Kerala High Court
Sherin Mary D'Cunha vs State Of Kerala on 30 July, 2021
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN
FRIDAY, THE 30TH DAY OF JULY 2021 / 8TH SRAVANA, 1943
WP(C) NO. 15223 OF 2021
PETITIONER:
SHERIN MARY D'CUNHA
AGED 53 YEARS, PRINCIPAL, ST.ALBERT'S HIGHER SECONDARY
SCHOOL, ERNAKULAM, PIN 682 018
BY ADVS.
S.P.ARAVINDAKSHAN PILLAY
N.SANTHA
V.VARGHESE
PETER JOSE CHRISTO
S.A.ANAND
K.N.REMYA
L.ANNAPOORNA
VISHNU V.K.
ABHIRAMI K. UDAY
KURUVILLA SABU CHRISTY(K/001011/2020)-27872
RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
GENERAL EDUCATION DEPARTMENT, SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695001
2 JOINT DIRECTOR (ACADEMIC)
HIGHER SECONDARY WING, DEPARTMENT OF GENERAL EDUCATION,
HOUSING BOARD BUILDING, THIRUVANANTHAPURAM 695 001
3 REGIONAL DEPUTY DIRECTOR
OFFICE OF THE REGIONAL DEPUTY DIRECTOR,
HIGHER SECONDARY EDUCATION, SRV GHSS BUILDING,
KASTHOORI RANGAN HALL, ERNAKULAM , PIN 682 011.
4 CORPORATE MANAGER/GENERAL MANAGER
CORPORATE EDUCATIONAL AGENCY, ARCHDIOCESE OF VERAPOLY,
ST. ALBERT'S H.S.S CAMPUS, ERNAKULAM, KOCHI 682 018
5 ADDL.R5: THE DIRECTOR OF GENERAL EDUCATION,
GENERAL EDUCATION DEPARTMENT, JAGATHY,
THIRUVANANTHAPURAM-695014
(IS SUO MOTU IMPLEADED BY ORDER DATED 30.07.2021)
SRI. BIJOY CHANDRAN -SR. G.P.
THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
30.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WP(C) NO. 15223 OF 2021
2
JUDGMENT
This writ petition is filed seeking the following prayers:
"(i) call for the records leading to Ext.P18 and quash the same
to the extent the petitioner is transferred from St.Albert's
Higher Secondary School, Ernakulam, by the issuance of a writ
of certiorari or any other appropriate writ, order or direction.
(ii) declare that Ext.P18 order of transfer is void and
unenforceable as it is vitiated by malafides and abuse of
power.
(iii) issue a writ of mandamus or any other appropriate writ,
order or direction commanding the respondents to ensure that
Ext.P18 is not implemented and enforced as against the
petitioner and that the petitioner is permitted to continue as
Principal of St.Albert's H.S.S., Ernakulam."
2. Heard the learned counsel for the petitioner and the learned
Government Pleader.
3. The contention raised by the petitioner is that Ext.P18 order of
transfer, which is seen post dated as 31.07.2021, is vitiated by malafides.
It is submitted that the petitioner had been required by the 4 th
respondent to suo motu regularize the leave of a teacher, who had
continued on unauthorized absence without the said teacher even
submitting his leave application. The petitioner has produced documents
to show that it is in connection with the said illegal demands made by
WP(C) NO. 15223 OF 2021
the management that the petitioner is now being moved out from the
present school. It is submitted by the learned counsel for the petitioner
that the petitioner is now required to join duty at another school on
02.08.2021 by Ext.P18 order, which is seen dated 31.07.2021.
4. The learned Government Pleader submits that the provisions of
Rule 10 of Chapter XIV A, KER are not strictly applicable in the present
situation, since the issue is with regard to the transfer of a Principal of a
Higher Secondary School.
5. However, on a consideration of the factual aspects of the matter, I
find that the question raised by the petitioner is purely factual in nature.
In the case of teachers of aided schools up to matriculate level, there is a
specific provision in Chapter XIV A, KER with regard to transfers and
there is a power in the Director General of Education to consider
complaints raised by teachers with regard to transfer by the
managements. Though the petitioner is a Principal in a Higher
Secondary School and there does not appear to be any specific provision
in Chapter XXXII, KER with regard to the complaint of teachers as
against transfers, I am of the opinion that since this is a case where the
petitioner has clearly raised allegations of malafides as against orders of
WP(C) NO. 15223 OF 2021
transfer, the issue requires a consideration at the hands of the DGE or
the 2nd respondent, if he is so authorized to consider the same.
6. In the above view of the matter, there will be a direction that in
case the petitioner approaches the additionally impleaded 5 th respondent
with a complaint as against Ext.P18 within one week from today, the
same shall be taken up and considered by the 5 th respondent or any
authorized officer including the 2nd respondent, with notice to the
petitioner, the 4th respondent as well as any other interested persons and
appropriate orders shall be passed within a period of three weeks
thereafter. To enable the petitioner to approach the DGE, transfer of the
petitioner by Ext.P18 shall be kept in abeyance for a period of one week.
The petitioner shall produce a copy of this judgment along with a copy of
this writ petition before the additionally impleaded 5 th respondent for
compliance.
This writ petition is ordered accordingly.
Sd/-
ANU SIVARAMAN
JUDGE
NP
WP(C) NO. 15223 OF 2021
APPENDIX OF WP(C) 15223/2021
PETITIONER'S/S EXHIBITS:
Exhibit P1 TRUE COPY OF THE LETTER DATED 18-03-2019 OF
THE PRINCIPAL, GHSS, KADAMAKUDY
Exhibit P2 TRUE COPY OF THE RELIEVING ORDER AND
ATTENDANCE CERTIFICATE OF SRI JOSEPH YESUDAS
A.A ISSUED BY THE PRINCIPAL, GOVERNMENT
V.H.S.S, KADAMAKUDY
Exhibit P3 TRUE COPY OF THE LETTER DATED 17-04-2019 OF
THE PRINCIPAL, ST.ALBERT'S HSS, ERNAKULAM
Exhibit P4 TRUE COPY OF THE LETTER DATED 28-06-2019 OF
THE PRINCIPAL, ST. ALBERT'S HSS, ERNAKULAM
Exhibit P5 TRUE COPY OF THE LETTER NO. A6/3662/RDD/HSE/
EKM/19 DATED 24-10-2019 OF THE 3RD RESPONDENT
Exhibit P6 TRUE COPY OF THE ORDER NO. C218/20/HSE DATED
10-01-2020 OF THE 4TH RESPONDENT.
Exhibit P7 TRUE COPY OF THE LETTER DATED 18-03-2020 OF
THE PETITIONER TO THE 4TH RESPONDENT.
Exhibit P8 TRUE COPY OF THE LETTER NO. 4504/2020 DATED
22-01-2021 OF THE 4TH RESPONDENT
Exhibit P9 TRUE COPY OF THE LETTER NO C4504/2020 DATED
25-01-2021 OF THE 4TH RESPONDENT
Exhibit P10 TRUE COPY OF THE REPLY DATED 25-01-2021
SUBMITTED BY PETITIONER BEFORE THE 4TH
RESPONDENT
Exhibit P11 TRUE COPY OF THE LETTER NO. C4504/2020 DATED
22-02-2021 OF THE 4TH RESPONDENT
Exhibit P12 TRUE COPY OF THE DATED 19-02-2021 OF THE
PETITIONER TO THE 4TH RESPONDENT.
WP(C) NO. 15223 OF 2021
Exhibit P13 TRUE COPY OF THE LETTER DATED 23-02-2021 OF
THE PETITIONER TO THE 4TH RESPONDENT.
Exhibit P14 TRUE COPY OF THE ORDER NO. C218/2020 HSE
DATED 22-01-2020 OF THE 4TH RESPONDENT.
Exhibit P15 TRUE COPY OF THE LETTER DATED 26-02-2021 OF
THE PETITIONER
Exhibit P16 TRUE COPY OF THE LETTER NO. A6/3662/RDD/HSE/
EKM/19 DATED 23-04-2021 OF THE 3RD RESPONDENT
Exhibit P17 TRUE COPY OF THE LETTER DATED 07-07-2021 OF
THE PETITIONER.
Exhibit P18 TRUE COPY OF THE ORDER NO. C221/21 HSE DATED
31-07-2021 OF THE 4TH RESPONDENT.
RESPONDENT'S/S EXHIBITS: NIL
