Kerala High Court
Mini Varghese vs State Of Kerala on 22 May, 2024
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN
WEDNESDAY, THE 22ND DAY OF MAY 2024 / 1ST JYAISHTA, 1946
OP(KAT) NO. 64 OF 2024
ORDER DATED 25.01.2024 IN OA NO.1817 OF 2023 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
MINI VARGHESE , AGED 51 YEARS
W/O JOSE J GEORGE, WORKING AS HEADMISTRESS,
GOVERNMENT LPS AYUR, VELIYAM, KOLLAM (RESIDING AT
KOOTTARAZHIKATTHU LOVE DALE, VENGOOR, AYUR, KOLLAM -
691533)
BY ADVS.
V.A.MUHAMMED
M.SAJJAD
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA,
REPRESENTED BY ITS PRINCIPAL SECRETARY TO
GOVERNMENT,GENERAL EDUCATION DEPARTMENT, SECRETARIAT
ANNEX II, THIRUVANANTHAPURAM, PIN - 695001
2 THE DIRECTOR OF GENERAL EDUCATION,
DIRECTORATE OF GENERAL EDUCATION, GENERAL EDUCATION
DEPARTMENT, JAGATHY, THIRUVANANTHAPURAM, PIN -
695014
3 THE DEPUTY DIRECTOR OF EDUCATION,
OFFICE OF DEPUTY DIRECTOR OF EDUCATION,GOVERNMENT
BHSS CAMPUS, THEVALLY P.O., KOLLAM, PIN - 691009
OP(KAT) No.64/2024
..2..
4 MAYADEVI K.,
HEADMISTRESS, PADINJATTINKARA GOVERNMENT UPS,
PADINJATTINKARA, KOTTARAKKARA , KOLLAM, PIN - 691506
BY ADVS.
N.KRISHNA PRASAD
P.SHANES METHAR
BHARATH MOHAN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 22.05.2024, THE COURT ON THE SAME DAY DELIVERED
THE FOLLOWING:
OP(KAT) No.64/2024
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"CR"
JUDGMENT
SHOBA ANNAMMA EAPEN, J.
This original petition is filed by the applicant before the
Kerala Administrative Tribunal challenging Ext.P3 order of
the tribunal dated 25.01.2024 in OA No.1817 of 2023.
2. The petitioner/applicant entered service on
04.02.2004 and was posted at UPS, Kadakkal, Kollam. She
filed an application for General Transfer for teachers in the
year 2023-24 and was transferred to Anchal GLPS, which was
her fifth option. She joined Anchal GLPS on 08.06.2023. While
so, a vacancy arose on 26.06.2023 at GLPS, Thevannoor,
which was her first option. On coming to know about the
vacancy at GLPS, Thevannoor, the petitioner submitted
Annex.A2 and A3 requests to the Deputy Director of Education
on 27.06.2023 and 05.07.2023 respectively for transfer to
GLPS, Thevannoor. Thereafter, as per Annex.A4 order dated
24.07.2023, the petitioner was transferred to GLPS,
Thevannoor. While so, the fourth respondent herein
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challenged Annex.A4 in OA No.1398 of 2023, wherein the
tribunal directed the State to consider the representation of
the fourth respondent. Thereafter, as per Annex.A8 order
dated 10.10.2023, the second respondent was directed to
cancel Annex.A4 order and to reinstate the fourth respondent
at GLPS, Thevannoor. The grievance highlighted by the
petitioner was that while issuing Annex.A8 order, the first
respondent did not consider the genuine grounds raised by
the petitioner that her husband is suffering from cancer and
undergoing treatment at the Regional Cancer Centre (RCC),
Thiruvananthapuram. The petitioner also preferred Annex.A10
representation against Annex.A8 order. It was aggrieved by
the issuance of Annex.A8 order, the petitioner approached the
tribunal. The tribunal, after considering the issue, disposed of
the original application directing the respondents to consider
the claim of the petitioner for a posting in a more nearer
station. Challenging this, the petitioner is before us.
3. We have heard the learned counsel on both sides.
4. The learned counsel for the petitioner submitted
that the petitioner, who entered service on 04.02.2004, was
promoted as HM in RGM LP School, Cherukara on
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19.07.2022. The opted stations of the petitioner are as
follows;
i. GLPS, Thevannoor under AEO, Veliyam
ii. Ayur GLPS under AEO, Anchal
iii. Ayur JUPS under AEO, Anchal
iv. St.Thomas GLPS, Thrippallaziyam under AEO, Veliyam
v. Anchal GLPS under AEO, Anchal
vi. GLPS, Ummannoor under AEO, Veliyam
The learned counsel for the petitioner submitted that the
petitioner was transferred to the fifth opted station, Anchal
GLPS under AEO, Anchal. At the time of transfer as above,
there was no vacancy at GLPS, Thevannoor. While so, an open
vacancy occurred at GLPS, Thevannoor, on 26.06.2023, which
is the first opted station of the petitioner. The learned counsel
pointed out that in terms of Clause 5 of Ext.P4 transfer norms,
if an employee has got posting into his/her second and third
option, his/her better option would not be cancelled and
he/she ought to be accommodated against the better opted
station in the event of occurrence of vacancy in the
meanwhile. According to the learned counsel, the petitioner
being the senior teacher, the second respondent was right in
issuing Annex.A4 transfer order, whereas the issuance of
Annex.A8 order is in violation of the General Transfer norms.
..6..
It is further submitted that the husband of the petitioner is
suffering from cancer and is undergoing treatment at RCC,
Thiruvananthapuram; and that is the reason why the
petitioner had given her first option as GLPS, Thevannoor. It
is pointed out that the fourth respondent, who is junior to the
petitioner, was temporarily appointed in the GLPS,
Thevannoor, as HM. It is further pointed out that it is noting
that the husband of the fourth respondent is suffering from
cancer, the government had given a posting to the fourth
respondent at GLPS, Thevannoor, on compassionate grounds.
The learned counsel submitted that the petitioner is also
entitled for getting the same option on compassionate
grounds since her husband also is a cancer patient and is
undergoing treatment at RCC, Thiruvananthapuram as is
evident from Annex.A9. Moreover, the petitioner is also
having physical ailments as is evident from Annex.A11. Hence,
according to the learned counsel, the petitioner is entitled to
be posted at GLPS, Thevannoor, as ordered as per Annex.A4.
5. The learned Government Pleader, per contra,
submitted that the government took the decision to give a
posting to the fourth respondent at GLPS, Thevannoor, on
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compassionate grounds and passed Annex.A8 order after
elaborately considering the gravity of the issues and claim of
both the petitioner and the fourth respondent. Therefore,
according to the learned Government Pleader, the tribunal is
right in passing the impugned order.
6. The learned counsel for the fourth respondent
submitted that the fourth respondent was already working at
GLPS, Thevannoor, and was temporarily promoted as HM at
GLPS, Thevannoor, when vacancy arose on 26.06.2023.
According to the learned counsel, after giving options, the
petitioner had willingly joined duty at GLPS, Anchal, and she
cannot now claim a posting at GLPS, Thevannoor, for the
reason that it is her first option. It is further submitted that
the husband of the fourth respondent is suffering from cancer
and is undergoing treatment at RCC, Thiruvananthapuram,
and if she is transferred to any other station, she would be put
in great difficulty. According to the learned counsel for the
fourth respondent, it was after considering all relevant
aspects that the government passed Annex.A8 order,
cancelling Annex.A4 order and posting the fourth respondent
at GLPS, Thevannoor.
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7. We have elaborately considered the rival
contentions raised by all parties. The issue, in short, is
whether the petitioner, who is senior to the fourth respondent,
is entitled to a transfer to her first opted station, viz., GLPS,
Thevannoor.
8. The petitioner was promoted as HM in RGM LP
School, Cherukara on 19.07.2022 and was later transferred to
Anchal GLPS under AEO, Anchal, which was her fifth option,
on the basis of her application for General Transfer. After
being posted at Anchal GLPS, Anchal, on coming to know
about the vacancy that arose in GLPS, Thevannoor, which is
her first opted station, she submitted Annex.A2 and A3
representations requesting for a transfer to GLPS,
Thevannoor. Accordingly, as per Annex.A4 order, she was
transferred to GLPS, Thevannoor. During that time, the fourth
respondent, who was PD Teacher at GLPS, Thevannoor, was
temporarily promoted as HM and posted at GLPS,
Thevannoor, as per Annex.R4(b) dated 04.07.2023. The
dispute arose when Annex.A4 order dated 24.07.2023 was
passed transferring the petitioner to GLPS, Thevannoor, and
transferring the fourth respondent to GUPS, Padinjattinkara
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from GLPS, Thevannoor. In this context, it is relevant to refer
to Clause (iv) of Ext.P4 General Transfer norms, GO(P)
No.3/2017/P&ARD dated 25.02.2017, specifying transfer on
compassionate grounds, which reads thus;
"4. അനകമമർഹമമയ കമരണങൾ
(i) ഗരതരമമയ ഏതതങ ല അസഖമമമ (ഗരതരമമയ അസഖങൾ എനത ഗരതരമമയ
മരമഗങളമയ ക മൻസർ, ഹമ$മഗ , പകമഘമത എന വയ കരൾ, വക എന വ ദമന
ത.യവർ, അവയവ മമറവയല ന വമ3യരമയവർ) അപകടമമമ മല ഒര ജ8വനകമരന
സമയയമയ അവശത സ ഭവകകയ ആയത മല ജ8വനകമരന പരസഹമയതനമയ
ആശയമകണതമയ വരക.
(ii) വദഗ3 .ക ത മതറമരടത ലഭ മലമതയന തമഡകൽ സർടഫകറതH
അടസമനതൽ വകപതലവൻ സമക തKടതക.
(iii) ജ8വനകമരൻതM ഭമര തയമ (ജ8വനകമരയമതണങൽ ഭർതമവമനമ) ഗരതരമമയ മരമഗ
പ ടതപടത ജ8വനകമരതന പർണമമയ ആശയച കഴയനതമമയ മകമനമ മകൾമകമ
മമതമവമനമ പ തമവമനമ ജ8വനകമരതH/ജ8വനകമരയതട സമന ദ വ പര.രണവ
അത നമമപക തമമതണന തമഡകൽ സർടഫകറതH അടസമനതൽ വകപതലവൻ
സമക തKടതമമമൾ.
(iv) മമൽKMഞ സമഹ.ര ങള ൽ പMതKടവകന ഉതരവകൾ ഒര വർഷ
പർതയമകയതനമശഷ പന:പരമശമ3മകണതമണ."
On a perusal of Clause (iv) of Ext.P4 General Transfer norms,
it is seen that both the petitioner as well as the fourth
respondent are eligible for transfer on compassionate
grounds. Clause (v) is regarding options given by the
employees, wherein it is stipulated that even though the
government servants are transferred to their second or third
option, their better option would not be cancelled and they
..10..
ought to have been accommodated against the better opted
station in the event of occurrence of vacancy in the
meanwhile.
9. Admittedly, the petitioner is senior to the fourth
respondent and her first opted station was GLPS, Thevannoor.
At the time of general transfer, the petitioner was transferred
to Anchal GLPS, which was her fifth option. After she joined
Anchal GLPS, a vacancy arose at GLPS, Thevannoor, which
was her first option; and she submitted Annex.A2 and A3
requests for transfer to GLPS, Thevannoor; and accordingly,
as per Annex.A4 order dated 24.07.2023, the petitioner was
transferred to GLPS, Thevannoor, and the fourth respondent,
who had filed a representation to retain her as HM in the
GLPS, Thevannoor and was accordingly granted a temporary
posting to GLPS, Thevannoor, was transferred to GUPS,
Padinjattinkara. Here, a question arises whether priority for
transfer has to be given on the basis of compassionate
grounds or on the basis of seniority or on the basis of option
given. On compassionate grounds, both the petitioner and the
fourth respondent deserve a posting at their requested
station. However, the petitioner being senior to the fourth
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respondent and her first opted station was GLPS, Thevannoor,
she ought to have been given a posting at the GLPS,
Thevannoor. We are surprised how the government has given
priority to the fourth respondent when both the petitioner and
the fourth respondent stand on the same footing on
compassionate grounds and the petitioner is senior to the
fourth respondent. In such circumstances, the government
cannot accept the request of one and reject the request of
another, however, a posting to nearby stations requested by
them can be considered taking into account the hardship
caused to them by the illness of their spouse. It may be true
that there may not be any vacancy at the nearby stations.
Nevertheless, as we stated earlier, both the petitioner and the
fourth respondent deserve a leniency.
10. On a consideration of the entire facts and
circumstances and also taking into account Clauses (iv) and
(v) of Ext.P4 General Transfer Norms, we are of the view that
the petitioner, who was senior to the fourth respondent and
whose first opted station was GLPS, Thevannoor, ought to
have given priority and the government has to be directed to
give a posting to the petitioner at the GLPS, Thevannoor.
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Therefore, the original petition is disposed of, as follows;
a) Ext.P3 impugned order of the tribunal and Annexure A8
Government Order are set aside and the appropriate
authority is directed to pass orders giving a posting to
the petitioner at the GLPS, Thevannoor.
b) The official respondents shall consider a posting for the
fourth respondent in a more nearer station than GUPS,
Padinjattinkara, when vacancy arises.
SD/-
A. MUHAMED MUSTAQUE
JUDGE
SD/-
SHOBA ANNAMMA EAPEN
JUDGE
bka/-
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APPENDIX OF OP(KAT) 64/2024
PETITIONER ANNEXURES
Annexure A-1 TRUE COPY OF THE APPLICATION SUBMITTED BY
THE APPLICANT DATED 05-04-2023
Annexure A-2 TRUE COPY OF REQUEST TO DEPUTY DIRECTOR OF
EDUCATION DATED 27.06.2023
Annexure A-3 TRUE COPY OF REQUEST TO DEPUTY DIRECTOR OF
EDUCATION DATED 05.07.2023
Annexure A-4 TRUE COPY OF ORDER BEARING NO.
A2/2357/2023 DATED 24.07.2023
Annexure A-5 TRUE COPY OF ORDER BEARING NO. GEDN-
U3/329/2023GEDN DATED 25.08.2023
Annexure A-6 TRUE COPY OF THE HEARING NOTES SUBMITTED
BY THE APPLICANT DATED 06.09.2023
Annexure A-7 TRUE COPY OF THE MEDICAL RECORD DATED
08.09.2023
Annexure A-8 TRUE COPY OF ORDER BEARING NO. G.O(RT )NO.
6026/2023/G.EDN DATED 10.10.2023
Annexure A-9 TRUE COPY OF MEDICAL RECORD ISSUED FROM
RCC THIRUVANANTHAPURAM DATED NIL
Annexure A-10 TRUE COPY OF REPRESENTATION DATED
11.10.2023
Annexure A-11 TRUE COPY OF MEDICAL CERTIFICATE BEARING
NO. SPFH/CERT/2023/678 DATED 12.10.2023
ISSUED FROM SP FORT HOSPITAL,
THIRUVANANTHAPURAM
Annexure R-4(a) TRUE COPY OF JUDGMENT NO. 1398/2023 DATED
27.07.2023
Annexure R-4(b) TRUE COPY OF THE RELEVANT EXTRACT OF ORDER
NO. A2/2158/2023/DDE DATED 04.07.2023
ISSUED BY THE 2ND RESPONDENT
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Annexure R-4(c) TRUE COPY OF TREATMENT CERTIFICATE NO.
RCC/2023/TC/3154 DATED 12.07.2023 ISSUED
FROM RCC, THIRUVANANTHAPURAM I
Annexure R-4(d) TRUE COPY OF THE DISCHARGE SUMMARY OF BONE
MARROW TRANSPLANT UNIT DISCHARGE ON
18.05.2018 ISSUED FROM RCC,
THIRUVANANTHAPURAM
Annexure R-4(e) TRUE COPY OF THE MEDICAL CERTIFICATE /
CERTIFICATE OF ILLNESS DATED10.01.2024
ISSUED BY THE CONSULTANT GYNAECOLOGIST OF
THE BISHOP BENZIGEN HOSPITAL, KOLLAM
Exhibit P-1 TRUE COPY OF THE O.A NO. 1817 OF 2023
FILED BEFORE THE KERALA ADMINISTRATIVE
TRIBUNAL WITH ANNEXURE DATED 12.1.2023
Exhibit P-2 TRUE COPY OF THE REPLY AFFIDAVIT OF THE
4TH RESPONDENT DATED 25.10.2023
Exhibit P-3 TRUE COPY OF THE ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL IN O.A. NO. 1817
OF 2023 DATED 25.01.2024
Exhibit P-4 TRUE COPY OF THE G.O(P) NO. 3/2017/P & ARD
DATED 25.02.2017
Exhibit P-5 TRUE COPY OF THE LAST LEAVE APPLICATION
DATED NIL
RESPONDENT EXHIBITS
Exhibit R4 (a) True copy of the treatment certificate
dated 06.01.2024 from RCC
Exhibit R4 (b) True copy of the medical certificate dated
10.01.2024 from Bishop Benziger Hospital
