PREETHI G. V. Vs. ANIDARSA K.

JUDGEMENT

(1.) These matters are related to the orders passed by the Kerala Administrative Tribunal interfering with an order of Government related to general transfer of teachers in the Government Higher Secondary School (HSS) for the year 2023-24. The general transfer in the HSS once again became embroiled in litigation for lack of clarity of norms and also for the reason that it failed to address the grievances of many who felt their seniority and length of service have been ignored while evolving transfer norms by the Government. The questions that loom large in these cases are, to what extent the Tribunal can interfere with transfer policy decisions of the Government, and whether the exercise now carried out by the Tribunal interpreting clauses in the transfer norm are in a way intended by the Government or not. It seems that a large number of teachers who are appointed in HSS are posted in stations beyond their home stations. Many such teachers preferred to come back to their home stations. Therefore, the Government recognizing the importance of their wishes to come back to their home stations, evolved a transfer policy. The policy itself appears to have been formulated in such a way to allow such teachers to remain at home station at least for 5 years. The Government on 3/4/2017 evolved general transfer norms. In those transfer norms the Government defined open vacancy in such a way so as to honour the transfer request based on home station. Keeping in mind the objectives as above, it restricted transfer to open vacancy from outstation to home station alone. The open vacancy was defined as vacancy that would arise consequent upon completion of 5 years by such teachers in home station, retirement vacancies and newly created vacancies. As per the norms, an individual teacher has to select a home station. On failure of opting the home station, such teachers were deemed to have a home station where they were working as on the cut off date prescribed in the Government order dtd. 3/4/2017. The teachers also were given an option to change home station once during their service term. This was subject to challenge before the Tribunal in O.A.No.1019/2017. The Tribunal found that the teachers who were pushed away from their home districts will not be able to get transfer to the stations they opted for, as those who opted for their home districts will have priority, excluding them. The Tribunal noted that the total restriction for teachers who are thrown out from their home districts to get a posting in a nearby district also has been taken away by the transfer norms. Therefore, the Tribunal struck down the clause holding it as arbitrary as it prevented teachers who are thrown out from home station to come back to a district based on the length of outstation service and seniority. Keeping the spirit of the above order, the Government evolved a new policy norm for general transfer on 02/03/2019. In the new norms, the Government preferred options of transfer to home station from the teachers who are working outstation as against the teachers who do not belong to the home station. That means, there is no total prohibition for exercising the option of transfer to home station from other teachers. However, preference is given to teachers who belong to home stations. This was subjected to challenge in O.A.No.642/2022 before the Tribunal. Several grounds were raised to challenge the transfer norms. One of the prayers sought in the original application before the Tribunal was that all teachers who have completed their respective tenure for a transfer should be considered for transfer based on the seniority and outstation service to their choice of station. Tribunal disposed of O.A.No.642/2022 on 14/7/2023. The Tribunal directed the Government to place the grievances of the teachers before a High Level Committee in regard to implementation of 10% and 20% vacancies for compassionate and priority transfer. The Tribunal apparently had not interfered with the clause giving preference to teachers to opt for home station as against other teachers. Thereafter, the applicants in the original application filed a review petition, R.A.No.40/2023. The Tribunal on 21/8/2023 disposed of the review petition with certain clarifications. These clarifications are essentially in the light of earlier challenges related to matter. Anyway there was no express relief granted in terms of the prayer sought for by the applicants for considering them based on their seniority as well as their outstation service to opt for a place of their choice. The Government thereafter filed a review application (R.A.No.2/2024) in the original application. This review was disposed on 24/1/2024 by ordering that due weightage shall be granted to the outstation service while considering options exercised by teachers who are working in outstations. Apparently, no relief was granted in terms of the prayer sought for by the original applicants to consider them for the purpose of transfer in any place of their choice based on seniority and outstation service. Alleging non compliance, the contempt proceedings were initiated by the original applicants. It is at that juncture the Government passed a new order on 16/2/2024. The said order dtd. 16/2/2024 was challenged by Anidarsa K. and 22 others in O.A.No.314/2024 alleging that it was issued in violation of the direction in O.A.No.642/2022. Tribunal allowed the challenge by an order dtd. 12/4/2024 holding that this was in violation of the order in O.A.No.642/2022. The fifth respondent in O.A.No.314/2024 filed O.P.(KAT).No.192/2024. Respondent No.114 filed O.A.No.193/2024. The State also challenged the very same order in O.P.(KAT).No.219/2024. Finding that genesis of the order in O.A.No.314/2024 is traceable to the order in O.A.No.642/2022, the State filed O.P.(KAT).No.224/2024 challenging the orders in O.A.No.642/2022.

(2.) Three points arise for consideration in these matters. We shall briefly categorise these points for easy understanding. 2(i). Point No.1: The transfer norms now have been evolved by the Government after considering various parameters and responding to the grievances. There are two possibilities in this context: one possibility is interpreting clauses, and the other possibility holding such clause as arbitrary, as it discriminates against teachers who have been thrown out from home station to opt for stations of their choice based on outstation services they have rendered, this was done by the tribunal in O.A.No.1019/2017. The question that arises for consideration in this background is, should the tribunal or Court give deference to the wisdom of the Government in interpreting the transfer norms or not. The second part of this issue is, can a Tribunal and a Court hold that such a clause is arbitrary or discriminatory for the reason that the claim of teachers based on the length of outstation service and seniority to opt for a place of their choice have been overlooked. We shall address these questions after referring to the various clauses and norms evolving transfer policy of the Government and also in the light of order in O.A.No.1019/2017.

(3.) Discussion on Point No.1: The Government, while formulating the transfer policy of teachers, was conscious and aware that many teachers were working beyond their home station. The post of HSST is a State-wise post. They are engaged in all the districts in the State. Addressing the genuine concern of teachers to move back to their home district, the Government formulated transfer policy. The norm is very clear, it is to facilitate teachers to work at least 5 years in their home station. It is in this context the norm refers to the open vacancy. It is to be noted that the transfer policy also includes transfers based on compassionate , preferential and other categories. However, it appears that least priority was given to transfers based on seniority which was normally followed in general transfer. As a result of the transfer policy as above, many teachers who are working in outstation may not get posting in a place of their choice which may be near to their home station or a station where they may have more facilities. In an earlier round of litigation in O.A.No.1019/2017, a challenge was made as against restriction to claim transfer from outstation to other place of choices other than home station. Tribunal struck down the transfer norm holding it as arbitrary. We have serious doubt as to the proposition of law laid down by the Tribunal to hold that it is arbitrary. As we observed earlier, the home station norm was only to facilitate moving back to the home station for at least 5 years. It may be true that many working in hard stations may not get an option to move at least near to home station due to this restriction. The policy may be foolish or impracticable for many as they may feel that their length of outstation service or seniority have been ignored and many juniors who aspired to move back to home station would have primacy in such transfer. Merely for the reason that certain categories of teachers have not been accommodated, policy cannot be said to be arbitrary or discriminatory. The left out group may have genuine grievances; that does not mean policy is arbitrary and discriminatory. There is no fundamental right to claim for transfer to the place of their choice. Transfer policy can be only questioned on well-defined parameters while applying its norms in a homogeneous group. If the Government chooses or prefers a few as against others in the same group overlooking the objective of norms, then it can be said action is arbitrary,but norms continue to be valid.. In this case, home station aspirants fall into a separate group as the object of the policy is to facilitate them to move back to the home station group. The left out group cannot have equal aspiration to the home station of others based on their length of outstation service and seniority. The Tribunal, in O.A.No.1019/2017, struck down the norm as there was total denial of option for a station of the place of their choice. In the present norm, the Government diluted the earlier rigor of the norm by allowing all such left out groups to aspire for the station of their choice after the preference exercised by home station aspirants. In the absence of any challenge to the said norm, we may not be able to hold that this norm is arbitrary. As we already discussed, the object of the norm is only addressing the concern of home station aspirants. We cannot say that this norm is per se as arbitrary. We have already expressed our reservation on the proposition of law laid down in O.A. No.1019/2017. Anyway, the present norm is a modified norm after the issuance of the order in O.A.No.1019/2017. No challenge has been raised against the norm, and therefore, we cannot say that the norm is arbitrary or discriminatory. Arguments have been raised by the applicants in O.A.No.642/2022 that the clause 2(ii) was never intended to operate transfer to home station alone. Fallacy of this argument lies in the root of adjudication in O.A.No.1019/2017. The Tribunal in O.A.No.1019/2017, interfered with the norm in government order dtd. 03/04/2017 as the norm allowed , the home transfer optees alone to opt for transfer. That means, this norm is essentially covering the norm to home station transfer alone. It is to be noted that this norm referred under clause 2(ii) is in continuation of and part of norm fixing transfer for home station. Thereafter in government order dtd. 02/03/2019, clause 2(ii) was modified giving preference to outstation teachers. The reference to outstation has to be understood in relation to home station which has been chosen by a teacher as home station. That means for a teacher all districts would remain as an outstation other than home station. The clause 2 is not intended to be a transfer from outstation to other outstation, though such request will be considered after exhaustion home station transfer request.The stipulation "preference to outstation optees" in clause 2(ii) will have no meaning if it is not interpreted in relation to home station. It may be true that there is lack of clarity in clause 2(ii) of the norms as it did not refer to home station while referring to the eligibility for applying in open vacancy. It simply states that those teachers who have completed 3 years in regular service can apply for regular vacancies and their applications will be considered based on length of outstation service. This clause has to be read along with clause 2(i) which states that open vacancies will be created consequent upon teachers complete 5 years term in home station, post in which new Public Service Commission hands/new by-transfer appointees were appointed and also newly arisen vacancies. It is to be noted that apart from opting for home station, there are options for transfer based on other norms like on compassionate grounds, priority grounds and also in vacancies arising in normal channels, seniority is the norm for consideration for transfer to those choices. There are six categories of options for transfer, namely, (i.) Home station, (ii.) compassionate transfer list, (iii.) priority transfer list, (iv.) retirement transfer list, (v.) special category and (vi.) other transfer list. The norms will have to be interpreted in such a way preferred by the Government. It is the Government formulated norms. If the Government in its wisdom has formulated norms, if any doubt arises for interpretation of such norms, that should be left to the Government to decide. Unlike interpretation of statutory provision, the Tribunal or this Court cannot interpret the norm in such a way which the Government never intended to operate. The Government having taken the stand that clauses 2(i) & (ii) are intended to operate for home stations, there is no other form of interpretation.