Apukuttan Nair v. State of Kerala — 1964 DIGILAW 376 (KER)

JUDGMENT : The petitioner was acting as an Upper Division Clerk in the Kerala Secretariat from 1-1-1957. He has been confirmed in the lower division by Ext. P. 12 in 1956. The petitioner was charged by Ext. P1 with violating R.64 of the Travancore-Cochin Government Servants' Conduct Rules, 1950. Though the petitioner filed an explanation, an enquiry was ordered which was conducted by the Tribunal for Disciplinary Proceedings. It appears that the Tribunal reported that the charges levelled against the petitioner have not been established. So Ext. P. 3 order was passed in which it is said: "Government accept the finding of the Enquiry Commissioner that the charge has not been proved, and have accordingly decided to drop further proceedings." 2. However the Government proceeded to direct: "From the observations made by the Enquiry Commissioner, the Government consider that it is desirable to transfer him outside the Secretariat. He is accordingly transferred permanently to the Department of the Examiner of Local Fund Accounts, who is requested to give him a posting outside Trivandrum District." 3. This order was passed on the 1st of June, 1960. It is this order that has been impugned in this writ application. It has been impugned on three grounds: (1) The petitioner was a member of the Kerala Secretariat Subordinate Service. He has been removed from that service and that by way of penalty. This is violative of Art.311 of the Constitution, for, this has been done without affording a reasonable opportunity to the petitioner. (2) The State has no power to transfer a member of a service from one service to another. There is a specific provision made in R.32 of the Kerala State and Subordinate Services Rules, 1958, for requiring a member of a service or class of a service to serve in any post borne on the cadre of such service or class. This indicates that there can be no transfer from one service to another. Therefore, the transfer effected by Ext. P3 is also violative of the Kerala State and Subordinate Services Rules, 1958. (3) Even if the order Ext. This indicates that there can be no transfer from one service to another. Therefore, the transfer effected by Ext. P3 is also violative of the Kerala State and Subordinate Services Rules, 1958. (3) Even if the order Ext. P. 3 is not by way of penalty, the order has adversely affected the petitioner in that a permanent employee of the Kerala Secretariat Subordinate Service has overnight been transformed into an officiating hand, made to undergo probation and declared to have completed satisfactory probation only on 30-9-1962, and still continues as an approved probationer. The petitioner has lost his increments during the period of probation. He has lost permanency and he has lost his seniority and chances of promotion. 4. It is categorically asserted by the Advocate General on behalf of the State that there has not been any intention to impose any penalty on the petitioner. On the facts and in the circumstances of the case I am not satisfied that any penalty has been imposed on the petitioner which will attract Art.311 of the Constitution. Art.311 of the Constitution only deals with dismissal, removal or reduction in rank. The petitioner has not been dismissed from Government service. Neither has he been removed from the employment of the State. I am also not able to see any reduction in rank. If a person loses his seniority in the same cadre by an order passed by the Government, it cannot be said that there is any reduction in rank, for, the Supreme Court has ruled that in order that there may be reduction in rank, there must be reduction from one cadre to a lower cadre. 5. It is urged that the petitioner has ceased to be a member of the Kerala Secretariat Subordinate Service and therefore he has clearly been removed from that service and that such removal will attract Art.311 if what has been done is by way of penalty. I do not think that the transfer of a member of a service to another service under the State can be said to constitute a removal from the service as envisaged under Art.311 of the Constitution. The petitioner therefore must fail on the first ground urged in this petition. 6. The next question to be considered is whether the Government have the right to transfer a member of one service to another service. The petitioner therefore must fail on the first ground urged in this petition. 6. The next question to be considered is whether the Government have the right to transfer a member of one service to another service. No specific provision in the Kerala State and Subordinate Services Rules, 1958 or any other Rules framed under Art.309 enabling such transfer has been brought to my notice. The only provision to which my attention is invited is the provision in R.32 of the Kerala State and Subordinate Services Rules, 1958 which runs as follows: "Postings and transfers: (a) A member of a service or class of a service may be required to serve in any post borne on the cadre of such service or class. (b) All transfers' and postings shall be made by the appointing authority." 7. This rule only enables a transfer from one post to another or from one class to another within a service. 8. Counsel on behalf of the petitioner contends that this specific provision for transfer within a service necessarily implies that there is no power to transfer outside the service. I do not think I must understand this rule, which is an enabling provision, to fetter the right if any, of the Government to transfer from one service to another. The point therefore to be considered is whether the Government can be said to have a right to transfer from one service to another. It appears to me that those entrusted with the administration of the affairs of the State and the various Departments and the services must of necessity have the right to decide where and in which Department a particular employee of State should serve. I see nothing in the provisions of the Constitution or for that matter in the rules that have been framed which restricts this right. My attention has not been invited to any ruling dealing specifically with the question of transfer from one service to another service. The Advocate General however referred me to the decisions of the Allahabad High Court and of the Assam High Court in Sangam Lal Dube v. Director of Education, U.P. Allahabad and Another reported in AIR. 1957 Allahabad 70 and in Mir Samsul Hussain v. Union of India and others reported in AIR. 1957 Assam 143. The Advocate General however referred me to the decisions of the Allahabad High Court and of the Assam High Court in Sangam Lal Dube v. Director of Education, U.P. Allahabad and Another reported in AIR. 1957 Allahabad 70 and in Mir Samsul Hussain v. Union of India and others reported in AIR. 1957 Assam 143. I do not think these decisions are to the point though there are general observations which may indicate that there is a right to transfer vested in the Government. 9. Subject to the restrictions introduced by the Constitution and the guarantees given to employees under it, service in the State or the holding of a post is during the pleasure of the Governor. The recognition of a right in the Government to transfer a Government servant from one service to another will not affect the guarantees under Art.16 and 311 of the Constitution. Nor am I able to say that the rules framed under Art.309 prevent the exercise of the right to transfer. I am of the view that the Government have the inherent right to transfer employees from one service to another or from one District to another. I am not satisfied that there has been any violation of any rule or that the Government have acted improperly in transferring the petitioner from one service to another. After all, it is for the Government to decide whether in the interests of efficient administration a particular employee of the State should work in one Department or another. I do not think this Court will be entitled to sit in judgment on a bona fide determination of that question. 10. This leads me to the consideration of the 3rd point urged by counsel on behalf of the petitioner. Though there may be a right to transfer, it should not be exercised so as to adversely affect an employee of Government. If there is a power to transfer which should have the consequence of making a permanent employee an officiating hand or a probationer or of making him lose his seniority and his length of service, as well as affect his emoluments adversely, it is clearly a right which would lead to undesirable consequences; a right which would enable arbitrary orders being passed. If there is such a power there can be clearly violation of Art.16 of the Constitution in that it can be used in a capricious or arbitrary fashion and thus jeopardise the equality guaranteed by Art.16 of the Constitution. The right of transfer therefore must be subject to the limitation that in effecting the transfer, an employee should not be adversely affected in regard to his conditions of service in essential matters like his permanency, his length of service and emoluments. All these three have been adversely affected by the transfer of the petitioner. 11. The only answer of the State in regard to these matters is that the special rules for the Local Funds Audit Service came into force on 18-10-1960, and this rule insisted that there should be a period of probation of two years and therefore the petitioner had to be treated as a probationer. Naturally during the period of probation he was not granted any increments. It is further stated that though he had completed his probation he could not be confirmed because there was no vacancy. This consequence, it is suggested, is as a result of the accident of the special rules coming into force on 18-10-1960 and due to the fact that there were no vacancies. I cannot accept this contention. 12. The Government while exercising the right of transfer must see that the employee is not adversely affected as a result of the transfer in regard to essential matters that I have already referred to. The Government themselves seem to be aware of the position for, in Ext. P3 order it is stated: "Shri Appukuttan Nair is an acting Upper Division Clerk of the Secretariat with a service of three years and five months in the Upper Division. In order to absorb him in the Local Funds Accounts Department, an acting Upper Division Clerk of the Local Funds Accounts Department will have to be absorbed in the Secretariat. The Examiner of Local Funds Accounts is requested to suggest a person for being absorbed in the Secretariat, who should not be one with more service in the Upper Division than Shri Appukuttan Nair. His service as Upper Division Clerk in the Local Funds Accounts will count for seniority in the Upper Division in the Secretariat." 13. The Examiner of Local Funds Accounts is requested to suggest a person for being absorbed in the Secretariat, who should not be one with more service in the Upper Division than Shri Appukuttan Nair. His service as Upper Division Clerk in the Local Funds Accounts will count for seniority in the Upper Division in the Secretariat." 13. From the underlined portion, it is clear that they have safeguard the interests of the person who had to be transferred from the Local Funds Accounts Department to the Secretariat by giving him his service in the Local Funds Accounts Department in the Secretariat to which he was to be transferred. There was no such provision made in the case of the petitioner. I see no justification for this discrimination. I am also of the view that nothing in the special rules can affect this question. It is however sufficient to say for the purpose of this case that when Ext. P3 order was passed and the petitioner was transferred to the Local Funds Accounts Department, there were no special rules in force. The Government at least must therefore have given a direction that the petitioner's service in the Kerala Secretariat Subordinate Service will count for seniority in the Local Funds Audit Department to which he was transferred. If such a direction had been given, the petitioner would not have had to undergo probation and lose his emoluments. If that had been done his seniority based on the length of service would also not have been adversely affected. He would certainly not have been placed in a position of uncertainty and insecurity, with no confirmation and without knowing when he would get such a confirmation. 14. These aspects must be looked into by the Government and rectified by passing appropriate orders. I therefore direct the Government to reconsider the whole question and pass appropriate orders, in the light of what is stated above. 15. This writ petition is ordered as above. There will be no order as to costs.