Judgment :- 1. This is a case in which the appellant who is admittedly much junior to the first respondent in the cadre of Professor Grade II in Vedantu in the Government Sanskrit College is aggrieved by the order made by the learned single judge allowing O. P. No. 5381/88. The first respondent was transferred by the Government by its order Ext. P1 dated 9-6-1988 from Tripunithura to Trivandrum and the appellant was transferred from Trivandrum to Tripunithura. Shortly thereafter on the representation of the appellant the said order was modified by Ext. R3 (h) dated 4-7-1988 re-transferring the appellant to Trivandrum and the first respondent to Tripunithura. The first respondent challenged this action of the Government contending that there was absolutely no justification for reversing the order of transfer made in bis favour within less than a months' time. The appellant as also the State Government; respondent No. 2, justified this action contending that the appellant who belongs to Ezhava community having married a Brahmin lady is not liable for transfer having regard to the guidelines laid down by the Government as per Exts. R3 (a) to R3 (e). The positive stand taken on behalf of the State Government is that the appellant having undergone an intercaste marriage has acquired immunity in the matter of transfer under the aforesaid orders of the Government and that therefore they committed a mistake when they passed Ext. P1 order transferring the appellant from Trivandrum to Tripunithura. The moment they realised this mistake, it is their case that they corrected the same by issuing Ext. R3(h) order. The learned single judge has held that Exts. R3 (a) to R3 (e) contain only guidelines in the matter of transfer and they do not fetter the right of the Government to effect transfers in public, interest at variance with these guidelines. The learned single Judge has also pointed out that it is a generally accepted principle that it would not be in public interest to allow a particular Government servant to continue in the same place for a long number of years and that therefore in such circumstances the State Government will be acting fairly and reasonably in transferring a person who has undergone an intercaste marriage. As the State Government has made the impugned order Ext.
As the State Government has made the impugned order Ext. R3(b) with a misconception in regard to the scope and ambit of their power the learned single judge quashed the said order holding that the order has been passed without taking into consideration relevant considerations and on a consideration of wholly non-existent and irrelevant considerations. The learned single judge has directed that the earlier order Ext. P1 shall stand and that the transferring authority may consider the question of transferring the appellant's wife who is also working as a Lecturer in Sanskrit in one of the Government Colleges at Trivandrum to a station to which the appellant has been transferred and if it is not possible, to a nearby station. The learned single judge has quashed Ext. R3(b) and directed implementation of Ext. P1. It is the said judgment that is challenged by the appellant in this appeal. 2. The principal contention of Sri. Rajamony, learned counsel for the appellant, is that the guidelines issued by the State Government as per Ext. R3 (a) to R3 (e) in the matter of transfer are binding on the State Government and if any transfer is effected in violation of those guidelines the aggrieved party is entitled to challenge the order of transfer effected in contravention of the same. As the guideline according to the appellant's counsel requires that those who have undergone intercaste marriage are not liable for transfer, the order transferring the appellant in violation of those guidelines being illegal and invalid, the State Government was entitled to correct that mistake and pass the right order as per Ext. R3 (h). It was maintained that the guidelines give a right to those who have undergone intercaste marriage not to be transferred. It is necessary to point out that this court has ruled in 1988 (2) KLT. 258 between Babu and State of Kerala that transfer is an incidence of service and the Government servant has no legal right in this behalf. It his been further held that guidelines for transfer are not statutory and are only meant for the guidance of the transferring authority.
258 between Babu and State of Kerala that transfer is an incidence of service and the Government servant has no legal right in this behalf. It his been further held that guidelines for transfer are not statutory and are only meant for the guidance of the transferring authority. It is also pointed out that the guidelines issued by the Government from time to time in the matter of transfer are not exhaustive and it is open to effect transfers taking into consideration circumstances not covered by the guidelines, as in administration variety of situations not contemplated by the guidelines may arise which have to be taken into account. The appellant cannot therefore successfully contend that he has acquired immunity from transfer on the strength of the guidelines of the Government in this behalf. The view taken by this court in Babu's case is fully in accordance with what has been laid down by the Supreme Court in AIR. 1986 SC. 1955 between B. Varada Rao and State of Karnataka and others affirming the decision of the High Court of Karnataka in ILR. (1986) Karnataka 2135. The Supreme Court has observed in Para.4 as follows: "It is well understood that transfer of a Government servant who is appointed to a particular cadre of transferable posts from one place to another is an ordinary incident of service and therefore does not result in any alteration of any of the conditions of service to bis disadvantage. That a Government servant is liable to be transferred to a similar post in the same cadre is a normal feature and incident of Government service and no Government servant can claim to remain in a particular place or in a particular post unless, of course, his appointment itself is to a specified, non-transferable post. As the learned judges rightly observe: "The norms enunciated by Government for the guidance of its officers in the matter of regelating transfers are more in the nature of guidelines to the officers who order transfers in the exigencies of administration than vesting of any immunity from transfer in the Government servants." The Supreme Court has further observed in Para.6 of the judgment: "But at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the Government is not conducive to good administration.
It creates vested interest and therefore we find that even from the British times general policy has been to restrict the period of posting for a definite period. We wish to add that the position of Class HI and Class IV employees stand on a different footing". Thus the Supreme Court pointed out that it would be in public interest to effect transfer of Government servants who have occupied the same posts for a long number of years. 3. Apart from the fact that the guidelines relied upon by the learned counsel for the appellant are not enforceable, it has to be pointed out that the very same guidelines, particularly the one contained in Para.19 of Ext. R3 (e) states that the guidelines/ principles shall not apply to transfers necessary is public interest. The guidelines themselves therefore make it clear that if transfers are required to be made to subserve public interest, none of the guidelines in the matter of transfers shall come in the way of effecting such transfers. Hence if public interest justifies a transfer, the same can certainly be effected in respect of Government servants who have undergone intercaste marriage within the four corners of the guidelines themselves. But unfortunately the State Government has misunderstood the legal scope and effect of the guidelines issued by it and wrongly assumed that its rights are fettered in the matter of effecting transfer in public interest, of a person who has undergone an intercaste marriage. The stand taken in Para.5 of the counter affidavit illustrates this question very eloquently which reads: "The Government examined the matter in detail and the Government found that the contentions urged by the 3rd respondent are valid. In view of the Government orders of 1976 and the subsequent orders relating to immunity from transfer of inter-caste married couple, the 3rd respondent ought not have been transferred from Trivandrum to provide the petitioner. In the above circumstances the Government found that Ext. P1 order therefore really issued by the Government on account of a mistake in not taking into account the fact that the 3rd respondent is a person who has contracted intercaste marriage It was incumbent on the Government to correct the mistake. Accordingly the Government issued G. O. (Rt) No. 165/88/H. Edn. dated 4-7-1988 modifying Ext.
P1 order therefore really issued by the Government on account of a mistake in not taking into account the fact that the 3rd respondent is a person who has contracted intercaste marriage It was incumbent on the Government to correct the mistake. Accordingly the Government issued G. O. (Rt) No. 165/88/H. Edn. dated 4-7-1988 modifying Ext. P1 and for retaining the 3rd respondent in Trivandrum which necessarily resulted in transfer of the petitioner to Tripunithura. Thus the Government mutually transferred the petitioner and 3rd respondent by order dated 4-7-1988." Thus it is clear that the State Government felt bound not to effect transfer of the appellant who has undergone intercaste marriage from Trivandrum to Tripunithura, The Government therefore thought of correcting the mistake it has committed in effecting the transfer of the appellant. As discussed above the Government has unfettered discretion of effecting the transfer of Government servants by taking into consideration other relevant factors and at variance with the guidelines issued by the State Government in public interest. But as the State Government has passed the impugned order Ext. R3 (h) on a wrong assumption that it has no such power to act in public interest, the learned single judge was justified in interfering and quashing Ext. R3 (b). But it appears to us that the further direction issued by the learned single judge directing that the original order Ext. PI should be maintained and the Government should consider the question of transferring the appellant's wife to Tripunithura or to nearby place were not called for. As the discretion is vested in the State Government, once the court came to the conclusion that exercise of that discretion stands vitiated for the reasons already noted, after quashing the impugned order this court should have left the entire matter for the State Government to exercise its discretion in a proper and satisfactory manner. Hence the direction issued by the learned single judge to maintain Ext. P1 and to transfer the appellant's wife to Tripunithura or to a nearby place are set aside. We make it clear that it is open to the State Government the transferring authority to take such action as it considers appropriate bearing in mind that it has discretion in the matter of transfer in public interest and that the same is not in any manner fettered by any one of the guidelines contained in Exts.
We make it clear that it is open to the State Government the transferring authority to take such action as it considers appropriate bearing in mind that it has discretion in the matter of transfer in public interest and that the same is not in any manner fettered by any one of the guidelines contained in Exts. R3 (a) to R3 (e) and that it is permissible to the State Government to effect transfer of even those who have undergone intercaste marriage in public interest. For the reasons stated above this appeal is partly allowed as indicated above. No costs.