Kerala High Court
The Manager vs Biju Kuriakose on 27 May, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
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W.A.No.1167 of 2025
2025:KER:36791
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE P. V. BALAKRISHNAN
TUESDAY, THE 27TH DAY OF MAY 2025 / 6TH JYAISHTA, 1947
WA NO. 1167 OF 2025
AGAINST THE JUDGMENT DATED 11.04.2025 IN WP(C)NO.25395 OF
2024 OF HIGH COURT OF KERALA
APPELLANTS/4TH AND 5TH RESPONDENTS:
1 THE MANAGER,
CATHOLICATE & M.D SCHOOLS, (CORPORATE MANAGEMENT),
DEVALOKAM, KOTTAYAM DISTRICT, PIN - 686004
2 PAUL SIMON, HST(ENGLISH), M.G.M HIGHER SECONDARY
SCHOOL ENGAPUZHA., PUDUPPADI P.O., KOZHIKODE PIN, PIN
- 673586
BY ADV V.A.MUHAMMED
RESPONDENTS/PETITIONER/RESPONDENTS 1 TO 3:
1 BIJU KURIAKOSE
AGED 50 YEARS
HST(ENGLISH), MPM HSS, CHUNGATHARA, NILAMBOOR,
MALAPPURAM DISTRICT PIN 679 334, NOW RESIDING AT
OOTHUKUZHIYIL P.O., VELAMCODE P.O., KODENCHERY VIA,
CALICUT, PIN - 673580
2 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL
EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT ANNEX-II,
THIRUVANTHAPURAM 695 001, PIN - 695001
3 THE DIRECTOR OF GENERAL EDUCATION,
JAGATHY, THIRUVANANTHAPURAM, PIN - 695014
4 THE DISTRICT EDUCATIONAL OFFICER THAMARASSERY,
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W.A.No.1167 of 2025
2025:KER:36791
THAMARASSERY, KOZHIKODE DISTRICT PIN, PIN - 673673
BY ADVS.EBIN MATHEW
P.J.MATHEW(K/203/1985)
AKHILA SHOJI(K/000593/2017)
SRI. B. UNNIKRISHNA KAIMAL, SR. GP
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON
27.05.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
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W.A.No.1167 of 2025
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JUDGMENT
Anil K. Narendran, J.
Respondents 4 and 5 in W.P.(C)No.25395 of 2024 have filed
this writ appeal invoking the provisions under Section 5(i) of the
Kerala High Court Act, 1958, challenging the judgment dated
11.04.2025 of the learned Single Judge in that writ petition,
which was one filed by the 1st respondent herein, who is working
as HST (English) in MPM Higher Secondary School, Chungathara,
seeking a writ of certiorari to quash Exts.P3, P7 and P10 orders
to the extent of transferring him from MGM Higher Secondary
School, Engapuzha to MPM Higher Secondary School,
Chungathara. The petitioner has also sought for a declaration
that Ext.P3 order dated 05.06.2023 of the 4th respondent
Corporate Manager, is arbitrary and unsustainable to the extent
of transferring him from MGM Higher Secondary School,
Engapuzha to MPM Higher Secondary School, Chungathara; and
a writ of mandamus commanding the respondents to post him to
MGM Higher Secondary School, Engapuzha as HST (English).
2. The reliefs sought for in the writ petition were
opposed by the 4th respondent Manager (1st appellant herein), by
filing a counter affidavit dated 25.08.2024, producing therewith
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Exts.R4(a) and R4(b) documents. The petitioner filed reply
affidavit dated 02.11.2024, producing therewith Exts.P12 and
P13 documents.
3. After considering the rival contentions, the learned
Single Judge, by the impugned judgment dated 11.04.2025
disposed of the writ petition by setting aside Exts.P3, P7 and P10
orders and directed the 1st appellant Manager to retain the
petitioner at MGM Higher Secondary School, Engapuzha. The
reasoning of the learned Single Judge, as contained in
paragraphs 12 to 14 of the judgment, reads thus;
"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
ground, if the petitioner is transferred to a far away place,
it would amount to punitive transfer. In the circumstances
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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."
4. Heard the learned counsel for the appellants-
respondents 4 and 5, the learned counsel for the 1st respondent-
writ petitioner and also the learned Senior Government Pleader
for respondents 2 to 4.
5. During the course of arguments, the learned counsel
for the appellants, after referring to the provisions contained in
sub-rule (4) of Rule 10 of Chapter XIVA of Kerala Education
Rules, 1959, would contend that the order of transfer squarely
falls within the administrative interest of the institution, which
includes unsuitability, allegations of corruption, misuse of official
position, disciplinary action, incompetence, and consistent poor
performance. The learned counsel would also refer to the stand
taken by the 4th respondent Manager in paragraph 3 of the
counter affidavit dated 25.08.2024.
6. On the other hand, the learned counsel for the 1 st
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respondent-writ petitioner would point out the statutory mandate
of sub-rule (2) of Rule 10 of Chapter XIVA, whereby every
Headmaster and teacher shall be allowed to exercise choices of 3
or more schools. Further, the learned counsel would place
reliance on the judgment of a Division Bench of this Court in
Corporate Manager v. Beena Hilkushi S.R. [2023 (7) KHC
489].
7. By Ext.P3 order of transfer dated 05.06.2023 the 1st
respondent-petitioner is transferred from MGM Higher Secondary
School, Engapuzha to MPM Higher Secondary School,
Chungathara, another school under the Corporate Management
of Catholicate and M.D Schools, Devalokam, Kottayam. The
stand taken in paragraphs 2 and 3 of the counter affidavit filed
by the 4th respondent Manager (1st appellant herein) is that the
petitioner, who was the seniormost HST in MGM Higher
Secondary School, Engapuzha in Thamarassery Educational
District, is not cooperating with the Headmaster and not giving
any help or assistance to the Headmaster. He is standing with a
separate group of staff, against the common interest of the
school. In paragraph 3 of the counter affidavit, the 4th
respondent Manager has referred to Ext.R4(a) letter dated
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23.05.2023 of the Headmaster, pointing out serious lapses on
the part of the petitioner. The document marked as Ext.R4(b) is
a letter dated 30.05.2023 of the Headmaster requesting the 4th
respondent Manager to transfer the petitioner to any other
School, for the best academic interest of the School.
8. In Union of India v. Sri Janardhan Debanath
[(2004) 4 SCC 245], in the context of Rules 14-B and 15 of the
Fundamental Rules and Rule 37 of the Posts and Telegraphs
Manual Vol.IV, the Apex Court held that for the purpose of
effecting a transfer to another post in the same cadre on account
of inefficiency or misbehaviour, the question of holding an
enquiry to find out whether there was misbehaviour or conduct
unbecoming of an employee is unnecessary and what is needed
is a prima facie satisfaction of the authority concerned on the
contemporary reports about the occurrence complained of and if
the requirements of holding an elaborate enquiry are insisted
upon the very purpose of transferring an employee in public
interest or exigencies of administration to enforce decorum and
ensure probity would get frustrated. The question whether an
employee could be transferred to a different division is a matter
for the employer to consider depending upon the administrative
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necessities and the extent of solution for the problems faced by
the administration. It is not for the court to direct one way or the
other.
9. In Beena Hilkushi S.R. [2023 (7) KHC 489], after
referring to the law laid down by the Apex Court in Sri
Janardhan Debanath [(2004) 4 SCC 245], the Division
Bench held that the law laid down by the Apex Court in the said
decision is not applicable to the facts of the case on hand, as the
transfer has to be in accordance with the statutory rule, i.e.,
sub-rule (4) of Rule 10 of Chapter XIVA KER. When the statute
prescribes certain procedures to be followed, the transfer has to
be effected only by following such procedure mentioned therein.
The Division Bench repelled the contention raised by the
Manager of the School that sub-rule (4) of Rule 10 does not
prescribe any procedure to be followed for conducting any
enquiry for effecting the transfer, by holding that the principles of
natural justice is not an empty formality. If a transfer is effected
with reference to sub-rule (4) of Rule 10 of Chapter XIVA of the
Kerala Education Rules, it results in civil consequences
stigmatising a teacher by categorising him of misbehaviour,
misuse of official position, incompetency or low performance,
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etc., that demands compliances of principles of natural justice by
initiating an enquiry by the Manager and giving fullest
opportunity to the teacher to rebut any allegations. Therefore,
the principles of natural justice will have to be read into the
statutory provisions to obviate any prejudice or bias that is likely
to arise in such proceedings, as held in State of Kerala v.
P.K.Radhakrishnan [2023 (7) KHC 24].
10. It is not in dispute that the order of transfer of the 1st
respondent-writ petitioner from MGM Higher Secondary School,
Engapuzha to MPM Higher Secondary School, Chungathara is one
issued invoking the provisions under sub-rule (4) of Rule 10 of
Chapter XIVA of KER on the ground that he is not cooperating
with the Headmaster of the School, thereby adversely affecting
the smooth administration of the School. It is also not in dispute
that such an order of transfer, which results in serious civil
consequence stigmatising a teacher by categorising him of
misbehaviour, is one issued without complying with the principles
of natural justice. In view of the law laid down by the Division
Bench in Beena Hilkushi S.R. [2023 (7) KHC 489], such an
order would have been passed by the 4th respondent Manager
(1st appellant herein) by initiating an enquiry and giving fullest
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opportunity to the teacher to rebut the allegations. When the
order of transfer is one made in violation of the statutory
provisions contained in sub-rule (4) of Rule 10 of Chapter XIVA
of KER, we find absolutely no merits in the arguments advanced
by the learned counsel for the appellants relying on the decision
of the Apex Court in Pubi Lombi v. State of Arunachal
Pradesh [2024 KHC OnLine 6135] and the judgment of the
Division Bench of this Court in State of Kerala v. Kerala
Government Veterinary Officers Association [2024 KHC
OnLine 852] on the scope of judicial review in an order of
transfer.
11. Having considered the arguments advanced by the
learned counsel for the appellants, the learned counsel for the 1st
respondent and also the learned Senior Government Pleader for
respondents 2 to 4 in the light of the law laid down in the
decisions referred to supra, we find absolutely no grounds to
interfere with the judgment of the learned Single Judge dated
11.04.2025 in W.P.(C)No.25395 of 2024, whereby Exts.P3, P7
and P10 orders were set aside and the 4th respondent Manager
(1st respondent herein) is directed to retain the 1st respondent
(writ petitioner) at MGM Higher Secondary School, Engapuzha.
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In the result, this writ appeal fails and the same is
accordingly dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
P. V. BALAKRISHNAN, JUDGE
AV/28/5
2025:KER:36791
PETITIONER ANNEXURES
Annexure -I TRUE COPY OF THE DECISION REPORTED IN 2024
KHC 937 ( NEW INDIAN EXPRESS EMPLOYEES
ASSOCIATION (KERALA) V. STATE OF KERALA
DATED 13.09.2024
Annexure -II TRUE COPY OF THE DECISION REPORTED IN 2024
KHC 852 ( STATE OF KERALA V. KERALA
GOVERNMENT VATERINARY OFFICERS ASSOCIATION
DATED 04.09.2024
Annexure -III TRUE COPY OF THE DECISION REPORTED IN 2024
(4) KHC 377 DB ( PREETHI G.V V. ANIDARSA K )
DATED 13.06.2024
Annexure -IV TRUE COPY OF THE DECISION REPORTED IN 2007
(2) KHC 496 ( G. PADMAKUMARI AMMA V. J
VALSALA AND OTHERS) DATED 26.03.2007
