Kerala High Court
P.K.Faisal vs The Kerala State Development ... on 3 September, 2008
Author: P.N.Ravindran
Bench: P.N.Ravindran
IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 24202 of 2008(F)
1. P.K.FAISAL, ASSISTANT GRADE II,
... Petitioner
Vs
1. THE KERALA STATE DEVELOPMENT CORPORATION
... Respondent
2. THE MANAGING DIRECTOR
For Petitioner :SMT.P.V.ASHA
For Respondent : No Appearance
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :03/09/2008
O R D E R
P.N.Ravindran, J.
=====================
W.P(C).No.24202 of 2008
=====================
Dated this the 3rd day of September, 2008.
JUDGMENT
The petitioner a person with disability challenges Ext.P4 order whereby he was transferred from Ernakulam to Idukki. The petitioner belongs to Thrissur District. The petitioner initially entered service in the Kerala State Development Corporation for Scheduled Castes and Scheduled Tribes, hereinafter referred to as the "Corporation" for short, as a provisional employee in the year 1993-94. Later, his services were regularised by Ext.P2 order dated 31.12.1996 and thereupon he joined duty in the Head Office of the Corporation at Thrissur as Assistant Grade II on 6.1.1997. In December, 1999 he was transferred to the Regional Office of the Corporation at Malappuram and in December, 2000 on his request, back to Thrissur. The petitioner states that at his request, he was transferred to Ernakulam in December, 2002 and that he continued at Ernakulam till he was transferred again to Thrissur on 31.3.2005. According to the petitioner, shortly thereafter he was again transferred to Ernakulam on 12.5.2005 and is continuing in service in the Regional Office of the Corporation at Ernakulam since then. By Ext.P4 order passed on 2.8.2008, the petitioner was transferred out from Ernakulam and posted in the existing vacancy at the Regional Office, Idukki. The WP(C)24202/08 -: 2 :- petitioner challenges his transfer to Idukki on the ground that the transfer is in violation of Ext.P6 circular, which states that at the time of transfer, physically handicapped persons should as far as possible be posted in their respective districts. The petitioner also contends that the posting at Idukki will cause serious prejudice to him for the reason that the eldest of his two children is suffering from serious ailments. The petitioner challenges his transfer to Idukki on the ground that it is arbitrary and in violation of Ext.P6 circular. The petitioner also contends that persons with longer years of service are retained in their respective stations while the petitioner who has served for only three years at Ernakulam is transferred out.
2. The second respondent Corporation has, as directed by this Court filed a counter affidavit stating as follows:
"4. It is submitted that due to exigencies of Public Service the Corporation was forced to issue Exhibit P4 order of transfer to get over the imbalance in the strength of Assistants in its various offices. For the sake of convenience, the staff position in the various offices of the respondent Corporation is given below. The staff strength is decided taking into account the number of accounts maintained in each office.
Place No. of Present Sanctioned
Accounts Strength Strength
Thiruvananthapuram 5902 9 10
Kollam 3233 6 6
Panthalam 3085 5 5
WP(C)24202/08 -: 3 :-
Kottayam 1718 4 7
Idukki 1468 2 6
Ernakulam 1827 5 5
Thrissur 4887 3 11
Palakkad 3509 6 7
Malappuram 3928 5 8
Wayanad 719 1 4
Kannur 1354 3 5
Kasaragod 744 1 4
From the above it can be seen that in Idukki there is only 2 Assistants where the sanctioned strength is 6. Due to exigencies of service one more person has to be provided in Idukki. After considering the entire circumstances and work load it was found just to transfer one person from Ernakulam where, out of the total 5 incumbents, 1 Assistant is a Physically handicapped lady, with more disability than the petitioner. The 2nd Assistant is mentally unsound. The 3rd Assistant is a member of the Scheduled Caste Community and a women. The 4th one other than the petitioner is transferred to the Head Office by the impugned transfer order. Thus the petitioner is the only person that had been found fit for transfer. There was no malafide from the part of the Corporation.
5. It is respectfully submitted that from the very inception of the petitioner into the service of the Corporation he was habitually availing all sorts of leave. There are no eligible leave in his leave account. The relevant extracts of the leave account from the service book of the petitioner will reveal this fact. During the 11 years of his entire service he was on leave for more than half of his WP(C)24202/08 -: 4 :- service. Inspite of all these infirmities the Corporation was very considerative and lenient towards the petitioner. The present effort is just because to protect the best interest of the Corporation which is the pay master of the petitioner. The present shortage of Assistants in the Corporation is managed by the Co-operation of the entire staff of the Corporation.
6. It is submitted that Exhibit P6 Government Circular does not prohibit the transfer of physically disabled employees. What it stipulates is only that physically disabled persons should not be disturbed as far as possible. The petitioner has already enjoyed 3 years of service in Ernakulam which is his choice. The Corporation experiences many sort of difficulties due to the availing of unprecedented leave by the petitioner. But the Corporation has not taken any adverse steps against the petitioner so far. The petitioner was in Malappuram for the period of 375 days out of which he was on leave for 315 days. This would reflect the petitioner's sincerity in the discharge of his public duty.
7. It is submitted that by Exhibit P4 transfer order, Assistants are posted to Malappuram, Wayanad and Kasaragode. The petitioner has not been transferred to those places which are far away than the office at Idukki to which the petitioner has been given transfer. The lady assistant in the Ernakulam Regional Office is handicapped and is unable to walk and travel as the petitioner. Therefore the only available option was to transfer the petitioner in the best interest of the Corporation and causing minimum inconvenience to the petitioner." WP(C)24202/08 -: 5 :-
3. After the counter affidavit was filed, this Court had by order passed on 21.8.2008 directed the Corporation to disclose the number of Employment Exchange hands serving in Thrissur and Idukki Districts. The second respondent has thereupon filed a statement dated 28.8.2008 stating as follows:
"As directed by this Hon'ble Court the details are furnished as follows:
Name of Sanctioned Present strength Total
Region Strength Permanent Temporary
Regular Deputation Employment
Thrissur 11 3 2 3 8
Idukki 6 2 - - 2
Ernakulam 5 4 - - 4
2. It is respectfully submitted that the working conditions of regional office at Idukki is pathetic when compared to that of the Regional Office at Thrissur on account of shortage of experienced hands. The post of Junior Superintendent is lying vacant in Idukki whereas at Thrissur there is a well experienced Junior Superintendent and 8 Assistants, both regular and employment hands as at present. The sanctioned strength of Assistants at Idukki Regional Office is 6 and present strength is
2. Both are newly appointed through Kerala Public Service Commission and do not have practical experience in the respective field. Moreover one of them is not mentally sound and was on long leave for almost 1 year just after joining service in November 2006 and he has just joined. All these factors are exerting tremendous pressure on the Managing Director to meet the demand for experienced assistants in each centres which are WP(C)24202/08 -: 6 :- to be met judiciously and fairly. As far as Thrissur is concerned there are 5 permanent Assistants and all of them are well experienced so the recruitment of employment hands does not cripple the functioning of the office."
4. A reading of the counter affidavit and the statement filed by the Corporation discloses that the transfer of the petitioner was necessitated in the exigencies of service. It is also stated that for more than half the length of his service till date, the petitioner was on leave and that in view of the urgent need for the services of an Assistant Grade II at Idukki it was necessary to transfer the petitioner to Idukki.
5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. It is evident from the statement filed by the second respondent that as against the sanctioned strength of 6 posts of Assistant Grade II in Idukki District only 2 are in place. Out of the said two persons, who are said to be newly appointed, one is stated to be not mentally sound. The Corporation states that as there are no Employment Exchange hands at Idukki, the services of an Assistant Grade II had to be made available in the exigencies of service and in public interest and that among the persons at Ernakulam, the petitioner was liable to be transferred out in accordance with the norms. After hearing the learned counsel appearing on either side, I am satisfied that the transfer of the petitioner cannot be said to be in any way malafide or arbitrary. The Apex Court has in State of U.P. and others v. Gobardhan Lal - (2004) 11 S.C.C. 402 held that this Court should not WP(C)24202/08 -: 7 :- interfere with an order of transfer, except when the transfer order shown to be vitiated by malafides, or is in violation of any statutory rule or is one passed by an incompetent authority. In the light of the authoritative pronouncement of the Apex Court in State of U.P. and others v. Gobardhan Lal (supra), this Court cannot interfere with the order of transfer unless it is shown to be one passed by an incompetent authority or is one passed in violation of a statutory rule or is proved to be vitiated by malafides. The petitioner has no case that the order of transfer was passed by an incompetent authority or that it is in violation of any statutory rule or that it is malafide. The petitioner challenges the order of transfer on the short ground that the guidlines have not been adhered to and that the transfer would cause serious inconvenience to him. The Apex Court has in the aforesaid decision held that guidelines governing transfer are in place only for the sake of guidance and that they do not confer on the employee any enforcible right. Such being the situation, I find no merit in the challenge to Ext.P4. The Writ Petition accordingly fails and it is dismissed.
P.N.Ravindran, Judge.
ess 4/9