IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 15800 of 2009(T)
1. HARISH NAMBOODIRI S/O. NARAYANAN
... Petitioner
Vs
1. COCHIN DEVASWOM BOARD, REP. BY ITS
... Respondent
2. SPECIAL DEVASWOM COMMISSIONER,
3. C.N.NARAYANAN NAMBOODIRI,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :07/12/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 15800 OF 2009 (T)
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Dated this the 7th day of December, 2009
J U D G M E N T
Writ petition is filed challenging Ext.P5 order of transfer.
2. Petitioner and the 3rd respondent are Shanthis working
under the 1st respondent Devaswom Board. It is stated that for
the last several years, the 3rd respondent was working as Shanthi
in the Velappaya Shiva Temple. While so, by Ext.P1 order dated
5/10/2007, the 1st respondent ordered transfer of the 3rd
respondent from Velappaya Shiva Temple to Peruvanam Temple.
That order was challenged by the 3rd respondent before this Court
in WP(C) No.29775/07. The writ petition was disposed of by Ext.P2
judgment. In the said judgment, taking note of the submissions
made by the counsel for the 3rd respondent about the
developmental activities at the temple that were being carried on
under the leadership of the 3rd respondent, this Court held that
the desirability of continuance of the 3rd respondent at the
Velappaya Shiva Temple is a matter for the Board to consider.
3. Accordingly, the matter was taken up with the Board,
but however, the Board passed Ext.P3 order dated 15/11/2007
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rejecting the request made by the 3rd respondent against Ext.P1.
Subsequently, Ext.P4 order was passed by the 1st respondent on
26/12/2007 by which the petitioner was transferred and was
posted as Shanthi in the Velappaya Shiva Temple. Accordingly,
the petitioner joined that post and started to discharge his duties.
While he was continuing as such, by Ext.P5 order dated 2/6/09,
the 3rd respondent was again posted as Shanthi at the Velappaya
Shiva Temple and the petitioner was transferred and posted at
the Pazhuvam Subramania Swami Temple. It is challenging
Ext.P5 order, the writ petition is filed.
4. One of the contentions raised by the counsel for the
petitioner is that Ext.P5 is vitiated for malafides. It is contended
that the said order is also contrary to the guidelines issued by the
Board which provide that transfer and posting can be ordered
only after a person completes his tenure of three years at a
station. Yet another contention raised is that there are several
allegations of corruption against the 3rd respondent and that even
the vigilance enquiry, the report of which is Ext.R4(g)
substantiates his contention. According to the petitioner, for this
reason also the 3rd respondent ought not to be posted at the
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Velappaya Shiva Temple.
5. Respondents 1 to 3 have filed counter affidavits.
According to the 1st respondent Devaswom Board, on 17/2/2009,
the Secretary of the Board received a petition from the 3rd
respondent stating that due to medical grounds, it was not
possible for him to work in the temples away from his residence
and that he sought a suitable posting to a temple near to his
house. It is stated that the Secretary thereupon called for the
remarks of the Trichur Group Assistant Commissioner. It is also
stated that the Assistant Commissioner Trichur in his report dated
15/5/2009 forwarded the application of the 3rd respondent along
with the medical certificate and that considering the same Ext.P5
order was issued posting the 3rd respondent to Velappaya Shiva
Temple.
6. Para 9 of the counter affidavit of the 1st respondent
reads as under:
It is submitted that the petitioner herein is now
transferred to a temple which is hardly 25 kilometres
away from the Velappaya Temple and only 20 kilometres
away from his place of residence. It may also be
considered that the 3rd respondent is aged 60 and the
petitioner is only 30 years old. It is also submitted that
atpresent there is a vacancy in “Erattachira Temple”,
Near Sakthan Thampuran Bus stand at Thrissur and the
petitioner can be given a posting as Santhi in the saidWPC 15800/09
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present place of residence of the petitioner.
In so far as the allegation of violation of guidelines is concerned, it
is stated by the 1st respondent that though under the guidelines
ordinarily transfer shall not be effected before completion of three
years, still if the circumstances justify, the Board is well within its
powers to order transfer even before a person completes 3 years.
7. In so far as the allegation of corruption against the 3rd
respondent is concerned, standing counsel for the Board submits
that allegations are not one of misappropriation. Counsel for the
3rd respondent also submitted that it was only on account of his ill
health that he made an application for transfer and posting near
to his residence. He also denies the allegations of corruption
made against him.
8. The 4th respondent, who got himself impleaded in the
writ petition has filed a counter affidavit mainly raising allegations
of corruption against the 3rd respondent. He has also produced
the vigilance report, which according to him show instances of
corruption and recommendations against the 3rd respondent
continuing in the temple in question.
9. In so far as Ext.P5 is concerned, as already stated, the
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first ground urged is that it is vitiated for malafides. The
allegation of malafide is one of serious nature and it is for the
petitioner to raise specific pleas in this behalf and substantiate
the contention and also implead the persons against whom such
allegations of malafide are raised. In this writ petition, not only
that there is no specific plea of malafides, but even the persons
against whom such allegations are made are not impleaded in
this writ petition. For this reason itself, I am not persuaded to take
cognizance of the vague and general allegations of malafides
raised at the Bar.
10. The next plea is that guidelines of transfer have been
violated. True the guidelines provide that ordinarily a person
cannot claim transfer before completing 3 years and an employee
is not liable to be transferred before completing a tenure of three
years. In this case, the petitioner has completed only 2 years at
the time when Ext.P5 was issued. Therefore, going by the
guidelines, it may be a case possible to say that the petitioner
was transferred prematurely. But then, the guidelines only say
that ordinarily a person shall not be transferred. This itself implies
that taking into account administrative exigencies existing in the
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organization, the Board is entitled to depart from the guidelines.
Unless such exercise of power is proved to be arbitrary or
malafide, this Court will not be justified in interfering with such
legitimate exercise of power. In this case going by the
uncontroverted averments in the counter affidavit of the Board,
posting and transfer of the 3rd respondent was ordered by Ext.P5
taking into account the representation made by him accompanied
by a medical certificate certifying his illness. In such a case, if
the Board has, for bonafide reasons, exercised the power and in
that process, if the guidelines have been departed from, this
Court will not be justified in interfering with such an order.
11. The next allegation against the 3rd respondent is one of
corruption. This allegation is raised entirely relying on Ext.R4(g), a
report submitted by the Vigilance and Anti Corruption Bureau.
Ext.R4(g) itself show that the said report has been forwarded by
the Government to the Board and the Board has not taken any
action thereon with notice to the 3rd respondent in pursuance
thereof. The Board having not taken any action on this report,
petitioner or the 4th respondent cannot now contend that Ext.P5 is
vitiated for this reason. Therefore, it is for the Board to do what
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they feel appropriate on Ext.R4(g) I do not find any ground to
invalidate Ext.P5.
Writ petition fails and is dismissed.
ANTONY DOMINIC, JUDGE
Rp