C.K.Mini vs Kerala State Electricity Board ...
2021 Latest Caselaw 5502 Ker

         IN THE HIGH COURT OF KERALA AT ERNAKULAM

                           PRESENT

      THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

TUESDAY, THE 16TH DAY OF FEBRUARY 2021 / 27TH MAGHA,1942

                   WP(C).No.1592 OF 2021(Y)

PETITIONER:

              C.K.MINI
              AGED 48 YEARS
              W/O. P.A DINESAN, SUB ENGINEER (CIVIL) KERALA
              STATE ELECTRICITY BOARD LTD, SMALL HYDRO
              ELECTRIC PROJECT (SHEP) BHOOTHATHANKETTU,
              BHOOTHATHANKETTU 686681
              RESIDING AT PALLIPURAMCHALIL HOUSE,
              NELLIKUZHY P.O, KOTHAMANGALAM 686 691

            BY ADVS.
            SMT.SHAMEENA SALAHUDHEEN
            SMT.S.SIMY
RESPONDENTS:

     1        KERALA STATE ELECTRICITY BOARD LTD.
              REPRESENTED BY ITS SECRETARY, VYDYUTHI
              BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004

     2        CHAIRMAN AND MANAGING DIRECTOR,
              KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI
              BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004

     3        CHIEF ENGINEER (HRM)
              KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI
              BHAVANAM, PATTOM, THIRUVANANTHAPURAM 695 004

     4        DEPUTY CHIEF ENGINEER (CIVIL)
              KERALA STATE ELECTRICITY BOARD LTD, CIVIL
              CIRCLE, KOTHAMANGALAM 686 666

     5        PROJECT MANAGER,
              KERALA STATE ELECTRICITY BOARD LTD, SMALL
              HYDRO ELECTRIC PROJECT (SHEP)
              BHOOTHATHANKETTU, BHOOTHATHANKETTU 686 681
 WP(C).No.1592 OF 2021(Y)    2

     6     CHIEF ENGINEER (CIVIL CONSTRUCTION) SOUTH,
           KERALA STATE ELECTRICITY BOARD LTD, VYDYUTHI
           BHAVAN, PATTOM, THIRUVANANTHAPURAM 695 004

           R1-6 BY ADV. SRI.ASOK M.CHERIAN,SC

     THIS WRIT PETITION (CIVIL) HAVING COME UP        FOR
ADMISSION ON 16.02.2021, THE COURT ON THE SAME        DAY
DELIVERED THE FOLLOWING:
 WP(C).No.1592 OF 2021(Y)        3




                           JUDGMENT

The petitioner, who is stated to be presently working in

the Small Hydro Electric Project (SHEP), Bhoothathankettu,

under the services of the Kerala State Electricity Board

(KSEB), has approached this Court impugning Ext.P7 order of

transfer, as per which, she has been asked to join Idukki.

2. According to the petitioner, she was transferred to

Bhoothathankettu only a year ago and that she therefore,

obtains protection from transfer on account of the fact that

she belongs to a Scheduled Caste Community; she is

undergoing "infertility treatment" and since her husband is

also in services of the KSEB.

3. The petitioner alleges that without considering any

of these aspects, the KSEB has now ordered transfer and

therefore, prays that same be set aside and the KSEB be

directed to accommodate her in one of the vacancies available

at Kothamangalam.

4. The learned Standing Counsel for the KSEB,

Sri.Asok M. Cherian, in response, submitted that a statement

has been filed, on record, wherein, the following have been

stated:

2."It is humbly submitted that the Boothathankettu SHEP is a 24 MW hydrel project of the KSEBL with central financial assistance from the Ministry of New and Renewable Energy (MNRE). The project work is almost nearing completion and the civil works have reached 98.25% of the scheduled works. A copy of the monthly progress report dated 02- 02-2021 of the ongoing Small Hydrel Projects of the KSEBL availing finance assistance from the MNRE for the month of January 2021, including the aggregate physical progress of the Boothathankettu SHEP is produced herewith as Annnexure-I.

3. It is humbly submitted that petitioner is an executive staff working in the civil wing of KSEBL. The role of civil stream is mostly limited to construction works of projects which are confined only to a dew districts in the state. The posting of staff for civil works in projects is not of permanent nature and to be deployed to where there is adequate work. As more than 98% the civil work of the Boothathankettu SHEP is over, man power requirement for the remaining works is limited and hence excess personnel are deployed to sites where there is urgent requirement of man power in civil stream. Therefore the petitioner who the junior most in the project site was transferred to a work place where there was requirement of Sub Engineer (Civil), I.e.Upper Kallar SHP, Peechad SHP & Western Kallar SHP under Adimali Geographical area in the neighboring Idukki District. As can be seen from Annexure I, other projects are in Northern Districts of Kerala.

4.It is humbly submitted that as per Clause IX of the Guidelines for Transfer, "Notwithstanding anything mentioned above, The Kerala State Electricity Board Limited

reserves the right to transfer any employee in the exigencies of service and/or in public interest." The transfer of the petitioner to Upper Kallar SHP, Peechad SHP and Western Kallar SHP was necessitated by the requirement of Sub Engineer (Civil) at this site and also due to the competition of civil works at Boothathankettu SHEP which demanded a reduction in personnel in civil wing in the site".

5. Sri.Asok M. Cherian, then, submitted that the

petitioner cannot claim any vested right to continue in a

particular station or choose a specific station, even when

exigencies of service requires her to serve elsewhere. He,

therefore, prayed that this writ petition be dismissed.

6. In reply, Smt.Shameena Salahudheen, learned

counsel appearing for the petitioner, submitted that the

statement filed on record on behalf of the KSEB does not even

touch upon her client's protection against transfer for the

reason that she is belonging to the Scheduled Caste

Community and because she is undergoing infertility

treatment, for which the present station is most suitable. She

further submitted that her client has been transferred to

Bhoothathankettu only a year ago and therefore, that this is

also one aspect which the KSEB ought to have kept in mind

before issuing Ext.P7, as far as her client is concerned.

7. In addition to the above, Smt.Shameena

Salahudheen submitted that, even though the statement of

the KSEB states that her client's services are required at

Upper Kallar SHP, Peechad SHP and Western Kallar SHP, under

the Adimali Geographical area, the fact remains that the Board

has now issued a proceeding dated 21.01.2021, wherein they

are now filling up two open vacancies in Olickal and Poovaran

Thodu Small Hydro Electric Projects (SHEP) through contract

employees. She, therefore, prayed that her client be granted

the latitude of either continuing in the present place or to be

stationed in a place of her choice.

8. When I consider the afore submissions, it is

indubitable that if there are open vacancies in Olickal and

Poovaran Thodu─where the KSEB proposes to engage persons

on contract basis─ then certainly, the petitioner obtains a right

to have her case also considered before this is done. Further,

as rightly pointed out by Smt. Shameena Salahudheen, KSEB

has not, in their statement filed before this Court, touched

upon the petitioner's claim for protection from transfer on the

ground that she is a member of Scheduled Caste and that she

is undergoing treatment for infertility.

9. I am, therefore, of the firm view that the petitioner

must be given an opportunity of approaching the competent

authority of the KSEB with a proper representation against her

transfer, so that same can be then considered, in the light of

all the afore aspects, within a time frame. Of course, I am also

of the view that until such time as the afore exercise is

completed, the petitioner must be allowed to continue in the

present station, since this Court had, as early as on

20.01.2021, stopped the KSEB from relieving her consequent

to Ext.P7 order.

In the afore circumstances, I order this writ petition,

leaving liberty to the petitioner to approach the competent

authority of the KSEB with an appropriate representation

against the transfer; and if this is done within a period of one

week from the date of a receipt of a copy of this judgment,

same shall be considered by the said authority, after affording

an opportunity of being heard to the petitioner‒either

physically or through video conferencing‒thus culminating in

an appropriate order thereon, as expeditiously as possible.

Needless to say, until such time as the afore exercise is

completed and the resultant order issued to the petitioner, the

interim order granted by this Court on 20.01.2021 will

continue to be in force.

Sd/-

DEVAN RAMACHANDRAN JUDGE

LEK

APPENDIX PETITIONER'S/S EXHIBITS:

EXHIBIT P1 A TRUE COPY OF THE INCUMBENCY DETAILS PERTAINING TO THE PETITIONER DOWNLOADED FROM THE OFFICIAL WEBSITE OF THE BOARD

EXHIBIT P2 A TRUE COPY OF THE PESENT GUIDELINES/NORMS FOR TRANSFERS AND POSTINGS OF THE WORKMEN OF THE 1ST RESPONDENT BOARD DATED 22-02-2020, AFTER OMITTING THE ANNEXURE

EXHIBIT P3 A TRUE COPY OF BOARD ORDER DATED 27-

03-2020 ISSUED BY THE 1ST RESPONDENT WHEREBY EXT P2 WAS MODIFIED

EXHIBIT P4 A TRUE COPY OF THE DISTRICT WISE SENIORITY LIST OF SUB ENGINEERS (CIVIL) WORKING IN ERNAKULAM DISTRICT PREPARED AND PUBLISHED BY THE 1ST RESPONDENT DOWNLOADED FROM THE HRIS OF THE BOARD.

EXHIBIT P5 A TRUE COPY OF THE TRANSFER ORDER DATED 03-08-2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P6 A TRUE COPY OF THE TRANSFER ORDER DATED 07-10-2020 ISSUED BY THE 3RD RESPONDENT.

EXHIBIT P7 A TRUE COIPY OF THE TRANSFER ORDER DATED 13-01-2021 ISSUED BY THE 3RD RESPONDENT

EXHIBIT P8 A TRUE COPY OF THE APPEAL PETITION DATED 14-01-2021 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT THROUGH PROPER CHANNEL.

EXHIBIT P9 A TRUE COPY OF THE FORWARDING LETTER ISSUED BY THE 5TH RESPONDENT TO THE 3RD RESPONDENT WHEREBY EXT P8 WAS FORWARDED TO THE 3RD RESPONDENT.

RESPONDENT'S/S EXHIBITS:

ANNEXURE I A COPY OF THE MONTHLY PROGRESS REPORT DATED 02-02-2021 OF THE ONGOING SMALL HYDREL PROJECTS OF THE KSEBL AVAILING FINANCE ASSISTANCE FROM THE MNRE FOR THE MONTH OF JANUARY 2021, INCLUDING THE AGGREGATE PHYSICAL PROGRESS OF THE BOOTHATHANKETTU SHEP.