Kerala High Court
V.S.Rajesh vs Muraleedharan K on 28 November, 2016
Author: C.T.Ravikumar
Bench: C.T.Ravikumar
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR
&
THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH
TUESDAY, THE 7TH DAY OF FEBRUARY 2017/18TH MAGHA, 1938
OP(KAT).No. 37 of 2017 (Z)
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AGAINST THE ORDER IN OA 1729/2016 of KERALA
ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 28-11-2016
PETITIONER/3rd RESPONDENT:
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V.S.RAJESH
AGED 42 YEARS, S/O.V.M.SUDHAKARAN, SECRETARY,
NAYARAMBALAM GRAMA PANCHAYATH, ERNAKULAM, PIN-682509,
(TRANSFERRED TO CIVIL STATION, KAKKANAD, KOCHI-
682030), KERALA NOW WORKING AS PERFORMANCE AUDIT
SUPERVISOR UNIT-II, ERNAKULAM.
BY ADVS.SRI.K.JAJU BABU (SR.)
SMT.M.U.VIJAYALAKSHMI
SRI.BRIJESH MOHAN
RESPONDENTS/APPLICANT & RESPONDENTS 1, 2 AND 4:
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1. MURALEEDHARAN K.
S/O.V.KUMARAN NAIR, AGED 55 YEARS, PEEDIKAPARAMBIL,
PONJASSERY P.O., PERUMBAVOOR, ERNAKULAM-683547,
WORKING AS PERFORMANCE AUDIT SUPERVISOR, UNIT II,
KARUMALOOR, OFFICE OF THE ASSISTANT DIRECTOR OF
PANCHAYATHS, CIVIL STATION, KAKKANAD, KOCHI (UNDER
ORDERS OF TRANSFER), ERNAKULAM, KERALA-682030.
2. THE STATE OF KERALA,
REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT,
SECRETARIAT, STATUE, THIRUVANANTHAPURAM, KERALA-
695001.
3. THE DIRECTOR OF PANCHAYATS,
DIRECTORATE OF PANCHAYATS, PUBLIC OFFICE BUILDING,
VIKAS BHAVAN P.O., THIRUVANANTHAPURAM-695033.
O.P.(KAT)NO.37/2017
4. ASSISTANT DIRECTOR OF PANCHAYAT,
OFFICE OF THE ASSISTANT DIRECTOR OF PANCHAYAT, CIVIL
STATION, KAKKANADU, ERNAKULAM-682030 (ADDL.R4 IS
IMPLEADED VIDE ORDER DATED 06/09/16 IN MA.2487/16).
BY ADV. SRI.ELVIN PETER P.J.
BY ADV. SRI.K.R.GANESH
BY GOVERNMENT PLEADER SRI.PAUL ABRAHAM VAKKANAL
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR
ADMISSION ON 07-02-2017, ALONG WITH OPKAT. 41/2017, OPKAT.
42/2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
OP(KAT).No. 37 of 2017 (Z)
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APPENDIX
PETITIONER'S EXHIBITS
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EXHIBIT P1- TRUE C0PY OF THE OA.1729/2016 ALONG WITH ANNEXURES
A1 TO A4 FILED BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,
THIRUVANANTHAPURAM.
ANNEXURE A1 TRUE COPY OF ORDER BEARING NO.E-11/2015 DATED
27.7.2016
ANNEXURE A2 TRUE COPY OF THE ORDER BEARING NO.E-11-11/2015
DATED 16/7/2015
ANNEXURE A3 TRUE COPY OF G.O.(MS) NO.13/2000/P& ARD DATED
27.4.2000
ANNEXURE A4 TRUE COPY OF G.O.(P) NO.12/2004/P& ARD DATED
10/9/2004
EXHIBIT P2- COPY OF MA.NO......../2016 IN OA.NO.1729/2016
ALONG WITH ANNEXURE A5 TO A8.
ANNEXURE A5 TRUE COPY OF SCREEN SHOT EVIDENCING THAT ANNEXURE
A1 ORDER WAS PUBLISHED IN THE OFFICIAL WEBSITE OF THE 2ND
RESPONDENT AFTER 10.50 A.M. ON 28.8.2016
ANNEXURE A6 TRUE COPY OF ORDER BEARING NO.E1-01/2016 DATED
27.7.2016
ANNEXURE A7 TRUE COPY OF SCREEN SHOT EVIDENCING THAT ANNEXURE
A6 ORDER WAS PUBLISHED IN THE OFFICIAL WEBSITE OF THE 2ND
RESPONDENT ON 28.7.2016 AT 3.39.15 P.M
ANNEXURE A8 TRUE COPY OF ORDER BEARING NO.E1-01/2016 DATED
13/7/2016
EXHIBIT P3- COPY OF MA.NO.2444/2016 IN OA.NO.1729/2016 ALONG
WITH ANNEXURE A4 TO A11.
ANNEXURE A4 TRUE COPY OF FIRST MAIL DATED 28.7.2016
ANNEXURE A5 TRUE COPY OF SECOND MAIL DATED 28.7.2016
ANNEXURE A6 SUBMISSION DATED 28.7.2016
O.P.(KAT)NO.37/2017
ANNEXURE A7 RECEIPT BEARING NO.PAE/8432 DATED 29.7.2016
ANNEXUER A8 TRUE COPY OF COMMMUNICATION BEARING
NO,PAE602/2014 DATED 29.7.2016
ANNEXURE A9 TRUE COPY OF THE CHARGE REPORT OF THE PETITIONER.
ANNEXURE A10 TRUE COPY OF APPLICATION DATED 30.7.2016'
ANNEXURE A11 TRUE COPY OF COURIER RECEIPT DATED 30.6.2016
EXHIBIT P4- COPY OF REPLY STATEMENT FILED ON BEHALF OF THE 2ND
RESPONDENT ALONG WITH ANNEXURE R2(A).
ANNEXURE R2(a) TRUE COPY OF ORDER NO.E11-11/2015 DATED 27.7.2016
EXHIBIT P5- TRUE C0PY OF THE REPLY STATEMENT FILED BY THE 3RD
RESPONDENT ALONG WITH ANNEXURE R3(A).
ANNEXURE R3(a) TRUE COPY OF THE RELEVANT EXTRACT OF ORDER NO.E1-
01/2016 DATED 27.7.2016
EXHIBIT P6- COPY OF THE ORDER DATED 28/11/2016 IN
OA.NO.1729/2016 OF THE KERALA ADMINISTRATIVE TRIBUNAL.
EXHIBIT P7- COPY OF THE ORDER DATED 01/09/2016 IN
OA.NO.2076/2015 OF THE KERALA ADMINISTRATIVE TRIBUNAL.
/TRUE COPY/
PS TO JUDGE
C.T.RAVIKUMAR &
K.P.JYOTHINDRANATH, JJ.
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O.P.(KAT)Nos.37, 41 and 42 OF 2017
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Dated this the 7th day of February, 2017
JUDGMENT
Ravikumar, J.
These original petitions arise from a common order dated 28.11.2016 passed by the Kerala Administrative Tribunal in O.A.No.1728/2016, 1729/2016 and 1732/2016. In fact, O.P.(KAT) No.37/2017 arises from the order in O.A.No.1729/2016. O.P.(KAT) No.41/2017 arises from the order in O.A.No.1728/2016 and O.P. (KAT)No.42/2017 arises from the order in O.A.No.1732/2016. The respective third respondents before the Tribunal in the said original applications are the petitioners herein. The party respondents in all these original petitions were the applicants before the Tribunal and the other respondents were the other respective respondents before the Tribunal. The party respondents in the original petitions preferred the Original Applications on being aggrieved either by Annexures A1 O.P.(KAT)Nos.37, 41 & 42 OF 2017 2 or A6 transfer orders, dated 27.07.2016. Taking into account the common grievance, the original applications were jointly heard and were allowed as per a common order dated 28.11.2016. The impugned orders viz., Annexures A1 and A6 were quashed to the extent to which the applicants were transferred from their respective stations. It is feeling aggrieved by the quashment of Annexures A1 and A6 to that extent to their detriment, as per the said common order that the petitioners herein filed these original petitions.
2. The petitioners as also the party respondents in these original petitions are working either as Panchayath Secretaries or as Performance Audit Supervisors. Evidently they are inter changeable post. The applicants in O.A.No.1728/2016 and 1729/2016 contended before the Tribunal that as their due date for retirement on superannuation is 30.04.2017, there was absolutely no reason or justification for transferring them out of the present stations. They had also raised various other grounds to mount challenge against the aforesaid orders of transfer to the extent they apply to them. It was, O.P.(KAT)Nos.37, 41 & 42 OF 2017 3 interalia, contended that the said orders violate the transfer norms interdicting transfer of a person who is due to retire within two years. In the case of the applicant in O.A.No.1732/2016 his contention was that he came to the present station only on 16.7.2015 and further that he is a chronic heart patient and had already undergone a heart surgery in Sree Chitra Institute of Medical Sciences. It was his further contention that the normal stay on a transfer to a new station is three years and that he had completed only one year since his transfer order to the present station. Essentially, his contention is that being a person who had undergone an open heart surgery, it would be hazardous and dangerous for him to undertake arduous journey on daily basis. The precise contention of the applicants before the Tribunal was that there was absolute absence of any administrative exigency and the expression administrative exigency or public interest has been employed only as a ruse to legalize the orders of transfer. The petitioners herein and the official respondents resisted the contentions and asserted that the transfers of the applicants were O.P.(KAT)Nos.37, 41 & 42 OF 2017 4 necessitated solely due to administrative convenience on condition that it would be reviewed as per norms in the next general transfer.
3. Taking note of such contentions and rival submissions as aforesaid, the Tribunal called for the records. The impression gathered by the Tribunal on perusal of the records pertaining to the orders of transfer is reflected in the order itself. We do not think it necessary to to reiterate such views and observations specifically made by the Tribunal in the impugned order after a careful scrutiny of the records. This is mainly because the Government have not come up challenging such observations made by the Tribunal as to what it perceived on perusing the records, by filing original petition against the impugned common order. Upon such perusal the Tribunal found that the records do not reveal any urgency much less, any reason to hold that there existed administrative convenience requiring transfer of the applicants. The Tribunal also could not find anything suggestive of any proposal for inviting applications for general transfer, going by the common order. Therefore, the Tribunal arrived O.P.(KAT)Nos.37, 41 & 42 OF 2017 5 at the conclusion that the impugned orders as also the files are absolutely silent on the reasons that prompted the authorities to effect transfer of the applicants either under Annexure A1 or under Annexure A6 and accordingly, held that it could only be said that the said order in so far as the applicants are concerned, were made arbitrarily. In the light of the decision of the Hon'ble Apex Court in Mohindar Singh v. The Chief Election Commissioner ( AIR 1978 SC 851) it was held that when the impugned orders and the files were silent on the reasons for passing them, they could not be supported by fresh reasons by way of an affidavit. Consequently, the original applications were allowed and orders of transfer were set aside to the extent as mentioned above. The petitioners who were party respondents before the Tribunal are aggrieved by the interference with Annexures A1 and A6 to the extent they pertain to them as also the applicants and that is why they have come up before this Court by filing the above original petitions.
4. The learned Senior Counsel appearing for the petitioners O.P.(KAT)Nos.37, 41 & 42 OF 2017 6 submitted that the findings of the Tribunal that the impugned transfer orders as also the files relating them are silent on the reasons to order such transfers, are impermissible grounds for interference with an order of transfer. Essentially the contention is that in the absence of a specific challenge either on ground of malafide excise of power or to the effect that the order of transfer smacks of punitive an order of transfer calls for no interference. It is also contended that no employee can, as a matter of right, claim for transfer to or continuance at, a particular station.
5. The party respondents herein who were the applicants before the Tribunal resisted the said contentions and contended that the findings of the Tribunal after perusing the records do not warrant an interference and the conclusions arrived at by the Tribunal that the impugned orders and the files are silent on the reasons, in the circumstances expatiated and adverted to by the Tribunal, are nothing but the true outcome of a proper consideration of such factors. In the light of the decision of the Hon'ble Apex Court in Mohinder Singh's O.P.(KAT)Nos.37, 41 & 42 OF 2017 7 case (supra) reasons cannot now be supplied to sustain such orders, it is further contended.
6. On being asked about the present stand of the official respondents, the learned Government Pleader made available a copy of the order passed by the Director of Panchayats bearing No.E11- 25660/16 dated 7.2.2017. It would reveal that in compliance with the directions in the impugned common order passed by the Tribunal dated 28.11.2016, consequential orders of reposting of the applicants were issued. In other words, all the applicants who were party respondents before this court were reposted to the place in which they were working prior to Annexures A1 and A6. As already noted before the Tribunal the official respondents attempted to get sustained the impugned transfer orders to the extent they are challenged, by taking up the contention that they were transferred for administrative convenience. Now, the impugned common order of the Tribunal has been complied with and the applicants were reposted. Taking note of the fact that the applicants in O.A.No.1729/2016 and 1728/2016 who O.P.(KAT)Nos.37, 41 & 42 OF 2017 8 are the first respondent in O.P.(KAT)Nos.37/2017 and 41/2017 respectively, are due to retire from service on 30.04.2017, we are of the view that the Government is justified in implementing the orders and restore the status quo ante with respect to the said applicants and in fact, it is an appreciable gesture. Certainly, it is an acknowledgment of one of the main conditions in the transfer guidelines. In such circumstances, taking into account the fact that they are due to retire from service on 30.04.2017, we are of the view that nothing survives for further consideration on merits and there is absolutely no reason or purpose for proceeding with the consideration of O.P.(KAT)No.37/2017 and 41/2017 on merits. Therefore, in the light of the orders of reposting issued by the Director of Panchayats dated 7.2.2017, the applicants in the said original applications/the first respondent in the above mentioned original petitions shall be permitted to join duty in their respective stations to which they were reposted forthwith. Pursuant to their joining duty and on being relieved consequently, or even if already relieved, the petitioners in O.P.(KAT)Nos.37, 41 & 42 OF 2017 9 O.P.(KAT)No.37/2017 and 41/2017 shall be given convenient posting against clear vacancies in such a manner to cause least inconvenience. In the case of applicants in O.A.No.1729/2016 and 1728/2016, the Tribunal has already passed an order to regularize the period during which they could not function as Performance Audit Officers. We are maintaining the said order. As noticed hereinbefore, the petitioners in O. P.(KAT)Nos.37/2017 and 41/2017 are to be relieved pursuant to the joining of duty by the respective first respondent therein if they were not already relieved. As stated earlier, the first respondents in the said cases are to retire from service on 30.04.2017. Upon their retirement on superannuation on 30.04.2017, the 3rd respondent in the OPs viz., the Director of Panchayats shall immediately consider the petitioner in O.P.(KAT)No.37/2017 for a posting as Performance Audit Supervisor, Unit II, Karumatoor and the petitioner in O.P. (KAT)No.41/2017 for a posting as Performance Audit Supervisor, Unit II, Nedumbassery. Orders on such consideration shall be passed within a week from the date of retirement of the said respondents- O.P.(KAT)Nos.37, 41 & 42 OF 2017 10 applicants.
7. In O.P.(KAT)No.42/2017, the first respondent/applicant in O.A.No.1732/2016 has now been reposted as Performance Audit Supervisor at Vadavukode. The petitioner who was the third respondent in O.A.No.1732/2016 is due to retire on 31.05.2017. Evidently, the first respondent in the said original petition/applicant in O.A.No.1732/2016 is left with more than two years of service to retire on superannuation. The precise case of the applicant/first respondent herein, before the Tribunal was that he had undergone a open heart surgery and if he is transferred from the place he will have to undertake arduous journey which may ultimately prove detrimental to his life. That apart, his contention was that he came to the said station on 16.7.2015 and the order of transfer was passed immediately one year, thereafter. The contention is that the normal tenure on a transfer to a particular station will be three years. Evidently, on perusing the records, the Tribunal had arrived at the very same conclusion which it entered into in the case of applicants in O.A.Nos.1728/2016 and O.P.(KAT)Nos.37, 41 & 42 OF 2017 11 1729/2016. As noticed hereinbefore, the Tribunal set aside Annexure A1 order to the extent it pertains to him and ordered to repost him as Performance Audit Supervisor at Vadavucode. Now, as per the aforesaid order dated 7.2.2017 the first respondent was reposted to the station he was working. No case for interference was made out by the petitioner. Therefore, the first respondent in O.A.No.1732/2016 shall be permitted to join at the place to which he is reposted as per order dated 7.2.2017. The order for regularization of the period during which he could not function as Performance Audit Supervisor shall be regularised as ordered by the Tribunal. The petitioner in the O.P. who was the third respondent in the aforesaid O.A. is due to retire on 31.05.2017. In respect of persons who are due to retire within a period of two years, the transfer guidelines provides for suitable posting to a convenient place. It is also brought to our notice by the learned Senior Counsel that the name of the said petitioner is already included in the queue list published by the department as per Ext.P4. In such circumstances, even while declining to interfere with the O.P.(KAT)Nos.37, 41 & 42 OF 2017 12 order of the Tribunal to the extent it pertains to the applicant in O.A.No.1732/2016, we are inclined to issue a direction to the third respondent to consider the request of the petitioner for a convenient posting taking into account the fact that he is already included in the queue list as is obvious from Ext.P4 and that he is due to retire from service on 31.5.2017. To enable the third respondent to consider that aspect and to afford him such posting, the petitioner/the applicant in O.A.No.1732/2016 is permitted to file a representation before the third respondent pointing out clear vacancies, in accordance with his preference, to enable the third respondent to give such convenient posting to the said petitioner. This shall be done within one week from the date of receipt of such representation.
In the light of the aforesaid discussion, the original petitions are disposed of as above.
C.T.RAVIKUMAR, JUDGE K.P.JYOTHINDRANATH, JUDGE sv.
08/02/2017