Transferring TSC teachers to Public Service Commission is illegal, rules Court

The Labour and Industrial Relations Court has declared the transfer of teachers from the Teachers Service Commission (TSC) to the Public Service Commission (PSC) illegal. 

The court ordered the reinstatement of salaries of two tutors Evans Morara Nyangongo and Charles Moraro Mogunde who had been interdicted for declining to move from TSC.

Justice Christine Baari of Kisumu said the transfer was unconstitutional in the face of an earlier declaration by another court that rendered a government circular authorising such transfers as null and void.

“On whether the rights of the two teachers were violated, it goes without saying that the circular under which the two teachers were transferred having been declared unconstitutional, any action emanating therefrom cannot be said to be lawful, as nothing legal comes out of an illegality,” Justice Baari ruled referring to the controversial Circular No. 17/2018 that was first rendered unconstitutional by the Labour Court in Nairobi through Petition Number 97 of 2018.

Through the circular, TSC directed that lecturers, teachers, instructors, trainers, and institutional administrators who were on the TSC payroll as of June 30, 2018, have their services transferred to the Ministry of Education under the PSC with effect from August 1, 2018.

Justice Baari ordered that the two teachers be allowed to report back to work immediately and slapped the government entities they sued with the costs of the case.

She, however, declined the teachers’ request for special damages, as they had not proven that they were dismissed from their positions.

The teachers argued that they were employees of the TSC having been appointed as such on various dates between 1998 and 2009.

Nyangongo said he taught Biology and Agriculture at Eronge, St Mathias, KipchimChim, Kenyoro, Kebabe, Nyamauro, and Keng’uso Secondary Schools, among others, where he served as assistant teacher, head of various departments, and deputy principal, and transfers to all these institutions were made legally.

Mogunde on the other hand, taught Chemistry and Physics at Naigera Secondary School before being transferred by TSC to Mawe Technical Training Institute.

They sued the Education Cabinet Secretary and Principal Secretary, the Attorney General, PSC, TSC among other government entities seeking several reliefs, including declarations that their transfer was illegal and unconstitutional, and damages for breach of their constitutional rights.

They argued that the transfer of their employment from TSC to the PSC without their involvement violated their rights under the Constitution and employment laws. 

They contended that the transfer changed their job descriptions and denied them the benefits and privileges they were entitled to as TSC employees.

The teachers argued that they suffered inconceivable mental torture, anguish, and distress that undermined their inherent dignity following the forceful transfer.

In a rebuttal, the respondents defended the transfer, stating that it was lawful and necessary for the efficient operation of vocational and technical training institutions.

They argued that the two teachers’ employment was properly managed by the Ministry of Education and the PSC.

The respondents argued that the consequential effects of stopping the two teachers’ salaries, particularly on paid-up memberships to various voluntary labor organisations, did not amount to violation of their rights.