The Government Of Kerala vs Smitha V.M on 6 April, 2022

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Kerala High Court

The Government Of Kerala vs Smitha V.M on 6 April, 2022

The judgment rendered by the learned Single Judge on 8.12.2020 in the instant Writ Petition (Civil), W.P.(C).No. 22549/ 2020 is under challenge in the instant intra-court appeal filed under Sec. 5(i) of the Kerala High Court Act.

2. The appellants in the W.A. are the respondents in the W.P.(C). The writ petitioner in the W.P.(C). has been originally arrayed as the sole respondent in the W.A. Later, additional parties have been impleaded as additional respondent Nos. 2 and 3 in the W.A..

3. Heard the learned Senior Govt. Pleader appearing for the appellants in the W.A., learned counsel appearing for R-1 in the W.A./ writ petitioner and learned counsel appearing for R-2 & R-3.

4. The prayers in the instant Writ Petition (Civil), W.P. (C).No. 22549/2020 filed by R-1 herein are as follows:

1. To issue a writ of certiorari or any other writ, order or direction calling for the records leading to Ext.P-5 and quash the same.

2. To issue a writ of mandamus directing the 3rd respondent to permit the petitioner to continue the occupation of quarter No.11/130 till the WA 1533/21 - : 4 :-

await of transfer order pending before the district court Alappuzha.

3. To stay Exhibit P-5 order issued by the 3rd respondent.

4. Issue a writ or direction or such other reliefs as this Hon'ble Court may deem fit and proper.

And Award cost to the Petitioner."

5. The order under challenge in the above writ petition is the impugned Ext.P-5 order dated 29.9.2020 issued by the District Collector, Ernakulam, whereby the District Collector, has given only three months' time from 21.10.2020 to the writ petitioner to vacate the quarters allotted to her in Perumbavoor, Ernakulam, inasmuch as she has already been repatriated back from her earlier deputation posting at Ernakulam, to her parent department (judicial Department) in the Addl. Dist. Court, Mavelikkara, Alappuzha District. The learned Single Judge, after hearing both sides has disposed of the W.P.(C). with the direction that the respondents in the W.P.(C). shall not act upon the impugned Ext.P-5 order issued by the District Collector, until such time as her application for inter district transfer from Alappuzha District to Ernakulam District, is finally disposed of by the competent authority of the State Government and the resultant order communicated to her. The respondents in the W.P.(C). viz., State of Kerala and others, have WA 1533/21 - : 5 :-

preferred the instant writ appeal as they are aggrieved by the abovesaid direction issued in the impugned judgment, whereby the writ petitioner has been permitted to continue in the quarters at Perumbavoor, in spite of her transfer back to Addl. District Court, Mavelikkara, Alappuzha District, as above.

6. We have heard both sides and perused through the pleadings and materials on record.

7. Reference to the facts of the case would be pertinent. The writ petitioner had entered service as Office Attendant in the civil judicial wing of Alappuzha District on 1.8.2015. Well before completing the initial 5 years' service in the judicial Department of Alappuzha District, she secured a posting by way of deputation to Kerala Legal Services Authority (KELSA) headquarters in Ernakulam District, for a period of 3 years. During her deputation period at Ernakulam, she had applied for allotment of Government quarters. Sanction was obtained as per Ext.P-1 G.O(Rt.)No.674/2019/PWD dated 31.5.2019, whereby the writ petitioner was allotted quarters in the Government quarters at Perumbavoor, in terms of Rule 32 of the Allotment & Occupation of Government Service Quarters, Rules, 2006. R-3 in the W.P.(C). (District Collector, Ernakulam) had later WA 1533/21 - : 6 :-

issued Ext.P-2 order dated 19.7.2010 formally allotting the said quarters to her at Perumbavoor. According to the petitioner, she had occupied the said Government quarters at Perumbavoor Ernakulam, on 5.1.2020. Later the 3 year deputation period of the petitioner in KELSA was over and she was promoted to the post of Process Server in the judicial Department and consequently, she was repatriated and transferred back to Addl. District Court, Mavelikkara on 5.9.2020. By Ext.P-3 order dated 22.7.2020 issued by the R-4 herein (Principal District Judge, Alappuzha), it has been ordered that the petitioner, who was then on deputation as Office Attendant in KELSA headquarters Ernakulam, will stand repatriated to the judicial Department, Alappuzha as Process Server and is posted in the Addl. District Court-I, Mavelikkara, after her relief from the KELSA head quarters at Ernakulam, in the existing vacancy.

8. The petitioner has taken the stand that her mother is having mental illness and while she was staying in the Government quarters at Perumbavoor, Ernakulam, her mother was undergoing treatment at Kusumagiri hospital, Kakkanad, Ernakulam, and also in view of the health condition of her two children below 6 years in the covid-19 period, etc. and due to the financial stringency of her WA 1533/21 - : 7 :-

husband, she may be permitted to continue in the quarters at Perumbavoor, for which purpose Ext.P-4 representation dated 15.9.2020 was submitted to the District Collector, Ernakulam. In response to Ext.P-4 request dated 15.9.2020, the District Collector, Ernakulam, has issued impugned Ext.P-5 order dated 29.9.2020 that as per the provisions in Rule 16 (1) of the above quarters allotment rules, an official, who has been transferred, can at best be given only a maximum period of 6 months for further overstay in the quarters and further that later as per G.O.(Ms).No. 65/2016/PWD dated 7.9.2016 issued by the State Government, the said period has been reduced to 3 months. Accordingly, the District Collector has ordered in Ext.P-5 order dated 29.9.2020 that the petitioner can be given time only upto 21.10.2020 for further occupation of the quarters. Later it appears that the Assistant Engineer, PWD, Perumbavoor, Ernakulam District has issued Ext.P-6 letter dated 14.10.2020 permitting the petitioner to occupy the quarters till 21.10.2020 and thereafter to immediately hand over the key of the quarters, etc. The case set up in ground "B"

of the present Writ Petition (Civil) filed on 20.10.2020 is that the petitioner has by then applied on 5.9.2020 for inter district transfer from Mavelikkara to Perumbavoor, on the ground that her mother is WA 1533/21 - : 8 :-

suffering from 50% disability of mental illness and that every week her mother has to go to Kusumagiri Hospital, Kakkanad Ernakulam for treatment, etc. and that her application for inter district transfer is pending before the 4th respondent herein (Principal District Judge, Alappuzha) and further orders are awaited. Further it is also stated that the petitioner's family has got certain other commitments at Perumbavoor, Ernakulam, due to her mother's health, children's education and husband's job related matters and that she is not able to leave the quarters soon. It is in the light of these averments that the petitioner has filed the instant Writ Petition (Civil) with the prayers to quash the impugned Ext.P-5 order issued by the District Collector and also to direct the District Collector to permit the petitioner to continue occupation in the abovesaid quarters till orders are passed on her inter district transfer application, etc.

9. Ext.P-7 is the certificate of disability issued by the medical board stating that one Smt.Radhamany (mother of the petitioner) is suffering from 50% moderate disability and the nature of the disability is bipolar affective disorder and Ext.P-7 is signed by the psychiatrist and two other doctors. Ext.P-8 dated 17.11.2020 is the report furnished by the District Collector, Ernakulam, on the WA 1533/21 - : 9 :-

petitioner's application for inter district transfer.

10 The learned Single Judge after hearing both sides, has rendered the impugned judgment on 8.12.2020 finally disposing of the instant Writ Petition (Civil), W.P.(C).No. 22549/2020, whereby it has been noted that the application of the petitioner for inter district transfer from Alappuzha District to Ernakulam District is pending consideration before the competent authorities and that till a decision is taken thereon, it may not be proper to implement Ext.P-5 order issued by the District Collector, whereby time has been given to her to vacate the quarters only upto 21.10.2020. Accordingly, the learned Single Judge, as per the impugned judgment, has ordered that the respondents in the W.P.(C). shall not act upon the impugned Ext.P-5 order of the District Collector until such time the application of the petitioner for inter district transfer from Alappuzha District to Ernakulam District is finally disposed by the competent authorities and the resultant order communicated to her.

11. The appellant State authorities have contended that such indefinite continuance of an incumbent in Government quarters even after transfer and repatriation back to the parent Department in another District, is not right and proper and that the said direction WA 1533/21 - : 10 :-

issued by the learned Single Judge in the impugned judgment is patently against the provisions contained in the abovesaid Quarters Allotment rules and that it would also trammel upon the rights of the eligible claimants for allotment of quarters. It is pointed out that the petitioner had not completed 5 years of service in the judicial department in the parent district at Alappuzha and before that she secured deputation posting to Ernakulam District and the deputation period is completely over and she has been repatriated back to the parent judicial department in Alappuzha District, and that too, with a promotion and even going by her pleadings, she has joined duty as Process Server at Addl. District Court, Mavelikkara on 5.9.2020. Further that the deputation period is not reckoned for the purpose of computing the 5 year period for deciding eligibility of claims for inter District transfer. Further that the very request of the petitioner for inter district transfer is to relax the provisions contained in the rules and then to grant her inter district transfer again to Ernakulam District. To link up the further continuance in the quarters with a decision on the inter district transfer is not proper and reasonable. That even at the time of filing of the writ appeal in December, 2021, she has overstayed in the quarters for quite a long time. Further that WA 1533/21 - : 11 :-

no proper factual grounds have been made in the W.P.(C). to disclose as to what actually are the compassionate grounds which would justify her further continuance in the quarters in Perumbavoor in Ernakulam District especially when she has admitted that she is now working in Addl. District Court, Mavelikkara, Alappuzha District, etc.

12. Further the appellants have also pointed that in a case of this nature, since the petitioner's parent department is civil judicial Department, she should have impleaded the High Court of Kerala on the administrative side represented through its competent Registrar as well as the Principal District Judge, Alappuzha, who is her appointing authority, as respondents in the W.P.(C). and such authorities are necessary and proper parties to the said writ proceedings and non-impleadment of such authorities, has to be seriously viewed by this Court. Accordingly, later we had directed for impleadment of the High Court of Kerala, represented by the Registrar, District Judiciary, as well as the Principal District Judge, Alappuzha as additional respondents 2 & 3 in the above W.A.. and the learned Advocate has also entered appearance for these parties.

13. When the matter had come up for consideration before us on 23.11.2021, we had repeatedly queried to the learned counsel WA 1533/21 - : 12 :-

appearing for R-1 herein/writ petitioner as to the details of her inter district transfer application and as to what exactly are the factual grounds for claiming compassionate treatment for further continuance in the Government quarters at Perumbavoor, Ernakulam, though the writ petitioner is now working in Mavelikkara, Alappuzha District, and also incidentally, as to the factual basis of the claim made by the writ petitioner that her inter district transfer request to be considered in relaxation of the rules should deserve a compassionate treatment. We did not get any satisfactory answer from the writ petitioner and at that time, learned Advocate appearing for R-1 herein had undertaken that the writ petitioner will immediately file a detailed affidavit dealing with all those aspects, etc. However, it is to be noted that no such affidavit has been filed by R-1 herein, giving the details of the factual basis of the abovesaid claim. Further we had repeatedly queried to the learned Advocate appearing for R-1 herein in the subsequent hearing as well, and we could not get any satisfactory answer on those issues. We had directed the Registrar General to give a report in the matter regarding the claims of the writ petitioner. From the said report/note given by the Registrar (District Judiciary) it appears that the case of the writ WA 1533/21 - : 13 :-

petitioner is that though she is now transferred back to Mavelikkara, Alappuzha District, she needs to stay in Ernakulam, for treatment of her mother at Kusumagiri hospital, Kakkanad, Ernakulam for psychiatric disability, etc. Further it is stated that her parents were residing at Kattur in Alappuzha District and 11 years back her father died and her mother has been staying with her and that she has a sister now working in Dubai as a Nursing Assistant. Further it is stated that prior to deputation to Ernakulam, her mother was treated in the Government Medical College hospital, Alappuzha. Further that her husband has no job now and that they were residing in a rented house at Perumbavoor and later they shifted to the Government quarters. We had specifically queried to the writ petitioner as to whether any of her close relatives are permanently settled in Perumbavoor or in and around Ernakulam District. We wanted those details only to ascertain as to whether there is any strong case for compassionate treatment so as to warrant further continuance of the writ petitioner in the quarters at Perumbavoor, Ernakulam, even though she has been working in the Addl. District Court, Mavelikkara, Alappuzha District, since September, 2020 onwards. During the course of the hearing, since no formal statement was filed on behalf of R-3 and R-4, we had WA 1533/21 - : 14 :-

told the learned Senior Govt. Pleader as well as the learned counsel appearing for R-1 herein that they may go through the report/note made available by the Registrar regarding the abovesaid factual particulars.

14. Further, from the details given by the Registrar, it appears that the writ petitioner had initially joined the civil judicial Department, Alappuzha District on 1.8.2015 and later, well before the completion of five years of service, she was sent on deputation for 3 years to KELSA in Ernakulam and now she has been repatriated back to Alappuzha District and she has also secured a promotion. It is informed to us that, for making a request for inter district transfer, the incumbent concerned should have at least 5 years of service in the parent district and the deputation period to another district will not be counted as part of the said 5 years' service in the parent district. Thus it is informed by the Registry that, after excluding the 3 years deputation period, the petitioner had only 2 years and 4 months of service and of course, the further service, after her repatriation back to Alappuzha District on 5.9.2020. So, it appears that the petitioner does not have the minimum 5 years of service for consideration of inter district transfer application. The requirement WA 1533/21 - : 15 :-

of five years of service for inter district transfer is stipulated as per para 4(i) of G.O(P).No. 36/1991/P&ARD dated 2.12.1991. Further as per para 5 of the said G.O(P).No.36/1991/P&ARD dated 2.12.1991, relaxation of 5 year rule can be granted only in exceptional cases which need sympathetic consideration, but it requires the approval of the council of ministers and also necessitate justifying grounds supported by the report of the District Collector of the district to which the transfer is sought. The abovesaid report of the Registrar would indicate that the vacancy of Process Server is filled up district wise. Further it appears that the writ petitioner is now holding the post of Process Server and vacancy in the post of Process Server is filled up district-wise on the basis of method of appointment prescribed in the special rules for Last Grade Service and in the light of the method of appointment prescribed in Rule 5(a) of the Special Rules for the category of post of Process Server, ie., Category 8, inter district transfer of a Process Server can be considered only if there are no eligible hands available for promotion in the district unit. Further it appears that earlier insistence was made by the State authorities that for consideration of the inter district transfer application, the incumbent may have to give up promotion and it WA 1533/21 - : 16 :-

appears that the writ petitioner was not willing to relinquish her promotion already granted as Process Server.

15. The Registrar has also made available a report furnished by the Principal District Judge, Ernakulam, wherein it is stated that now there exist no vacancies of Process Server and Office Attendant which are earmarked for inter district/departmental transfer in the civil judicial wing of Ernakulam District. Further, the Principal District Judge, Ernakulam has also reported that there are so many incumbents in the civil judicial wing of the Ernakulam District in the category of Court Keeper/Duffedar and Office Attendant, who are qualified for promotion to the post of Process Server and the vacancy of Office Attendant in the inter district turn will arise only on or after 1.1.2022, consequent to the retirement of one Sri.P.K.Subash, Clerk, on 31.12.2021, followed by the by-transfer appointment of clerk from low paid employees, etc.

16. The main issue is as to whether the writ petitioner has made any compassionate grounds in the facts and circumstances of the case to justify her continuance at Government quarters at Perumbavoor, Ernakulam District, even though she has been repatriated and posted back to Alappuzha District since the first week WA 1533/21 - : 17 :-

of September, 2020 onwards. The only facts pleaded by the petitioner in the W.P.(C). as well as in the representation is that her mother is suffering from mental illness and that she had undergone regular treatment at Kusumagiri hospital, Kakkanad, Ernakulam and that at the time of submission of the representation in October, 2020, her children were also facing problems due to Covid-19 issues and that she has certain other family commitments in Perumbavoor, Ernakulam. These facts by itself will not necessarily disclose any case of compassion so as to justify the issuance of a direction in writ proceedings to compel the State authorities to permit the petitioner to continue in the quarters in Perumbavoor, Ernakulam in spite of her transfer back to Alappuzha District. Still, we wanted to know whether there could be some relevant factual grounds. It is for this purpose that we have called for the report from the Registrar. The abovesaid factual materials made available by the Registrar would make it clear that prior to the deputation to Ernakulam, the petitioner was residing in Alappuzha District along with her family and mother. At that time, her mother was taking treatment at the Government Medical College Hospital, Alappuzha. Further her parents belong to Alappuzha District. Her sister is working abroad. Her husband is not WA 1533/21 - : 18 :-

having any job and does not seem to have any permanent residence in Ernakulam District. No case has been set up before us that any of the close relatives of the writ petitioner or her family are permanently based either in Perumbavoor or anywhere in and around Ernakulam, which could be of some help to her mother. If none of the close relatives are nearby, we fail to see as to how her ailing mother can stay at Perumbavoor without such care and at a time when the writ petitioner is working at Alappuzha District. The writ petitioner's mother was earlier taking treatment at the Government Medical College at Alappuzha and it is only after her deputation posting to Ernakulam that her mother started taking treatment from the hospital at Ernakulam. Therefore, the abovesaid factual aspects cannot in any manner make out any case for a compassionate treatment to justify her continuance in the quarters at Ernakulam when she is already posted back in Alappuzha District. The purpose of taking care of her mother and giving treatment to her mother can be easily subserved by the mother residing with the writ petitioner in Alappuzha District and her mother can be treated in the Govt. Medical College, Hospital, Alappuzha or any other hospital having psychiatry Dept. in Alappuzha District . It is all the more so, as we are WA 1533/21 - : 19 :-

told that the parents of the writ petitioner belong to Alappuzha District and therefore, they should be having some close relatives in Alappuzha District.

17. The provisions contained in Rule 4 of the Allotment & Occupation of Government Servants' Quarters Rules, 2006, especially relating to the provision for maximum time for occupation after transfer station, etc., are mandatory and binding on all concerned. The District Collector has issued the impugned Ext.P-5 order dated 29.09.2019 strictly within the parametres of the abovesaid Rules. If unnecessary indulgence is shown to any incumbent, then the competent authorities concerned will be blamed for violation of the Rules and hence, they are bound to implement those Rules strictly. In view of the various aspects mentioned hereinabove, it cannot be said that the exercise of discretion by the District Collector, which led to the issuance of impugned Exts.P-5 & P-6 orders, is in any manner arbitrary or capricious or against the Rules. On the other hand, the said impugned orders at Exts.P-5 & P-6 have been issued, strictly in accordance with the said Rules. Not even a copy of the inter-district transfer application said to have been submitted by the writ petitioner, has been produced in the W.P(C).

WA 1533/21 - : 20 :-

18. Further, there are no specific and clear averments in the memorandum of the W.P(C) to easily make out a case that the petitioner did have the minimum qualifying five years of service in the parent district (Alappuzha) in order to enable her to claim for inter-district transfer as per the abovesaid norms in question. The specific aspect that the petitioner had only about 2 years and 4 months of service in Alappuzha District and that the three year period of deputation to KELSA in Ernakulam has to be excluded for the purpose of determining eligibility for inter-district transfer, as per the norms etc., has not been disclosed in the W.P(C). If those aspects have been disclosed in the pleadings in the W.P(C) in simple and precise terms, it would have been clear that the incumbent did not satisfy the minimum five years of service and that her case could have been considered only by relaxation of the five year Rule and further that the consideration of such relaxed claim would require the approval of higher authorities, etc., in very exceptional cases that need sympathetic consideration and that cases should not be proposed for relaxation in a routine manner, would have been made clear to the Court. The non-disclosure of these vital aspects in simple and precise terms, has to be viewed seriously. So also, the High Court WA 1533/21 - : 21 :-

of Kerala on the administrative side and the appointing authority viz., the Principal District Judge, Alappuzha, should have been impleaded in the W.P(C) and so also, the aspects now reported by the Principal District Judge, Ernakulam, that there exist no vacancies of Process Server and Office Attendant, which are earmarked for inter- district/inter-departmental transfer in the civil judicial wing of Ernakulam District, should have been fully disclosed to this Court. So the non-disclosure of the vital aspects and the non-impleadment of the other competent authorities in the W.P(C), has to be seen seriously. No grounds have been made out for quashment of the impugned Ext.P-5 order issued by the District Collector and hence, the prayer for quashment of the impugned Ext.P-5 order is only liable to be rejected.

19. In the light of the above aspects, we are of the view that the contentions of the State authorities cannot be rejected by us. The State authorities are taking the definite stand that it is not right and proper for this Court to allow the writ petitioner to continue in the quarters at Perumbavoor, Ernakulam, even after her repatriation and posting back to Alappuzha District. For the above reasons, we are of the opinion that the writ petitioner has not made out any strong case WA 1533/21 - : 22 :-

for compassionate treatment for justifying the said plea of continuance in quarters and in spite of lack of pleadings, we have taken the pain to get reports from the Registrar to ascertain as to whether the writ petitioner has any such strong case. Based on the abovesaid assessment of the facts and circumstances, we are of the view that the petitioner has not made out any case for compassionate treatment so as to justify her further continuance in the quarters at Ernakulam, despite her transfer and repatriation back to Alappuzha District. No prayer has been made in the writ petition for any mandamus or direction to direct the State authorities to consider and take a decision on the application for inter district transfer application. Therefore we need not get into those issues and it is for the State authorities to consider all relevant aspects of the matter and then to take a decision thereon in accordance with law. The upshot of the above discussion is that the direction issued in the impugned judgment to permit the petitioner to continue in the Government quarters would deserve interdiction. Accordingly, it is ordered that the direction issued by the learned Single Judge in the impugned judgment, directing the respondents in the W.P.(C). for permitting the writ petitioner for further continuance in the Government quarters at Ernakulam even after her transfer back to the parent Department in Alappuzha District Collector, will stand set aside.

WA 1533/21 - : 23 :-

These aspects of the matter have not been duly taken note of in the rendering of the judgment in the W.P.(C). The impugned judgment dated 8.12.2020 rendered in W.P.(C).No.22549/2020 will stand modified and substituted as above.

The Registry will forward copies of this judgment to appellants 3 to 5, Addl. Chief Secretary/Principal Secretary to Govt. in the Home Department, Addl. Respondents 2 & 3 as well as the Principal District Judge, Ernakulam, for necessary information.

The Secretary to the office of the Advocate General will forward copies of this judgment to appellants 3 to 5 and to the Addl. Chief Secretary/Principal Secretary to Govt in the Home Department for necessary information.

With these observations and directions, the above Writ Petition (Civil) will stand finally disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE Sd/-

VIJU ABRAHAM, JUDGE sdk+ vgd

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