Kerala High Court
The Honourable Mrs. Justice Shircy vs Petitioners/ on 4 August, 2017
Author: P.R. Ramachandra Menon
Bench: P.R.Ramachandra Menon, V Shircy
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON
&
THE HONOURABLE MRS. JUSTICE SHIRCY V.
MONDAY, THE 18TH DAY OF SEPTEMBER 2017/27TH BHADRA, 1939
OP(KAT).No. 356 of 2017 (Z)
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AGAINST THE ORDER/JUDGMENT IN OA 2841/2016 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 04-08-2017
PETITIONERS/RESPONDENTS 1 AND 2 IN O.A.
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1. STATE OF KERALA
REP.BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION
DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM
2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION
THIRUVANANTHAPURAM
BYADV. GOVERNMENT PLEADER SRI. ANTONY MUKKATH
RESPONDENT/APPLICANT AND 3RD RESPONDENT IN O.A.
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1. JAYAKUMAR G
HIGHERSECONDARY SCHOOL TEACHER (CHEMISTRY)
GOVT. HSS, KADUMEENCHIRA, PATHANAMTHITTA- 689 001
RESIDING AT KALA BHAVAN, ANNOOR, AMBALATHUMKALA P.O.
KOLLAM- 691 505
2. SIJI KRISHNAN
HIGHER SECONDARY SCHOOL TEACHER (CHEMISTRY)
GOVT. HSS, PORUVAZHI, KUNNATHOOR, KOLLAM- 690 522
R1 BYADV.SRI.P.NANDAKUMAR
THIS OP KERALAADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 18-09-2017, THE COURT ON THE SAME DAYDELIVERED THE
FOLLOWING:
OP(KAT).No. 356 of 2017 (Z)
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APPENDIX
PETITIONER(S)' EXHIBITS
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EXHIBITP1 ATRUE COPY OF THE ORIGINALAPPLICATION ALONG WITH
ANNEXURES A1 TO A7
EXHIBI P2 A TRUE COPY OF THE REPLY STATEMENT OF THE 2ND PETITIONER
(2ND RESPONDENT IN OA)
EXHIBIT P3 A TRUE COPY OF THE REJOINDER SUBMITTED BY THE 1ST
RESPONDENT (APPLICANT IN OA)
EXHIBIT P4 A TRUE COPY OF THE NOTIFICATION FOR GENERAL TRANSFER
2017-18
EXHIBITP5 ATRUE COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE
TRIBUNAL DATED 04-08-2017 IN OA NO.2841/2016
RESPONDENT(S)' EXHIBITS
----------------------- NIL
TRUE COPY
P.A TO JUDGE
SMM
P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.
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O.P(KAT)No.356 of 2017
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Dated this the 18th day of September, 2017
JUDGMENT
P.R. Ramachandra Menon, J.
The petitioners have approached this Court with the following prayers:
"i) To set aside the Ext.P5, interim order dated 04.08.2017 in O.A.No.2841/2016 of the Kerala Administrative Tribunal, Thiruvananthapuram and dismiss the Original Application.
ii) And to pass such other appropriate orders or directions which this Hon'ble Court deems fit and proper in the facts and circumstances of the case so as to secure the ends of justice."
2. The learned Government Pleader points out that as per Ext.P5 order passed by the Tribunal, the main relief sought for by the applicant in the O.A. has been virtually granted and that nothing further remains to be considered in the O.A; which made the State/Department to approach this Court by way of this Original Petition. O.P(KAT)No.356 of 2017 2
3. The learned Counsel who entered appearance on behalf of the first respondent submits that the transfer of the first respondent from GHSS Poruvazhi in Kollam District to GHSS Kadumeenchira in Pathanamthitta was under challenge in the earlier round of litigation by way of O.A.No.1475/2016. It is pointed out that, according to the first respondent, the posting given to the third respondent in the O.A was contrary to the transfer norms and that the same was at the cost of the first respondent which hence was under challenge.
4. Instead of properly considering the matter, the first respondent has been caused to be shifted, which was the grievance projected before the Tribunal as well. It is also pointed out that the third respondent in the present O.A had not turned up before the Tribunal and it was after taking note of the facts and figures, that the Tribunal passed Ext.P5 order.
O.P(KAT)No.356 of 2017 3
5. The main relief sought for in prayer No.ii) in the O.A is in following terms:
"ii) To direct respondents 1 and 2 to transfer and post the applicant at GHSS Poruvazhi as HSST Chemistry forthwith."
6. The interim relief sought for in the O.A was in the following terms:
"To direct the 2nd respondent to immediately repost the applicant as HSST Chemistry in GHSS Poruvazhi in Kollam district."
7. The interim order granted by the Tribunal as per Ext.P5 reads as follows:
"The learned counsel for the applicant submits that vacancies are there in GVHSS Kottankulangara and GAS HSS Puthenthura in Kollam District which is confirmed by the learned Government Pleader also. In that view of the matter, there will be a direction to the second respondent to pass an order reposting the applicant as HSST, Chemistry in GHSS Poruvazhi in Kollam district and to give a posting to the third O.P(KAT)No.356 of 2017 4 respondent either in GVHSS Kottankulangara or GAS HSS Puthenthura within a period of three weeks from the date of receipt of a copy of this order."
8. On going through the above proceedings, this Court does not require any second thought to hold that the relief now granted by the Tribunal as per Ext.P5, as an 'interim relief' is virtually the 'main relief' itself, which could not have been granted as an interim relief, in view of the law declared by the Supreme Court in Bank of Maharashtra v. Race Shipping and Transport Co.Pvt. Ltd (JT 1995 (3) SC 175).
9. In the said circumstance, we find that Ext.P5 order is not liable to be sustained anymore. Accordingly, Ext.P5 stands set aside and the matter is remitted to the Tribunal for fresh consideration after hearing the rival contentions raised by the parties on both the sides. Since the General Transfer 2017-18 is already on the anvil, we O.P(KAT)No.356 of 2017 5 express hope to have the O.A itself finally heard and decided as early as possible.
P.R. RAMACHANDRA MENON JUDGE SHIRCY.V JUDGE smm