Kerala High Court

Nihilkumar.E.U vs The Kerala State Road Transport ... on 21 December, 2023

Author: V Raja Vijayaraghavan

Bench: V Raja Vijayaraghavan

             IN THE HIGH COURT OF KERALA AT ERNAKULAM
                              PRESENT
         THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V
  THURSDAY, THE 21ST DAY OF DECEMBER 2023 / 30TH AGRAHAYANA, 1945
                      WP(C) NO. 40969 OF 2023
PETITIONER:

          NIHILKUMAR.E.U.
          AGED 47 YEARS
          S/O. ULLASAN, DRIVER GRADE - I, THE KERALA STATE ROAD
          TRANSPORT CORPORATION, NORTH PARUR DEPOT, ERNAKULAM
          DISTRICT, RESIDING AT EDAKKATTU HOUSE, CHERAI.P.O.,
          ERNAKULAM DISTRICT, PIN - 683514.

          BY ADV O.D.SIVADAS


RESPONDENTS:

    1     THE KERALA STATE ROAD TRANSPORT CORPORATION
          TRANSPORT BHAVAN, THIRUVANANTHAPURAM, REPRESENTED BY
          ITS MANAGING DIRECTOR, PIN - 695001.

    2     THE ASSISTANT TRANSPORT OFFICER,
          KERALA STATE ROAD TRANSPORT CORPORATION, NORTH PARUR
          DEPOT, ERNAKULAM DISTRICT, PIN. 683513.

    3     THE EXECUTIVE DIRECTOR, (ADMINISTRATION),
          THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT
          BHAVAN, THIRUVANANTHAPURAM, PIN - 695001.

    4     THE CHAIRMAN AND MANAGING DIRECTOR
          THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT
          BHAVAN, THIRUVANANTHAPURAM,, PIN - 695001.


          SRI. DEEPU THANKAN, SC FOR KSRTC



     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
21.12.2023, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 40969 OF 2023


                                       2




                                     JUDGMENT

The petitioner is presently employed as a Driver in the Kerala Road

Transport Corporation (hereinafter referred to as 'the KSRTC') and is

presently attached to the North Parur Depot. He has approached this Court

impugning the transfer order issued by the respondents, transferring him

from North Parur to Chathannur.

2. The petitioner asserts that he commenced his employment with

the KSRTC as a Driver in the year 2013. Throughout his tenure, he was

transferred to various units, and finally, he was posted at North Parur on

8.11.2019 and he has been working in the same Depot since then. He

asserts that as he has worked outside the home unit for more than 5 years,

he has completed his incumbency period and is, therefore, entitled to get a

transfer to his home unit.

3. It is stated that in violation to Ext.P1 transfer norms, the

respondent corporation has issued the General Transfer order, by which the

petitioner was transferred from North Parur to Chathannor as per Ext P2. It

is stated that the transfer order is unsustainable under the law. Challenging

the same, Ext.P3 representation was submitted before the 2nd respondent. WP(C) NO. 40969 OF 2023

He also contends that while transferring the petitioner to Chathannor, the

seniority of the petitioner in the Circle has not been considered. It is stated

that there are many incumbents who have not even completed the

incumbency period, are continuing in the North Parur unit, and that the

petitioner has been transferred without considering his one year of service

rendered in stations of more than 300 Kms. The petitioner states that if

the transfer order is given effect, serious injustice would be caused.

Highlighting his grievances, the petitioner is stated to have preferred Ext.3

representation before the 2nd respondent. His grievance is that no action

has been taken to date.

4. A counter affidavit has been filed by the respondents, denying

the contentions advanced by the petitioner. The following contentions are

raised:

a) Transfer is an incidence of service and the employee has no right to

be posted at a particular place.

b) Unless the order of transfer is vitiated by statutory violations or is

mala fide in nature, this Court will not be justified in interfering with

the same.

c) Guidelines for transfer are not statutory, and mere violation of the WP(C) NO. 40969 OF 2023

guidelines will not be a reason for interfering with the order of

transfer.

d) The appointments in the Corporation are done on a State-wide basis

and therefore, the proportion of geographical requirement and staff

availability is not uniformly distributed. As the Corporation is

entrusted with the duty of providing a secure, efficient, and properly

coordinated system of road transport service, they are fully

empowered to deploy its employees all over the State.

5. Sri. O.D.Sivadas, the learned counsel appearing for the

petitioner, reiterated the contentions in the writ petition.

6. Sri. Deepu Thankan, the learned counsel appearing for the

KSRTC, submitted that the Corporation is one of the largest employers in

the State with as many as 24,000 employees, out of which about 2200

employees are on illegal leave. It is stated that to fulfill the duty effectively,

the corporation deploys its employees on a work arrangement basis to

those units where there is a shortage of employees, to avoid hindrance

while operating service. It is on account of administrative exigencies and to

streamline the operations that a general transfer order has been issued,

which affects almost 4000 personnel. According to the learned counsel, the

majority of Conductors who are working in the KSRTC are from the WP(C) NO. 40969 OF 2023

northern part of Kerala, and the majority of drivers are from the southern

part. It is submitted that for administrative exigencies and to accede to the

long pending request of various employees who are working out of their

home unit, the general transfer order was issued. Reliance is placed on the

judgment rendered by the Division Bench of this Court in Babu V State of

Kerala1, and it is argued that the orders of transfer made in the exercise of

administrative discretion may not be interfered with under Art.226 of the

Constitution. Reliance is also placed on Nixy James v. Kerala State

Road Transport Corporation2 to substantiate his contention.

7. I have considered the submissions advanced and have gone

through the records.

8. The grievance of the petitioner in the instant case concerns Ext

P2, in which the petitioner is transferred by general order of transfer. By the

above order, he has been transferred from North Parur to Chathannur.

9. The contention of the petitioner is that the seniority of the

petitioner was not reckoned while the transfer order was effected. He also

asserts that he has completed his incumbency period and is entitled to get

a posting in his Home Depot itself. I find from the records that the

[1988 (2) KLT 258]

[2023 (3) KLT 893] WP(C) NO. 40969 OF 2023

petitioner has been stationed in the North Parur unit since 2019.

10. The question is on these assertions that the transfer order is

liable to be interfered with. In Gujarat Electricity Board and Another v

Atmaram Sungomal Poshani3, it was held by the Apex Court as under:

4. Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other.

[1989 (2) SCC 602] WP(C) NO. 40969 OF 2023

11. In State of M.P. and Another v. S. S. Kourav and Ors.4, the

Apex Court held that the Courts or Tribunals are not appellate forums to

decide on transfers of officers on administrative grounds. It is for the

administration to take appropriate decisions and such decisions shall stand

unless they are vitiated either by mala fides or extraneous considerations

without any factual background foundation.

12. In B. Varadha Rao (supra), it was held by the Apex Court

as under:

5............"It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power.

Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair."

[1995 SCC (L&S) 666] WP(C) NO. 40969 OF 2023

The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto varies to the disadvantage of a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules.

6. One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class III and Class IV employees stand on a different footing. We trust that the government will keep these considerations in view while making an order of transfer.

13. In Babu v. State of Kerala5, a Division Bench of this Court

had occasion to observe as under while considering a challenge against an

order of transfer:

1................ Orders of transfer made in exercise of

1988(2) KLT 258 WP(C) NO. 40969 OF 2023

administrative discretion should not ordinarily be interfered with under Art.226 of the Constitution. Guidelines for transfer are not statutory. They are meant for guidance in the matter of transfer.

They are not exhaustive. In administration variety of situation not contemplated by the guidelines may arise which have to be taken into account. Merely because a guideline has been violated in the matter of transfer, that would not by itself be a sufficient ground for interference.

14. In Nixy James v. Kerala State Road Transport

Corporation6, a learned Single Judge of this Court had occasion to

encapsulate the law relating to the transfer of employee by referring to the

earlier precedents. It would be appropriate to extract paragraphs Nos. 6 to

9, which I feel applies to the facts of the instant case.

"6. Law is too well settled that, transfer is an incidence of service and the employee has no legal right in this behalf. It is also well settled that, unless the orders of transfer is vitiated by statutory violations or mala fides, Courts should be loathe in interfering with the same. Courts will be extremely circumspect, will act with restraint and may not ponder into hairsplitting arguments, to scan the decisions in orders of transfer. The Corporation cannot effectually work when the employees act intolerably or spitefully amongst themselves or is engaged in activities which go against the best interests of the Corporation. Transfer can be effected on administrative grounds as long as it is intended to aid proper administration and to sub-serve internal discipline.

7. When an employee is transferred to maintain the smooth running

2023 (3) KLT 893 WP(C) NO. 40969 OF 2023

of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or in appropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of administration, to enforce a decorum and ensure probity. 8. The question whether an employee is to be transferred to a different division etc., are matters for the employer to consider depending upon the administrative necessities. The power to transfer an employee in a transferable service is within the prerogative of the employer. It is he who knows best, where an employee should be deployed for an effective discharge of his/her duties for the establishment. The inconvenience caused to the employee and his family consequent on the transfer are not sufficient to interfere with the orders of transfer. A transfer can always be done in public interest. (Babu v. State of Kerala (1988 (2) KLT 258), Vasu v. High Court of Kerala (1989 (1) KLT 16), Dinamony v. Dt. Superintendent of Police, Kollam (1994 (1) KLT 326), P.Pushpakaran v. Chairman, Coir Board (Ker.) (1978 KLT 539 ), Rajan v. Director General of Police (1999 (2) KLT 673), Shilpi Bose v. State of Bihar (1991 Supp. (2) SCC 659), Union of India v. S.L.Abbas (1993) 4 SCC

357), National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan (2001) 8 SCC 574), Union of India & Ors. v. Sri Janardhan Debanath & Anr. (2004) 4 SCC 245), Divyamol R.S. v. Director General Central Industrial Security Force, New Delhi & Ors. (2022 (4) KLT OnLine 1093).

9. In addition to the law on transfers as noticed supra, it is WP(C) NO. 40969 OF 2023

appropriate to refer to clause 11 of the Transfer Guidelines in Appendix-IV of the Long-Term Settlement Agreement, 2012 of the Corporation. A copy of the same has been produced along with the counter affidavit as Annexure-R1(a). Clause 11 thereof deals with "Transfer on Administrative ground due to disciplinary issues". Therefore, the Corporation is enabled even under the Transfer Guidelines to effect transfers of its employees on administrative grounds, to maintain a harmonious and working atmosphere at its offices."

15. This Court has held that the transfer is an incidence of

service, and the employee has no legal right to interdict the same unless

there are materials to suggest that the order of transfer is vitiated by

statutory violations or mala fides. Transfer can be effected on

administrative grounds as long as it is intended to aid proper

administration and to sub-serve internal discipline. The question of

whether an employee is to be transferred to a different division, etc., is a

matter for the employer to consider, depending upon the administrative

necessities. The power to transfer an employee in a transferable service is

within the prerogative of the employer. The inconvenience caused to the

employee and his family consequent to the transfer is not sufficient to

interfere with the orders of transfer. A transfer can always be done in the

public interest. Furthermore, in Babu (supra), it has been held by a WP(C) NO. 40969 OF 2023

Division Bench of this Court that guidelines for transfer are not statutory,

and they are meant for guidance in the matter of transfer. They are not

exhaustive. In administration, a variety of situations not contemplated by

the guidelines may arise, which have to be taken into account. Merely

because a guideline has been violated in the matter of transfer, that would

not by itself be a sufficient ground for interference. In view of the

discussion above, I do not think any cause for interference is made out.

16. At this stage, Sri. O.D. Sivadas, the learned counsel appearing

for the petitioner, submitted that the petitioner has preferred Ext.P3

representation before the 2nd respondent, highlighting his grievances,

and the same is pending consideration.

17. In that view of the matter, while dismissing the writ petition,

there will be a direction to the 2nd respondent to take up Ext.P3

representation and pass appropriate orders on its merits within a period of

six weeks from the date of receipt of a copy of this judgment.

Sd/-

RAJA VIJAYARAGHAVAN V JUDGE Ps WP(C) NO. 40969 OF 2023

APPENDIX OF WP(C) 40969/2023

PETITIONER'S EXHIBITS:

Exhibit P1 TRUE COPY OF THE TRANSFER NORMS ISSUED BY THE 2ND RESPONDENT.

Exhibit P2 TRUE COPY OF THE RELEVANT PORTION OF THE TRANSFER ORDER ISSUED BY THE 2ND RESPONDENT AS PER PROCEEDING NO. 700/CMD(SPC)2023/RTC DATED 4.11.2023.