(Prayer: Writ Petition is filed under Article 226 of Constitution of India, praying for issuance of a Writ of Certiorarified Mandamus, calling for the records of the 1st respondent in relation to Para 3 and 4 of order passed in G.O. 1(D) No.129 School Education (E1) Department dated 9.5.2013 and quash the same in so far as it permits transfer on promotional post from one Panchayat Union to another Panchayat Union by the District Educational Officer and in so far as the petitioner is concerned and quash the consequential order passed in Na.Ka. No.2013/ A2/2014 dated 19.6.2014 by the 3rd respondent and issue a consequential direction to the respondents 1 to 4 to promote the petitioner as B.T.Assistant (Maths) in Erode Panchayat Union as per the panel prepared as on 1.1.2014 with consequential service and monetary benefits.)

1. The petitioner challenges the order dated 09.05.2013 issued by the 1st respondent bearing G.O.(I.D) No. 129, School Education (EI) Department. By the said order, for the general transfer of teachers in Panchayat Union/Municipal/ Corporation Primary and Middle Schools and Government/Municipal Corporation High and Higher Secondary Schools guidelines were issued and whereby the transfer in relation to elementary education is concerned, the claim for transfer will be considered first within the Union /Municipality/Corporation and within the district, one union to another or to other Units.

2. The petitioner also challenges the order dated 19.06.2014 whereby the 5th respondent while working as B.T Assistant (Maths) in Panchayat Union Middle School, Vedikaran Palayam, Amapettai Panchayat Union was transferred to Panchayat Union Middle School, Manickampalayam , Erode Panchayat Union. The petitioner’s grievance is that while she was working as Primary School Headmistress, was empanelled for promotion to the post of BT Assistant (Maths) for the year 2014, however his prospects of promotion has been denied on account of transfer of 5th respondent, therefore this writ petition.

3. Heard the learned counsel for the parties concerned and perused the materials placed on record.

4. The Government Order in GO (I.D) No. 129 dated 09.05.2013 relating to guidelines for transfer of teachers of elementary education and as per the guidelines, the general transfer shall be considered on the basis of unit, which reads thus;

                   (A) Insofar as Elementary Education is concerned:-

                   (i) The claim for transfer shall be considered first within Union/Municipality/Corporation.

                   (ii) Within the District, one union to another or to other Units.

5. Invoking the said G.O, the 5th respondent who was working in panchayat union middle school as B.T Assistant (Maths) in the Panchayat Union Middle School Vedikaran Palayam, Amapettai Panchayat Union was transferred to Panchayat Union Middle School, Manickampalayam , Erode Panchayat Union where the petitioner was working as Primary School Headmistress. In light of the said transfer, the petitioner whose name was included in the panel for the year 2014 for promotion to the post of B.T Assistant (Maths) has been denied since there is no other vacancies in the said post.

6. The Government Order dated 09.05.2013 was considered by this Court in W.P. Nos.17040 and 17041 of 2014. By order dated 04.06.2018, this Court held that, when counselling is conducted to fill up posts in a particular Union, vacancies in the post of B.T. Assistant arising by way of promotion must first be filled through promotion, and only the remaining vacancies can thereafter be filled by transfer. This principle was laid down to ensure that the promotional rights of Secondary Grade Teachers who were eligible on the crucial date in a particular Union are not defeated by filling up the posts through transfer from other Unions.

7. Applying the said principle, this Court held that the petitioners therein had a valid claim and were entitled to the relief sought. At the same time, the Court took note of the fact that the private respondents were already occupying the posts on transfer on administrative grounds, though such posts ought to have been made available in the counselling for promotion of the petitioners. In order to balance the equities, the Government was directed to create two supernumerary posts of B.T. Assistant (English) in the fourth respondent institution and grant promotion to the petitioners therein.

8. The said order was challenged before the Division Bench of this Court in W.A. Nos.1164 and 1205 of 2019. By order dated 26.04.2019, the Division Bench set aside the direction issued by the learned Single Judge to the State to create supernumerary posts. However, the Division Bench directed that the second respondent therein be re-transferred to the respective Union from which they were transferred or to any other Union. It was further observed that it was incumbent upon the State to carry out the said exercise without any undue delay.

9. The learned Single Judge in W.P. Nos.17040 and 17041 of 2014 had categorically held that, for filling up the post of B.T. Assistant, the first mode of appointment must be by promotion, and only thereafter, if vacancies still remain, by way of transfer. In the present case, the fifth respondent was transferred from Panchayat Union Middle School, Vedikaran Palayam, Ammapettai Panchayat Union, to Panchayat Union Middle School, Manickampalayam, Erode Panchayat Union, and has been working there for more than eleven years as on date.

10. However, in order to provide an opportunity for promotion to the petitioner, it would suffice if the respondent-State considers the case of the fifth respondent for transfer to some other Union during the ensuing counselling, thereby enabling the petitioner’s claim for promotion to be duly considered in accordance with law.

11. Accordingly, the writ petition is disposed of with the following directions;

                   i. The respondents/State is directed to transfer the 5th respondent as B.T Assistant (Maths) to any other nearby Union in the ensuing counselling;

                   ii. The 5th respondent is also at liberty to make representation during counselling or by way of administrative exigencies, for the forthcoming academic year by posting him at a place of his preference where vacancy is available;

                   iii. In the event the 5th respondent is transferred to any other panchayat union, the respondents 1 to 4 are directed to consider the case of the petitioner for promotion to the post of B.T. Assistant (Maths) on its own merits and in accordance with law as per the panel drawn in the year 2011 and grant notional promotion to the petitioner from the said date with all attendant benefits, but without any monetary benefits;

                   iv. Consequently, connected Miscellaneous Petitions are closed. There shall be no order as to costs.