Kerala High Court
State Of Kerala vs Dr.Sooraj S on 20 January, 2023
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR
&
THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.
FRIDAY, THE 20TH DAY OF JANUARY 2023 / 30TH POUSHA, 1944
OP(KAT) NO. 431 OF 2022
AGAINST THE ORDER/JUDGMENT IN OA (EKM) 697/2022 OF KERALA
ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/S:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY TO GOVERNMENT,
INDUSTRIES (A) DEPARTMENT, SECRETARIAT.
THIRUVANANTHAPURAM , PIN - 695001
2 DIRECTOR OF MINING AND GEOLOGY
KESAVADASAPURAM, PATTOM PALACE P.O.,
THIRUVANANTHAPURAM, PIN - 695004
BY ADV GOVERNMENT PLEADER SRI. BEJOY CHANDRAN
RESPONDENT/S:
1 DR.SOORAJ S
AGED 48 YEARS
GEOLOGIST, KERALA MINERAL SQUAD (CENTRAL REGION).
CIVIL STATION, THRISSUR 680 003, S/O. (LATE)
SUBRAMANIA DAS, NOW RESIDING AT SURABI, SOORYA
HOMES, FRIENDSHIP ROAD, KUTTANELLOOR P.O.,
THRISSUR, PIN - 680014
2 DR.N.B.PREEJA
DR.N.B.PREEJA, DIRECTORATE OF MINING AND GEOLOGY,
THIRUVANANTHAPURAM , PIN - 695004
BY ADVS. M/S. A. JAYASANKAR & MANU GOVIND
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 20.01.2023, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
:2:
O.P. (KAT )No. 431 of 2022
A.K.JAYASANKARAN NAMBIAR
&
MOHAMMED NIAS C.P., JJ
............................................................
O.P. (KAT )No. 431 of 2022
..................................................................
Dated this the 20th day of January, 2023
JUDGMENT
Mohammed Nias.C.P.J.,
The State of Kerala and its Director of Mining and and Geology
have filed this Original Petition aggrieved by the observations made by
the Kerala Administrative Tribunal in the order dated 11-08-2022 in O.A.
(Ekm) No. 697 of 2022 at paragraphs 6 and 7. The Original Petition was
filed by the first respondent herein, a geologist, challenging his
transfer from Thrissur to the District Office, Kozhikode. The Tribunal,
after consideration of the matter found that there was no valid reason
for transferring the applicant from Thrissur to Kozhikode and
accordingly, set aside the order of transfer.
2. The State is aggrieved by the observations made in
paragraphs 6 and 7 of the order of the above order which are extracted
hereunder:-
O.P. (KAT )No. 431 of 2022
"6. It is pertinent to note that, after the promotion and
posting of the applicant by virtue of Annexure A1 order issued
in September, 2016, the applicant was transferred on three
occasions in September, 2017, in July 2019 and in January
2021, by virtue of Annexures A2 to A4 orders issued by the
respondents 1 and 2. On going through those orders, a
genuine doubt arises as to who is the competent authority to
order transfer of Geologists working in the Department,
whether it is the Government or the Director ? However, it is
to be noticed that the applicant was lastly transferred to
Thrissur, to the Kerala Mineral Squad (Central Region), only
in January, 2021. Presumably, it is because the said fact that
the applicant was not included in Annexure A5 transfer, issued
during November, 2021. But, under the pretext of complying
with the directions of this Tribunal in O.A.No.2152/2021,
secured by Dr. Saji Kumar.S., the applicant is again ordered to
be transferred. Even though, as contended by the 1 st
respondent, transfer is an incidence of service, it cannot be
misused in any manner causing harassment or victimization to
any of the employees or without any valid or cogent reasons
or without any extreme administrative exigencies existing. In
the case at hand, it is evident that Annexure A6 was issued
under the pretext of accommodating Dr. Saji Kumar.S. at the
Directorate of Mining and Geology at Thiruvananthapuram.
O.P. (KAT )No. 431 of 2022
Even on accepting the contention of the 1 st respondent that
there is one Geologist found in excess of the sanctioned
strength at the Directorate at Thiruvananthapuram, the 3 rd
respondent was ordered to be transferred from there. It is the
case of the respondent that the post at the District Office,
Kozhikode was lying vacant since 17.11.2021. The 3 rd
respondent, who was ordered to be transferred from the
Directorate at Thiruvananthapuram, could have been
accommodated at the district Office at Kozhikode, to fill up
that vacant post. Instead what was done by the 1 st
respondent is to transfer the applicant from Thrissur to
Kozhikode and posting of the 3 rd respondent at Thrissur, as
substitute to the applicant. No explanation is forthcoming in
the reply statement with respect to any circumstances which
necessitated such a transfer between the applicant and the 3
rd respondent.
7. As contended by the 1 st respondent, transfer is an
incidence of service and judicial review in the matter of
transfers can be exercised only sparingly. But in the case at
hand, harassment meted out by the applicant with respect
to the four consecutive transfers would indicate that the
respondents 1 and 2 were shunting him intermittently from
one post to another, without any valid reasons or without
any convincing administrative exigencies. However, as
O.P. (KAT )No. 431 of 2022
already observed, there is no valid reason for disturbing the
applicant from the present station of Thrissur, by virtue of
Annexure A6 order issued, in order to comply with the
direction of this Tribunal".
3. The learned Government Pleader Sri. Bejoy Chandran
appearing for the appellant submitted that the observations in the
above paragraphs were wrong both on facts and law. The applicant
had not challenged any of the earlier orders except Annexure-A6 order
dated 17-5-2022 in the Original Petition filed before the Tribunal. None
of the parties had a dispute as to who the competent authority was to
transfer a Geologist as it is the Government alone. It is also submitted
that a plain reading of Annexures A1 to A6 would reveal that several
persons were transferred by the said orders and it was not the
applicant alone and, therefore, there was no question of any
harassment meted out to the applicant. The appointing authority
being the Government, they were empowered to transfer the employee
and the said power also cannot be disputed. Transfer of employees is
not only an incidence of service but also an essential condition of
service.
4. We have heard Sri. Bejoy Chandran, the learned
Government Pleader for the State and Sri. A. Jayasankan and Manu
O.P. (KAT )No. 431 of 2022
Govind, the learned counsel appearing for the respondent.
5. Having heard the learned counsel on either side, we do not
propose to interfere with the order of the Tribunal in so far as it
interfered with the orders of transfer of the applicant, However, we
note that the observations made in paragraphs 6 and 7 extracted
above were not warranted in the facts of the case and were uncalled
for. Those observations were totally unnecessary for deciding the case
on hand and we hold that the observations made are against the
facts and law. No official was impleaded by name alleging malafides
and the finding that harassment has been meted out is uncalled for.
6. The adverse remarks as stated above were made in the
absence of any official being impleaded by name or raising specific
allegations of malice in fact or malice in law. The observations are
not at all justified by the record. Written words in judicial orders form
permanent record which make it even more necessary to practise self-
restraint in exercise of judicial power. The tenor of the order lacks
judicial propriety and sobriety. As we found earlier, they were
unwarranted on the facts in the instant case.
7. This being the limited scope of the above petition, the
Original Petition is allowed by expunging the observations made in
O.P. (KAT )No. 431 of 2022
paragraphs 6 and 7 of the orders impugned before us.
Original Petition is allowed as above.
Sd/-A.K.JAYASANKARAN NAMBIAR,
JUDGE
Sd/- MOHAMMED NIAS C.P.,
JUDGE
ani/
/true copy/
O.P. (KAT )No. 431 of 2022
APPENDIX OF OP(KAT) 431/2022
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER NO.401/2016-
17/2780/E1/2016/DMG DATED 23.09.2016
ISSUED BY THE 2ND RESPONDENT.
Annexure A2 TRUE COPY OF THE TRANSFER ORDER G.O(RT)
NO.1387/2017/ID DATED 26.09.2017 ISSUED
BY THE 1ST RESPONDENT.
Annexure A3 TRUE COPY OF THE TRANSFER ORDER
NO.236/2019-20/6862/E1/2019/DMG DATED
17.07.2019 ISSUED BY THE 2ND RESPONDENT
Annexure A4 TRUE COPY OF THE ORDER NO.588/2020-
21/2157/E1/2020/DMG DATED 25.01.2021
ISSUED BY THE 2ND RESPONDENT.
Annexure A5 TRUE COPY OF THE TRANSFER ORDER G.O.(RT)
NO. 1249/2021/ID DATED 17.11.2021 ISSUED
BY THE 1ST RESPONDENT.
Annexure A6 TRUE COPY OF THE TRANSFER ORDER G.O.(RT)
NO.441/2022/ID DATED 17.05.2022 ISSUED BY
THE 1ST RESPONDENT
Exhibit P1 TRUE COPY OF THE OA (EKM) NO.697/2022
ALONG WITH ITS ANNEXURES.
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT DATED
28.06.2022 FILED ON BEHALF OF THE 1ST
RESPONDENT IN THE ORIGINAL APPLICATION.
Exhibit P3 TRUE COPY OF THE ORDER DATED 11.08.2022
IN OA (EKM) NO.697/2022.
