The Kerala High Court has observed that a transfer policy can only be questioned based on well-defined parameters when applied within a homogeneous group.

The Court said that if the Government prefers some individuals over others within the same group, disregarding the established norms' objectives, such action is deemed arbitrary.

In that context, the Bench of Justice Muhamed Mustaque and Justice Shoba Annamma Eapen observed that, "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."

These cases concerned the Kerala Administrative Tribunal's interference with a government order regarding the general transfer of teachers in Government Higher Secondary Schools (HSS) for the year 2023-24. The transfer policy became contentious due to unclear norms and the perceived neglect of seniority and service length.

The main issues were the extent of the Tribunal's authority to interfere with government transfer policies and whether the Tribunal's interpretation of transfer norms matched the government's intentions. Many teachers were assigned to schools far from their home stations and desired to return. Recognizing this, the government created a transfer policy allowing teachers to remain at their home stations for at least five years.

In 2017, the government defined "open vacancy" to facilitate transfers to home stations. The policy required teachers to select a home station, and failure to do so resulted in their current station being deemed as such. Teachers could change their home station once during their career. This policy was challenged in O.A.No.1019/2017, and the Tribunal found it arbitrary for restricting teachers who had left their home districts from transferring back based on their outstation service and seniority.

In response, the government revised the transfer norms in 2019, giving preference to teachers from their home stations over others but not completely prohibiting others from requesting transfers. This new policy was challenged in O.A.No.642/2022, with petitioners arguing for transfer consideration based on seniority and outstation service. The Tribunal directed the government to address grievances through a High-Level Committee but did not alter the home station preference clause.

Subsequently, the applicants filed a review petition, R.A.No.40/2023, and the Tribunal provided clarifications without granting the requested relief. The government then filed its own review application, R.A.No.2/2024, and the Tribunal ordered due weightage to outstation service but did not grant the requested transfers based on seniority and service length.

Alleging non-compliance, contempt proceedings were initiated. The government issued a new order on 16/2/2024, which was challenged in O.A.No.314/2024 as violating the earlier Tribunal order. The Tribunal ruled in favor of the challengers on 12/4/2024. Multiple petitions, including O.P.(KAT).Nos.192/2024, 193/2024, 219/2024, and 224/2024, followed, questioning the Tribunal's authority and interpretation of transfer norms, as well as the balance between government policy and judicial review.

The High Court observed that in the present 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."

Cause Title: Preethi GV vs Anidarsa K & Ors.

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Kerala High CourtJustice Muhamed MustaqueTransfer Policy

Ananya Soni