Firoz Shah. A vs Kerala State Financial ...
2021 Latest Caselaw 21267 Ker

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
           THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                                 &
              THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
    FRIDAY, THE 29TH DAY OF OCTOBER 2021 / 7TH KARTHIKA, 1943
                        WA NO. 1178 OF 2021
  AGAINST THE JUDGMENT DATED 04.08.2021IN WP(C)nO.3316/2021 OF
                  HIGH COURT OF KERALA, ERNAKULAM
APPELLANT/PETITIONER:

           FIROZ SHAH. A,AGED 39 YEARS
           S/O.ABDUL AZEEZ, THOPPIL HOUSE, ASHTAMUDI P.O.,
           THRIKKARUVA, KOLLAM DISTRICT,PIN-691 602
           BY ADV PEEYUS A.KOTTAM
RESPONDENTS/RESPONDENTS:

    1      KERALA STATE FINANCIAL ENTERPRISES LIMITED
           BHADRATHA, MUSEUM ROAD, P.B.NO.510, THRISSUR-680 020,
           REPRESENTED BY ITS MANAGING DIRECTOR
    2      THE CHAIRMAN
           KERALA STATE FINANCIAL ENTERPRISES LTD, BHADRATHA,
           MUSEUM ROAD, P.B.NO.510, THRISSUR-680 020
    3      THE MANAGER,
           KERALA STATE FINANCIAL ENTERPRISES LIMITED,
           PRAKULAM BRANCH, GROUND FLOOR, CHIRAYIL BUILDING,
           KANJIRAMKUZHI, INCHAVILA P.O., KOLLAM,PIN-691 601
    4      CHIPPY.A.,AGED 35 YEARS
           JUNIOR ASSISTANT, KERALA STATE FINANCIAL ENTERPRISES
           LIMITED, PRAKULAM BRANCH, GROUND FLOOR,
           CHIRAYIL BUILDING, KANJIRAMKUZHI, INCHAVILA P.O.,
           KOLLAM,PIN-691 601
           BY ADVS.
           R1 TO R3 BY ADVS.M.GOPIKRISHNAN NAMBIAR
           K.JOHN MATHAI
           JOSON MANAVALAN
           KURYAN THOMAS
           PAULOSE C. ABRAHAM
           RAJA KANNAN


THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29.10.2021,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WA No.1178 of 2021                     1




       ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
         .................................................................
                         W.A. No.1178 of 2021
   [Arising out of judgment dated 04.08.2021 in W.P.(C) No.3316 of 2021 of this Court]
           .................................................................
             Dated this the 29th day of October, 2021

                                  JUDGMENT

Viju Abraham, J.

The appellant who is the petitioner in the writ petition

has preferred this appeal challenging the judgment dated

04.08.2021 in W.P.(C) No.3316 of 2017.

2. The contentions of the appellant, in brief, are as follows:

The appellant was working as Grade II (Special Grade

Assistant) in KSFE, Prakulam Branch from January, 2019 onwards.

By Ext.P3 order dated 02.11.2020 the appellant was transferred from

Prakulam to Thiruvalla. The said transfer order was effected in order

to accommodate the 4th respondent and the same has been done in

violation of Ext.P1 guidelines for transfer in as much as the said

guidelines mandate that an employee can be considered for transfer

only after completing three years of service in a particular branch.

Aggrieved by the said order of transfer, Ext.P4 appeal was preferred

by the appellant. Thereafter W.P.(C) No.24272 of 2020 was filed

challenging Ext.P3 order of transfer and the said writ petition was

disposed of by Ext.P12 judgment dated 08.01.2021 directing the

Appellate Authority to consider and pass orders on the appeal

preferred by the appellant within a period of two weeks from the

date of receipt of a copy of the judgment and status quo was directed

to be maintained till then. Without considering any of the

contentions of the appellant in a proper manner the appellate

authority rejected the appeal as per Ext.P16 order. It is aggrieved by

the same the appellant had approached this Court by filing W.P.(C)

No.3316 of 2021.

3. A counter affidavit was filed on behalf of respondents 1 to

3 mainly contending that the appellant's service is transferable and

the appellant is bound to comply with the orders of transfer. Unless

the order of transfer is vitiated by mala fides or is in violation of any

statutory provisions, the routine and general transfers are not liable

to be interfered with. The transfer has been effected on account of

administrative exigencies and the appellant has already joined for

duty at Thiruvalla main branch on 01.03.2021.

4. The learned single Judge on a consideration of the

contentions of the parties held that the order impugned does not

require any interference as the same is only an administrative

exercise and that all the contentions raised by the appellant have

been properly considered by the Appellate Authority while issuing

Ext.P16 order. However, the learned single Judge reserved the right

of the appellant to submit an application in the upcoming general

transfer and directed that in case such an application is submitted by

the appellant, the same shall be considered in accordance with the

law. It is aggrieved by the said judgment of the learned single Judge

that the appellant has come up in appeal.

5. In the appeal a further statement was filed on behalf of

respondents 1 to 3 mainly contending that the transfer is an incident

of service and there are no mala fides in the issuance of the order of

transfer. It is further contended that even though the learned single

Judge granted liberty to the appellant to make a request for transfer

during the general transfer for 2021, the appellant did not submit

any such request. Further, it is stated that if the appellant makes a

request for transfer when the window for such requests is open

during February 2022, the same will be considered by the 1 st

respondent KSFE at the next general transfer.

6. Heard Shri Peeyus A. Kottam, the learned counsel

appearing for the appellant, and also Shri M. Gopikrishnan

Nambiar, the learned counsel appearing for respondents 1 to 3.

7. The appellant contended that as per Clause 2 of Ext.P1

guidelines, an employee can be transferred only after completion of

three years service in a particular station, and therefore he cannot be

transferred as per the terms of Ext.P1 guidelines as he had

completed only one year and ten months in Prakulam Branch. The

stand of the respondent is that Clause 2 (i) of Ext. P1 transfer

guidelines only say that no employee will be allowed to continue in

the same branch beyond three years and therefore the said

stipulation does not take away the right of the respondents in

transferring an employee. But it is a fact that the appellant was

transferred and posted at Prakulam Branch only during January

2019 and during general transfer, for the year 2020 the appellant

was not transferred and the 4 th respondent was transferred from

Thiruvalla to Sasthamkotta as per Ext.P2 order of transfer dated

09.09.2020. It is the specific case of the appellant that the 4th

respondent due to her political influence was not relieved from her

office at Thiruvalla or joined at Sasthamkotta as per Ext.P2 office

order and that the 1st respondent issued another transfer order

dated 02.11.2020 whereby the 4th respondent was transferred from

Sasthamkotta to Prakulam and to facilitate the said transfer

appellant was ordered to be transferred from Prakulam to Thiruvalla

even though he had completed below 2 years service at Prakulam.

This specific allegation of the appellant was not considered while

passing Ext.P16 appellate order or specifically answered in the

counter affidavit filed in the writ petition or in the statement filed on

behalf of respondents 1 to 3 in the present appeal. Only what is said

in the statement filed in the present appeal on behalf of respondents

1 to 3 is that the 4th respondent was transferred to Prakulam branch

by way of Ext.P3 order due to administrative exigencies. The fact

remains that the appellant was transferred while he has completed

less than 2 years of service at Prakulam and no reasons have been

specifically stated for disturbing him from the present station other

than saying that the 4th respondent was transferred due to

administrative exigencies. It is the contention of the appellant that

the Prakulam branch is very near to his house which is only a few

kilometers away, whereas he has been transferred as per Ext.P3 to a

branch in another district which is almost 66 km from his house.

Those aspects were also not properly considered by the Appellate

Authority while issuing Ext.P16 order. Even though the appellant

contended that his parents are aged and he is the only son to look

after them and therefore he is entitled to preferential treatment on

compassionate grounds for transfer relying on Clause 4 (iii) of Ext.P1

transfer guidelines and that he is entitled for a posting of his choice

on the ground that he is a divorcee who is not remarried, as such

persons are included in the priority list for transfer as per Clause 12

of the Appendix to Ext.P1 transfer guidelines, the same was not

considered by the Appellate Authority only for the reason that

appellant failed to produce any documents supporting such claim.

We feel that such a stand taken by the Appellate Authority in Ext.P16

order is not an acceptable one as the said Authority was bound to

give an opportunity to the appellant to produce the

records/documents relayed on to substantiate his claim rather than

rejecting the same solely for the reason that those documents are not

produced.

8. It is true that orders of transfer made in exercise of

administrative discretion in exigencies of service should not

ordinarily be interfered with under Article 226 of the Constitution

and that the guidelines for transfer are not statutory and are only

intended for the guidance of the transferring authority and that the

employee cannot claim any immunity from transfer on the strength

of the guidelines. But, it should also be kept in mind that it is the

duty and responsibility of the employer to consider the grievances

and claims raised by an employee at the time of transfer and also to

consider their entitlement for a suitable posting taking into

consideration Ext P1 guidelines also so that less inconvenience is

caused to the employee due to the transfer. The fact that the

appellant was transferred to a far of place that too when he has

completed only one year and 10 months in the present station and

that he is entitled for a preferential treatment as per Clause 4 (iii) of

Ext.P1 transfer guidelines and Clause 12 of the Appendix to the said

guidelines was not at all considered by the Appellate Authority in a

proper manner while issuing Ext.P16 order.

9. Respondents in the statement filed in the present appeal

have undertaken that if the appellant makes a transfer request when

the window for such request is open (in February 2022), they will

consider the request of the appellant for a posting during the next

general transfer. The appellant has already joined duty in the

transferred post on 01.03.2021 at Thiruvalla and is continuing there.

Taking into consideration the fact that the appellant had already

joined duty in the transfered post on 01.03.2021 and that in the

statement filed by the respondents they have undertaken to consider

the request of the appellant for a suitable posting during the next

general transfer, the request for which will be accepted in a few

months, ie., from February 2022 onwards, we do not propose to

disturb Ext.P3 order of transfer or Ext.P16 order passed by the

Appellate Authority even though the grievances raised by the

appellant and his entitlement for a preferential treatment as per the

terms of the guideline was not at all considered in a proper manner.

Therefore, we deem it appropriate to direct the 1 st respondent to

consider the request of the appellant for a convenient posting taking

into consideration the contention of the appellant that he is entitled

to preferential treatment on the strength of Ext.P1 guidelines

including Clause 4(iii) and also Clause 12 of the Appendix to Ext.P1

transfer guidelines, at the time of next general transfer. The

appellant, along with his request for transfer, may produce sufficient

documents/proof as mandated by the guidelines to prove his claim

for preferential treatment for a convenient posting. The appellant

may also point out the vacancies if any to which he desires to be

transferred. If the appellant makes such a request along with

necessary documents/proof as mandated in Ext.P1 guidelines, 1 st

respondent shall consider the claim of the appellant in accordance

with the law. We also make it clear that the decision in this regard

shall not in any way be influenced by the fact that the appellant had

approached this Court challenging the order of transfer and that the

1st respondent shall take a decision in a just and proper manner so

that the grievances raised by the appellant is redressed.

With the abovesaid observations and directions, this writ

appeal is disposed of.

Sd/-

ALEXANDER THOMAS JUDGE

Sd/-

VIJU ABRAHAM JUDGE

cks

APPENDIX OF WA 1178/2021

PETITIONER ANNEXURE Annexure A1 TRUE COPY OF THE REPRESENTATION DATED 24.05.2021 SUBMITTED BY THE FINANCIAL ENTERPRISES EMPLOYEES ASSOCIATION Annexure A2 TRUE COPY OF THE JUDGMENT DATED 25.06.2021 IN WPC 11885/2021