NIMISHA V.S. Vs. STATE OF KERALA

JUDGEMENT

(1.) This writ petition is filed by the petitioner a Lower Primary School Assistant (L.P.S.A) working with the 5th respondent Corporate Management, seeking to quash Ext.P8 order passed by the Assistant Educational Officer, Kattakkada dated 14.05.2012, whereby the transfer order of the petitioner from LMLPS, Arivarikuzhi, Kattupuram, Thiruvananthapuram District and posted as L.P.S.A in Lutheran LPS, Perumana with effect from 20.12.2010 onwards was rejected holding that the transfer of the petitioner is against the shift system lifting vacancy, and in the order of lifting system, it is mentioned that the resultant vacancies are only to be filled up by the protected teachers or thrown out teachers of the same school, and therefore, the transfer order is in violation of the above order. Being aggrieved, petitioner has preferred a revision and as per Ext.P14 order, the State Government have affirmed the order passed by the Deputy Director. It is thus challenging Exts.P8 and P14 orders, this writ petition is filed. Brief material facts for the disposal of the writ petition are as follows:

(2.) Petitioner was appointed as L.P.S.A in L.M.L.P.S., Arivarikuzhy on 06.07.2006 in the transfer vacancy of one Smt. Shyna J.S., evident from Ext.P1. According to the petitioner, the transfer vacancy of Smt. Shyna was approved by the educational authority and the salary was drawn. While the petitioner was continuing in the school in the post of L.P.S.A, there arose dispute between two divisions in Trivandrum Synod regarding the administration of the 5th respondent Management, one Manager so appointed by the Committee of the Synod ousted the petitioner and others from service as per an order dated 31.05.2007, produced as Ext.P2. Later, the appointment of the said person as Manager was set aside and the appointment of another Manager viz., Rev.Alfred for the period from 08.06.2005 to 07.06.2008 was approved, which was challenged by the previous Manager Rev. R. Vijayakumar in W.P.(C) No.7848 of 2005 before this Court, which was dismissed and aggrieved, the said person has preferred W.A.No.2311 of 2006 and as per Ext.P3 judgment dated 01.07.2008, the appointment of Rev. R.Vijayakumar with effect from 02.07.2007 is approved, and also held that Rev. C.H.Alfred cannot function as Manager after 19.11.2007, the date of approval of appointment of Rev. R. Vijayakumar by the DPI. Therefore, according to the petitioner, the termination of the petitioner is illegal and without jurisdiction and the petitioner is declared to be a claimant under Rule 51(A) of Chapter XIV-A of the Kerala Education Rules.

(3.) However, due to the abolition of shift system in Lutheran L.P.S., Perumana of the 5th respondent Management an additional post was allowed during 2010- 2011, and a permanent teacher viz., Smt. Anitha R. from L.M.L.P.S, Arivarikuzhi was transferred against the additional post and the resultant vacancy in L.M.L.P.S was filled up by the 5th respondent by appointing the petitioner to the post of L.P.S.A from 20.12.2010 as per order dated 15.12.2010, evident from Ext.P4. However, petitioner entered on maternity leave from 05.07.2011 to 30.12.2011 and on the expiry of the leave, requested for appointment, and the 5th respondent posted the petitioner to L.M.L.P.S., Perumana against the existing vacancy post with effect from 20.12.2010 as per Ext.P4. The transfer of Smt. Anitha has not been approved by the Assistant Educational Officer, Kattakkada, Thiruvananthapuram, evident from the order bearing No.D/6176/2010 dated 06.06.2011 and Smt. Anitha has been re-transferred from L.M.L.P.S., Perumana to L.M.L.P.S., Arivarikuzhy, retaining the lien of the petitioner in L.M.L.P.S., Perumana. The Corporate Manager appointed the petitioner to the post of L.P.S.A in L.M.L.P.S., Arivarikuzhy with effect from 01.06.2011 as per Ext.P5 order dated 01.06.2011. Ext.P4 transfer order was not approved and the 5th respondent Manager issued an order dated 14.07.2011, re-transferring Smt. Anitha to L.M.L.P.S., Arivarikuzhy, evident from Ext.P6.