State Of Kerala vs Dr.Saji Kumar.S
2022 Latest Caselaw 730 Ker

           IN THE HIGH COURT OF KERALA AT ERNAKULAM
                           PRESENT
         THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS
                              &
            THE HONOURABLE MR.JUSTICE VIJU ABRAHAM
   MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943
                   OP(KAT) NO. 361 OF 2021
 AGAINST THE ORDER DATED 08.12.2021 IN OA 2152/2021 OF KERALA
         ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONERS/RESPONDENTS 1 AND 2 IN O.A.:

    1     STATE OF KERALA
          REPRESENTED BY THE SECRETARY TO GOVERNMENT,
          INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT,
          THIRUVANANTHAPURAM - 695001. KERALA.
    2     THE DIRECTOR OF MINING AND GEOLOGY
          DIRECTORATE OF MINING AND GEOLOGY,
          KESAVADASAPURAM, THIRUVANANTHAPURAM - 695004.
          BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH


RESPONDENTS/APPLICANT & RESPONDENTS 3 TO 5 IN OA:

    1     DR.SAJI KUMAR.S,AGED 54 YEARS
          S/O. SUKUMARAN (LATE), GEOLOGIST HIGHER GRADE,
          PRESENTLY WORKING AT DIRECTORATE
          OF MINING AND GEOLOGY, KESAVADASAPURAM,
          THIRUVANANTHAPURAM - 695004, RESIDING OF
          ANANTHAPATHMAM, TC 8/1569(2), VECHAVODE,
          SREEKARIYAM P.O, THIRUVANANTHAPURAM,
          KERALA - 695017.
    2     SMT. GEETHA S.R,
          GEOLOGIST, PRESENTLY WORKING AT
          DISTRICT OFFICE OF MINING AND GEOLOGY,
          KESAVADASAPURAM,
          THIRUVANANTHAPURAM - 695004.
    3     DR. A. BADARUDEEN
          ASSISTANT GEOLOGIST, PRESENTLY WORKING AT DISTRICT
          OFFICE OF MINING AND GEOLOGY, COLLECTORATE,
          KOTTAYAM - 686002, (NOW PROMOTED AS GEOLOGIST AND
          POSTED AT DIRECTORATE OF MINING AND GEOLOGY),
          KERALA.
 OP(KAT) No.361 of 2021                       2




      4        SMT. SHAJIMIL P.K,
               ASSISTANT GEOLOGIST, PRESENTLY WORKING AT
               THE KERALA MINERAL SQUAD (CR),
               THRISSUR - 680020, (NOW PROMOTED AS GEOLOGIST
               AND POSTED AT THE DIRECTORATE OF
               MINING AND GEOLOGY), KERALA.
               R1 BY ADVS.
               SRI.M.FATHAHUDEEN
               SRI.JELSON J.EDAMPADAM



       THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR    ADMISSION         ON   17.01.2022,   THE   COURT   ON   THE   SAME   DAY
DELIVERED THE FOLLOWING:
 OP(KAT) No.361 of 2021                               3


             ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
               .................................................................
                           O.P.(KAT) No.361 of 2021
                  [Arising out of the impugned interim order dated 08.12.2021 in
                      O.A. No.2152 of 2021on the file of the KAT, TVM Bench]
                .................................................................
                      Dated this the 17th day of January, 2021
                                       JUDGMENT

Alexander Thomas, J.

The 1st respondent herein has filed the instant Ext.P1

Original Application, O.A.No.2152 of 2021 before the Kerala

Administrative Tribunal, Thiruvananthapuram Bench on 18.11.2021,

with the following prayers:

"i) Call for the records leading to Annexure A-1 and quash the same to the extent it transfers the applicant from his present station, Directorate of Mining and Geology to District Office, Kozhikode.

ii) Direct the Respondents 1 and 2 to retain the applicant at his present station at the Directorate of Mining and Geology.

iii) Such other and further reliefs as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case."

2. The interim prayer/interim relief raised in Ext.P1 Original

Application is as follows:

".......... to stay the operation and implementation of Annexure A-1 order to the extent it transfers the applicant from his present station at the Directorate of Mining and Geology to District Office, Kozhikode and direct the Respondents 1 and 2 to retain the applicant at his present station at the Directorate of Mining and Geology, Thiruvananthapuram."

3. The Tribunal has initially passed Ext.P2 interim order

dated 18.11.2021 in the instant O.A.No.2152 of 2021 which reads as

follows:

"Applicant is a Geologist who impugns Annexure A1 order of transfer. As per Annexure A1 order dated 17.11.2021 the applicant is transferred and posted to District Office, Kozhikode against a vacancy which has arisen due to the promotion of the incumbent Geologist who is now promoted as per the same order, as Deputy Director and is posted in the Directorate of Mining and Geology. It is stated that the above order dated 17.11.2021 was published in the official website only on 18.11.2021. The applicant seeks retention at the Directorate pointing out that he was posted at the Directorate only in the year 2019.

2. The learned Government Pleader, submits that the applicant has been continuing at Thiruvananthapuram from the year 2016 and has completed more than 5 years and the transfer was necessitated due to the promotion order. It is also submitted that relieving orders have been duly issued on the F.N of 18.11.2021. This fact is disputed by the counsel for the applicant who states that the applicant is a gazetted officer who is on leave today.

Post on 23.11.2021. The learned Government Pleader will get instructions as to availability of a vacancy of Geologist at the Directorate and whether the applicant could be retained against the above post. Learned Government Pleader will also make available the relieving orders, if any, issued as on 18.11.2021. Status quo, as on today will be maintained till 23.11.2021."

4. Later, when the official respondents in the O.A. had

apprised the Tribunal that the original applicant was already relieved

from service, as on the date on which Ext.P2 interim order of status

quo was rendered by the Tribunal on 18.11.2021 and that R3 in the

O.A./R2 herein Smt.Geetha S.R. had already taken charge in the post

in the head office at Thiruvananthapuram held by the applicant, etc.,

the Tribunal has passed the impugned Ext.P6 interim order dated

08.12.2021, ordering to retain the applicant in the post in the

Directorate at Thiruvananthapuram, until the final disposal of the

O.A.

5. Now the State of Kerala and the Director of Mining and

Geology/respondents 1 & 2 in the O.A. have filed the instant Original

Petition under Articles 226 & 227 of the Constitution of India, with the

following prayers:

"1. To set aside Exhibit P6 Interim Order dated 08.12.2021 of the Kerala Administrative Tribunal in O.A.No.2152/2021 and dismiss the Exhibit P1 Original Application.

2. To issue other reliefs, this Honourable Court may deem fit in the Original Application."

6. Heard Sri.Antony Mukkath, learned Senior Government

Pleader appearing for the petitioners in the O.P./official respondents 1

& 2 in the O.A. and Sri.M.Fathahudeen, learned Advocate appearing

for R1 in the O.P./sole original applicant in the O.A. In the nature of

the orders proposed to be passed by this Court in the O.P., notices to

contesting respondents 2 to 4 in the O.P./contesting respondents 3 to

5 in the O.A., will stand dispensed of.

7. The applicant herein is essentially aggrieved by the

impugned Annexure-A1 transfer order as per G.O.(Rt)

No.1249/2021/ID dated 17.11.2021 issued by the Government in the

Industries Department whereby it has been ordered that the applicant

who has been continuing in Thiruvananthapuram, in the head office,

will stand transferred as District Geologist, Kozhikode and in his

place, R2 herein Smt.Geetha S.R. will stand transferred and posted

accordingly. The impugned Annexure-A1 order is an order for transfer

and posting of six incumbents in the cadre of Geologist, either on the

basis of promotion or otherwise. One of the prime contention taken by

the original applicant is that he has only 1½ years to retire from

service in as much as he is due to retire on 31.05.2023 and that

therefore, going by the transfer guidelines, posting an incumbent like

the applicant to a far off place at Kozhikode is not proper and correct,

etc.

8. Per contra, the contention of the State and Departmental

authorities is that the original applicant has already completed more

than 5 long years in various capacities in Thiruvananthapuram and

that the transfer and posting has been made in the exigencies of

service, taking note of promotion of certain incumbents and to fill up

the existing vacancy, etc. as can be seen from a reading of Annexure-

A1 order.

9. The Tribunal initially has passed the impugned Ext.P2

interim order dated 18.11.2021 ordering that the status quo as on that

date (18.11.2021) should be maintained by the official respondents in

the O.A. as regards the transfer and posting of the applicant. The

contesting respondents in the O.A./petitioners herein had thereafter

apprised the Tribunal that as on the day on which Ext.P2 interim

order was passed by the Tribunal on 18.11.2021, the original applicant

was already relived from his post as Geologist in the Directorate of

mining and Geology, Thiruvananthapuram and that Smt.Geetha S.R.

who was transferred from her earlier post as District Geologist,

Thiruvananthapuram, has already taken charge in the post of

Geologist at Directorate held by the applicant on 18.11.2021 fore noon

and that therefore, the interim status quo order as per Ext.P2 dated

18.11.2021 has become infructuous. Further that with the

implementation of the impugned Annexure-A1 transfer order all the

sanctioned posts of Geologist in the Directorate and in

Thiruvananthapuram District have already been filled up and

therefore, allowing the applicant to continue in the Directorate at

Thiruvananthapuram, is not legally permissible, etc.

10. The Tribunal after hearing both sides has rendered the

impugned Ext.P6 interim order 08.12.2021 holding that the very

relieving of the applicant from the post at Directorate,

Thiruvanathapuram and the consequential assuming of charge by R2

herein (Smt. Geetha S.R.), is against the norms as per Part I of

Appendix III of KSR, etc. and by placing reliance on the decision

rendered by the learned Single Judge of this Court in the case in

Ramavarma Thirumulpad v. State of Kerala [ILR 1985 (2)

Ker. 355=1985 KHC 405], etc. Being aggrieved by the present

impugned interim order at Ext.P6 dated 08.12.2021, the State and the

Director of Mining and Geology have preferred the instant O.P. as

aforesaid.

11. Now the prime contentions raised by Sri.Antony Mukkath,

learned Senior Government Pleader appearing for the petitioners are

two fold. Firstly that the impugned transfer order at Annexure-A1 was

made in the exigencies of service and that the applicant has already

completed 5 long years of service in Thiruvananthapuram in various

capacities. Further that the impugned transfer order at Annexure-A1

was made in the exigencies of service in as much as certain transfers

and postings had to be made due to promotions to certain incumbents

like R3 herein (Dr.A.Badarudeen) and R4 herein (Smt.Shajimol P.K.),

etc. and to fill up the existing vacancy at Kozhikode that therefore the

consequential transfer and posting of the applicant had also to be

made as per Annexure-A1. It is pointed out that the officer who was

working as District Geologist, Kozhikode, the post to which the

applicant has now been transferred as per Annexure-A1, was

promoted to the next higher category post of Deputy Director of

Mining and Geology and there thus existed a vacancy in the post of

District Geologist at Kozhikode. Further that R3 herein

(Dr.A.Badarudeen) was an Assistant Geologist at the District Office of

Mining and Geology Department, Kottayam and R4 herein

(Smt.Shajimol P.K.) was an Assistant Geologist then working at

Thrissur and both of them are promoted to the next higher category

post of Geologist and they have to be provided posting to the said

promotion post of Geologist, that in these circumstances that since the

applicant has continued in Thiruvananthapuram for five long years, it

was decided in the exigencies of service that he had to be transferred

and posted as District Geologist, Kozhikode in the existing vacancy

and that Smt.Geetha S.R., had to be transferred from the post of

District Geologist, Thiruvananthapuram to the post of Geologist,

Directorate of Mining and Geology held by the applicant. That in the

consequential vacancy of R2 herein Smt.Geetha S.R., one Sri.Bijumon

P.N. was posted, as evident from Ext.P4 dated 23.11.2021 and further

that R3 herein and R4 herein on promotion were posted as Geologists

in the other two existing vacancies of Geologists in the Directorate of

Mining and Geology. Further that R2 herein had assumed duty as per

the rules, consequent to Annexure-A2 and R3 herein, R4 herein and

the abovesaid Sri.Bijumon P.N. covered by Ext.P4 had also by then

joined duty to the respective posts concerned. In the result that no

post is now available to accommodate the applicant and that the

continuance of the applicant would result in an anomalous and legally

incorrect state of affairs in as much as two incumbents, both R2 herein

and the original applicant are continuing in the Directorate at

Thiruvananthapuram as against a single sanctioned post. Further it is

pointed out that the reliance placed by the Tribunal on Ramavarma

Thirumulpad's case (1985 KHC 405) is misplaced in as much as it

has been clearly held in para No.7 thereof that in the said case, nobody

had a case that the petitioner therein was on leave as indicated in Part

I of Appendix III, etc. In the instant case it is pointed out by the

learned Senior Government Pleader that even going by the case of the

original applicant, he was on leave as on 18.11.2021 (the day on which

Ext.P2 interim status quo order was rendered by the Tribunal), in

pursuance of impugned Annexure-A1 transfer order dated 17.11.2021

and that therefore the rules clearly permit the other incumbent like R2

herein Smt.Geetha S.R. to assume charge of the post held by the

original applicant, in consequence of Annexure-A1 transfer order, etc.

and that hence the dictum laid down by the learned Single Judge of

this Court in Ramavarma Thirumulpad's case (supra) is not

applicable to the instant case and this crucial aspect has been

completely overlooked by the Tribunal, etc.

12. Per contra, Sri.M.Fathahudeen, learned counsel appearing

for R1 herein/original applicant would point out that the applicant has

hardly about 1½ years to retire from service in as much as he is due to

retire from service on 31.05.2023 and that going by the transfer norms

personnel who have less than two years to retire from service

ordinarily shall not be disturbed with a transfer, etc. To this, the

learned Senior Government Pleader would point out that the said

norm is not inflexible and that transfer order can be made

notwithstanding such law in the exigencies of service and in the

instant case, the crucial and relevant aspect of the matter is that the

applicant had already enjoyed continuous posting in

Thiruvananthapuram for the last five years and therefore, ordering his

transfer to a responsible position like District Geologist, Kozhikode

cannot be said to be beyond the authority of the State Government.

13. The learned counsel for R1 herein would also point out that

the family situation of the original applicant has not been considered

and that his wife is working as a teacher in Palakkad District and she is

away from their family home at Thiruvananthapuram and that the

applicant has only a single child (minor boy aged 11 years and now

studying in standard V in a school at Thiruvananthapuram) and that

the only persons to take care of the minor son of the applicant are the

parents of the applicant's wife who are now in Thiruvananthapuram

and that if the applicant is transferred to Kozhikode, both the

applicant and his wife who is at Palakkad will not be able to take care

of the boy during office hours, as most of the time the child was then

undergoing online schooling and presence of someone at home is

highly necessary and hence the disturbance of the applicant from

Thiruvananthapuram by transfer to Kozhikode would result in a

situation that the young son of the applicant may face serious

schooling problems, etc.

14. After hearing both sides, we are not much impressed with

the stand taken by the Tribunal by placing reliance on Ramavarma

Thirumulpad's case (supra) (1985 KHC 405), in as much as the

specific case of the applicant himself that he was already on leave on

18.11.2021, the day on which Ext.P2 status quo order was passed. The

learned Senior Government Pleader has strongly urged that since the

applicant was admittedly on leave on 18.11.2021, the only way to

implement the transfer order in the normal course of things was for

R2 herein to assume charge in the said post, which is clearly permitted

by the provisions contained in Appendix III of Part I of KSR and that

the said exemption is clearly called down in para No.7 of this Court's

decision as per Ramavarma Thirumulpad's case (supra).

15. However, after hearing both sides, we see that the

impugned transfer order was issued as per Annexure-A1 on 17.11.2021

and it was very much into the knowledge of the official respondents in

the O.A. that the schools could be formerly closed by the end of March

2022, and at that point of time, Sri.Bijumon P.N. covered by Ext.P4

dated 23.11.2021 was not ordered to be transferred to

Thiruvananthapuram in the post held by R2 herein. Therefore if the

transfer and posting was justified by exigencies of service, the same

could have been withheld for some time atleast till the beginning of 2 nd

week of March 2022, so that the schooling of the only child of

applicant is not seriously impaired. We say so only vis-a-vis with

regard to the interlocutory arrangement made by the Tribunal. This

comment of ours cannot be construed as an expression of opinion on

our part regarding the merits of the main controversy, which will have

to be decided on merits by the Tribunal. The aspects regarding the

schooling affairs of the only child of the applicant and fact that the

applicant's wife is already working in Palakkad, etc. have been duly

taken note of. If so, sufficient steps could have been taken to ensure

that those aspects of the matter have been duly taken care of as

mentioned hereinabove. Now the Tribunal has passed the present

impugned interim order as per Ext.P6 and the schools would be closed

by the last week of March 2022 and we feel that the interlocutory

arrangement made by the Tribunal need not be disturbed by us,

atleast till then.

16. Sri.M.Fathahudeen, learned counsel appearing for the

applicant in the O.A. submits that the main matter in the O.A. itself

can be heard and decided by the Tribunal as the matter in issue is

quite simple since it relates to a transfer order and that this Court may

ensure the early final disposal of the main matter in the O.A., well

before the 2nd week of March 2022 or so, etc. We see strong force in

the submission made by Sri.Antony Mukkath, learned Senior

Government Pleader appearing for the petitioner in the O.P., that

allowing two personnel to continue at Thiruvananthapuram as against

the single sanctioned post is quite anomalous and is not the right

manner of dealing with things in a transfer issue. However, taking

note of the peculiar facts and circumstances of the case relating to the

issues of the only child of the applicant and taking note of the further

passage of time and as the school will be closed by the 3rd week of

March 2022 also, the following orders are passed:

It is ordered that the Tribunal may take all reasonable endeavours possible to ensure the early final disposal of the main matter in Ext.P1 O.A.No.2152 of 2021, without any further delay, at any rate, by the

2nd week of March 2022 or so. However, we make it clear that if for any reason the Tribunal is not in a position to render its final verdict in the O.A. within the said time line or at least before 25.03.2022, then the petitioners herein will be at liberty to relieve the applicant from his present post at Thiruvananthapuram and the applicant will have to join duty at Kozhikode, in pursuance of Annexure-A1, but this will be without prejudice to his contentions in the O.A. We make this provision to protect the rights and interests of both sides and also to ensure that the anomaly of allowing two personnel to continue as against a single sanctioned post is rectified as early as possible. We make it clear that we have not entered into the merits of the controversy in any manner and the abovesaid orders are passed by us only as an interim arrangement. All issues are at large. Since from the submissions made on behalf of the petitioners in the O.P. it is made clear that they are not in a position to reconsider the transfer order, etc., the Tribunal will adjudicate on the merits of the issue regarding the legality and correctness of the impugned Annexure-A1 transfer order. The learned Senior Government Pleader submits that the petitioners may be given liberty to ensure that additional charge arrangement is made to man the post of District Geologist, Kozhikode, etc. We need not pass any orders in that regard for it is fully within the province and domain of the State authorities

concerned to take care of such aspects, pending the final disposal of the O.A. as above.

Hence the impugned directions and orders of the Tribunal, will stand

modified as above.

With these observations and directions, the above Original

Petition, will stand disposed of.

Sd/-

ALEXANDER THOMAS JUDGE

Sd/-

VIJU ABRAHAM JUDGE

cks

APPENDIX OF OP(KAT) 361/2021

PETITIONER EXHIBITS Exhibit P1 PHOTOCOPY OF THE O.A. NO. 2152/2021 ALONG WITH ANNEXURES.

ANNEXURE A1 TRUE COPY OF GO(RT) NO. 1249/2021/ID DATED 17.11.2021 OF GOVERNMENT OF KERALA.

ANNEXURE A2 TRUE COPY OF GO(P) NO.3/2017/P&ARD DATED 25.02.2017 OF GOVERNMENT OF KERALA.

Exhibit P2 PHOTOCOPY OF THE INTERIM ORDER DATED 18.11.2021 ISSUED BY THE TRIBUNAL.

Exhibit P3 PHOTOCOPY OF THE MEMORANDUM FILED BY THE GOVERNMENT PLEADER DATED 23.11.2021 REGARDING PRODUCTION OF DOCUMENTS, DOCUMENTS, DOCUMENT 1 : REPORT OF TRANSFER OF CHARGE, DOCUMENT 2 : PHOTO COPY OF THE GOVERNMENT LR. NO.

9860/E1/2020 DATED 18.11.2021 ISSUED BY THE DIRECTOR OF MINING & GEOLOGY THIRUVANANTHAPURAM.

Exhibit P4 PHOTOCOPY OF THE MEMORANDUM FILED BY THE GOVERNMENT PLEADER DATED 25.11.2021 REGARDING PRODUCTION OF DOCUMENTS, DOCUMENTS DOCUMENTS 1 : PHOTO COPY OF THE GO(RT) NO. 1273/2021/ID DATED 23.11.2021 OF THE INDUSTRIES DEPARTMENT., DOCUMENTS 2 : PHOTO COPY OF THE GOVERNMENT LR.NO. ID-A1/256/2021/ID DATED 23.11.2021.

Exhibit P5 PHOTOCOPY OF M.A.NO.2330/2021 ALONG WITH ANNEXURES A3 TO A9 ON 24.11.2021.

ANNEXURE A3 TRUE COPY OF THE FINAL ORDER DATED 18.08.2021 IN OA NO.1124/2021 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A4 TRUE COPY OF THE MEMO 3689/M4/2019 DATED 22.02.2021 OF THE 2ND PETITIONER.

ANNEXURE A5 TRUE COPY OF THE ORDER NO. 292/2021-

22/9719/E1/2020 DATED 31.08.2021 OF THE 2ND PETITIONER.

ANNEXURE A6 TRUE COPY OF THE SUBMISSION DATED

10.11.2021 SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER.

ANNEXURE A7 TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF NOVEMBER 2021.

ANNEXURE A8 TRUE COPY OF THE ADVANCE COPY OF THE SUBMISSION DATED 18.11.2021 THROUGH PROPER CHANNEL SUBMITTED BY THE RESPONDENT BEFORE THE 1ST PETITIONER.

ANNEXURE A9 TRUE COPY OF THE SUBMISSION DATED 19.11.2021 SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER.

Exhibit P6               PHOTOCOPY OF INTERIM ORDER DATED
                         08.12.2021 ISSUED BY THE TRIBUNAL.