The court emphasized the government's discretion in formulating transfer norms, asserting that selectively prioritizing home station applicants does not render the policy arbitrary or discriminatory.

Headnote:(A) Transfer policy regulation - Government order dated 03/04/2017 and norms dated 02/03/2019 - Issues regarding transfers of teachers, especially concerning the home station, seniority, and outstation service. The Tribunal's jurisdictional authority to interpret and interfere with the transfer policies can be questioned based on arbitrary grounds following prior judgments. (Paras 2, 3, 4, and 5)

(B) Jurisdictional authority of the Tribunal - Examination of the legality of transfer norms and their alignment with established policies. The failure to provide clear criteria for consideration of transfers raises concerns of jurisdictional oversight by the Tribunal.

(C) Non-joinder of parties - Procedural implications when many individuals may be affected by Tribunal decisions. A review of procedures is called for to include notice to potentially affected parties through Departmental communications.

(D) The court mandates the Government to ensure proper consideration of length of service and seniority for outstation teachers in transfer lists post-home station applications.

Result: Orders set aside; transfer policies to respect seniority.

JUDGMENT

Dated this the 13th day of June, 2024 “C.R.”

A.MUHAMED MUSTAQUE (J)

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 dated 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 compassion

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2024 Supreme(Online)(Ker) 73365

The court emphasized the government's discretion in formulating transfer norms, asserting that selectively prioritizing home station applicants does not render the policy arbitrary or discriminatory.

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