IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 32678 of 2006(M)
1. DEVADASAN,
... Petitioner
Vs
1. THE KERALA STATE WAREHOUSING CORPN.,
... Respondent
2. LT. COL. K.G.RAMACHANDRAN (RETD.),
For Petitioner :SRI.K.RAMAKUMAR
For Respondent :SRI.MAJNU KOMATH, SC, K.S.W.C.
The Hon'ble MR. Justice K.K.DENESAN
Dated :11/01/2007
O R D E R
K.K. DENESAN, J.
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W.P.(C) No. 32678 OF 2006
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Dated this the 11th January, 2007
J U D G M E N T
The petitioner was recruited as a Driver to work
in the Corporation. In the context of the reliefs
prayed for by him in this writ petition to quash Ext.
P1 order passed by the 1st respondent and the relieving
order (Ext. P2) passed by the Manager of the
Corporation at Thripunithura and the further prayer for
a direction to post him back in the Ernakulam office
and permit him to continue as Driver in the Ernakulam
office, the fact that his recruitment was to the post
of Driver and no other post assumes relevance.
2. As per Ext. P1, the petitioner and another
Driver by name Thankachan have been transferred
respectively to Wadakkancherry and Kunnamkulam and
posted to the State Warehouses of the respondent-
Corporation in the above places. They have been
directed to attend the godown work in the concerned
Warehouses. The petitioner was working as Driver in
the Container Freight Station at Thripunithura as on
the date of issuance of Ext. P1. He was relieved as
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per Ext. P2 on 26-10-2006. Presently he is attending
to the work in Wadakkancherry godown of the respondent-
Corporation.
3. The petitioner would contend that he is not
expected to discharge works in posts other than that of
a Driver or Fork-lift Operator or equivalent posts.
Therefore he can be posted only to a place where there
are either cars or fork-lifts. According to him, the
impugned order posting him in a place where there is no
scope for discharging the work of a driver or that of
a fork-lift operator or any other equivalent post is
only to humiliate and harass him. The impugned orders
are assailed on the ground of malafides and want of
authority.
4. The 1st respondent has filed a counter
affidavit. It is admitted that the petitioner was
posted at Container Freight Station, Thripunithura
prior to Ext. P1 order. It is averred in the counter
affidavit that there were four drivers at the Container
Freight Station, Thripunithura, that their services
were not fully utilised, that at present there are only
two fork-lifts at Container Freight Station,
WPC No.32678 /2006 -3-
Thripunithrua and that only two drivers are necessary
to operate the fork-lifts. It is also averred that one
car stationed at Container Freight Station,
Thripunithura was auctioned in October, 2006.
Therefore, it became necessary for the respondents to
utilise the services of the petitioner and the other
driver who were idling and therefore they were deployed
to the State Warehouses, Wadakkancherry and Kunnamkulam
as per Ext. P1 order. The respondents would contend
that the petitioner cannot have any legal grievance
because his posting in the godown does not result in
any reduction in pay and allowances and that he cannot
complain that doing the work of a godown keeper is not
within the scope of his duties and responsibilities.
Learned counsel for the respondents invited my
attention to clause 20(1) of the Kerala State
Warehousing Corporation Staff Regulation, 1963 to
highlight the rule position that employees of the
Corporation are bound to serve the Corporation in such
capacity and in such places as may be directed by the
Corporation from time to time.
5. The petitioner has filed a reply affidavit.
WPC No.32678 /2006 -4-
Learned counsel for the petitioner submitted that one
driver has become excess only due to the fact that the
newly appointed Chairman of the Corporation has
dispensed with the services of the driver already
engaged to drive the car of the Chairman, and instead,
has appointed a new recruit to suit his convenience.
Learned counsel for the respondents submits that the
Chairman is entitled to have that privilege, and
therefore, recruiting a driver of his choice is not
against law.
6. On a consideration of the rival contentions of
the parties, it seems that the point for consideration
is whether the petitioner is liable to be posted as a
Worker in the godown.
7. It is admitted position that the petitioner was
recruited as Driver and is qualified for that post.
The respondents have no case that any deficiency in the
discharge of his duties as Driver or Fork-lift Operator
was noticed. Though I am inclined to agree with the
contention of the respondents that the employees are
liable to be transferred from one place to another
under the respondent-Corporation, I find it difficult
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to accept the plea that a Driver can be transferred and
posted as worker in the godown of the Corporation.
8. It is common knowledge that the duties and
responsibilities of Drivers and Fork-lift Operators are
entirely different from that of a Worker in the Godown.
The power of transfer has to be exercised keeping in
mind the equivalence of posts. Law authorises transfer
only within the range of transferability. Merely
because two posts carry the same scale of pay, an
inter-se transfer between the post of driver and that
of a worker cannot be justified. State of West Bengal
v. Hirendra Nath Banerjee (AIR 1967 Cal. 285), is a
case decided by the High Court of Calcutta. In that
case the Registrar of Rent Controller’s Court was
transferred to the post of Certificate Officer under
the Bengal Public Demands Recovery Act. The court held
that where a person was appointed permanently as a
Registrar by way of promotion from the post of a Deputy
Registrar, it was an implied condition of the
appointment that the incumbent will hold that post and
no other, and as such it was not a transferable post.
In Prem Beharilal Saksena v. Director of Medical and
WPC No.32678 /2006 -6-
Health Services Lucknow (AIR 1959 All 629) while
considering the case of an Anaesthetist attached to the
State Hospital at Kanpur, the Allahabad High Court held
that where a government servant has been appointed to a
specific post and that post is in its very nature such
that it can be performed at the particular place only,
he cannot be transferred to another post. A Division
Bench of the Andhra Pradesh High Court in State of
Rajasthan v. Kailash Chandra Jain & another (1973
Lab.I.C. 221) while affirming the judgment of the
Single Bench, held that the action of the management in
converting a workman into a non-workman is liable to be
declared invalid. The High Court of Delhi in Prem
Praveen v. Union of India {1973 (2) SLR 659} held that
“logically it does not stand to reason that a person
recruited to a particular cadre should be compelled
against his wishes to serve outside the cadre”. Courts
have leaned in favour of the view that transfers
between interchangeable and equated posts alone would
be valid. In V.C., L.N. Mithila University v. Dayanand
Jha {1986 (3) SCC 7} the Hon’ble Supreme Court
expressed the view that the transfer of the Principal
WPC No.32678 /2006 -7-
of a college as a Reader in another college ordered by
the Vice Chancellor, even though the two posts were
carrying the same grade and pay was illegal, on the
ground that the posts were not equivalent. The Apex
Court observed in the above decision that while
determining the equivalence of posts the true criterion
is the status and the nature and responsibility of the
duties attached to the two posts.
9. Transfer between posts which are not equivalent
requires the consent or willingness of the
employee/employees or the option exercised by them in
favour of such transfer. A unilateral decision of the
Management to transfer the employee contrary to the
above principle will give rise to a cause of action for
the aggrieved employee to question that decision.
Therefore, in cases where the members of the service
belonging to a particular cadre or post become surplus
and the management, for bonafide reasons, interchange
the employees from one post or cadre to another post or
cadre, with the object of retaining them in service,
even such interchangeability can be justified only if
it is done with the willingness or consent of the
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employees concerned.
10. In the above view of the matter Exts. P1 and
P2 orders to the extent they affect the petitioner are
set aside. The respondents are free to deal with the
case of the petitioner in accordance with law, keeping
in view the observations made above. If the petitioner
expresses his willingness or consent to work in a post
other than that of Driver or Fork-lift Operator, the
same shall be considered by the 1st respondent and
appropriate decision taken.
The writ petition is disposed of as above.
K.K. DENESAN
JUDGE
jan/