Madras High Court
K.Bharathi vs State Of Tamil Nadu on 27 August, 2019
Author: D.Krishnakumar
Bench: D.Krishnakumar
BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT
DATED : 27.08.2019
CORAM
THE HONOURABLE MR.JUSTICE D.KRISHNAKUMAR
W.P.(MD) Nos.14286 to 14289, 14516 to 14529, 14921, 16371, 18020,
18313 and 18324 of 2019
and
W.M.P.(MD) Nos.10727 to 10739, 10951 to 10989, 11437, 11438, 13007
to 13010, 14472 to 14474, 14755, 14757, 14760 and 14763 of 2019
in W.P.(MD) No.14286 of 2019
K.Bharathi ...Petitioner
Vs.
1.State of Tamil Nadu,
represented by its Principal Secretary,
Department of School Education,
Fort St.George,
Chennai 9.
2.The Director of School Education,
O/o. the Director of School Education,
DPI Complex,
Chennai 6.
3.The Joint Director of School Education (Higher Secondary),
O/o.The Joint Director of School Education (Higher Secondary),
DPI Complex
Chennai 6.
4.The Chief Educational Officer,
O/o. the Chief Educational Officer,
Virudhunagar,
Virudhunagar District.
5.The District Educational Officer,
O/o. the District Educational Officer,
Virudhunagar,
Virudhunagar District. ...Respondents
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PRAYER: Writ Petition filed under Article 226 of the Constitution of India, to
issue a Writ of Certiorarified Mandamus, to call for the records pertaining to
the impugned Government Order in G.O(1D).No.218 School Education
[Pa.Ka.5(1)] Department dated 20.06.2019 on the file of the first respondent
and quash the same as illegal in so far as condition No.9(i) and
consequently for a direction, directing the respondents to permit the
petitioner to participate in the General Transfer Counselling for the year
2019-20 in accordance with the Government Order in G.O.(1D) No.256,
School Education Department dated 19.04.2017 and G.O.(1D) No.403
School Education Department dated 29.05.2018 within the time period
stipulated by this Court.
For Petitioner : Mr.T.Lajapathi Roy
For Respondents : Mr.K.Chellapandian
Additional Advocate General
assisted by Mrs.S.Srimathy
Special Government Pleader
COMMON ORDER
These Writ Petitions have been filed to quash the Government Order passed in G.O(1D).No.218, School Education [Pa.Ka.5(1)] Department, dated 20.06.2019, on the file of the first respondent insofar as condition No.9(i) and Clause (5), omitting the relaxation available to the physically disabled candidates, are concerned and consequently for a direction, directing the respondents to permit the petitioners to participate in the General Transfer Counselling for the academic year 2019-20 in accordance with the Government Order passed in G.O.(1D) No.256, School Education Department, dated 19.04.2017, which granted relaxation to the disabled persons (Ortho.) http://www.judis.nic.in 2/15
2.Mr.T.Lajapathi Roy, learned counsel appearing for the petitioners would submit that the Government has passed a Government Order in G.O.Ms.No. 218, School Education [Pa.Ka.5(1)] Department, dated 20.06.2019, wherein, the Government has imposed a pre-condition of completion of three years of service in the present working place to participate in the General Transfer Counselling prior to 01.06.2019 and omitted the relaxation granted in the earlier Government Order in G.O.(1D) No.256, School Education Department, dated 19.04.2017, to the priority categories like, total blindness, heart transplantation surgery, kidney transplantation surgery etc, which according to the petitioners, affects their right of getting transfer and hence, the petitioners constrained to move the present writ petitions.
3. Condition 9 (i) and Clause 5 of the said Government Order read as follows:
"9(i) khWjy; fye;jha;tpy; fye;J bfhs;s jw;nghJ gzpg[hpa[k; gs;spapy; K:d;W Mz;Lfs; gzpg[hpe;J ,Uf;f ntz;Lk; (01/06.2019 md;iwa epiyapy;) cjhuzkhf 2018;?2019 Mk; fy;tpahz;oy;; bghJkhWjy; fye;jha;tpy; khWjy; bgw;w Mrpupah;fs; 2020;?2021 fy;tpahz;L tiu khWjy; fye;jha;tpy; fye;J bfhs;s ,ayhJ. ,e;j fye;jha;tpy; fye;J bfhz;L khWjy; bgWk; Mrpupah;fs; Fiwe;jJ K:d;W Mz;LfshtJ me;j gs;spapy; gzpahw;w ntz;Lk;. khzth;fsJ fy;tp eyd; nkk;gLj;jg;gLk; vd;fpw mog;gilapy; ,e;jf; fhyf;bfL eph;zapf;fg;gLfpwJ. ,J kdbkhj;j khWjYf;Fk; bghUe;Jk;.
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5.bjhlf;ff;fy;tpj; Jiw gs;spf;fy;tpj;Jiwapy; Vw;fdnt cgup Mrpupah; gzpapl';fs; (surplus post with person); cs;s epiyapy; myF tpl;L myF khWjy; kw;Wk; gpw Jiwapdupd; Jiw khWjy; bghJ khWjypy; guprPypf;f ,ayhJ.”
4. The common grievance of the petitioners is that because of the aforesaid conditions, they were deprived of the right of attending the General Transfer Counselling scheduled to be held for the academic year 2019-20. According to the learned counsel for the petitioners, Clause 4 of G.O.(1D) No. 256, School Education Department, dated 19.04.2017, stipulates that the teachers, who are appointed by deployment or by promotion, are entitled to attend the General Transfer Counselling for the academic year 2017-18. As per Clause 5 of the said Government Order, one year period has been exempted to the aforesaid priority categories for attending the counselling for the academic year 2017-18. Therefore, the learned counsel for the petitioners submitted that the said exemption granted to the priority categories for the academic year 2017-2018, be extended for the academic year 2019-20 also, so as to give an opportunity to the petitioners to attend the General Transfer Counselling scheduled to be held for the academic year 2019-20.
5.It is useful to extract Clause 4 and 5 of G.O.(1D) No.256, School Education Department, dated 19.04.2017 as follows:
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4.khWjy; fye;jha;tpy; fye;J bfhs;s jw;nghJ gzpg[hpa[k;
gs;spapy; 01/06/2016f;F Kd;dh; gzpapy; nrh;e;jpUf;f ntz;Lk;. vdpDk; 2016?17 Mk; fy;tpahz;oy; gzp eputy; bgw;wth;fs; kw;Wk; gjtp cah;t[ bgw;wth;fs; khWjy; fye;jha;tpy; fye;J bfhs;s mDkjp tH';fyhk;/
5.fPH;fhQqk; gpuptpdUf;F Xh; Mz;L gzpf;fhyj;jpypUe;J tpyf;fspf;fyhk;
1) Kw;wpYk; fz;ghh;itaw;wth;fs; (Total Blindness)
2) ,Uja khw;W mWit rpfpr;ir rpWePuf khw;W mWit rpfpr;ir bra;jth;fs; kw;Wk; ilahyprp!; rpfpr;ir nkw;nfhs;gth;fs;. (Heart Transplantation Surgery, Kidney Transplantation Surgery )
3) fLikahf ghjpf;fg;gl;l g[w;W nehahspfs;.
4) ,uhQqtj;jpy; gzpg[upgth;fspd; kidtp j';fspd; brhe;j ghJfhg;gf [ ; fUjp khWjy; nfhUgth;fs;.
5) tpjitfs; kw;Wk; 40 taijf; fle;j jpUkzk; bra;J bfhs;shj Kjpu; fd;dpah;
6) khw;Wj;jpwhdhspfs; rl;lk; 1995d; go 40# kw;Wk; mjw;F nkYk; Cdk; cs;s khw;Wj;jpwhdhspfSf;fhd rhd;wpjH; bgw;wth;fs; (khw;Wj;jpwhdhspfSf;fhd khtl;l kWthH;t[ mYtyuhy; rhd;wpjH; mspf;fg;gl;oUf;f ntz;Lk;)
7) kdtsu;r;rp Fd;wpa kw;Wk; khw;Wj;jpwhdhsp FHe;ijfs; cs;s bgw;nwhu; Mrpupah;fshf ,Ug;gth;fs;. mt;thW cs;s khw;Wj;jpwdhsp FHe;ijfs; khw;Wj;jpwdhspfs; rl;lk; 1995d; go 40# kw;Wk; mjw;F nkYk; Cdk; cs;sth;fshf ,Uf;f ntz;Lk;. nkYk; khw;Wj;jpwhdhspfSf;fhd khtl;l kWthH;t[ mYtyuhy; rhd;wpjH; mspf;fg;gl;oUf;f ntz;Lk;/"
6.The learned counsel appearing for the petitioners would further submit that the present policy decision taken by the Government deprived the rights of the petitioners for getting transfer and the Government has lost http://www.judis.nic.in 5/15 sight of the fact that the petitioners, who were joined in the respective schools by way of promotions or deployment in the year 2017, were not given sufficient opportunity to participate in the General Transfer Counselling for the previous academic years also i.e., 2017-18 and 2018-19.
7. The learned counsel appearing for the petitioners would further submit that for the academic year 2018-19, General Transfer Counselling was conducted in the month of June 2018 and thereafter, promotion and deployment orders have been issued to the respective teachers. Hence, the petitioners were not in a position to attend the General Transfer Counselling for the academic year 2018-19 in view of the Government Orders passed by the Government by stating that the candidates, who have completed one year service prior to 01.06.2018, only eligible to attend the General Transfer Counselling for the academic year 2018-19 and thereby, their rights were deprived of by the said Government orders. Therefore, an opportunity may be given to the petitioners to attend the General Transfer Counselling for the academic year 2019-20 for transfer.
8.The learned Additional Advocate General appearing for the respondents would submit that as per G.O.(1D) No.256, School Education Department, dated 19.04.2017, a minimum of one year service in the existing station was mandatory for all the candidates, who have joined duty prior to 01.06.2016, to take part in the General Transfer Counselling for the http://www.judis.nic.in 6/15 academic year 2017-18. The aforesaid condition was also relaxed to the following categories of teachers, which paved way only to the disabled persons and priority persons to get transfer to most of the vacancies every year.
i) Teachers with total blindness.
ii) Those, who underwent heart transplantation surgery, kidney transplantation surgery and those, who are undergoing dialysis treatment.
iii) Severely affected cancer patients.
iv) Spouse of service personnel in Army seeking transfer for their personal safety purposes.
v) Widows and spinsters, who crossed the age of 40.
vi) Physically challenged persons, who possess a disability certificate for 40% of disability and above from the competent authority.
vii) Those, who have mentally retarded and physically challenged children with more than 40% disability with necessary certificate from the designated authority.
9. Further, many teachers who are comes under the aforesaid category, applied and got transfers every year without caring about the learning students in the Government Schools and the students are deprived of the opportunity of being taught by the experienced teachers. Hence, the Government took a policy decision in the year 2018-19 that the teachers, who are getting transfer orders should work in the same school atleast for a period of three years to bestow their efforts. The said condition is also stipulated in condition 8 (ii) of G.O.Ms.No.403, School Education (SE5) Department, dated 29.05.2018.
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10. Further, the learned Additional Advocate General would submit that because of the relaxation of one year minimum service for attending Transfer Counselling granted in the year 2017-18 to the disabled persons and some priority persons, other non-priority candidates were not able to get transfer. The said relaxation paved way only to the priority category candidates to get transfer in the coming years again and again for the limited vacancies. Hence, the Government has taken a policy decision to withdraw the said relaxation given to the disabled persons and other priority persons. Hence, in the subsequent government Order vide G.O.Ms.No.403, School Education (SE5) Department, dated 29.05.2018, the said relaxation of one year of minimum service in a school for certain category of teachers, was not given, in order to give an opportunity to the non-priority candidates also, to get a chance of transfer in the Transfer Counselling.
11. Further, the learned Additional Advocate General would submit that the G.O.(1D) No.403, School Education (SE5) Department, dated 29.05.2018, which had similar provisions of 3 years service period for the teachers, who got transfer in the previous counselling, has been upheld by this Court in W.P.(MD) No.16016 of 2018, dated 29.06.2018, wherein, the this Court has held as follows:
4.It is not in dispute that the aforesaid guidelines issued is a policy decision of the Government to regulate the transfer. The same is not contrary http://www.judis.nic.in 8/15 to any statutory rule. As such, the fixation of cut of date for transfer cannot be said to be illegal and arbitrary. Admittedly, the petitioner has joined in the promotional post from which, he seeks transfer on mutual ground though joined after the aforesaid cut of date. So, he was not eligible to be called for counselling for transfer. The petitioner's contention that even if he has joined after the cut of date, there being no fetter to transfer one from a post on administrative ground and the case of the petitioner being one of mutual transfer, the said cut off date as such cannot stand on his way for being called for counselling for transfer. Such contention of the petitioner, appears to be without any substance, in as much the transfer of the petitioner is not for an administrative exigency. For transfer on administrative exigency no counselling is required. Therefore, the petitioner admittedly, being not in the post on or before cut off date, as prescribed making him eligible for transfer, even if he has applied for transfer on mutual ground, he has made out no case to be considered in the counselling for mutual transfer and as such rightly not called for counselling. Hence, this writ petition filed challenging such action of the respondents in not including the petitioner for transfer counselling for the year 2018-19 is without any substance. Therefore, I am not inclined to issue notice and seek a response from the respondents to file a counter affidavit and dismiss this writ petition at the state of admission itself.
12. Further, the learned Additional Advocate General would contend that the administrative decision with regard to transfer of Government Servants is not only an incident of service but also a condition of service.
Therefore, the petitioners cannot have any legal right to challenge the period of three years fixed by the Government for transfer in G.O(1D).No.218, School Education [Pa.Ka.5(1)] Department, dated 20.06.2019. He also contended that the Hon'ble Supreme Court in so many cases, has held that the policy decision of the Government shall not be interfered. http://www.judis.nic.in 9/15
13. The learned Additional Advocate General has produced a letter No. 21787/SE5(1)/2019-1, dated 26.08.2019, School Education Department, Secretariat, Chennai 9 and the relevant paragraph of the same is as follows:
3.The frequent transfers of priority category teachers by virtue of the relaxation provision seriously affected the learning outcome of the students. Moreover retaining a teacher for a minimum period of three years in the same school will make the teacher get more acquainted with the learning skills of the students and to bestow her utmost sincere efforts for the effective learning of the students. Therefore, the Government considering the welfare of the students, had consciously removed the relaxation clause in the Government Order issued for transfer counselling in the subsequent years 2017-2018, 2018-19 and the current academic year 2019-20. However, as already stated in the letter 2nd cited, the Government is actively considering to restore the relaxation provision in para 5 of the said G.O.(1D) No.256, School Education Department, dated 19.04.2017, to the priority categories teachers and orders of the Government will be issued as expeditiously as possible.
14. Heard the learned counsel on either side and perused the materials available on record.
15.It is revealed from the entire records that the petitioners are employed as Teachers in the respective Schools and were posted by deployment or by promotion in the respective school in the academic year 2017-18 and 2018-2019. According to the petitioners, vide G.O(1D). No.218 http://www.judis.nic.in 10/15 School Education [Pa.Ka.5(1)] Department, dated 20.06.2019, the rights of the petitioners were deprived of from attending the General Transfer Counselling scheduled to be held for the academic year, 2019-20. However, as per Clause 4 and 5 of G.O.(1D) No.256, School Education Department dated 19.04.2017, the persons who have joined prior to 01.06.2016 alone are eligible to attend the General Transfer Counselling for the academic year 2017-18. However, the persons, who are all appointed by way of promotion or by way of deployment in the academic year 2016-17 are also eligible to attend the General Transfer Counselling for the academic year 2017-18. But, the condition 9(1) of impugned Government Order, stipulates that the persons, who are all appointed under the category of deployment or by promotion for the academic year 2017-18 are not eligible to attend the present General Transfer Counselling for the academic year 2019-20 and they are eligible to attend the General Transfer Counselling for the academic year 2020-21, on completing three years of service in the same station.
16.Similarly, for the academic year 2018-19, General Transfer Counselling was conducted in the month of June, 2018, and thereafter, promotion and deployment orders have been issued to respective teachers. Hence, they are not eligible to attend the General Transfer Counselling for the academic year 2019-20 and eligible to attend the General Transfer Counselling for the academic year 2021-22 only, as per the impugned http://www.judis.nic.in 11/15 Government Order, dated 20.06.2019. In the previous years, the persons, who are all coming under the aforesaid Categories, as stated above, were given one year exemption to attend the General Transfer Counselling. However, in the present impugned Government Order, one year exemption was not given to the aforesaid Categories and the condition of three years of service in the same station is applicable to all the teachers, irrespective of the priority category and the aforesaid categories as mentioned in earlier paragraphs. Therefore, the rights of the petitioners were deprived of and hence, the petitioners could not participate in the general transfer counselling for this academic year.
17. Therefore, in the interest of justice, this Court is inclined to modify the condition 9(i) of the G.O(1D).No.218 School Education [Pa.Ka.5(1)] Department dated 20.06.2019 and Clause (10), omitting the relaxation available to the physically disabled candidates, with the following directions:
i) The petitioners, who are all coming under the categories of deployment or by promotions for the academic year 2018-2019, not completing one year of service in the present working place, are entitled to attend the General Transfer Counselling to be held for this academic year 2019-20, provided they have not attended the General Transfer Counselling prior to 1.6.2019 as per the impugned order passed by the respondent.
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ii) The petitioners, who are all coming under the categories of deployment or by promotions for the academic year 2017-2018, not completing one year of service in the present working place as on 1.6.2018, are entitled to attend the General Transfer Counselling to be held for this academic year 2019-20, provided they have not attended the General Transfer Counselling prior to 1.6.2019 as per the impugned order passed by the respondent.
iii) Clause 10 of the impugned order relates to priority category, the Secretary to Government is directed to pass appropriate orders, in view of letter No.21787/SE5(1) 2019-1, dated 26.8.2019, School Education Department, Secretariat, Chennai-9, within a period of two weeks from the date of receipt of a copy of this order.
iv) If any of the writ petitioners have not submitted their applications so far to seek their remedy, they are at liberty to submit their applications before the appropriate authority within a period of one week from the date of receipt of a copy of this order. This order is applicable only to the writ petitioners herein.
v) In the light of the aforesaid order, after receiving such applications from the writ petitioners, the authority concerned shall permit the writ petitioners to the forthcoming General Transfer Counselling for the academic year 2019-20, if they are otherwise eligible.
18. It is made clear that this order is applicable for the General Transfer Counselling to be conduced for this academic year, 2019-20 alone and the same is not a precedent in future. These writ petitions are disposed http://www.judis.nic.in 13/15 of accordingly. No costs. Consequently, connected miscellaneous petitions are closed.
Index : Yes /No 27.08.2019
Internet : Yes / No
mm
To
1.The Principal Secretary,
Department of School Education,
Fort St.George,
Chennai 9.
2.The Director of School Education,
O/o. the Director of School Education,
DPI Complex,
Chennai 6.
3.The Joint Director of School Education (Higher Secondary), O/o.The Joint Director of School Education (Higher Secondary), DPI Complex Chennai 6.
4.The Chief Educational Officer, O/o. the Chief Educational Officer, Virudhunagar, Virudhunagar District.
5.The District Educational Officer, O/o. the District Educational Officer, Virudhunagar, Virudhunagar District.
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mm W.P.(MD) Nos.14286 to 14289, 14516 to 14529, 14921, 16371, 18020, 18313 and 18324 of 2019 27.08.2019 http://www.judis.nic.in 15/15