Kerala High Court
Shyam M.S vs Union Of India on 10 August, 2020
Author: C.S.Dias
Bench: C.S.Dias
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE C.S.DIAS
MONDAY, THE 10TH DAY OF AUGUST 2020 / 19TH SRAVANA, 1942
WP(C).No.15274 OF 2020(H)
PETITIONER/S:
SHYAM M.S.
AGED 37 YEARS
S/O. MADHUSOODHANAN NAIR, RESIDING AT TC
29/235(3), MADHAVAM, THENGAPURA LANE, PETTAH
P O, THIRUVANANTHAPURAM, (SENIOR ASSISTANT,
AIRPORT FIRE SERVICE, TRIVANDRUM
INTERNATIONAL AIRPORT)
BY ADV. SRI.S.CHANDRASEKHARAN NAIR
RESPONDENT/S:
1 UNION OF INDIA
REPRESENTED BY SECRETARY CIVIL AVIATION,
GOVERNMENT OF INDIA-110011.
2 CHAIRMAN
AIRPORT AUTHORITY OF INDIA- 110011.
3 REGIONAL EXECUTIVE DIRECTOR
AIRPORT AUTHORITY OF INDIA, SOUTHERN REGION,
CHENNAI- 680021.
4 DIRECTOR
AIRPORT AUTHORITY OF INDIA,
THIRUVANANTHAPURAM - 695001.
R1 BY ADV. MR.VISHNU J., CGC
OTHER PRESENT:
R2-R3 ADV V SANTHARAM
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 05-08-2020, THE COURT ON 10-08-2020 DELIVERED THE
FOLLOWING:
WP(C).No.15274 OF 2020
2
C.S DIAS,J.
--------------------------
W.P (C) No.15274 of 2020
----------------------------
Dated this the 10th day of August, 2020.
JUDGMENT
This writ petition is filed seeking to set aside Ext.P2 order of transfer passed against the petitioner.
2. The petitioner is working as a Senior Assistant in the Thiruvananthapuram Airport Fire Service. He has received Ext.P2 transfer order dated 17.7.2020 transferring him from Trivandrum Airport to Kalaburagi Airport in Karnataka. The petitioner has submitted Ext.P3 representation before the 3rd respondent requesting not to relieve him from the Trivandrum Airport.
3. According to the petitioner, his juniors and batch mates were promoted without WP(C).No.15274 OF 2020 3 considering the petitioner's seniority and eligibility. Ext.P2 order is causing great hardship and untold sufferings to the petitioner. The transfer order has been passed ignoring Ext.P8 order which states that Airports having Private-Public Participation (in short 'PPP') shall not make in and out transfer of its employees. The Trivandrum Airport being a PPP Airport, all employees working in the Airport will get an opportunity to join Private-Public Participation and work there. If Ext.P2 order is not set aside, it would affect the rights of the petitioner to carry on his profession. One employee was retained in the Thiruvananthapuram Airport, as per Ext.P9, citing that there was no replacement at PPP Airport. Therefore, there is discrimination in Ext.P2 order. The mother of the petitioner is a cancer patient and his father is a heart-patient. Hence, the transfer order may be recalled and the petitioner may be retained at Trivandrum Airport WP(C).No.15274 OF 2020 4 on compassionate grounds, as was conferred by Ext.P15 on another employee. The petitioner has also a grievance regarding his promotion and disciplinary proceedings.
4. The learned counsel appearing for the respondents 2 to 4 has filed a statement. It is averred in the statement that the petitioner joined service as a Junior Assistant (FS) on 13.2.2006. In the year 2011, he was promoted to the post of Senior Assistant (FS). The petitioner has completed 14 years continuous service in the Airport Authority of India at Thiruvananthapuram. Ext.R4(a) seniority list of Fire Service Non- Executive was notified in the website of the Authority, inviting options for transfer/exemption from employees for the year 2020. The options received from the various employees were considered by the competent authority, and thereafter, Ext.P2 transfer order was passed. WP(C).No.15274 OF 2020 5
5. Ext.R4(b) transfer policy categorises airports as 1 year/2 year/3 year station/general station based on the facilities available near to the airports. To avoid hardship faced by the employees in tenure stations, tenure seniority list was prepared, , to transfer the employees who have completed the above tenures to non-tenure stations. The Kalaburagi Airport in Karnataka State was operationalised only recently. As per the tenure seniority list, the petitioner is at Serial No.2 and has been transferred from Trivandrum Airport to Kalaburagi Airport. The petitioner had not submitted his option for transfer or to exempt him from transfer. Now the petitioner has represented to exempt him from the transfer, stating the medical grounds of his parents and that the Trivandrum Airport is a PPP Airport. The petitioner's representation was forwarded to the competent authority at the Regional Head WP(C).No.15274 OF 2020 6 Quarters for consideration.
6. The respondents have specifically contended that the Public Private Partnership of the Trivandrum Airport has nothing to do with the retention of an employee due forunder the category. As per Ex.P8, any employee due for tenure station can be transferred from Trivandrum Airport, provided with replacement to the station. Accordingly, one Shri.S.Sanjeev who has opted for transfer to Trivandrum Airport has been transferred from Calicut, as the petitioner's replacement. Similarly, many employees in the Fire Cadre were transferred in and out in six PPP Airports mentioned in Ext.P8, which is evident from Exts.P2 and P9 transfer orders. The petitioner has been relieved of his duties from Trivandrum Airport on 28.7.2020, as seen from Ext.R4(c). Hence, the writ petition may be dismissed.
WP(C).No.15274 OF 2020 7
7. The sole question that emerges for consideration in this writ petition is whether the transfer and posting of the petitioner from Trivandrum Airport to Kalaburagi Airport is justifiable or not.
8. The scope of judicial review, in matters relating to transfer and posting of employees under Article 226 of the Constitution of India, is well settled in a host of judicial pronouncements by the Hon'ble Supreme Court.
9. The Hon'ble Supreme Court in Shilpi Bose and Others v. State of Bihar and Others [(1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed as follows:
" 4. In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from WP(C).No.15274 OF 2020 8 one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day trasnfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders."
10. The above legal proposition has been reiterated by the Hon'ble Supreme Court in State of M.P. and Another v. S.S.Kourav and others [(1995) 3 SCC 270], wherein, it is laid down thus:
"4........................................................... ...The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background WP(C).No.15274 OF 2020 9 foundation..................................................... ...................................................................... .."
11. Again, in Somesh Tiwari v. Union of India and Others [(2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows:
"20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law."
12. The trump card of the petitioner's contention is that Ext.P2 transfer order has been passed in violation of clause (i) of Ext.P8 order which states that as far as possible, no transfer in and out of PPP Airports may be done in the Guwahati, Thiruvananthapuram, Ahmedabad, Jaipur, Lucknow and Mangalore Airports for the cadres falling under Select Employees category. It is an undisputed fact that the respondents had WP(C).No.15274 OF 2020 10 invited options for transfer/exemption from employees for the year 2020 as per Ext.R4(a). The petitioner did not exercise his option or seek exemption from transfer. The petitioner has not challenged Ext.R4(b) transfer policy by which he is governed. On going through Ext.P2, it is seen that the petitioner has been transferred from Trivandrum Airport to Kalaburagi Airport along with other employees in replacement of employees at the respective Airports. Moreover, Ext.P2 is a general order of transfer, transferring ten fire officials under the Authority from different Airports to different Airports. The petitioner also does not dispute the fact that he has been working at Trivandrum Airport since 10.02.2006, as evidenced by Ext.R4(a) seniority list, i.e, for the last 14 years. The petitioner cannot aspire to continue to remain in Trivandrum Airport perpetually, in violation of the transfer norms of the respondents. WP(C).No.15274 OF 2020 11 It is also seen that the petitioner has been relieved from Thiruvananthapuram Airport on 28.7.2020 by Ext.R4(c).
13. The petitioner's contention regarding the ill-health of his parent does not fall within the purview of Ext.R4(b) policy. Because, clause 10.6 of Ext.R4(b) confers exemptions from transfer to only Self/Spouse/Dependent children suffering from illness. Therefore, the illness of the petitioner's parents cannot be sought as a ground for exemption from transfer.
14. The Hon'ble Supreme Court in a recent decision reported in Union of India and another vs Deepak Niranjan Nath Pandit [(2020) 3 SCC 404] has held thus:
"3. The High Court, in interfering with the order of transfer, has relied on two circumstances. Firstly, the High Court has noted that as a result of the stay on the order of transfer, the headquarters of the respondent will remain at WP(C).No.15274 OF 2020 12 Mumbai and even if he is to be suspended, his headquarters will continue to remain at Mumbai. The second reason, which has weighed with the High Court, is that the spouse of the respondent suffers from a cardiac ailment and is obtaining medical treatment in Mumbai. In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view.
(emphasis given)
15. The petitioner does not have a case that there is any malice or statutory infraction in Ext.P2 order so far so far as it relates to him. I find that Ext.P2 order is passed to meet to the administrative exigencies of the respondents. WP(C).No.15274 OF 2020 13
16. On a cumulative appreciation of the facts and materials on record and the law laid down by the Hon'ble Supreme Court in the aforecited precedents, I am of the considered opinion that there is no illegality in Ext.P2 order passed by the 3rd respondent, which is an incident of service. I do not find any ground warranting interference by this Court, in exercise of his powers under Article 226 of the Constitution of India, to set aside Ext.P2 order.
Resultantly, this writ petition is dismissed. ma/06.08.2020 Sd/- C.S.DIAS, JUDGE /True copy/ P.S to Judge WP(C).No.15274 OF 2020 14 APPENDIX PETITIONER'S/S EXHIBITS:
EXHIBIT P1 TRUE PHOTOCOPY OF THE APPOINTMENT LETTER OF THE PETITIONER ISSUED BY THE AIRPORTS AUTHORITY OF INDIA, DATED 13.02.2006.
EXHIBIT P2 TRUE COPY OF THE TRANSFER ORDER DATED 17.07.2020 ISSUED BY THE SOUTHERN REGION, CHENNAI-27.
EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 20.07.2020 SUBMITTED BY THE PETITIONER TO THE DIRECTOR, AIRPORT AUTHORITY OF INDIA.
EXHIBIT P4 TRUE COPY OF THE ORDER DATED 25.01.2019 PASSED BY ADDITIONAL CHIEF JUDICIAL MAGISTRATE COURT, THIRUVANANTHAPURAM CLOSING THE CASE AGAINST THE PETITIONER.
EXHIBIT P5 TRUE COPY OF THE ORDER DATED 15.01.2019 PASSED BY THE HON'BLE HIGH COURT OF KERALA IN CRL M.C NO.75/2019
EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 22.01.2019 FILED BY THE PETITIONER BEFORE THE 4TH RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE ORDER DATED 29.08.2019 ISSUED BY THE ASST.GENERAL MANAGER(HR) AIRPORTS AUTHORITY OF INDIA.
EXHIBIT P8 TRUE COPY OF THE ORDER DATED 23.05.2019 ISSUED BY THE 2ND RESPONDENT.
EXHIBIT P9 TRUE COPY OF THE ORDER DATED 30.06.2020 ISSUED BY REGIONAL EXECUTIVE DIRECTOR, WP(C).No.15274 OF 2020 15 EXHIBIT P10 TRUE COPY OF THE MEDICAL DETAILS OF THE MOTHER OF THE PETITIONER ISSUED BY THE LAKSHORE HOSPITAL.
EXHIBIT P10(a) TRUE COPY OF THE MEDICAL DETAILS OF THE FATHER OF THE PETITIONER ISSUED BY THE ASTER MEDICITY.
EXHIBIT P11 TRUE COPY OF THE MEMO DATED 14.02.2020 ISSUED BY THE REGIONAL EXECUTIVE DIRECTOR OF DISCIPLINARY AUTHORITY, SOUTHERN REGION.
EXHIBIT P12 TRUE PHOTOCOPY OF THE REPLY GIVEN BY THE PETITIONER DATED 11.03.2020 TO THE DIRECTOR OF AIRPORT AUTHORITY. EXHIBIT P13 TRUE PHOTOCOPY OF THE ORDER DATED 12.06.2020 ISSUED BY THE REGIONAL EXECUTIVE DIRECTOR/DISCIPLINARY AUTHORITY, AIRPORTS AUTHORITY OF INDIA.
EXHIBIT P14 TRUE PHOTOCOPY OF THE APPEAL PETITION FILED BY THE PETITIONER BEFORE THE APPELLATE AUTHORITY MEMBER(HR) DATED 10.07.2020.
EXHIBIT P15 TRUE PHOTOCOPY OF THE ORDER BEARING NO. A1/TV/E 29(A) 2019 887 DATED 24.09.2019 ISSUED BY THE AIRPORTS AUTHORITY.
RESPONDENTS EXHIBITS:
EXT.R4(a): TRUE COPY OF THE LETTER NO.AAI/SR/2-2(7)/EA/R&P DATED 7.1.2020 EXT.R4(b): TRUE COPY OF THE AAI TRANSFER POLICY ISSUED UNDER COPORATE HRM CIRCULAR NO.01(A)/2018 DATED 27.2.2018 EXT.R4 (c): TRUE COPY OF THE OFFICE ORDER NO.AAI/TV/E-29(A)/2020 DATED 28.7.2020