Madras High Court
Indragandhi. P vs The State Of Tamil Nadu on 22 July, 2021
W.P.Nos. 5015 of 2021 and batch
IN THE HIGH COURT OF JUDICATURE AT MADRAS
DATED: 22.07.2021
CORAM:
THE HONOURABLE Mr. JUSTICE S.S.SUNDAR
W.P. Nos. 5015, 5021, 5024, 5028 & 5033 of 2021
and W.M.P. Nos.5590, 5593, 5600, 5598, 5604, 5604, 5610, 5609, 5615 &
5616 of 2021
Indragandhi. P .. Petitioner in W.P. No.5015 of 2021
Manjula.S .. Petitioner in W.P. No.5021 of 2021
Sasireka.R .. Petitioner in W.P. No.5024 of 2021
Saraswathi. S .. Petitioner in W.P. No.5028 of 2021
Manjula.S .. Petitioner in W.P. No.5033 of 2021
Versus
1.The State of Tamil Nadu,
Rep. by Principal Secretary,
Dept. of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
O/o. The Director of School Education,
DPI Campus, College Road,
Nungambakkam, Chennai – 600 006.
3.The Joint Director of School Education,
O/o. The Director of School Education,
DPI Campus, College Road,
Nungambakkam, Chennai – 600 006. .. Respondents in all W.P's.
Common Prayer: Writ Petitions filed under Article 226 of the Constitution of
India, praying to issue a Writ of Mandamus forbearing the respondents from
filling up the existing vacancies in the post of Primary School Headmasters in
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W.P.Nos. 5015 of 2021 and batch
the State by way of conducting general promotion counselling without
conducting general transfer counselling in violation of the Transfer Guidelines
issued in the previous years in Government Order in G.O.(1D). No.256 dated
19.04.2017, G.O.(1D). No.403 dated 02.06.2018, G.O.Ms. No.218 dated
20.06.2019 based upon the notification dated 18.02.2021 issued by the
respondents.
For Petitioner : M/s. Anand Samy and Druva
( in all W.P's.)
For Respondents : Mr. C.Kathiravan
( in all W.P's.) Government Advocate
COMMON O RD E R
Since the facts in all these writ petitions are identical, these petitions are
disposed of by this common order.
2. These writ petitions are filed for issuance of a Writ of Mandamus
forbearing the respondents from filling up the existing vacancies in the post of
Primary School Headmasters in the State by way of conducting general
promotion counselling without conducting general transfer counselling in
violation of the Transfer Guidelines issued in the previous years in Government
Orders in G.O.(1D). No.256 dated 19.04.2017, G.O.(1D). No.403 dated
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W.P.Nos. 5015 of 2021 and batch
02.06.2018 and G.O.Ms. No.218 dated 20.06.2019, based upon the notification
dated 18.02.2021, issued by the respondents.
3. It is stated that all these petitioners are working as Primary School
Headmasters. The petitioners state that they are entitled to be considered for
transfer by request and that the general counselling for transfer should be
conducted before conducting general promotion counselling. Learned counsel
appearing for the petitioners states that in the case of Jacob and others Vs.
State of Tamil Nadu, and others in W.P. (MD) No.3354 of 2021 and batch, the
learned single Judge of this Court in Madurai Bench, has already held that
counselling for promotion without conducting general transfer counselling is
opposed to all the earlier Government orders.
4. Learned counsel appearing for the petitioners produced before this
Court the interim order passed by the learned single Judge in a batch of writ
petitions in W.P.(MD). No.3354 of 2021 and batch, dated 19.02.2021. The
order of interim injunction was supported by the following reasons:
“...
4. The Honourable Division Bench of this Court in the case of K. K.
Ramesh Vs. The Union of India and others, passed in W.P. (MD) No.23772
of 2018 had issued certain guidelines for general transfer counseling,
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W.P.Nos. 5015 of 2021 and batch
pending passing of appropriate orders by the Government for and
incorporating such guidelines. Consequently, G.O. (1D) 218 dated
20.06.2019 came to be passed and in clause 2 of the Government order,
guidelines were made therein for holding counseling by at filling up of
surplus posts, general transfers and then through promotions. However,
deviating from such guidelines, the respondents herein have scheduled the
counseling for the promotion counseling, for the post of High School
Headmasters on 20.02.2021, without conducting the transfer counseling.
Apparently, the decision to hold such a counseling for promotion without
conducting the general transfer counseling is opposed to all the earlier
Government Orders.
5. Mrs.S.Srimathy, the learned Special Government Pleader would
place reliance on G.O.No.249 Finance (Budget General-1) Department
dated 21.05.2020 and submit that the general transfers were directed to be
kept on hold for the year 2020-2021, to minimise expenditure on transfer
travel expenses and therefore the transfer counseling could not be held
prior to the promotion counseling. She would also submit that the general
transfers can be held in the ensuing academic year.
6. I am not in agreement with such a submission. G.O.No.249
Finance. (Budget General-1) Department dated 21.05.2020 was issued on
the unprecedented situation that arose owing to the COVID-19 pandemic
outbreak, which necessitated the Government to withhold general transfer
for avoiding/minimising transfer travel expenses. Further more,
G.O.No.249 Finance (Budget General-I) Department dated 21.05.2020 did
not supersede the earlier Government orders, in G.O. (1D) No.256 dated
19.04.2017, G.O. (1D) 403 dated 29.05.2018 and G.O. (1D) 218 dated
20.06.2019 and neither empowered the authorities to get along with the
promotion counseling, by withholding the general transfers.
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W.P.Nos. 5015 of 2021 and batch
7.This Court is able to visualise the prejudice that could be caused
to the senior teachers, who are awaiting the general transfer counseling
and such transfer-postings may become redundant owing to the possibility
of junior teachers being posted in the place their choice through promotion
counseling. No prejudice would be caused to the Department, if the
promotion counseling is postponed by a few days and during which period,
the possibility of holding transfer counseling can be explored.”
5. Again in the same batch of writ petitions a common final order has
been passed on 10.03.2021. The relevant portions of the said order is extracted
hereunder:
“...
10. I am not in agreement with such a stand taken by the learned
Additional Advocate General that the seven days salary claimed by the
transferee teachers would either be a saving in the expenditure or an
additional cost incurred by the Government for effecting transfers. For
instance, the present decision of the Government in not permitting the general
transfer counselling would still require them to pay all the Government
employees in general and the teachers in particular, the irrespective salaries.
It is not the case of the Government that in case the teachers are permitted to
opt for transfer and thereby avail seven days leave, there would additional
expense to the Government in such circumstances. When the Teachers, who
are aspiring for a transfer through counselling, are admittedly disentitled for
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W.P.Nos. 5015 of 2021 and batch
the transfer travelling allowances and when the Government have decided to
hold the transfers and thereby, disburse the salaries for the seven days
notional period, for which, a transferee would have been otherwise entitled
to, the very object of the Government Order in G.O.Ms.No.249, Finance
(Budget General-I)Department, dated, 21.05.2020 to minimize the economic
resources mobilization seems unfounded, insofar as the ban on transfers for
the year 2021 in the Education Department is concerned. It would be
pertinent to point out here that the measures taken under the other Heads for
the expenses and expenditure etc, referred to in the Government Order, may
meet the object of the said Government Order. 11. It is the submission of the
learned Additional Advocate General that since the measures introduced in
G.O.Ms.No.249, Finance(Budget General-I) Department, dated, 21.05.2020
to control the expenditures requires to be strictly and scrupulously followed
by all the Departments of the Government, the with-holding of general
transfers in this background, is inevitable.12. As stated earlier, right from the
year 2017-2018, onwards,the Educational Department has been undisputedly
conducting the general transfers for the academic year in advance, followed
by the promotion transfers. But, for the year 2021, there was no deviation in
this method. The present G.O.Ms.No.249, Finance (Budget General-
I)Department dated, 21.05.2020 relied on by the respondents does not
prescribe that the promotion counselling should precede the general transfer
counselling. Incidentally, when the issue with regard to the legality of
transfers on administrative grounds came up for consideration in a pro bono
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W.P.Nos. 5015 of 2021 and batch
case before the Hon'ble Division Bench of this Court in W.P.(MD).No.23772
of 2018, certain guidelines for general transfer counselling, including
transfers on administrative grounds, were issued. These guidelines were
subject to passing of appropriate orders by the Government. Among such
guidelines, it was directed that the annual transfers in the schools must be
only on the basis of general counselling which should be held at least by the
15th of May of the relevant year. The Government is yet to pass appropriate
orders to this effect, apparently,due to the onset of COVID-19 pandemic.
When such orders for general transfer through counselling are yet to be
passed pursuant to the guidelines of the Hon'ble Division Bench and in view
of the absence of any specific clauses in G.O.Ms.No.249, Finance (Budget
General-I)Department dated, 21.05.2020 enabling the Government to
conduct promotion counselling prior to the transfer counselling and by taking
into account the general practice adopted from the year 2017-2018 onwards
to hold the promotion counselling after the general transfer counselling, this
Court is of the view that the consistent procedure should not be given a go-
by. 13. It would not be out of place to mention here that the Government have
now taken a policy decision to increase the retirement age of the teachers to
60 years and hence the ground raised by the learned Additional Advocate
General that some of the teachers, who are awaiting for promotions, are at
the verge of their retirement, is rendered redundant. However, since the
respondents apprehend that some prejudice could be caused to the teachers,
who are awaiting for promotions, it would be appropriate that the
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W.P.Nos. 5015 of 2021 and batch
respondents could be directed to hold both the general transfer counselling
and the promotion counselling on the same date. However, such simultaneous
counselling should not deviate from the pre-existing procedures and
therefore, the general transfer counselling, shall precede the promotion
counselling. 14. In the light of the above observations, there shall be a
direction to the Director of School Education Department, Chennai and the
Director of Elementary Education, Chennai, to conduct the genera transfer
counselling, followed by the promotion counselling, on the same day or the
succeeding days if necessary, in the various vacancies for the posts of High
School Headmasters / Middle School Headmasters / B.T.Assistants / Primary
School Headmasters / Block Educational Officers in the various schools in
the State of Tamil Nadu. Such exercise of conducting counselling shall be
done as expeditiously as possible, in any event, on or before the 30th of April,
2021.”
6. The judgment of the learned single judge of this Court, above referred
is not challenged in appeal. Learned Government Advocate appearing for the
respondents despite getting instructions is unable to report any intention of
Government preferring any appeal as against the said order. In such
circumstances, applying the same principles reiterated by this Court earlier, all
these writ petitions are allowed. No costs. Consequently, connected
miscellaneous petitions are closed.
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W.P.Nos. 5015 of 2021 and batch
7. It is reported that the petitioners have submitted their representations
on 23.02.2021 to the District Educational Officer, Thirupatthur. Based on the
representations of the petitioners, the Director of School Education, Chennai is
directed to conduct general transfer counselling, followed by the promotion
counselling, on the same day or the succeeding days, if necessary, for the posts
held by the petitioners in these cases. Such exercise of conducting counselling
shall be done as expeditiously as possible, in any event, within a period of eight
weeks from the date of receipt of a copy of this order.
22.07.2021
Index:Yes / No
Speaking order / Non speaking order
bkn
To
1.The Principal Secretary,
Dept. of School Education,
Fort St. George, Chennai – 600 009.
2.The Director of School Education,
O/o. The Director of School Education,
DPI Campus, College Road,
Nungambakkam, Chennai – 600 006.
https://www.mhc.tn.gov.in/judis/
W.P.Nos. 5015 of 2021 and batch
S.S.SUNDAR. J.,
bkn
3.The Joint Director of School Education,
O/o. The Director of School Education,
DPI Campus, College Road,
Nungambakkam, Chennai – 600 006.
W.P. Nos. 5015, 5021, 5024, 5028 & 5033 of 2021
22.07.2021
https://www.mhc.tn.gov.in/judis/
