Kerala High Court
Anilkumar S.B vs State Of Kerala on 3 September, 2021
OP(KAT) No.236/2021 1
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
&
THE HONOURABLE MR. JUSTICE A. BADHARUDEEN
FRIDAY, THE 3RD DAY OF SEPTEMBER 2021 / 12TH BHADRA,
1943
OP(KAT) NO. 236 OF 2021
AGAINST THE ORDER DATED 17.08.2021 IN OA 1384/2021 OF
KERALAADMINISTRATIVE TRIBUNAL BENCH, THIRUVANANTHAPURAM
PETITIONER/PETITIONER:
ANILKUMAR S.B
AGED 48 YEARS
S/O. P.BABU, WORKING AS LABORER, SEASONED
LABOUR ROLL, DIRECTORATE OF GROUND WATER
DEPARTMENT, AMBALAMUKKU, THIRUVANANTHAPURAM -
695005, (UNDER THE ORDERS OF TRANSFER TO
GROUND WATER OFFICE, DISTRICT OFFICE, KOLLAM
- 691001) RESIDING AT MELEVILA VEEDU,
MANNANTHALA, NALANCHIRA (PO)
THIRUVANANTHAPURAM - 695 015.
BY ADVS.
M.V.THAMBAN
R.REJI
THARA THAMBAN
B.BIPIN
ARUN BOSE
N.SUNIL JOSEPH
RESPONDENTS/RESPONDENTS IN O.A
1 STATE OF KERALA
REPRESENTED BY ITS SECRETARY, WATER RESOURCES
DEPARTMENT, GOVERNMENT SECRETARIAT,
THIRUVANANTHAPURAM - 695001., KERALA.
2 DIRECTOR, DIRECTORATE OF GROUND WATER
DEPARTMENT, AMBALAMUKKU, THIRUVANANTHAPURAM -
695005, KERALA.
SRI.B.UNNIKRISHNA KAIMAL,SR.GOVERNMENT
PLEADER
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING
COME UP FOR ADMISSION ON 03.09.2021, THE COURT ON THE
SAME DAY DELIVERED THE FOLLOWING:
OP(KAT) No.236/2021 2
ALEXANDER THOMAS & A. BADHARUDEEN, JJ.
================================
O.P(KAT) No.236 of 2021
(arising out of the order dated 17.08.2021 in O.A
No.1384/2021)
================================
Dated this the 3rd day of September, 2021
JUDGMENT
ALEXANDER THOMAS, J.
Aggrieved by the impugned Annexure A2 transfer order
dated 15.07.2021 whereby the 2nd respondent Director of
Ground Water Department has ordered to transfer and post the
petitioner, who is an SLR Driver, from his station at the
Directorate at Thiruvananthapuram to the District Office at
Kollam, the petitioner herein had approached the Tribunal by
filing the instant Ext.P1 O.A.No.1384/2021 before the Kerala
Administrative Tribunal, Thiruvananthapuram. The Tribunal
after hearing both sides rendered order impugned Ext.P6 order
dated 17.08.2021 dismissing the O.A on the ground that there
are no vacancies as at present to accommodate the petitioner at
Thiruvananthapuram and therefore the impugned transfer
order to the extent it has been ordered to transfer the petitioner
to District Office at Kollam cannot be interdicted. It is this final
order at Ext.P6 that is under challenge in the present O.P before
us, filed under Articles 226 and 227 of the Constitution of India.
2. Heard Sri M.V.Thamban, the learned counsel
appearing for the petitioner herein/sole applicant in the O.A
before the Tribunal and Sri. B.Unnikrishna Kaimal, the learned
Senior Government Pleader appearing for the respondents in
the O.P/respondents in the O.A.
3. According to the petitioner, he has been appointed
as a Seasonal Labour Roll (SLR) worker in the Ground Water
Department and he has been engaged as a Driver in the offices
of the department at Thiruvananthapuram. As stated herein
above, the petitioner is mainly aggrieved by the impugned
Annexure A2 transfer order dated 15.07.2021, whereby the
Director of Ground Water Department has ordered that the
petitioner, who had been then working as SLR Driver in the
Directorate at Thiruvananthapuram, has been ordered to be
transferred and posted to the district office at Kollam. The
petitioner would strongly and vehemently contend that
even in the case of posts like Lower Division Clerks, the last
grade servants etc., which are class 3 and class 4 posts, where
the unit of appointment is district wise and not State wise, then
ordinarily the incumbent concerned is not transferred out of the
district; that the said position is also reflected in the norms for
transfer issued by the competent authority of the State
Government and that the said norms would apply with equal
vigour and force in the case of incumbent like the petitioner,
who is working as Seasonal Labour Roll (SLR) Worker/ Driver.
Further the learned counsel for the petitioner has made
reference to the transfer guidelines issued by the State
Government in terms of Government Order as
G.O(P).No.3/2020 dated 25.2.2017, whereby it has been
ordered that last grade employees are not likely to be
transferred outside the district and required to be transferred
within the district concerned itself. Further that the impugned
transfer order at Annexure A2 has been issued without stating
any reasons and that another incumbent, Smt.Jayakumari is
shown as Sl.No.2 thereof, whereby she has been ordered to be
transferred from the Directorate to the district office,
Thiruvananthapuram. Further the learned counsel for the
petitioner has made various submissions, more particularly
with the support of the pleadings in Ext.P5 Miscellaneous
Application M.A.1608/2021 filed by the petitioner in O.A before
the Tribunal. Paragraphs 5 and 6 of the pleadings in Ext.P5
M.A.No.1608/2021, filed by the petitioner read as follows: (see
pages 55 and 56 of the paper book of the O.P)
"5. When the case was taken up on 09/08/2021, the
Honourable Tribunal was pleased to get instruction whether
the applicant would be retained in Thiruvananthapuram
district itself. It is humbly submitted that in Directorate of
Ground Water Department there are 5 vehicles bearing
Registers Nos. (1) KL01CE 7682 (2) KL01 K 7532 (3) KL01CE
7625 (4) KL01BK 9825 (5) KL01BF 5050 so all together there
are 5 vehicles and only 4 direct recruitees are working and
there is a vacancy of one driver in Directorate itself.
6. Moreover district office Ground Water
Department, Thiruvananthapuram is having 3 vehicles
wherein 2 drivers are daily wages employees. It is also
submitted that one SLR worker Mr.Adarsh working at District
Office Thiruvananthapuram left the job and a vacancy is there
at District Office, Thiruvananthapuram. SLR workers
Devadas, Pushpa, Chandrika and Sathi Devi are retired and
those vacancies are lying vacant at District Office
Thiruvananthapuram."
Hence it is contended by the learned counsel for the petitioner
that actually there was no necessity to transfer the petitioner
out of the district.
4. It is also pointed out that Ext.P4 would indicate that
after he had alleged that the applicant, who had been working in
the directorate during the lock down period, had switched off
his mobile phone and failed to obey the directions of his
superior officers and that it is only taking a lenient view that the
applicant has been ordered to be transferred and posted in the
nearby district. On this basis, it is argued that it is clear that the
impugned transfer order at Annexure A2 is not an order issued
in bonafide exercise of the powers of transfer, but it is really
intended to victimise and harass the petitioner, in view of the
admitted factual aspects in para.6 of Ext.P4 reply statement
filed by the 2nd respondent in the O.A. Sri. M.V.Thamban the
learned counsel appearing for the petitioner also strongly
contended that the findings rendered by the Tribunal in the
impugned Ext.P6 final order, more particularly, in para.5
thereof to the extent that the vacancies pointed out by the
petitioner cannot be utilised to engage the petitioner inasmuch
as the vehicles in relation to those posts of Drivers have now
been put to auction, is factually incorrect etc. It is true that the
Tribunal has held in Ext.P6 that as of now, there is no vacancy
to accommodate or to engage the petitioner in
Thiruvananthapuram. But that taking into account that he is
SLR worker, who has been engaged in the administrative
exigencies as a Driver, though his transfer may be justifiable, it
shall be ensured that on occurrence of vacancy of SLR
worker/Driver, which requires service of the applicant, then the
applicant shall be considered for a posting in
Thiruvananthapuram district itself etc.
5. Various submissions have been made by the learned
counsel for the petitioner that the vacancies pointed out by the
petitioner in paras.5 and 6 of Ext.P5 are still in existence and
that the petitioner can be easily accommodated in
Thiruvananthapuram in one such vacancy and the contra
findings of the respondent and the contra findings of the
Tribunal are not factually correct etc. Further we are told that
the applicant may not have joined duty in pursuance of
Annexure A2 transfer order dated 15.07.2021. It is pointed out
that all throughout during the pendency of the O.A, interim stay
was granted by the Tribunal etc.
6. Taking note of the fact that the petitioner is a low
paid SLR worker, who has been engaged as a driver and since
ordinarily, unit of appointment of low paid employees like the
last grade employees etc. is district wise and not State wise,
there is strong force in the submission of Sri. M.V.Thamban, the
learned counsel for the petitioner, that ordinarily such low paid
employees may not be transferred outside the district and any
transfers should be made as far as possible in the same district.
It is pointed out that G.O(P) No.3/2017/PBRD dated
25.02.2017 would also reinforce that aspect. Further Sri
M.V.Thamban, the learned counsel for the petitioner would
point out that the petitioner has been appointed as SLR worker,
who has been engaged as a driver and that the norms would
permit engagement of the petitioner not only as SLR worker but
in various other capacities for other works. Hence it is pointed
out that if at all there are no vacancies in Thiruvananthapuram
district to accommodate the petitioner as Driver, still he could
be accommodated in Thiruvananthapuram district as SLR
worker in various other capacities for which there is no dearth
of vacancies. Having regard to those facts, the following
directions are issued:
i) The petitioner will immediately comply with the
directions in the impugned Annexure A2 transfer order dated
15.07.2021 and should join duty at Kollam;
ii) After complying with the above said direction, the
petitioner will be at liberty to file a detailed representation
before the 2nd respondent Director of Ground Water
Department, for ventillating the grievances and he shall
specifically point out the vacancies available in
Thiruvananthapuram district, including those vacancies
mentioned in para.5 and 6 of Ext.P5;
iii) Thereupon, the Director of Ground Water
Department will ensure that a detailed report is obtained by the
Administrative Officer concerned of the Directorate or the
district officer concerned about the correctness or otherwise of
the availability of such vacancies of Driver and also as to
whether any vacancies that will be available in the district. So
also, it should also be ascertained by the Director as to whether
the petitioner could be posted in Thiruvananthapuram district
as SLR Worker in capacities other than as Driver and whether
such vacancies of SLR Worker are available in
Thiruvananthapuram District. A copy of the said report should
also be made available to the petitioner. Thereafter, the
Director of Ground Water Department shall invite the
petitioner for a personal hearing and the petitioner shall be
afforded a reasonable opportunity of being heard through his
authorised representative or counsel of his choice and the
Director will advert to various aspects of the matter and if it is
found that such vacancies are available in Thiruvananthapuram
district, then the petitioner could be accommodated in
Thiruvananthapuram district either as Driver or in any other
capacity and orders in that regard shall be duly passed without
much delay, probably within a period of six weeks from the date
of filing of his representation. While disposing of the said
representation, it shall be ensured that detailed reasons should
also be adverted to, especially regarding the contentions of the
petitioner in the matter of availability of vacancies in
Thiruvananthapuram;
iv) It is made clear that the above said representation of
the petitioner need be entertained by the Director only if the
petitioner complies with the first direction to join duty at
Kollam;
v) Further it is again reiterated that, if the norms permit
engagement of the petitioner, SLR worker, not only as a driver
but in other capacity as well, then the Administrative Officer
concerned should also give report to the Director as to whether
there are other vacancies to accommodate the petitioner as SLR
worker in Thiruvananthapuram district in capacities other than
as a driver.
vi) It is also made clear that if the norms permit
engagement of SLR worker like the petitioner in capacities
other than that of a Driver and if there are no vacancies to
accommodate the petitioner as Driver in Thiruvananthapuram
district and if there are other vacancies to accommodate him as
SLR worker in that district, then the Director should seriously
consider those aspects so that the petitioner should be
accommodated in Thiruvananthapuram district as SLR worker
in such other capacities. The directions and order of the
Tribunal at Ext.P4 will stand modified and substituted as above.
With these observations and directions this O.P will stand
disposed of.
Sd/-
ALEXANDER THOMAS, JUDGE
Sd/-
A. BADHARUDEEN, JUDGE
rtr/
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1: TRUE COPY OF THE MEMORANDUM OF O.A NO.1384/2021
BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
ANNEXURE A1: TRUE COPY OF THE RELEVANT PAGES OF G.O(MS)
NO.88/12/GWD THIRUVANANTHAPURAM DATED 02.11.2012 ISSUED
FROM THE OFFICE OF THE 1ST RESPONDENT REENROLLING
APPLICANT IN SEASONED LABOUR ROLL (SLR) WORKER.
ANNEXURE A2: TRUE COPY OF TRANSFER ORDER NO.E(3)
2313/21/DGW DATED 15.7.2021 ISSUED FROM THE OFFICE OF THE 2ND
RESPONDENT.
ANNEXURE A3: TRUE COPY OF G.O(P) NO.3/2017 P&ARD,
THIRUVANANTHAPURAM, DATED 25.2.2017 PERTAINING THE
GUIDELINES OF TRANSFER FOR GOVERNMENT EMPLOYEES.
ANNEXURE A4: TRUE COPY OF THE REPRESENTATION FILED BY THE
APPLICANT BEFORE THE 2ND RESPONDENT DATED 19.7.2021.
EXT.P2: TRUE COPY OF THE ORDER DATED 23.7.2021 IN
O.A.NO.1384/2021 OF THE HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
EXT.P3: TRUE COPY OF THE M.A.NO.1491/2021 IN O.A.NO.1384/2021 OF
THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
EXT.P4: TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF
THE 2ND RESPONDENT IN O.A.NO.1384/2021 BEFORE THE HON'BLE
KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.
EXT.P5: TRUE COPY OF THE M.A NO.1608/2021 IN O.A.NO.1384/2021 OF
THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
ANNEXURE A5: TRUE COPY OF THE LETTER NO.8951/GW/1/15/WRD,
THIRUVANANTHAPURAM, DATED 09.10.2015 ISSUED TO THE
DIRECTOR BY THE 1ST RESPONDENT.
EXT.P6: TRUE COPY OF THE ORDER DATED 17.08.2021 IN
O.A.NO.1384/2021 OF THE HON'BLE KERALA ADMINISTRATIVE
TRIBUNAL, THIRUVANANTHAPURAM.
