IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 17573 of 2008(P)
1. DR.G. RAJASEKHARAN NAIR, SELECTION
... Petitioner
Vs
1. STATE OF KERALA, REP. BY THE
... Respondent
2. PRINCIPAL, GOVERNMENT LAW COLLEGE,
For Petitioner :SRI.M.BALAGOVINDAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.T.SANKARAN
Dated :19/09/2008
O R D E R
K.T.SANKARAN, J.
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W.P.(C) Nos.17573 & 21630 OF 2008
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Dated this the 19th September, 2008
JUDGMENT
The parties in these Writ Petitions are the same except that the
third respondent in W.P.(C) No.21630 of 2008 is not a party to W.P.(C)
No.17573 of 2008. These Writ Petitions were heard together and are
being disposed of by this common judgment. Petitioner in both these Writ
Petitions is Dr.G.Rajasekharan Nair (hereinafter referred to as the
petitioner), who was working as Selection Grade Lecturer in law in
Government Law College, Kozhikode and who was later promoted as the
Principal and posted as such in the Government Law College, Thrissur.
2. W.P.(C) No.17573 of 2008 was filed at the time when the
petitioner was working as Selection Grade Lecturer in law in the
Government Law College, Kozhikode. His grievance was that his request
for transfer to his home-station at Thiruvananthapuram was rejected as
per Ext.P4 order dated 29.5.2008. The reason for rejection of the request
was stated in Ext.P4 as follows:
“Accordingly Government have examined the matter
in detail and order that the transfer request (Exhibit P2) of
Dr.G.Rajasekharan Nair, Lecturer in Law, Government Law
College, Kozhikode cannot be considered now as there is no
vacancy of Lecturer in Law in Government Law College,
Thiruvananthapuram at present. This order is issued in
compliance with the judgment read above.”
W.P.(C) NOS.17573 & 21630 OF 2008
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3. The petitioner had earlier filed W.P.(C) No.12057 of 2008 when
his request for transfer was not considered by the first respondent. That
Writ Petition was disposed of as per Ext.P3 judgment dated 8.4.2008,
whereby the first respondent was directed to consider and pass orders on
Ext.P2 representation submitted by the petitioner seeking a transfer to
Government Law College, Thiruvananthapuram. Thereafter, the first
respondent has passed Ext.P4 order dated 29.5.2008, the relevant
portion of which is extracted above. The petitioner contended that on
24.5.2008, Smt. Usha, Selection Grade Lecturer in Law, Government Law
College, Thiruvananthapuram, was promoted as Principal and was posted
as such in the Government Law College, Thrissur. Therefore, a vacancy
of Selection Grade Lecturer in Law was available in Government Law
College, Thiruvananthapuram. The statement in Ext.P4 that there was no
vacancy of Lecturer in Law in the Government Law College,
Thiruvananthapuram as on 29.5.2008 is incorrect. On the basis of these
facts, an interim order as prayed for was granted on 12.6.2008. The
prayer for interim relief is to direct the first respondent not to pass any
order to fill up the vacancies of Senior Lecturer in Government Law
College, Thiruvananthapuram by any other incumbent other than the
petitioner. I.A.No.8016 of 2008 was filed by the petitioner seeking to
accept Ext.P6 order dated 13.6.2008, passed by the first respondent. In
the affidavit accompanying the application, it is stated that after coming to
W.P.(C) NOS.17573 & 21630 OF 2008
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know of the interim order dated 12.6.2008, the first respondent passed
Ext.P6 order dated 13.6.2008, transferring one Dr.N.Krishna Kumar,
Lecturer in Law, Government Law College, Thrissur and posting him in
Government Law College, Thiruvananthapuram in the existing vacancy.
I.A.No.8017 of 2008 was filed to implead Sri.S.Babu Abraham, Under
Secretary to Government, as additional third respondent in W,P.(C)
No.17573 of 2008.
4. On 14.7.2008, the first respondent passed an order by which
the petitioner was promoted to the post of Principal and was posted as
such in the Government Law College, Thrissur. By the very same order,
Smt.S.Usha, Principal, Government Law College, Thrissur, was
transferred and posted as such in the Government Law College,
Thiruvananthapuram against the retirement vacancy of K.S.Ajayakumar.
The petitioner has challenged the order dated 14.7.2008 in W.P.(C)
No.21630 of 2008 wherein it is marked as Ext.P6. When W.P.(C)
No.21630 of 2008 came up for admission on 17.7.2008, an interim stay of
Ext.P6 order dated 14.7.2008 was granted for a period of two weeks.
5. In view of the subsequent events, W.P.(C) No.17573 of 2008
has practically become infructuous. Therefore, only W.P.(C) No.21630 of
2008 need be considered on the merits.
W.P.(C) NOS.17573 & 21630 OF 2008
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6. The case of the petitioner in W.P.(C) No.21630 of 2008 is that
he has got only two years for superannuation; that he belongs to
Thiruvananthapuram and that he has opted Thiruvananthapuram as his
home-station. He claims that he is entitled to be posted at
Thiruvananthapuram as he has completed three years of out-station
service. The petitioner relies on Ext.P2 transfer norms dated 15.3.2003
(G.O.(MS)19/2003/H.Edn.) and also G.O.(P) No.13/2000/P&ARD dated
27.11.2000, which is referred to in Ext.P2. Petitioner also states that
Smt.Usha (hereinafter referred to as the third respondent) is having four
more years for retirement and that she is having only six months’ out-
station service. She was all along working at Thiruvananthapuram. The
petitioner contends that he is the most eligible person to get transfer to
Thiruvananthapuram.
7. The petitioner also contends that the first respondent passed
the order dated 13.6.2008 referred to above only to defeat the interim
order passed in W.P.(C) No.17573 of 2008. Thereafter, Ext.P6 order
dated 14.7.2008 was passed by the first respondent whereby the
petitioner was promoted as Principal and the third respondent who was
working as Principal, Government Law College, Thrissur was transferred
and posted as such in Government Law College, Thiruvananthapuram.
W.P.(C) NOS.17573 & 21630 OF 2008
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According to the petitioner, he is the most eligible person to get a transfer
to Thiruvananthapuram. He also contends that Ext.P6 order is violative of
G.O.(P)No.13/2000.
8. The prayer in the Writ Petition is to quash Ext.P6 order to the
extent to which it goes against the claim of the petitioner. It would appear
that the contention of the petitioner is that after promotion as Principal, he
should have been posted as such in Government Law College,
Thiruvananthapuram.
9. In the counter affidavit, the third respondent has stated that she
was relieved from Government Law College, Thrissur on 15.7.2008 as per
Ext.R3(b) relieving order. She joined duty as Principal, Government Law
College, Thiruvananthapuram on 16.7.2008 as evidenced by Ext.R3(c),
before the date of the interim order in the Writ Petition. She contends that
the petitioner has suppressed this material fact in the Writ Petition. She
was transferred to Thiruvananthapuram as per her request in Ext.R3(e)
representation dated 11.6.2008.
10. The third respondent disputes the statement of the petitioner
that he joined service as Lecturer on 13.11.1986. She says that the
petitioner was appointed as full time Lecturer only on 16.8.1989. The
W.P.(C) NOS.17573 & 21630 OF 2008
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petitioner has outstation service of only three and a half years as against
his claim that he has got outstation service for a period of twelve years.
According to the third respondent, she has got more outstation service as
Principal than that of the petitioner. The third respondent says that the
petitioner was transferred from Law College, Thrissur to Law College,
Kozhikode on the basis of a mass representation submitted by the
students. The third respondent has averred in paragraph 12 of the
counter affidavit thus:
“12. The averments contained in para – 2 of the
Writ Petition that the petitioner got two years more for
superannuation is not correct and hence denied. It is
submitted that the date of birth of the petitioner is
7.11.1955 and therefore normally the date of
superannuation will be 7.11.2010. He is due to retire from
service only on 31.3.2011. Therefore, it is clear that he is
having 2 years 8 months and odd days to retire from
service and 2 years 3 months and odd days for
superannuation. Ext.P2 is the transfer norms fixed by the
Government in respect of Lecturers in Law. Going by the
above facts he is not even entitled for any preference
under the said Order as claimed by the petitioner. Apart
from that, the above G.O deals with the transfer norms of
Lecturers in Law and the same has absolutely no
connection with the 3rd respondent who was already
promoted as Principal long before, which is a separate
cadre in the service.”
11. The question to be considered in the matter is regarding the
comparative merits of the petitioner and the third respondent to get a
transfer to Government Law College, Thiruvananthapuram. In Dr.George
Jacob v. State of Kerala (1989 (2) KLT 402, it was held:
W.P.(C) NOS.17573 & 21630 OF 2008
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“I think it unnecessary – if not inexpedient – to
evaluate comparative merits of two Government servants
for purposes of transfer, or retention at a station. These
are matters in the province of the Executive Government,
so long as they act fairly.”
12. In Dr.P.Sivaramakrishnan v. State of Kerala and others
(2008(2) KLJ 695 = 2008 (2) KHC 891) it was held as follows:
“It is well settled that transfer of a government
servant appointed to a particular cadre of transferable post
is an incident of service. Transfer from one place to other,
constitute a condition of service. There is no right vested
in a government servant to continue at one station. No
government servant has any legal right to claim for being
posted at any particular place. An order of transfer would
not be interfered with lightly in exercise of the extra
ordinary jurisdiction under Article 226 of the Constitution of
India, unless the court finds that the order is male fide or
that it is against the service rules or that the authority who
issued the order had no competence to pass the order.
(See Gujarat Electricity and another v. Atmaram
Sungomal Poshani ((1989) 2 SCC 602), State of U.P and
others v. Ashok Kumar Saxena and another ((1998) 3
SCC 303), State Bank of India v. Anjan Sanyal and
others ((2001) 5 SCC 508) and Venkitaraman Potti v.
Travancore Devaswom Board (1993 (2) KLT 374).”
13. In the light of the principles of law mentioned above, it is
apposite to consider the counter affidavit filed on behalf of respondents 1
and 4, wherein it is stated thus:
“Government have examined the requests of said
incumbents in detail and decided to transfer Smt.S.Usha, Principal,
Government Law College, Thrissur to Government Law College,W.P.(C) NOS.17573 & 21630 OF 2008
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Thiruvananthapuram and Dr.G.Rajasekharan Nair, Selection
Grade Lecturer in Law was promoted to the post of Principal and
posted in Government Law College, Thrissur, since Smt.S.Usha is
the Senior most among them. Accordingly orders has been issued
vide G.O.(Rt) No.1036/08/H.Edn., dated 14-07-08 and Smt.S.Usha
has taken the charge of Principal. It is submitted that by the time
of receipt of interim order of this Honourable Court, Smt.S.Usha
had taken charge on 16.7.2008 itself.
7. It is submitted that G.O.(Rt) No.1036/08/H.Edn. Dated
14-07-08 is not a general transfer order. It is a promotion order as
far as the petitioner is concerned. As such Ext.P2 is not applicable
in this case. It is also submitted that the petitioner is due to retire
on 31-03-2011 thus he has more than 2 years of service for
superannuation. The G.O.(MS) No.19/03/H.Edn., dated 15-03-
2003 refers to norms of transfer and posting of lecturers. It has no
relevance in the instant case as the appointment ordered are to the
post of Principal. Hence, the averment of the petitioner is denied.
…… …….
9. In the W.P.(C)No.21630/08, petitioner has claimed that
he has more outstation service than Smt.S.Usha. It may be noted
that G.O.(Rt)No.1036/08/H.Edn., dated 14-07-08 is not merely a
general transfer order, it is a promotion, transfer and posting order
and Smt.S.Usha who is senior to Dr.Rajasekharan Nair has
legitimate claim to be posted at Thiruvananthapuram in the
retirement vacancy. In the matter of appointment as Principal and
Head of Institutions the norms for transfer of teachers contained in
G.O.(MS)No.24/97/H.Edn need not apply. As such the contention
as regard the outstation service is not applicable.”
14. In the facts and circumstances of the case, I do not think it
proper to exercise the extra ordinary jurisdiction under Article 226 of the
Constitution in favour of the petitioner to quash Ext.P6 order. However, if
the petitioner is aggrieved by the non-consideration of his request for a
transfer, the petitioner would be entitled to put forward his grievance
before the first respondent. If an appropriate representation is submitted
W.P.(C) NOS.17573 & 21630 OF 2008
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by the petitioner, the first respondent shall consider the same in
accordance with law, after affording an opportunity of being heard to the
petitioner and the third respondent as well as any other person who is
likely to be affected, as expeditiously as possible.
Accordingly, W.P.(C) No.17573 of 2008 is dismissed as infructuous
and W.P.(C) No.21630 of 2008 is disposed of with the aforesaid
observations and directions. No costs.
(K.T.SANKARAN)
Judge
ahz/