The Tamilnadu Postgraduate Teachers Association vs The State of Tamilnadu

M.M. Sundresh, J.—Both these writ petitions have been filed by the Post Graduate Teachers Association having common grievance over the ongoing counselling being held today for the purpose of fixing the place of working of teachers.

The learned counsel for the petitioners submitted that representation has been made seeking transfer. Without considering the same, counselling is being conducted for the purpose of accommodating direct recruitees and promotees. Therefore, before passing final orders of transfer, case of the members of the petitioners will have to be considered.

Per contra, learned Special Govt. Pleader submitted that the members of the petitioners do not have vested right to seek transfer as they are incidental to service. Writ petition as filed is not maintainable in law, since petitioners cannot file them on behalf of their members whose grievance is one of transfer. This Court has already rejected the case of various teachers in W.P. No. 12326 of 2009, dated 5.11.2009. As per the Government Order passed in G.O.Ms. No. 10 Personnel and Administrative Reforms (Personnel''s) Dept., dated 7.1.1994, a teacher cannot seek transfer during non-transfer period in the interest of the students. Since the present period is non-transfer one, request of the petitioners cannot be considered. The counselling is being held for the placement of 450 direct recruitees who have been selected and in consequence of the Government order in G.O.Ms. No. 10, supra, dated 7.1.1994 by which upgradation of schools was made from High School to Higher Secondary School. Such a decision made by way of administration is also policy one cannot be interfered with by this Court.

As rightly submitted by the learned Special Govt. Pleader transfer being incidental to service, members of the petitioners do not have vested right to insist that they should be posted in particular place. Admittedly, the present period is non-transferable period. The transfers pertaining to the members of the petitioners are governed by G.O.Ms. No. 10 supra, dated 7.1.1994. The relevant portion of the order reads as follows:

ONLY:

(i) As a general policy, all transfers due shall be effected only during the "transfer period". Namely, between the 1st April and the 30th June, every year. But the transfer proposals including transfers on request to vacant posts and mutual transfers on request to vacant posts and mutual transfers may be processed and kept ready for issue of orders towards the end of, or immediately after the close of, the financial year. In cases where orders of transfer are to be issued by the Government under normal procedure, the Heads of Department should send proposals sufficiently in advance so as to effect the transfers during the transfer period.

(ii) (a) During the "non-transfer period", namely, between the 1st July and the 31st March next, transfers necessitated on account of promotion including recruitment by transfer (which has the effect of promotion) may be ordered, i.e., direct to the place where the junior most in that category is working or where vacancy already exists.

Considering the very same issue, this Court in W.P. No. 12326 of 2009, dated 5.11.2009 was pleased to held as follows:

"4 First of all, such a writ petition is not maintainable. The petitioners belong to the state level service and hence, they are liable to be posted to any part of the State. It is for the sake of convenience, the Government makes general transfer during the end of the academic year and preference of teachers were also taken into account while effecting such transfers. That government guidelines cannot be raised to the level of an enforceable order as if right has enured to the benefit of teachers. This Court has already held that no direction can be given either for effecting transfers or making transfer only through counselling so long as transfer is a condition of service. If any such transfer takes place, it is for the petitioners to abide by such transfers. In doing so, if the Government has made any guidelines, it is for the Government to implement those guidelines and it is not for this Court to direct the Government to implement those guidelines and it is not for this Court to direct the Government to enforce such guidelines through a writ of mandamus which are neither statutory nor enforceable."

Therefore, this Court is of the view that petitioners are not entitled to the relief sought for.

In the case of any counselling is being conducted in order to accommodate teachers who have been selected as Direct Recruits and also in pursuance to the upgradation in accordance with G.O.Ms. No. 10, supra, dated 7.1.2014, members of the petitioners cannot be accommodated during non-transfer period as students would very much be affected. The purpose of counselling is also different and hence petitioners cannot insist that transfer of their members will have to be considered.

The request of the members will be considered at the time of transfer during transfer period every year.

Accordingly, the writ petition is dismissed. No costs. Consequently, connected M.P. No. 2 of 2014 is also dismissed.

However, the dismissal of the writ petition will not stand in the way of the petitioners approaching the respondents for transfer for the ensuing transfer period.