Madras High Court
V.Luciana Margret Mary vs The Principal Secretary To Government on 10 April, 2024
WP.(MD).Nos.27908 of 2023, batch
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
RESERVED ON : 09.01.2024
PRONOUNCED ON : 10.04.2024
CORAM:
THE HONOURABLE MRS.JUSTICE L.VICTORIA GOWRI
W.P.(MD)Nos.27908, 28620, 28655, 28709, 28710, 28711, 28712,
28713, 28714, 28715, 28723, 28736, 28737, 28738, 28739, 28740,
28770, 28771, 28772, 28773, 28774, 28775, 28776, 28777, 28778,
28779, 28780, 28781, 28782, 28783, 28784, 28785, 28786, 28787,
28788, 28789, 28790, 28791, 28792, 28793, 28794, 28795, 28796 and
29050 of 2023
and
W.M.P.(MD)Nos.25093, 24008, 24010, 24011, 24686, 24687, 24728,
24729, 24754, 24755, 24756, 24745, 24746, 24747, 24748, 24750,
24751, 24757, 24760, 24761, 24762, 24763, 24766, 24767, 24768,
24775, 24777, 24780, 24781, 24782, 24783, 24785, 24786, 24787,
24788, 24801, 24800, 24802, 24803, 24804, 24805, 24806, 24807,
24808, 24809, 24810, 24811, 24812, 24813, 24814, 24815, 24816,
24817, 24818, 24819, 24820, 24821, 24822, 24823, 24824, 24825,
24826, 24827, 24828, 24829, 24830, 24831, 24832, 24833, 24834,
24835, 24836, 24837, 24838, 24840, 24842, 24844, 24847, 24848,
24850, 24851, 24855, 24857, 24859, 24860, 24861, 24862, 24863,
24864, 25094, 25095, 25283, 25367, 25370, 25379, 25380, 25959,
25974, 25975, 25979, 25980, 25985, 25998, 26160, 26161, 26164 and
26168 of 2023
1/20
https://www.mhc.tn.gov.in/judis
WP.(MD).Nos.27908 of 2023, batch
W.P.(MD)No.27908 of 2023:-
V.Luciana Margret Mary ... Petitioner
Vs.
1.The Principal Secretary to Government,
Department of School Education,
Fort St. George, Secretaraiat,
Chennai – 600 009.
2.The State Project Director,
Samagra Shiksha,
D.P.I.Campus, Nungampakkam,
Chennai-600 006.
3.The Director of School Education,
EVK Sampath Maaligai, DPI Campus,
College Road, Nungampakkam,
Chennai – 600 006.
4.The Joint Director of School Education (Personnel),
EVK Sampath Maaligai, DPI Campus,
College Road, Nungampakkam,
Chennai – 600 006.
5.The Chief Educational Officer,
O/o, the Chief Educational Officer,
Madurai District,
Madurai. ... Respondents
PRAYER : Writ Petition filed under Article 226 of the Constitution of
India for issuance of a Writ of Certiorarified / Mandamus, calling for the
records relating to the impugned order vide e.f.vz;.41779/rp4/,1/2021
2/20
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WP.(MD).Nos.27908 of 2023, batch
ehs;; : 18.11.2023 passed by the third respondent and the consequential
impugned order vide e.f.vz;.281/m1/2021 ehs;; : 18.11.2023 passed by
the fifth respondent and quash the same so far as the petitioner is
concerned and consequently directing the respondents to permit the
petitioner to continue to work in Melur Block Resource Centre, Madurai
District.
For Petitioners : Mr.M.Ajmal Khan, Senior Counsel
for M/s.Ajmal Associates
: Mr.D.Shanmugaraja Sethupathy
For Respondents : Mr.P.Veera Kathiravan
Additional Advocate General
Assisted by Mr.N.Ramesh Arumugam
Government Advocate
Mr.G.Suryananth,
Additional Government Pleader
COMMON ORDER
All the Writ Petitions in this batch have been filed challenging the
order passed by the Director of School Education, Chennai, thereby
relieving the petitioners from the respective posts and consequential
order passed by the Chief Educational Officers, Madurai District and
Dindigul District respectively thereby transferring and posting the
petitioners in the respective posts in the respective Schools.
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WP.(MD).Nos.27908 of 2023, batch
2.The petitioners were initially appointed as Block Resource
Teacher Educators (hereinafter called as “BRTE”) through Teachers
Recruitment Board. The post of BRTE was created under Sarva Shiksha
Abiyan Scheme. The purpose and object of the said scheme is to improve
the teaching skills of the Teachers. It also includes monitoring the
teaching methodology of the Government and Aided Schools upto the
level of eight Standard. The Government of Tamil Nadu, vide
G.O.Ms.No.16, School Education (Q2) Department dated 05.02.2002
approved the recruitment of BRTE for the year 2002-2003. At the time of
commencement of the said Scheme, the entire expenditure was borne by
the Central Government. Under G.O.Ms.No.94, School Education
Department dated 01.07.2002, a total number of 6285 posts of Block
Resource Teachers were sanctioned. By virtue of G.O.Ms.No.52, School
Education (C2) Department dated 30.03.2006, the General and Special
Rules applicable to the posts of BT Assistants were also made applicable
to Block Resource Teachers. The said G.O., is fully in force and the same
has not been challenged so far. Up to the recruitment year of 2010, a total
strength of 6285 posts were filled up. However, no recruitment in respect
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WP.(MD).Nos.27908 of 2023, batch
of Block Resource Teachers took place after the year 2010.
3.While so, the first respondent, vide G.O.1D.No.134, School
Education (Pa.Ka.5(1)) Department dated 18.08.2021 had framed
guidelines for the purpose of transfer counselling in BRTEs, which was
scheduled to be held on 20.09.2021. In the said G.O., Clause 4(I)(c),
mandates that all the posts should be treated as vacant posts and only on
that basis, transfer counselling should be held. As per Clause 4(I)(m) of
the said Government order, it is mandated that all the BRTEs working in
various places should be treated as 0% and on the basis of seniority
regardless of their willingness, they can be posted by way of transfer
through a counselling process. Particularly in Clause 4(I)(V), the
preference is directed to be given to 362 BRTEs who have participated in
the deployment counselling held for the year 2014-2015 on their own
consent. Generally preference would be given to the candidates who
were deployed on account of the administrative reasons and the same is
not applicable to the persons who participated in the counselling as per
their own accord.
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WP.(MD).Nos.27908 of 2023, batch
4.Normally when the transfer counselling is conducted, the person
whoever participated in the counselling in the earlier year, will not be
permitted to participate as they have already got transfered in the transfer
counselling. Likewise, the candidates who have participated in the
deployment at their own will is also not required to be given any kind of
preference and the same would deprive the right of other candidates.
Under such circumstances, contending that all the candidates should be
treated as equal and there is absolutely no reason to give preference to
the candidates who participated in the deployment counselling during
2014-2015, challenging the impugned Clause 4(I)(V) and Clause 4(III)
(ix) as illegal, several Writ Petitions came to be filed before this Court. A
batch of Writ Petitions in W.P.(MD)No.16884 of 2021, batch came to be
filed before this Court and this Court by its interim order dated
08.10.2021, passed the following directions:-
“(i) The writ petitioners shall participate in the
ensuing general transfer counselling for this academic year
and without prejudice to their rights, they can exercise their
option for the transferring place.
(ii) If any of the deployed BRT Educators opts for the
same place, under Clause 4(1)(A) and (III)(ix) of the said
Government order, the posting orders shall be kept in
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WP.(MD).Nos.27908 of 2023, batch
abeyance in so far as the particular place is concerned.
(iii) The submission made by the learned Additional
Advocate General with regard to the seniority list that the
Department has decided to revise the seniority of the
candidates as per the existing Government Orders is hereby
recorded.
(iv)The petitioners shall make application before the
respective Educational Authority stating that without
prejudice to their right, they are participating in the transfer
counselling.
(v) It is made clear that the above interim order is
applicable only to the present writ petitioners.
(vi) It is open to the respondents to proceed with the
general transfer counselling, if there is no other legal
impediment.”
5.Another batch of writ petition in W.P.(MD)No.16310 of 2021
filed before this Court came to be dismissed by an order dated
24.11.2021. The interim order passed by this Court directed the
respondents that, if the writ petitioners and the deployed group of BRT
are opting for same place then the posting order shall be kept in
abeyance. In so far as the particular place is concerned, the respondents
without giving opportunity to the petitioners to opt for the place which
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WP.(MD).Nos.27908 of 2023, batch
was already opted by the group of deployed 362 BRTEs, directed the writ
petitioners herein to participate in the said transfer counselling as
scheduled on 20.09.2021 to opt for the other places chosen other than by
the deployed 362 BRTEs. Accordingly, the writ petitioners participated in
the counseling and left with no other option, opted for Block Resource
Centers, which were shown in the counselling schedule. Even after that
the respondents without relieving the petitioners from those Block
Resource Centers where they had been serving before the date of
counseling allowed them to continue in the erstwhile Block Resource
Centers for the past more than two years from the date of counselling.
However, in the meanwhile, another batch of case in W.P.(MD)No.16884
of 2021, etc by an order dated 24.11.2021, was partly allowed and the
relevant portion of the same is extracted as follows:-
“35.Accordingly, Clause 4(1)(V) and Clause 4(III)(ix)
of the impugned Government Order in G.O.(1D)No.134,
School Education (Pa.Ka.5)(1) Department, dated
18.08.2021, inasmuch as giving priority to a set of BRTEs,
are quashed.
36.It appears that this Court, while entertaining the
writ petitions on 08.10.2021, has passed the following interim
order:~
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WP.(MD).Nos.27908 of 2023, batch
'14. ...
(i) The writ petitioners shall participate in the
ensuing general transfer counselling for this academic year
and without prejudice to their rights, they can exercise their
option for the transferring place.
(ii) If any of the deployed BRT Educators opts for the
same place, under Clause 4(1)(V) and (III)(ix) of the said
Government Order, the posting orders shall be kept in
abeyance insofar as the particular place is concerned
(emphasis supplied). ...'
Since this Court has now quashed Clause 4(1)(V) and
Clause 4(III)(ix) of the impugned Government Order in G.O.
(1D)No.134, School Education (Pa.Ka.5)(1) Department,
dated 18.08.2021, the respondents shall pass appropriate
posting orders.”
6.Though the aforesaid order has been passed by this Court in a
batch of 115 Writ Petitions, of which Writ Appeal was preferred only as
against the Writ Petitions in W.P.(MD)No.16884 of 2021, 19707 of 2021,
1499 of 2022 and 29050 of 2023 before the Hon'ble Division Bench of
this Court in W.A.(MD)Nos.2230 to 2242 of 2021, 699 and 1164 of 2022
and 1966 of 2023. The Hon'ble Division Bench of this Court by order
dated 07.11.2023 has set aside the order passed by the learned Single
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WP.(MD).Nos.27908 of 2023, batch
Judge in the aforesaid W.P.(MD)Nos.16884 of 2021 and 1499 of 2022
and the relevant portion of the same is extracted as follows:-
“4.The Government Order impugned itself denotes that
it is a guideline issued for the purpose of transferring the
Block Resource Teacher Educators working at various places
across the State of Tamil Nadu. Therefore, it is a policy
decision taken by the Government in the matter of providing
certain concession to 362 teachers working in the cadre of
Block Resource Teacher Educators, since they were affected
on account of earlier transfer orders occurred in the year
2014.
15.The next question arises, whether transfer gives a
right to a government employee. The answer would be that
transfer would not provide any right to a Government
employee. Transfer is an incidental to service, more so a
condition of service. When an offer of appointment has been
issued by the competent authorities, the acceptance of
appointment is implied that the transfers are agreed upon.
Employment is a contract between the employer and employee
and the transfer being incidental, the scope for challenge is in
narrow campus. Thus, when there is no right in the matter of
transfer and transfers are not affecting the service conditions
of an employee, the entertainability of the Writ Petition itself
is to be considered.
16.Transfer counselling is a policy decision extended by
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WP.(MD).Nos.27908 of 2023, batch
way of concession to the teaching staff in the Education
Department. The -concession- and -rights- are
distinguishable. Concession is a -privilege- extended, but
right is an entitlement. Thus, the concession cannot be
equated with the rights. The rights can be demanded, but
concession cannot be.
17.In the present case, the Government Order, which
was under challenge, is the guidelines issued for conducting
transfer counselling and by way of one time measurement
certain concessions were extended to 362 Block Resource
Teacher Educators, who have served about 7 years in a far of
place and submitted representations to the Government to
consider their cases in a sympathetic manner. The
Government thought fit to consider the grievances of those
teachers working in a far of place for several years and
accordingly, issued Government Order providing certain
concessions to those teachers under transfer counselling, as
one time measure.
18.Thus, it is also a policy decision taken by the
Government, which cannot be interfered with by the High
Court by exercising the powers of judicial review under
Article 226 of Constitution of India.
20.That being the factum, we are of the considered
opinion that transfer order issued through guidelines cannot
be construed as a cause warranting interference by the High
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WP.(MD).Nos.27908 of 2023, batch
Court in exercise of the powers of judicial review.
24.An employee is liable to be transferred at any place
and post. Post can never be claimed as status and the post is
not the choice of the employees and they are expected to
serve, wherever they are posted. The guidelines, transfer
policies or concessions are extended for the benefit of the
employees and in the interest of administration. However,
such guidelines would not confer an absolute right for an
employee to seek a particular place or post. The guidelines
are issued to minimize the discrepancies and therefore, such
discrepancies even if noticed would not provide cause for the
employees to assail the order of administrative transfers.
When the employees have no right to challenge the order of
transfer except on the limited grounds discussed by us in the
aforementioned paragraphs, they cannot indirectly challenge
the policy guidelines, which were issued for such transfers
and therefore, the very basis for the challenge is untenable.”
7.The aforesaid judgment of the Hon'ble Division Bench was also
confirmed by the Hon'ble Apex Court of India in SLP.Nos.27383 to
27384 of 2023 by an order dated 05.01.2024, thereby, dismissing all the
SLP petitions.
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WP.(MD).Nos.27908 of 2023, batch
8.In view of the same, this Court is of the considered view that the
Hon'ble Division Bench has categorically held that G.O.ID.No.134
School Education Department dated 18.08.2021 with all its Clauses in
enterity is a policy decision taken by the Government, in which as a one
time measure certain concessions were extended to 362 BRTEs, who
have served about seven years in far way places, who had submitted
representations to the Government to consider their case for transfer in a
sympathetic manner. Accordingly the Government though it fit to
ventilate the grievance of those Teachers working in far way places for
several years providing certain concessions to them.
9.Fully fortified by the aforesaid judgment, considering the fact
that the said G.O. has been upheld by the Hon'ble Division Bench of this
Court and the Hon'ble Apex Court of India in its entireity. The impugned
orders in these batch of Writ Petitions cannot be interfered with. The
respondents have not preferred any appeal as against the order passed by
the learned Single Judge in the Writ Petitions filed by these writ
petitioners except the writ petition in W.P.(MD)No.29050 of 2023. All
the writ petitioners together claimed that they were not heard before the
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WP.(MD).Nos.27908 of 2023, batch
Hon'ble Division Bench in the said Writ Appeal in W.A.(MD)No.699 of
2023. Pursuant to the order of the Hon'ble Division Bench dated
07.11.2023, the writ petitioners here in this batch were relieved from
their respective Block Resource Centers where they have been serving as
Block Resource Teacher Educators by the proceedings of the Director of
School Education, Chennai vide separate relieving orders impugned in
all these Writ Petitions issued in the month of November 2023.
Following which, the consequential orders were also passed by the
respective Chief Educational Officers of the respective districts, thereby
transferring and posting the writ petitioners herein in the respective posts
as opted by the writ petitioners herein during the transfer counselling
which was conducted on 20.09.2021. Challenging the aforesaid
impugned relieving and transfer orders, all these Writ Petitions came to
be filed by the writ petitioners, contending that the Hon'ble Division
Bench was pleased to allow the Writ Appeal by order dated 07.11.2023
setting aside the order passed by the Hon'ble Single Judge in W.P.
(MD)No.16884 of 2021 dated 24.11.2021 alone and that the Writ
Petitions filed by the writ petitioners has not been challenged so far.
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WP.(MD).Nos.27908 of 2023, batch
10.The learned counsel for the petitioners contended that the
aforesaid judgment will not bind the writ petitioners herein and the same
will apply only to the respective writ petitioner in W.P.(MD)Nos.16884
of 2021 and 1499 of 2022. It was further submitted on behalf of the writ
petitioners that the Hon'ble Division Bench has not given any specific
direction to relieve the petitioners from the existing place, while so the
third respondent has issued the impugned proceedings to relieve all the
BRTs who have been continuing in the same place after the counseling
conducted in the year 2021. Categorically contending that the impugned
orders passed on the basis of the order of the Hon'ble Division Bench
shall not hold good, as far as the writ petitioners are concerned, the
learned counsel for the writ petitioners vehemently contended to allow
the writ petitions by setting aside the impugned relieving orders and
transfer orders and sought for conducting fresh counselling.
11.The legality of the transfer guidelines framed by the
Government in respect of the Teachers working in the cadre of Block
Resource Teacher Educators, which is interchangeable with the post of
BT Assistant vide G.O.1D.No.134 dated 18.08.2021 has been tested
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WP.(MD).Nos.27908 of 2023, batch
finally before the Hon'ble Division Bench of this Court in W.P.(MD)No.
2230 of 2021, etc batch. Observing that the guidelines, transfer policies
or concessions are extended for the benefit of the employees and in the
interest of administration, the Hon'ble Division Bench categorically held
that the transfer guidelines would not confer an absolute right for an
employee to seek a particular place or post. Further the Hon'ble Division
Bench reiterated that the guidelines are issued to minimize the
discrepancies and therefore, such discrepancies even if noticed would not
provide cause for the employees to assail the order of administrative
transfers.
12.Having upheld the impugned G.O.1D.No.134 dated 18.08.2021,
the Hon'ble Division Bench has categorically held that the transfer orders
issued consequent to the guidelines has to be validated. That apart the
Hon'ble Division Bench has made it clear that the transfer orders issued
pursuant to the transfer guidelines have to be implemented uniformly to
all the teaching staffs irrespective of the fact whether they have instituted
separate writ proceedings or writ appeals. Such a categorical observation
would characterize the aforesaid judgment of the Hon'ble Division Bench
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WP.(MD).Nos.27908 of 2023, batch
as a judgment in rem. The aforesaid judgment of the Hon'ble Division
Bench is said to be in rem, since the same has adjudicated upon testing
the legality of the impugned G.O.1D.No.134, thereby deciding that the
impugned guidelines of transfer for BRTEs will never take away the
right, status, conditions of service of the BRTEs and has concluded that
the said G.O., is a policy decision of the Government to extend certain
concession as a privilege to a category of 362 Block Resource Teacher
Educators, who have served about seven years in faraway places. Since
the said judgment is a solemn declaration as to the fact that the impugned
G.O., will not take away the status, rights or conditions of service of the
writ petitioners or any other BRTEs, the same would be binding on all
the BRTs and hence the same is a judgment in rem. The contention of the
petitioners that the judgment of the Hon'ble Division Bench is only a
judgment in personnum and the same will not bind the writ petitioners is
hereby negated.
13.I am of the considered view that the said judgment of the
Hon'ble Division Bench would squarely cover the case of the petitioners
as well. In view of the same, the petitioners are permitted to continue in
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WP.(MD).Nos.27908 of 2023, batch
their respective post till 30.04.2024 and thereafter, join in the transferred
place on or before 07.06.2024. Accordingly, these Writ Petitions are
disposed of. Consequently, connected miscellaneous petitions are closed.
There shall be no order as to costs.
10.04.2024
NCC : Yes / No
Index : Yes / No
Internet : Yes
Mrn
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WP.(MD).Nos.27908 of 2023, batch
To
1.The Principal Secretary to Government,
Department of School Education,
Fort St. George, Secretaraiat,
Chennai – 600 009.
2.The State Project Director,
Samagra Shiksha,
D.P.I.Campus, Nungampakkam,
Chennai-600 006.
3.The Director of School Education,
EVK Sampath Maaligai, DPI Campus,
College Road, Nungampakkam,
Chennai – 600 006.
4.The Joint Director of School Education (Personnel),
EVK Sampath Maaligai, DPI Campus,
College Road, Nungampakkam,
Chennai – 600 006.
5.The Chief Educational Officer,
O/o, the Chief Educational Officer,
Madurai District,
Madurai.
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WP.(MD).Nos.27908 of 2023, batch
L.VICTORIA GOWRI, J.
Mrn
W.P.(MD)Nos.27908, 28620, 28655, 28709, 28710, 28711, 28712,
28713, 28714, 28715, 28723, 28736, 28737, 28738, 28739, 28740,
28770, 28771, 28772, 28773, 28774, 28775, 28776, 28777, 28778,
28779, 28780, 28781, 28782, 28783, 28784, 28785, 28786, 28787,
28788, 28789, 28790, 28791, 28792, 28793, 28794, 28795, 28796 and
29050 of 2023
10.04.2024
https://www.mhc.tn.gov.in/judis
