IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29744 of 2008(N)
1. RAJAN PANATHARA ,
... Petitioner
Vs
1. THE MANAGING DIRECTOR
... Respondent
For Petitioner :SRI.SURESH KUMAR KODOTH
For Respondent :SRI.MAJNU KOMATH, SC, K.S.W.C.
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :23/10/2008
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.29744 of 2008
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Dated this the 23rd day of October 2008
JUDGMENT
The petitioner, who is presently working as Senior
Assistant Manager in the Kerala State Warehousing Corporation
(hereinafter referred to as `Corporation’ for short), challenges
Ext.P1 order transferring him from Thaliparamba to North
Paravur.
2. The petitioner entered service in the Corporation in the
year 1976. He was promoted as Assistant Manager with effect
from 1.6.2001 and as Senior Assistant Manager with effect
from 19.6.2006. The petitioner is a resident of Neeleshwar in
Kasargod District. On promotion as Senior Assistant Manager,
he was posted at Irritty in Kannur District. Thereafter he was
transferred to State Warehouse, Payyannur by order dated
5.3.2007 and he joined duty at Payyannur on 7.4.2007. The
State Warehouse at Payyannur is about 30 kms. away from
Neeleshwar where the petitioner resides.
3. While matters stood thus, by Ext.P2 order dated
18.1.2008, the respondent transferred the petitioner from
W.P.(C)No.29744/2008 2
Payyannur and posted him as Senior Assistant Manager in the
State Ware House at Nattika in the vacancy that arose on the
transfer of the incumbent at Nattika to Kasargod. Smt.M.P.
Ganga, Senior Assistant Manager, Thaliparamba was directed
to hold additional charge of the State Warehouse, Payyannur
until further orders.
4. The petitioner challenged Ext.P2 order in W.P.(C)
No.3240 of 2008 essentially on three grounds. The first ground
urged was that as he has to look after his aged mother who is
more than 90 years old and he himself is suffering from Thyroid
disease the transfer from Payyannur will cause serious hardship
to him. It was also contended that the order of transfer has
been passed in connection with a disciplinary enquiry against
him. Yet another contention raised was that as he is due to
retire from service on 31.7.2008 on attaining the age of 55
years, there is no reason to transfer him out of Payyannur. The
respondent resisted the writ petition setting out the reasons
which necessitated the petitioner’s transfer from Payyannur.
Accepting the contentions raised by the respondent and
repelling the challenge to Ext.P2, this Court disposed of the
said writ petition with the following observations:
i) If the age of retirement of the
W.P.(C)No.29744/2008 3
employees of the Corporation is enhanced
beyond the age of 55 or the petitioner
continues in service beyond 31.7.2008,
Corporation would be entitled to enforce
Ext.P1. Of course, it is open to the
Corporation in such circumstances, to post
the petitioner in a place other than Nattika
also. Such decision should be taken on fair
and reasonable grounds.
ii) Corporation may consider a place of
posting to the petitioner nearer to his place
of residence in Neeleswaram in Kasargode
District. This is only in the light of the stand
taken by the petitioner, i.e. he is required to
look after his aged mother and also that he
himself is a chronic Thyroid patient.
Corporation may take a decision in this
regard within a period of two weeks from
today and thereupon, it will be open to the
Corporation to transfer the petitioner outside
Payyannur.
iii) Till the Corporation takes such a
decision, he shall be permitted to continue
there and thereafter, his posting will be
subject to the decision to be taken by the
Corporation.”
5. A reading of the operative portion of Ext.P3 judgment
indicates that this Court did not interfere with the petitioner’s
transfer from Payyannur to Nattika ordered as per Ext.P2. When the
earlier writ petition was heard, it was brought to the notice of this
Court that the issue regarding the age of retirement of the
employees of the Corporation is pending consideration by a Full
W.P.(C)No.29744/2008 4
Bench of this Court and as the decision of the learned Single Judge
directing the Corporation to raise the age of retirement to 58 years
was under challenge in appeal, it was doubtful whether the
petitioner can continue in service beyond 55 years. Therefore in
Ext.P3 judgment, this Court directed that if the petitioner remains
in service beyond 31.7.2008 when he attains the age of 55 years,
the Corporation will be entitled to enforce Ext.P2 [Ext.P1 in W.P.(C)
3240 of 2008]. This Court further directed that till 31.7.2008, the
Corporation will retain him at a station near to his residence at
Neeleshwar and consider his request for cancellation of the
transfer. It was also directed that till revised orders are passed, the
petitioner shall be permitted to continue at a place near to his
residence at Neeleshwar where he will be posted. Pursuant to the
directions issued by this Court in Ext.P3 judgment, the respondent
issued Ext.P4 order dated 27.3.2008, keeping in abeyance Ext.P2
order of transfer till 31.7.2008 and posting the petitioner as Senior
Assistant Manager in the State Ware House at Taliparamba. The
incumbent at Taliparamba was transferred and posted to the State
Ware House at Payyannur. By Ext.P4, it was also directed that the
transfer to State Ware House, Nattika will be kept pending till
31.7.2008 and will be reviewed if the petitioner continues in
service beyond the age of 55 years. Thereafter, when the petitioner
W.P.(C)No.29744/2008 5
chose to continue in service, Ext.P1 order of transfer was passed
transferring him to State Ware House, North Parur. Ext.P1 is under
challenge in this writ petition.
6. I have heard Sri.Suresh Kumar Kodoth, the learned counsel
appearing for the petitioner and Sri.Majnu Komath, the learned
standing counsel appearing for the respondent. The petitioner
challenges Ext.P1 order of transfer essentially on three grounds.
His contentions are that he has to look after his aged mother who
is more than 90 years old, that he himself is suffering from Thyroid
disease and that no administrative reason exists warranting his
transfer to North Parur. The learned standing counsel appearing
for the respondent has filed a statement dated 14.10.2008
resisting the writ petition. The respondent has stated that till his
transfer to Nattika ordered as per Ext.P2, the petitioner had served
only in Kannur District except for a short spell of 4 months at
Kunnamkulam in Thrissur District and 8 months at Kalpetta in
Wayanad District. It is evident from Ext.R1(a) produced along with
the statement filed by the respondents that from the date of his
entry in service, the petitioner has served only in Kannur District,
except for 4 months at Kunnamkulam in Thrissur District and 8
months at Kalpetta in Wayanad District. The respondent has also
stated that the petitioner’s mother is residing with his younger
W.P.(C)No.29744/2008 6
brother Sri.Shanmughan, who is residing close to the petitioner’s
house and that the petitioner’s married sister is also residing close
to the petitioner’s house along with her family members. The
respondent has further stated that the petitioner is residing with
his wife and two children and that it is his brother who is looking
after his aged mother. As regards his ill health, the respondent
states that from January to August 2008, the petitioner had availed
only 4 day’s leave on account of his illness and that it would show
that the ailment put forward by him is only a ruse to stall his
transfer to another station. As regards the administrative
necessity, the respondent states that due to the volume of
business, a new Warehouse building is being constructed at North
Parur and therefore it was decided that the services of a senior
and experienced hand should be made available at North Parur
having regard to the volume of business transacted in that
Warehouse. The respondent also states that an enquiry is being
conducted against the petitioner, in respect of the matter referred
to in Ext.P9 show cause notice and that the petitioner was found to
be negligent in the discharge of his duties at Payyannur. In short,
the respondent contends that the transfer of the petitioner was
made in exigencies of service and not on extraneous
considerations and that it was necessary to shift him from
W.P.(C)No.29744/2008 7
Payyannur.
7. I have considered the submissions made at the Bar by the
learned counsel appearing on either side. It is evident from the
pleadings that the petitioner has not served in any district other
than Kannur district except for a short spell of 4 months in
Kunnamkulam in Thrissur District and 7 months at Kalpetta in
Wayanad District. The pleadings also disclose that the petitioner
was all along being given convenient postings near his place of
residence. The respondent states that the petitioner is not sick as
stated and that during the period of 8 months from January to
August 2008, he had availed only four day’s leave on medical
grounds. The respondent also states that the petitioner’s mother is
residing with his brother. The petitioner has not filed a reply
affidavit disputing these averments in the statement filed by the
respondent. Therefore two of the grounds put forward by the
petitioner to challenge Ext.P2 order of transfer, are not tenable.
The only other ground raised by the petitioner is that the transfer
is not in the exigencies of service.
8. The Apex Court has in State of U.P. v. Gobardhan Lal
(2004 (11) SCC 402) held that an order of transfer can be
interfered with only if it is shown to be one issued by an
incompetent authority or is one made in violation of a statutory
W.P.(C)No.29744/2008 8
rule or is proved to be one vitiated by malafides. In the instant case
the petitioner has no case that the order of transfer is vitiated on
any of the three grounds. The Apex Court has in State of U.P. v
Gobardhan Lal (supra) held that this Court cannot act as an
appellate authority over the orders of transfer issued by the
competent authority, assess the niceties of the administrative
needs and the requirements of the situation and substitute its
decision to that of the competent authorities. In the instant case,
the respondent has stated that in relation to the conduct of the
petitioner while he was the Senior Assistant Manager at Payyannur,
disciplinary proceedings are in contemplation and that it was one
of the reasons which necessitated his transfer from Payyannur. It
iss also stated that the services of the petitioner are required at
North Parur, where a new and additional Ware House building is
being put up, having regard to the volume of business transacted
in that Warehouse. This Court has in Ext.P3 judgment held that the
reasons put forward by the Corporation to transfer the petitioner
from Payyannur, cannot be said to be illegal or arbitrary and that
the order of transfer does not merit interference. All that this
Court in Ext.P3 judgment had directed was that till 31.7.2008, the
petitioner may be given a suitable posting near his place of
residence and that thereafter if the petitioner continues in service,
W.P.(C)No.29744/2008 9
it will be open to the Corporation to revive his transfer to Nattika
or to give him a suitable posting else where. In other words, the
right of the Corporation to transfer the petitioner to a place of its
choice, was not fettered, when this Court delivered Ext.P3
judgment.
For the reasons stated above, I hold that there is no merit in
the challenge to Ext.P1. This writ petition fails and is accordingly
dismissed.
P.N.RAVINDRAN, JUDGE
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