Biju K.V vs State Of Kerala on 17 March, 2026

[Cites 12, Cited by 0]

Kerala High Court

Biju K.V vs State Of Kerala on 17 March, 2026

The petitioner filed O.A.No.291 of 2026 on the file of the Kerala Administrative Tribunal at Thiruvananthapuram, invoking the provisions under Section 19 of the Administrative Tribunals Act, 1985, to quash Annexure A3 order dated 24.02.2026 issued by the 3rd respondent Additional Commissioner of Excise (Administration) to the extent of transferring the petitioner- applicant, who is working as an Excise Inspector, from the Excise Range Office, Ettumanoor, to the Excise Check Post, Kumily; a direction to the 2nd respondent Commissioner of Excise to take up and consider Annexure A11 representation dated 27.02.2026 made by the applicant and to keep in abeyance Annexure A3 order of transfer, to the extent of transferring the applicant from the Excise Range Office, Ettumanoor, to the Excise Check Post, Kumily.

2. On 02.03.2026, when O.A.No.291 of 2026 came up for consideration, the Tribunal disposed of the same by Ext.P2 order dated 02.03.2026. Paragraph 2 and also the last paragraph of that order read thus;

"2. The applicant submits that he has been posted to the OP(KAT) NO. 90 OF 2026 4 2026:KER:23562 present station vide Annexure A2 order dated 09.05.2025. Before completing his tenure, the applicant is being transferred to a difficult station at Kumaly. The applicant submits that he is a member of Scheduled Caste Community and is due to retire from service on 31.03.2017. Annexure A6 to A10 medical records have been produced in support of the contention that the applicant is suffering from Type-II Diabetes and is also undergoing treatment for Charcot's Arthropathy involving left knee and hind foot. Annexure A3 transfer order as far as the applicant and his substitutes are concerned has already been implemented on 27.02.2026. Aggrieved by the transfer the applicant has submitted Annexure A11 representation before the 2nd respondent. The learned Counsel for the applicant submits that there is a vacancy available at Paulson's Distilleries, Muringoor, Chalakudy against which the applicant may be considered. Accordingly the Original Application is disposed of with a direction to consider the request of the applicant for a posting at Paulson's Distilleries or to any other vacancy at Thrissur. In order to facilitate this, the applicant shall produce a copy of the representation before the 2nd respondent within one week from today. If such a representation is received, the same shall be considered and disposed of within one month thereafter."

3. Feeling aggrieved by Ext.P2 order dated 02.03.2026 of the Tribunal, the petitioner-applicant is before this Court in this original petition, invoking the supervisory jurisdiction under OP(KAT) NO. 90 OF 2026 5 2026:KER:23562 Article 227 of the Constitution of India.

4. Heard the learned counsel for the petitioner-applicant and the learned Senior Government Pleader for respondents 1 to

5. The learned counsel for the petitioner-applicant would contend that Ext.P2 order dated 02.03.2026 of the Kerala Administrative Tribunal in O.A.No.291 of 2026 is one passed without properly appreciating the legal and factual contentions raised by the petitioner. Therefore, the said order warrants interference in this original petition.

6. The learned Senior Government Pleader would submit that, considering the facts and circumstances of the case, the Tribunal cannot be found fault with in disposing O.A.No.291 of 2026 by directing the 2nd respondent Commissioner of Excise to consider and pass appropriate orders on Annexure A11 representation dated 27.02.2026 made by the petitioner. Therefore, Ext.P2 order passed by the Tribunal warrants no interference, in exercise of the supervisory jurisdiction under Article 227 of the Constitution of India.

7. Article 227 of the Constitution of India deals with OP(KAT) NO. 90 OF 2026 6 2026:KER:23562 power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction.

8. In Shalini Shyam Shetty v. Rajendra Shankar Patil [(2010) 8 SCC 329] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court.

9. In Jai Singh v. Municipal Corporation of Delhi [(2010) 9 SCC 385], while considering the nature and scope of the powers under Article 227 of the Constitution of India, the OP(KAT) NO. 90 OF 2026 7 2026:KER:23562 Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice.

10. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [(2015) 12 SCC 39] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India, the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and OP(KAT) NO. 90 OF 2026 8 2026:KER:23562 manifest failure of justice or the basic principles of natural justice have been flouted.

11. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India, this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law.

12. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by the Administrative Tribunal. The supervisory jurisdiction cannot be exercised to correct all errors OP(KAT) NO. 90 OF 2026 9 2026:KER:23562 in the order of the Administrative Tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order of the Administrative Tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the Administrative Tribunal has committed a manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the Tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted.

13. The main contention of the petitioner-applicant to challenge Annexure A3 order of transfer, to the extent the applicant, who is working as an Excise Inspector, was transferred from the Excise Range Office, Ettumanoor, to the Excise Check Post, Kumily, is that the said order is violative of the guidelines for transfer of Government employees, as contained in Annexures A4 and A5.

14. In State of M.P. v. S.S. Kourav [(1995) 3 SCC OP(KAT) NO. 90 OF 2026 10 2026:KER:23562 270], the Apex Court held that the courts or tribunals are not appellate forums to decide on transfers of Officers on administrative grounds. It is for the administration to take appropriate decision, and such decision shall stand unless they are vitiated by mala fides or by extraneous considerations without any factual foundation. On the facts of the case at hand, the Apex Court held that the orders of transfer having been issued on administrative grounds, the expediency of those orders cannot be examined by the court. In the said decision the Apex Court held further that the court cannot go into the question of relative hardship. It is for the administration to consider the facts of a given case and mitigate the real hardship in the interest of good and efficient administration.

15. In Somesh Tiwari v. Union of India [(2009) 2 SCC 592], the Apex Court held that an order or transfer passed on material, which was non-existent, not only suffers from total non-application of mind on the part of the authorities, but also suffers from malice in law. Paragraphs 16 and 17 of the said decision read thus;

'16. Indisputably, an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, OP(KAT) NO. 90 OF 2026 11 2026:KER:23562 which is ordinarily an incident of service should not be interfered with, save in cases where inter alia mala fide on the part of the authority is proved. Mala fide is of two kinds - one malice in fact and the second malice in law. The order in question would attract the principle of malice in law as it was not based on any factor germane for passing an order of transfer and based on an irrelevant ground i.e. on the allegations made against the appellant in the anonymous complaint. It is one thing to say that the employer is entitled to pass an order of transfer in administrative exigencies, but it is another thing to say that the order of transfer is passed by way of or in lieu of punishment. When an order of transfer is passed in lieu of punishment, the same is liable to be set aside being wholly illegal.

17. An enquiry was initiated against the appellant in terms of the allegations contained in an anonymous letter. Having regard to the directives of the Central Vigilance Commission, no enquiry could have been initiated against him, but it is beyond any doubt or dispute that in the said enquiry, the allegations were found to be untrue. Despite the same not only an order of transfer was passed but to a station, which, according to the respondents themselves, was "harsh".'

16. In Kalabharati Advertising v. Hemant Vimalnath Narichania [(2010) 9 SCC 437], the Apex Court discussed the concept of 'malice in law'. It was held that 'legal malice' or 'malice in law' means something done without legal excuse. It is OP(KAT) NO. 90 OF 2026 12 2026:KER:23562 an act done wrongfully and willfully, without reasonable or probable cause, and not necessarily an act done from ill feeling or spite. It is a deliberate act in disregard to the rights of others. Where malice is attributed to the State, it can never be a case of personal ill will or spite on the part of the State. It is an act which is taken with an oblique or indirect object. It means exercise of statutory power for 'purposes foreign to those for which it is in law intended'. It means conscious violation of the law to the prejudice of another, a deprived inclination on the part of the authority to disregard the rights of others, which intend is manifested by its injurious acts. Passing an order for unauthorised purpose constitutes malice in law.

17. In Gopinathan M. v. State of Kerala [2014 (4) KLT 285], a Division Bench of this Court in which one among us [Anil K. Narendran, J.] was a party, held that it is trite law that transfer is an incident of service and an employee working on a transferable post cannot claim, as a matter of right, that he should be retained in a particular post or at a particular place. It is the choice of the employer to determine how long the service of an employee is required in a particular post or at a particular OP(KAT) NO. 90 OF 2026 13 2026:KER:23562 place. The order of transfer does not affect any legal rights of the employee, and the court or tribunal cannot interfere with an order of transfer or posting, which is made in public interest or on administrative exigency. However, if the power of transfer is abused or the transfer is not made in public interest, but for collateral purposes and with oblique motive, the order would stand vitiated, warranting interference of the court or tribunal.

18. In Gopinathan M. [2014 (4) KLT 285], on the facts of the case at hand, the Division Bench noticed that a perusal of Annexure A5 enquiry report submitted by the 3rd respondent therein would show that based on the enquiry conducted on 26.06.2012, the 3rd respondent came to the conclusion that there was no serious lapse on the part of the petitioners therein in discharging their duties and the leave availed by them are lawful. In the enquiry report it was also found that the petitioners, who were working as HSA (Natural Science) and HSA (Physical Science), respectively, in the Government Higher Secondary School, Chettiyankinar have completed their portions in time, by taking special classes, which were proved from the statements given by the students. In such circumstances, the OP(KAT) NO. 90 OF 2026 14 2026:KER:23562 conclusion in Annexure A5 enquiry report was that there was no truth in the complaint made by the parents and there are no lapses on the part of the petitioners in discharging their duties, warranting any disciplinary proceedings. The details of the leave availed by the petitioners, made it abundantly clear that the leave for 42 days and 33 days respectively, referred to Annexure A5 enquiry report, the petitioners were either on eligible leave or on other duty in connection with arts festival, youth festival, teachers' training, etc. It was also not in dispute that the percentage of marks in the subjects handled by the petitioners was high during the relevant period and it has gone up to 100% in the subsequent academic year. In addition to that, as evident from Annexure A6 resolution, the Executive Committee of the Parent Teacher Association unanimously resolved against the transfer of the petitioners from Government Higher Secondary School, Chettiyankinar, which also indicates that the complaints made against the petitioners are baseless and the parents of the students have no connection whatsoever with those complaints. It is in such circumstances, the Division Bench arrived at a conclusion that Annexure A1 order of transfer was issued without OP(KAT) NO. 90 OF 2026 15 2026:KER:23562 any factual foundation or legal support. The said order passed on materials which were non-existent, not only suffers from total non-application of mind but also from malice in law, and that the said order is only a colourable exercise of power by the 3 rd respondent.

19. In Santhosh K. and another v. Chief Engineer (HRM), Kerala State Electricity Board [2013 (4) KHC 624], a Division Bench of this Court, in the context of the transfer guidelines of employees issued by the Kerala State Electricity Board (KSEB), held that it is salutary that the contents of both the KSEB orders cannot be treated as either statutory, or amounting to conditions of service. They are essentially guidelines, relating to transfers of employees of KSEB. The realm of judicial intervention in such matters gets confined to a scrutiny as to whether there is any vitiating element of mala fides, malice, substantial legal and factual perversity or arbitrariness, recognisable on the touchstones of the Fundamental Rights, as enshrined in the Constitution, to visit the executive decision of the KSEB as the employer.

20. In the instant case, the main contention of the OP(KAT) NO. 90 OF 2026 16 2026:KER:23562 petitioner-applicant to challenge Annexure A3 order of transfer, to the extent he was ordered to be transferred from the Excise Range Office, Ettumanoor, to the Excise Check Post, Kumily, is that the said order is violative of the guidelines for transfer of Government employees, as contained in Annexures A4 and A5. The grounds raised in O.A.No.291 of 2026, which are reiterated in this OP(KAT), would not make out a case of exercise of any statutory power by the 1st respondent State for purposes foreign to those for which it is in law intended or an act done by the 1st respondent State wrongfully and willfully, without reasonable or probable cause, to disregard any legal rights of the petitioner- applicant, in order to attract malice in law.

21. In National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan [(2001) 8 SCC 574], the Apex Court held that unless the order of transfer is shown to be an outcome of mala fide exercise of powers or in violation of the statutory provision, it cannot be subjected to judicial interference, as a matter of routine. In the said decision, it was held further, that the Courts or Tribunals cannot substitute their own decision in the matter of transfer for that of the management.

OP(KAT) NO. 90 OF 2026 17 2026:KER:23562

22. In Namrata Verma v. State of U.P. [2021 SCC OnLine SC 3337], the Apex Court held that it is not for the employee to insist to transfer him and/or not to transfer him to a particular place. It is for the employer to transfer an employee, considering the requirement.

23. The petitioner-applicant filed O.A.No.291 of 2026 before the Tribunal on 02.03.2026. Admittedly, even prior to the filing of the said original application, the 4th respondent joined the Excise Range Office, Ettumanoor, on 27.02.2026. In the facts and circumstances of the case, as borne out from the pleadings and materials on record, the Tribunal cannot be found fault with in disposing of O.A.No.291 of 2026 with the directions contained in the last paragraph of Ext.P2 order dated 02.03.2026.

24. In such circumstances, we find no reason to interfere with Ext.P2 order dated 02.03.2026 of the Tribunal in O.A.No.291 of 2026, in exercise of the supervisory jurisdiction of this Court under Article 227 of the Constitution of India.

25. The learned Senior Government Pleader would submit that, though a personal hearing, in terms of the directions contained in Ext.P2 order of the Tribunal, was scheduled on OP(KAT) NO. 90 OF 2026 18 2026:KER:23562 16.03.2026, the petitioner-applicant pointed out the filing of this original petition, and therefore, no personal hearing was conducted. It is for the 2nd respondent Commissioner of Excise to conduct a personal hearing, within a period of one week, to consider the representation made by the petitioner-applicant.

In the result, this original petition fails, and the same is accordingly dismissed; however, subject to the aforesaid direction.

Sd/-

ANIL K. NARENDRAN, JUDGE Sd/-

                                     MURALEE KRISHNA S., JUDGE
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 OP(KAT) NO. 90 OF 2026                19                   2026:KER:23562



                 APPENDIX OF OP(KAT) NO. 90 OF 2026

PETITIONER ANNEXURES

Annexure A-1             TRUE COPY OF THE ORDER BEARING NO.ID1-

617591/2023 DATED 19-08-2024 ISSUED BY THE DEPUTY EXCISE COMMISSIONER, IDUKKI.

Annexure A-2 TRUE COPY OF THE ORDER BEARING NO.EXC/6253/2024-XD3 DATED 09-05-2025 ISSUED BY THE 3RD RESPONDENT.

Annexure A-3 TRUE COPY OF THE ORDER BEARING NO.EXC/6171/2025-XD3(2)-PART(1) DATED 24-02- 2026 ISSUED BY THE 3RD RESPONDENT.

Annexure A-4             TRUE COPY OF THE GOVERNMENT ORDER GO(P)
                         NO.15/89/P&ARD          DATED           22-05-1989
                         (TYPED/LEGIBLE COPY ATTACHED HEREWITH)
Annexure A-5             TRUE     COPY     OF     THE      CIRCULAR     NO.

HQ/2/2024/EXCISE DATED 02-07-2024 ISSUED BY THE 2ND RESPONDENT.

Annexure A-6 TRUE COPY OF MEDICAL CERTIFICATE DATED 22- 07-2024 ISSUED BY AMRITA INSTITUTE OF MEDICAL SCIENCES, KOCHI, CERTIFYING TYPE-II DIABETES MELLITUS WITH DIABETIC FOOT / CHARCOT'S ARTHROPATHY AND RESTRICTION AGAINST ROUGH PHYSICAL ACTIVITY OF THE FOOT. Annexure A-7 TRUE COPY OF THREE-PHASE REGIONAL SKELETAL SCINTIGRAPHY REPORT DATED 11-12-2023 ISSUED BY THE DEPARTMENT OF NUCLEAR MEDICINE, AMRITA INSTITUTE OF MEDICAL SCIENCES, DIAGNOSING CHARCOT'S ARTHROPATHY INVOLVING LEFT ANKLE AND HIND FOOT.

Annexure A-8             TRUE COPY OF MEDICAL CERTIFICATE ISSUED BY
                         GOVERNMENT     MEDICAL     OFFICER      CERTIFYING

NECESSITY OF MEDICAL LEAVE WITH EFFECT FROM 26-2-2026 TO 03-03-2026 AND CONTINUED TREATMENT.

Annexure A-9 TRUE COPY OF THE CONSULTATION NOTES AND TREATMENT RECORDS DATED 26-02-2026 ISSUED BY THE CHIEF CONSULTANT IN RESPIRATORY MEDICINE, GOVERNMENT GENERAL HOSPITAL, ALAPPUZHA, EVIDENCING BILATERAL LEG OEDEMA AND RELATED COMPLICATIONS.

Annexure A-10 TRUE COPY OF THE RADIOLOGY REPORT DATED 14-

                         12-2023    ISSUED    BY   THE     DEPARTMENT    OF
                         RADIOLOGY,    AMRITA    INSTITUTE     OF   MEDICAL

SCIENCES, KOCHI, PURSUANT TO DOPPLER STUDY OF BILATERAL LOWER LIMB VEINS.

Annexure A-11 TRUE COPY OF THE REPRESENTATION DATED 27-02-

 OP(KAT) NO. 90 OF 2026              20                 2026:KER:23562


                         2026 SUBMITTED BY THE APPLICANT TO THE 2ND
                         RESPONDENT.
Annexure A-11(a)         TRUE COPY OF THE POSTAL RECEIPT DATED 27-02-
                         2026 FOR HAVING DISPATCHED ANNEXURE A-10
                         REPRESENTATION TO THE 2ND RESPONDENT.
Exhibit P-1              TRUE COPY OF O.A.NO.291 OF 2026 FILED BY THE

PETITIONER HEREIN BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. Exhibit P-2 TRUE COPY OF THE ORDER DATED 02.03.2026 IN O.A.NO.291/2026 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM BENCH.

Exhibit P-3 TRUE COPY OF THE NOTICE OF COMMUNICATION OF THE ORDER IN OA NO.291/2026 DATED 02.03.2026 SUBMITTED BY THE PETITIONER THROUGH HIS COUNSEL TO THE 2ND RESPONDENT COMMISSIONER OF EXCISE.

Exhibit P-3(a) TRUE COPY OF THE POSTAL RECEIPT DATED 05.03.2026 FOR HAVING DISPATCHED EXHIBIT P-3 TO THE 2ND RESPONDENT.

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