/14, the petitioner is before us
in this O.P.(KAT) filed under Article 227 of the Constitution of India.
2. On 3/3/2014,
this Court ordered that the petitioner shall not be relieved from the post of
Headmaster, GHSS, South Ezhippuram, until further orders. On the strength of
the said order, the petitioner is still continuing as Headmaster of GHSS, South
Ezhippuram.
3. We heard the
arguments of the learned counsel for the petitioner and the learned Senior
Government Pleader appearing for the respondents.
4.
The learned counsel for the petitioner contended that, as the petitioner was
ordered to be transferred from GHSS, South Ezhippuram, on extraneous
considerations and absolutely without any legal basis, the Tribunal ought to
have exercised its jurisdiction and interfered with the malafide actions of the
respondents in that regard. To buttress the above contentions, the learned
counsel relied on various documents, including Exhibit P8, certifying that the
Parent Teacher Association (PTA) in GHSS, South Ezhippuram, was selected as the
best PTA in Ernakulam Revenue District for the year 2013-14. The learned
counsel further pointed out that, subsequent to the order of stay granted by
the Tribunal in O.A.No.1306/2013, Sri. Shajimon D., who was ordered to be
transferred and posted as Headmaster, GHSS, South Ezhippuram, in the place of
the petitioner, was re- posted to Government Higher Secondary School,
Kongorppilly, vide Exhibit R2(d) order dated 27/6/2013 of the 2nd respondent.
While continuing as such, he was appointed as the Assistant Educational
Officer, Pattambi, vide order dated 28/10/2013 of the 2nd respondent, and the
said person is no more interested in a posting as the
Headmaster of GHSS, South Ezhippuram.
5. Per contra, the
learned Senior Government Pleader appearing for the respondents would contend
that, the stand taken by the Government in Annexure A8 order is perfectly legal
and in the facts and circumstances of the case the Tribunal rightly declined to
exercise its jurisdiction. Hence, according to the learned Senior Government
Pleader, no interference of this Court is warranted and Exhibit P7 order passed
by the Tribunal deserves to be upheld. We have considered the rival submissions
made at the Bar.
6. While the
petitioner was working as HSA (Natural Science) at GHSS, South Ezhippuram, he
was promoted as Headmaster and posted at Government Higher Secondary School,
Mamalassery, on 28/6/2012. While continuing as such, during the General Transfer
for the academic year 2013-14, the petitioner requested for transfer to GHSS,
South Ezhippuram, and considering the said request he was ordered to be
transferred as Headmaster, GHSS, South Ezhippuram, vide Annexure A3 General
Transfer order dated 7/6/2013 issued by the 2nd respondent. Based on Annexure A3 order, the petitioner took charge as
Headmaster, GHSS, South Ezhippuram, on 14/6/2013, as evidenced by Annexure A4
report of transfer of charge. While the petitioner was continuing as such, the
2nd respondent vide Annexure A5 order dated 17/6/2013 promoted one Shajimon D.,
who is Sl.No.247 in the said order, as Headmaster and posted him at GHSS, South
Ezhippuram, in the place of the petitioner.
7. Challenging
Annexure A5 order, the petitioner approached the Kerala Administrative Tribunal
in O.A.No.1306/2013 and the Tribunal by Annexure A6 order granted interim stay
of Annexure A5 order, to the extent it posts Sri. Shajimon D., the 3rd
respondent in that O.A. as Headmaster, GHSS, South Ezhippuram, for a period of
one month. Later the said O.A. was disposed of by Annexure A7 order, by which,
the Tribunal directed the Government to consider representation dated 16/7/2013
submitted by the petitioner, within two months from the date of receipt of a
copy of the order, after affording him an opportunity of being heard. Pursuant
to the direction contained in Annexure A7 order, the Government conducted a personal hearing and thereafter passed Annexure A8
order, upholding the transfer of the petitioner out of GHSS, South Ezhippuram.
The reasoning in Annexure A8 is that the petitioner is engaging in partisan
activities among the teachers, parents and pupils and his continuance will be
detrimental to the well-being of the school and for its proper functioning.
Therefore, according to the 1st respondent, his transfer on administrative
exigencies is essential in order to restore calm atmosphere in the school and
also to maintain discipline.
8. Rule 32 of the
KS & SSR enables the appointing authority to transfer a member of a service
or a class of service to serve in any post borne on the cadre of such service
or class. It is trite law that transfer is an incident of service and an
employee working on a transferable post cannot claim, as a matter of right,
that he should be retained in a particular post or at a particular place. It is
the choice of the employer to determine how long the service of an employee is
required in a particular post or at a particular place. The order of transfer
does not affect any legal rights of the employee and the court or tribunal cannot interfere with an order of transfer or
posting, which is made in public interest or on administrative exigency.
Therefore, as rightly observed by the Tribunal, the petitioner is liable to be
posted anywhere in the State. However, if the power of transfer is abused or
the transfer is not made in public interest, but for collateral purposes and
with oblique motive, the order would stand vitiated, warranting interference of
the Court or Tribunal.
9. In
State of M.P.
v. S.S. Kourav (1995 (3) SCC 270)
the Apex Court held that, the Courts or
Tribunals are not appellate forums to decide on transfers of officers on
administrative grounds. It is for the administration to take appropriate
decision and such decision shall stand unless they are vitiated either by mala
fides or extraneous considerations without any factual background foundation.
In
Somesh Tiwari v. Union of India (2009 (2) SCC 592)
the Apex Court held
that, an order of transfer passed on material which was non-existent not only
suffers from total non-application of mind on the part of the authorities, but
also suffers from malice in law.
10. It was while working
as HSA (Natural Science) at GHSS, South Ezhippuram, the petitioner was promoted
as Headmaster and posted at Government Higher Secondary School, Mamalassery, on
28/6/2012. The specific averments made in paragraph 6.1 of the O.A. and
reiterated in paragraph 2 of the O.P.(KAT) are that, during the period when the
petitioner was working as HSA in GHSS, South Ezhippuram, he had incessantly and
painstakingly worked for the upliftment of the school which was on the verge of
closure and it was the result of his yeoman service that the school was
selected as a 'Smart School' and that he had charted out programmes in
association with the members of the PTA in order to facilitate and create an
atmosphere contusive to the students to develop their learning habits. The said
facts are not denied either in the counter affidavit filed on behalf of the 1st
respondent or that filed on behalf of the 2nd respondent. In
Venkitaramanan
Potti v. Travancore Devaswom Board (1993 (2) KLT 374)
another Division Bench of
this Court, following the judgment of the Apex Court in
C.S. Rowjee v. State of
Andhra Pradesh and others (AIR 1964 SC 962)
held that,
"an averment in the original petition which is not traversed by the
respondents in the counter affidavit must be taken to have been admitted."
Therefore, in the absence of a clear denial of the specific averments contained
in paragraph 6.1 of the O.A. and reiterated in paragraph 2 of the O.P.(KAT),
those averments must be taken to have been admitted. Moreover, in the enquiry
report dated 17/7/2013 submitted by the Deputy Director of Education (a copy of
which was made available to this Court by the learned Senior Government
Pleader, pursuant to order dated 3/3/2014) there is a finding that, the
petitioner had been working for the development of GHSS, South Ezhippuram, and
also for academic upliftment, even while working as an HSA in that school. The
said finding in the enquiry report is also referred to in paragraph 10 of
Annexure A8 order passed by the Government.
11. It is not in
dispute that, pursuant to Annexure A3 General Transfer order dated 7/6/2013
issued by the 2nd respondent, the petitioner took charge as Headmaster, GHSS,
South Ezhippuram, only on 14/6/2013, which was a Friday. On 17/6/2013, the 2nd respondent vide Annexure A5 order promoted Sri.
Shajimon D. as Headmaster and posted him to GHSS, South Ezhippuram, in the
place of the petitioner. By another order dated 17/6/2013 issued by the 2nd
respondent (a copy of which has been marked as Exhibit R2(b) in the counter
affidavit filed on behalf of the 2nd respondent) the petitioner was ordered to
be transferred to Government Higher Secondary School, Kongorppilly, 'on
administrative ground'. In paragraph 8 of Annexure A8 order, the 1st respondent
has made reference to a complaint made against the petitioner by Smt.Subaida
HSA (Malayalam) and Smt.Nazeema HSA (Arabic), alleging that the continuance of
the petitioner at GHSS, South Ezhippuram, will be detrimental to the interest
of the school, as he is engaging in partisan activities among the students,
teachers, and public. But, as evident from Annexure A8 order, the said
complaints dated 4/12/2013 and 13/1/2014 (see Ref:-(2) in Annexure A8
Government order) are made much after the issuance of Exhibit R2(b) order of
transfer dated 17/6/2013 issued by the 2nd respondent transferring the
petitioner from GHSS, South Ezhippuram, which cannot
form basis for transferring the petitioner from that school.
12. The stand taken
by the 1st and 2nd respondents in their counter affidavits filed before this
Court is that, apart from the complaints made by Smt.Subaida HSA (Malayalam)
and Smt.Nazeema HSA (Arabic), another complaint was received from one
N.M.Aliyar and others alleging that, as Headmaster of GHSS, South Ezhippuram,
the petitioner is creating groupism among the staff of the school and that he
is looting Government money along with the President of the PTA under the guise
of infrastructure development. In
Mohinder Singh Gill and another v. The Chief
Election Commissioner, New Delhi and others (1978 (1) SCC 405),
the Apex Court,
following the observations in
Commissioner of Police, Bombay v. Gordhandas
Bhanji (AIR 1952 SC 16)
held that,
"when a statutory functionary makes an
order based on certain grounds, its validity must be judged by the reasons so
mentioned and cannot be supplemented by fresh reasons in the shape of affidavit
or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to Court on account of a challenge, get validated by
additional grounds later brought out."
In such circumstances, the 1st
respondent cannot be allowed to supplement Annexure A8 order by the fresh
reasons stated in the counter affidavit.
13. As already
noticed, the petitioner took charge as Headmaster, GHSS, South Ezhippuram, only
on 14/6/2013 and within two days thereafter, i.e., on 17/6/2014 he was ordered
to be transferred out of that school, vide Exhibit R2(d) order of transfer
issued by the 2nd respondent. Any incident alleged to have happened in between
14/6/2013 and 17/6/2013, within a short span of two days, which necessitated
the petitioner being transferred out of GHSS, South Ezhippuram, is not
disclosed in Annexure A8 order. No such incident is disclosed in the enquiry
report of the Deputy Director of Education as well. Smt.Subaida HSA (Malayalam)
and Smt.Nazeema HSA (Arabic), who made complaints against the petitioner have
not even chosen to appear before the enquiry officer. On the other hand, the
PTA President and members of teaching staff gave statement to the effect that the complaints made against the petitioner are without
any basis. Moreover, any incident alleged to have happened on 8/7/2013, at the
time of the enquiry conducted by the Deputy Director of Education, cannot be
allowed to be raised as a ground to sustain Annexure A8 order of transfer dated
16/6/2013, which is otherwise illegal. As evident from Exhibit P8, the PTA in
GHSS, South Ezhippuram, was selected by the Government of Kerala as the best
PTA in Ernakulam Revenue District for the year 2013-14. We have referred to
this aspect only to indicate that there is considerable force in the submission
made by the learned counsel for the petitioner that, the petitioner had worked
incessantly and painstakingly for the upliftment of the school in association
with the members of the PTA.
14. Therefore, the
materials on record clearly indicate that, the order of transfer against the
petitioner was without any factual foundation or legal support. The said order
of transfer passed on materials which were non-existent not only suffers from
total non-application of mind, but also suffers from malice in law. The said
order is only a colourable exercise of power. Similarly, the findings of the 1st respondent in Annexure A8 order that, the
continuance of the petitioner at GHSS, South Ezhippuram, will be detrimental to
the well-being of the school and for its proper functioning and that his transfer
on administrative exigencies is essential in order to restore calm atmosphere
in the school and also to maintain discipline are without any factual
foundation or legal support. When the order of transfer is found to be one
without any factual foundation or legal support, it is only a colourable
exercise of power by the 2nd respondent, and such exercise of power cannot be
sustained in the eye of law. Therefore, in our view, the Tribunal failed to
take note of the above crucial aspects of the matter while passing Exhibit P7
order and committed a mistake in not interfering with the order of transfer of
the petitioner and Annexure A8 order passed by the 1st respondent rejecting the
representation made by the petitioner against the said order of transfer.
15. In the result,
this O.P.(KAT) is allowed setting aside Exhibit P7 order dated 11/2/2014 of the
Kerala Administrative Tribunal in O.A.(EKM)No.8/2014. Resultantly, O.A.(EKM) No.8/2014 will stand allowed setting aside Annexure A8
order, thereby permitting the petitioner to continue as the Headmaster of
Government Higher Secondary School, South Ezhippuram.
However, it is made clear
that this judgment will not stand in the way of the petitioner being
transferred in accordance with law from the Government Higher Secondary School,
South Ezhippuram, for any valid administrative reasons.
