IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE T.R.RAVI
TUESDAY, THE 05TH DAY OF JANUARY 2021 / 15TH POUSHA, 1942
OP(KAT).No.3 OF 2021
AGAINST THE ORDER/JUDGMENT IN OA 403/2020 DATED 18-12-2020 OF
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 & 2 IN O.A.:
1 THE SECRETARY TO GOVERNMENT
INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM, PIN-695 001.
2 THE DIRECTOR OF INDUSTRIES AND COMMERCE,
DIRECTORATE OF INDUSTRIES AND COMMERCE, VIKAS BHAVAN,
3RD FLOOR, UNIVERSITY OF KERALA, SENATE HOUSE CAMPUS,
PALAYAM, THIRUVANANTHAPURAM
BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH
RESPONDENTS/APPLICANT/3RD RESPONDENT IN O.A.:
1 BIJU KURIAN
AGED 49 YEARS, S/O C.G.KURIAN,
GENERAL MANAGER, DISTRICT INDUSTRIES CENTRE,
IDUKKI-685 602, RESIDENT OF BABYS BUNGLOW,
AMPALTHUMKALA P.O., EZHUKONE, KOLLAM-691 505.
2 P.P.SURESH
GENERAL MANAGER, NOW UNDER ORDERS OF TRANSFER TO
DISTRICT INDUSTRIES CENTRE, IDUKKI-685 602,
PRESENTLY WORKING AT DISTRICT INDUSTRIES CENTRE,
WAYANAD-673 122.
ADVS. SRI.P.NANDAKUMAR,
SRI.M.FATHAHUDEEN
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 05.01.2021, THE COURT ON THE SAME DAY DELIVERED THE
FOLLOWING:
OP(KAT).No.3 of 2021
2
ALEXANDER THOMAS & T.R.RAVI, JJ.
=============================
O.P (KAT) No.3 of 2021
[Arising out of order dated 18.12.2020
in O.A.No.403 of 2020 of KAT, Tvm. Bench]
=============================
Dated this the 05th day of January, 2021
JUDGMENT
ALEXANDER THOMAS, J.
The prayers in the aforecaptioned Original Petition filed under Article 226 & 227 of the Constitution of India are as follows:
"1. To set aside Exhibit P5 Order dated 18.12.2020 of the Kerala Administrative Tribunal in O.A. No.403/2020.
2. To issue other reliefs, this Honourable Court may deem fit in the Original Application."
2. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners-Secretary to Government in the Industries Department and the Director of Industries and Commerce and Sri.P.Nandakumar, learned Advocate instructed by Sri.M.Fathahudeen, learned counsel appearing for the 1st respondent/original applicant before the Tribunal. In the nature of the orders proposed to be passed by this Court in this Original Petition, notice to the 2 nd respondent will stand dispensed with.
3. The above Original Petition arises out of the impugned Ext.P7 final order dated 18.12.2020 rendered by the Kerala Administrative OP(KAT).No.3 of 2021 3 Tribunal, Thiruvananthapuram Bench in O.A. No.403/2020 filed by the contesting respondent No.1 herein. The Tribunal, as a matter of fact, rendered the impugned Ext.P7 as a common order on 18.12.2020 in the present O.A. viz; O.A.No.403/2020 as well as another original application, viz; O.A. No.718/2020, both filed by the same applicant, viz; contesting respondent No.1 herein. The present O.A.No.403/2020 was regarding the impugned Annexure A2 transfer order dated 20.02.2020 issued by the Departmental authorities concerned ordering the transfer of the contesting respondent No.1 (petitioner herein) from his current station at Idukki to Wayanad, whereas the subject matter of the challenge in the latter O.A. viz; O.A.No.718/2020 was against the order issued by the authorities concerned suspending the original applicant from service.
4. We are now concerned only with the issues in relation to O.A.No.403/2020 as far as the present original petition is concerned. The contesting respondent No.1 herein will be referred to hereinafter for convenience as the original applicant/applicant. The applicant is presently holding the post of Joint Director in the Department of Industries and Commerce, Government of Kerala. It is pointed out that he was promoted and posted in the present station at Idukki as General Manager, District Industries Centre as per Annexure A1-G.O.(Rt)No.810/2017/ID dated 13.06.2017 and pursuant to that he joined duty in the said Station at Idukki OP(KAT).No.3 of 2021 4 on 31.06.2017. The applicant is stated to be a native of Kottarakkara in Kollam District and his wife is a Veterinary Surgeon in Government service and is posted in Kollam District. According to the applicant, he has 13 years of out station service vis-a-vis he preferred his home station at Kollam District in Kollam, out of his total service of 16 years and further that he has worked in eight different districts including two hilly terrain districts, one at Wayanad and later the present posting at Idukki district. Further that he has served in his home district viz., at Kollam only for 3 years. According to the applicant, he has been consistently seeking for transfer to the home district based on the applicable Government norms and had also filed O.A.No. 1263/2017 before the Kerala Administrative Tribunal, Thiruvananthapuram in which Annexure A3 order dated 13.07.2017 was rendered by the Tribunal, whereby the competent authority of the State Government, Industries Department was directed to take a decision on his representation for posting in Kollam. It appears that later by Annexure A4 order dated 28.07.2018, the applicant was transferred to Kozhikode and a new promotee was posted in his place, whereupon he was constrained to file O.A.No.1455/2018 before the Tribunal, in which the said Tribunal has rendered Annexure A5 final order dated 07.11.2018 whereby the then impugned transfer order-Annexure A4 dated 28.07.2018 was set aside by the Tribunal. It is urged by the applicant that in view of OP(KAT).No.3 of 2021 5 his total out station service of 13 years out of his 16 years in service and also taking into account his previous postings in two hilly terrain districts, he is entitled for preference for a convenient posting in his home district at Kollam. Further, the case of the applicant is that an incumbent is continuing as a General Manager, District Industries at Kollam for the last more than 13 years without any transfer and that on the purported ground that he is entitled for some compassionate treatment. It is the case of the applicant that going by the applicable Government norms, even such compassionate treatment in the matter of allowing the incumbent to continue in a station, cannot exceed to more than 5 years and that in the instant case, the above said incumbent has been continuing in Kollam District, in Kollam for more than 13 long years and that the act on the part of the competent authorities in not acceding to the plea of the petitioner for a posting at Kollam is arbitrary and unreasonable and is based on extraneous considerations.
5. As aforementioned, later the applicant was served with the impugned Annexure A2-G.O.(Rt)No.157/2020/Industries dated 20.02.2020, whereby he was already been transferred from his present station at Idukki to Wayanad. It is thereupon that the applicant has approached the Tribunal by filing the instant O.A. No.403/2020 seeking for interdiction in the said impugned order as Annexure A2 herein (which OP(KAT).No.3 of 2021 6 was issued on 20.02.2020). The Tribunal had granted interim order on 24.02.2020 in the instant O.A. and directed that the applicant could not be relieved on 20.02.2020 and thereafter the said interim order has been extended by the Tribunal from time to time. The Tribunal after considering the rival pleas has issued the impugned Ext.P7 order dated 18.12.2020, whereby the pleas in the instant O.A.No.403/2020 was partly allowed by ordering that the impugned Annexure A2 transfer order dated 20.02.2020 will stand quashed and set aside to the limited extent it concerned the applicant herein and the 1st respondent therein (1st petitioner herein, the competent authority State Government, Industries Department) was directed to provide an alternative posting to the 3 rd respondent in the said O.A. and further the competent authority-State Government was also directed to consider the request of the applicant herein for posting in Kollam and pass appropriate orders thereon within two months from the date of receipt of a copy of the order.
6. We heard both sides and have given our anxious consideration to the rival pleas. Sri.P.Nandakumar, learned Advocate appearing for the original applicant/R1 herein would strongly oppose the pleas made by Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners herein and would urge that the petitioner has been transferred only on account of extraneous and ulterior consideration and not for any OP(KAT).No.3 of 2021 7 bonafide reasons. Further that the applicant does not even insist for a moment that he should necessarily be continued at Idukki indefinitely and that all that the applicant was insisting all through out was that since taking into account the crucial fact that he has rendered 13 long years of out station service vis-a-vis home district out of his 16 years of service in the Department, he may be transferred and accommodated in his preferred home station at Kollam. Further that the action on the part of the competent authority concerned in not acceded to the said plea that the present incumbent at Kollam would require compassionate treatment is also based on it relevant considerations. It is pointed out that even as per the applicable Government norms, preferential or compassionate treatment on the basis of the fact that the employee concerned is suffering from physical disability or belongs to weaker section of the society cannot prolong for more than 5 years and in the instant case, the incumbent concerned has been allowed to continue in Kollam District for 13 long years.
7. Per contra, Sri.Antony Mukkath, learned Senior Government Pleader appearing for the State authorities concerned would urge that the Tribunal has erred meticulously in having allowed the plea of the petitioner for quashment of the interim transfer order-Annexure A2 dated 20.02.2020 and that too without showing any valid reason thereof. The OP(KAT).No.3 of 2021 8 Tribunal has considered two O.As. as per the impugned common order Ext.P7 dated 18.12.2020, one in relation to the present impugned transfer order and another as against the impugned suspension order and the Tribunal has appeared to have proceeded on the premise as if the transfer order is issued malafide merely because the petitioner has raised certain pleas challenging the suspension order. Further that the said two issues relating to the legality and correctness of the transfer order and that of the suspension order should have been separately considered by the Tribunal and that a reading of the impugned Ext.P7 order dated 18.12.2020 would make it clear that no valid grounds are stated by the Tribunal for justifying the interdiction as against the transfer order. Further that there cannot be any dispute that the petitioner had taken charge in the present post of Joint Director of the Industries and Commerce at Idukki District as early as on 31.06.2017 pursuant to Annexure A1 transfer-cum-promotion posting ordered on 13.06.2017 and that as of now, he has completed more than 3½ long years in the same station and that going by the applicable norms, the applicant cannot continue in the same station, as of right. Further that the impugned order of the Tribunal has the consequence of entering into the terrain of the exclusive domain of the executive authority in deciding the transfer issues and the impugned order will amount to thrusting the incumbent in a particular station, against the will of the employer. Further OP(KAT).No.3 of 2021 9 it is pointed out that various complaints have been received against the petitioner in the present station. To that, Sri.P.Nandakumar, learned counsel appearing for the original applicant would point out that a mere reading of the reply statement filed by the State authorities before the Tribunal would make it clear that they have even pleaded that the petitioner was found to be a very efficient officer and that he has done very good work in his posting at Wayanad and that the present stand taken that there are various complaints against the petitioner is based on non-existent and anonymous complaints as can been seen from a reading of the impugned common order at Ext.P7 dated 18.12.2020. Hence the impugned transfer order is vitiated by extraneous and ulterior considerations.
8. After hearing both sides, it has to be borne in mind at the outset that the applicant, as of now, completed more than 3½ long years in the same station at Idukki district. Even going by the case of the applicant, he does not even wish to thrust himself on the Department by insisting for his posting at Idukki indefinitely. It appears that the main plea of the applicant is that he is entitled for a preferential posting at his own district and that the respondent authorities are acting arbitrarily in not acceding to the plea of the applicant so as to accommodate the present incumbent at Kollam, who has been continuing therein for 13 long years. Further it is also pointed out by Sri.P.Nandakumar, learned counsel appearing for the OP(KAT).No.3 of 2021 10 applicant that at one breath the State authorities would contend that the petitioner has no vested right to continue in the present station for more than 3 years and at the same breath, the State Government authorities and the Department would also take the peculiar stand that the present incumbent at Kollam should be allowed to continue there for more than 13 long years and that not even a little finger could be moved by the authorities concerned in transferring of the said incumbent.
9. Sri.P.Nandakumar, learned counsel appearing for the applicant would invite this Court's attention to the averments made in paragraph 8 of Ext.P3 reply statement dated 29.02.2020 filed by the petitioners herein (respondents in the O.A. before the Tribunal) which reads as follows:
"8. The applicant preferred representation to consider his posting to Kollam on transfer. However, the person who already occupies the post requires to retain on compassionate ground as her husband is Paralysed and bedridden. Hence, his application for a transfer to Kollam District could not be considered favourably."
10. It is pointed out by the leaned counsel appearing for the applicant that the above said factual assertion made by the State authorities that the present incumbent at Kollam requires compassionate ground as her husband is paralyzed and bedridden may not be factually correct and that it is reliably learnt that her husband has passed away. Further that at any rate such a compassionate treatment cannot continue for 13 long years as in the instant case.
OP(KAT).No.3 of 2021 11
11. In this regard it has to be borne in mind that it is too elementary a proposition of service jurisprudence to require the citation of any judicial authority, that matters of transfer is essentially in the domain of incident of service and transfer of an incumbent cannot be said to be having the effect of varying the conditions of service of the incumbent concerned to his disadvantage so as to make it as a legally justiciable grievance. However, it is proper to refer to some of the observations of the Apex Court in the decision in State of Uttar Pradesh and others V. Gobardhan Lal [2004 (11) SCC 402] wherein it has been held as follows:
"It is too late in the day for any Government Servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercie of power of violative of any statutory provision (an Act or Rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision. The Tribunal ought not to have interferred in the posting given to the First Respondent since it is not a case of general transfer and as such the Guidelines/parameters for the General Transfer cannot be pressed into service."
12. Further it has been held by this Court in a series of decisions as in Ramakrishnan P. V. Union of India and Other [2017 (1) KHC OP(KAT).No.3 of 2021 12 801] that Writ Courts may not have least say in transfer matters. It is also profitable to refer to the decision of this Court in Rajendran Nair V. Pavithran [2008 (4) KLT SN 64 (C.No.60)] wherein it has been held that an order of transfer cannot be lightly interfered with and it can be set aside only if it is passed by an incompetent authority or is made in violation of any statutory rules or is proved to be vitiated by malafides and that Guidelines governing transfer exist only for the sake of guidance and that they do not confer on the employee any enforceable right.
13. Adjudging the factual scenario in this case on the basis of the well settled legal position in that regard this Court is of the considered view that the directions issued by the Tribunal in having interfered with the transfer order and having allowed the applicant to continue in the present station, is not justified or warranted. The applicant has admittedly continued in the same station at Idukki for more than 3½ long years. Having said that while we fully endorse the submission made by Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners-State authorities that an incumbent like the petitioner cannot insist to continue in the same station and that too for more than 3 years as in the instant case, we would also observe that though transfer of an incumbent may be an incident of service and which may come within the exclusive zone of the competent authority concerned, the transfer norms OP(KAT).No.3 of 2021 13 should not be viewed lightly by the competent authority concerned. It is well settled that unless the transfer order is issued by the incompetent authority or the transfer order is against the statutory provision in a statutory rule or is coloured and vitiated by malafides, the same may not ordinarily be subjected to judicial review by intervention. But the State authorities should also bear in mind that the norms and guidelines of transfer are issued by the competent authority of the State Government and matters like transfer should be considered and decided by the competent authority concerned, taking into account various relevant aspects of the matter and also taking due note of the transfer norms and otherwise any unilateral selective action would not elicit confidence of the employees concerned in the fairness of Administration. Any avoidable demoralization of the civil service personnel, cannot be in the advantage of the State authorities concerned. Therefore, when the State authorities are insisting that an incumbent has no right to continue in a post for more than 3 years going by the transfer norms etc., then certainly the request made by the applicant for posting to his home station should also be considered taking into account various aspects including the transfer norms. It has to be borne in mind that all through out the case the applicant was not that he has necessarily to be continued at Idukki indefinitely but that taking into account his 13 long years of out station service out of his total 16 years of OP(KAT).No.3 of 2021 14 service and taking into account the transfer norms, he may be accommodated and transferred to his preferred home station at Kollam. It is not known to this Court now as to the reasons as to why such an incumbent has been allowed to continue in the same station for a long period. Those are all matters to be examined meticulously by the competent authority of the State Government in a fair and transparent manner and also taking into account the norms and guidelines of transfer issued by the State Government. Counsel for the applicant would point out that the general norms and guidelines issued by the State Government for regulating transfer of incumbents are contained in G.O.(P) No.03/2017/P&ARD dated 25.02.2017. From the pleadings and records, it appears that the requests and representations made by the applicant seeking for transfer and posting at Kollam are made out in Annexure A6 representation dated 06.02.2019 addressed to the 2 nd petitioner-Director of Industries and Commerce and Annexure A7 dated 19.02.2019 submitted in the prescribed proforma. In the light of the above said aspects, this Court is constrained to take the view that the impugned Ext.P7 order dated 18.12.2020 to the limited extent the plea of the applicant in O.A.No.430/2020 has been allowed leading to the quashment of the impugned transfer order at Annexure A2 dated 20.02.202o will deserve interdiction at the hands of this Court.
OP(KAT).No.3 of 2021 15
14. Accordingly it is ordered that the impugned Ext.P7 final order dated 18.12.2020 rendered by the Kerala Administrative Tribunal, Thiruvananthapuram Bench in O.A. No.430/2020, to the limited extent it interferes with the impugned Annexure A2 transfer order dated 20.02.2020 will stand set aside and quashed. Consequently, it is ordered that for the time being,the petitioners herein will be at liberty to implement Annexure A2 transfer order dated 20.02.2020 and the 2 nd respondent herein could be directed to join in the post at Idukki in place of the applicant herein. If the post at Wayanad to which the applicant has been transferred as per Annexure A2 transfer order dated 20.02.2020 is still available, then the applicant will be permitted to join the post at Wayanad for the time being. Simultaneously, the applicant may give detailed representation before the competent authority of the State Government, Industries Department and copies thereof will also be given to the Director of Industries and Commerce seeking consideration of his plea for transfer and posting to Kollam. It will be open to the petitioner to make any alternative place also therein to the applicant thereof. The applicant may ensure that such representation shall be made before the competent authority of the State Government as well as the Director of Industries and Commerce within 10 days from the date of receipt of a certified copy of this judgment. The said representation may also be accompanied by the OP(KAT).No.3 of 2021 16 certified copies of the said judgment as well as copies of the previous applications for transfer as made out in Annexures A6, A7 and A8. The competent authority of the State Government will bestow their serious consideration on the request made by the petitioner for transfer and posting to Kollam, taking into account his outstation service and various other relevant aspects and also taking into account the norms and guidelines for transfer of the incumbents. In the alternative, respondent State Government may also consider whether the present incumbent at Kollam who is continuing there for a long time, could be transferred and posted to the vacancy said to be available at Pathanamthitta, so that the request of the applicant for posting at Kollam could be considered. In the alternative, the respondent may consider the posting of the applicant to Pathanamthitta. Till decision is taken on the above matter, the vacancy at Pathanamthitta, if available may not be filled up. In that regard it is ordered that the competent authority of the State Government may also afford reasonable opportunity of being heard to both the applicant herein (R1 herein) as well as the present incumbent at Kollam either in person or through their authorised representatives, if any. The competent authority of the State Government should take a decision in the said matter in a fair and just manner and in accordance with law. Decision in that regard should be duly rendered by the competent authority of the State OP(KAT).No.3 of 2021 17 Government within 3 weeks from the date of filing of such representation.
With these observations and directions, the above original petition will stand disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE Sd/-
T.R.RAVI, JUDGE Pn OP(KAT).No.3 of 2021 18 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE COPY OF THE O.A NO 403/2020 ALONG WITH
EXHIBITS
ANNEXURE A1 TRUE COPY OF THE GO (RT) NO 810/2017/ID
DATED 13.6.2017 OF GOVERNMENT
ANNEXURE A2 TRUE COPY OF THE GO(RT)NO
157/2020/INDUSTRIES DATED 20.2.2020 OF
GOVERNMENT
ANNEXURE A3 TRUE COPY OF THE FINAL ORDER DATED
13.7.2017 IN OA NO 1263/2017 OF THE KERALA
ADMINISTRATIVE TRIBUNAL
ANNEXURE A4 TRUE COPY OF THE GO(RT) NO 896/2018/ID
DATED 28.7.2018 OF GOVERNMENT
ANNEXURE A5 TRUE COPY OF THE FINAL ORDER DATED
7.11.2018 IN OA NO 1455/2018 OF THE KERALA
ADMINISTRATIVE TRIBUNAL
ANNEXURE A6 TRUE COPY OF THE REPRESENTATION DATED
6.2.2019 SUBMITTED BY THE RESPONDENT BEFORE
THE 2ND PETITIONER
ANNEXURE A7 TRUE COPY OF THE APPLICATION FOR GENERAL
TRANSFER 2019 DATED 19.2.2019 OF THE
RESPONDENT
ANNEXURE A8 TRUE COPY OF THE REPRESENTATION DATED
22.5.2019 SUBMITTED BY THE RESPONDENT
BEFORE THE FIRST RESPONDENT
EXHIBIT P2 TRUE COPY OF THE INTERIM ORDER OF THE
KERALA ADMINISTRATIVE TRIBUNAL DATED
24.2.2020 IN THE AFORESAID ORIGINAL
APPLICATION
EXHIBIT P3 TRUE COPY OF THE REPLY STATEMENT ALONG WITH
EXHIBITS FILED BY THE FIRST AND SECOND
PETITIONERS ON 2.3.2020
OP(KAT).No.3 of 2021
19
ANNEXURE R1(A) TRUE COPY OF THE COMPLAINT RECEIVED FROM
SRI N. JALEEL, ASSISTANT DISTRICT
INDUSTRIAL OFFICER AGAINST SRI BIJU KURIAN
DATED NIL RECEIVED AT THE DIRECTORATE ON
16.5.2018
ANNEXURE R1(B) TRUE COPY OF THE COMPILATION OF COMPLAINT
RECEIVED BY THE DIRECTOR FORWARDED TO THE
HONOURABLE MINISTER AND CHIEF SECRETARY
EXHIBIT P4 A PHOTOCOPY OF THE REPLY STATEMENT OF THE
3RD RESPONDENT
ANNEXURE R3(A) TRUE COPY OF GO (RT) NO 116/2020 ID DATED
6.2.2020
EXHIBIT P5 A PHOTOCOPY OF THE MA NO 770 OF 2020 IN OA
NO 403 OF 2020
ANNEXURE R3(B) TRUE COPY OF GO (RT) NO 345/2020 ID DATED
25.5.2020
EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THIS HONORABLE
COURT IN OP(KAT) NO 144/2020 DATED
15.5.2020
EXHIBIT P7 TRUE COPY OF THE ORDER OF THE KERALA
ADMINISTRATIVE TRIBUNAL DATED 18.12.2020 IN
ORIGINAL APPLICATION NO 403/2020