Judgment :- Thomas, j. It is apposite in this Writ Appeal to echo the words which M.S.Menon, J. (as he then was) observed more than three decades ago in Rajalekshmi Motor Service v. Government of Kerala (1959 KLJ 1425) that "lyengar, J. did not consider these factors as sufficient to decline interference, and in such a case whatever may have been our own reactions in similar circumstances we should not interfere unless we are satisfied that the decision is perverse". What we have to consider in this Writ Appeal (filed by the State of Kerala) is not precisely whether we would have taken a different view if we had exercised the original jurisdiction, but whether the view taken by the learned single judge is reasonably plausible. 2. First respondent Executive Engineer (Roads Division), Muvattupuzha has been transferred by the Government as Joint Director, Design, Research, Investigation and Quality Control (its acronym is 'DRIQC') Board, Thiruvananthapuram, as per Ext. P2 order dated 28-10-1991. He filed the Original Petition challenging the said order saying that the transfer is not in public interest and is in violation of the norms laid down by the Government. Learned single judge allowed the Original Petition and quashed Ext. P2. 3. First respondent has only a few more months to retire from service. (He is due to retire on 31-5-1992). He has been posted to the present station only on 26-5-1990. One of the guidelines issued by the Government for transfer of its employees (vide Ext. P1) is that an employee who has not completed three years of duty in a station shall not ordinarily be transferred from that station. Another guideline is that employees who have only two years to retire from service may be posted, as far as possible, to stations of their choice. First respondent made a choice to remain in the present station. According to him, the transfer order is in violation of the guidelines and is ill-motivated and is vitiated by mala fides. He further says that since he is only a mechanical engineer, he is not a suitable hand to discharge functions in the DRIQC Board. 4. Government did not dispute that the transfer of first respondent is not in accordance with the general norms contained in Ext. P1 guidelines.
He further says that since he is only a mechanical engineer, he is not a suitable hand to discharge functions in the DRIQC Board. 4. Government did not dispute that the transfer of first respondent is not in accordance with the general norms contained in Ext. P1 guidelines. However, Government sought to justify the transfer on the ground of public interest in the counter affidavit sworn to by the Joint Secretary to Government (Public Works Transport Department). It is stated, inter alia, that the services of first respondent are required in the vacancy which arose due to the shifting of one Shri. Kuncheria V. Thomas, Executive Engineer, DRIQC Board to Kerala Police Housing and Construction Corporation. It is also pointed out that the posting at Thiruvananthapuram is advantageous to the first respondent since the members of his family have permanently settled down at P.T.P. Nagar, Thiruvananthapuram and further that he would get an additional benefit of Rs. 400/- per month. The deponent has asserted that the transfer was made in public interest. 5. Learned single judge perused the file relating to first respondent's transfer and discerned therefrom that "at no point of time, there was consideration of public interest or exigency of service before the* petitioner was' transferred from Muvattupuzha". Learned Judge pointed out that the two aspects highlighted in the counter affidavit'namely, the advantage of the first respondent as his family is settled down in P.T.P. Nagar and the monetary gain of Rs. 400/- never weighed with the Government. Hence, the judgment concluded that appellant has failed to establish that petitioner was transferred in public interest and "on the other hand, the materials available from the file would show that there was no such consideration of public interest or exigency of service before issuing the impugned order of transfer". 6. Ext. P2 order does not contain any reference to public interest to justify this seemingly out-of the turn transfer. Files also did not disclose that it was in public interest that he was transferred. It is only in the affidavit that the Joint Secretary of the Government, for the first time, advanced a case of public interest. It is true that an authority may have to transfer its subordinates or employees in the exigencies of service even without compliance with the norms or guidelines.
It is only in the affidavit that the Joint Secretary of the Government, for the first time, advanced a case of public interest. It is true that an authority may have to transfer its subordinates or employees in the exigencies of service even without compliance with the norms or guidelines. But when public authority asserts that the action was in public interest, at least the files should disclose that fact, even if public interest does not find a place in the order of transfer. When the transfer order is silent about it and when the file also does not disclose it, transferring authority cannot put forward the justification on the premise of public interest for the first time in the affidavit. A Constitution Bench of the Supreme Court in Mohinder Singh Gill v. Chief Election Commissioner (AIR 1978 SC 851) observed as this: " When a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise an order bad in the beginning may, by the time it comes to court on account of a challenge get validated by additional grounds later brought out". We think that the said observation is applicable to Government also; 7. Shri.V.K. Beeran, Additional Advocate General very vehemently contended, by referring to Neelima Misra v. Harinder Kaur Paintal (AIR 1990 SC 1402) and Shilpi Bose v. State of Bihar (AIR 1991 SC 532) and a Bench decision of this Court in State of Kerala v. Rajan (1989 (2) KLT 666) that court should not interfere with the transfer orders ordinarily and even if a transfer order is passed in violation of executive instructions, court should not interfere with the order. No doubt, the proposition is sound that the court should not ordinarily interfere with orders issued by public authorities transferring subordinate staff or officers. But when transferring authorities seek to justify the transfer order on the premise of public interest as the transfer would otherwise be in violation of the norms established by the Government or the authority concerned, court has the power to scrutinise whether transfer was in public interest. In other words, public interest should not be a camouflage or a smoke-screen. Learned single judge failed to trace out any such public interest from the file concerned.
In other words, public interest should not be a camouflage or a smoke-screen. Learned single judge failed to trace out any such public interest from the file concerned. Hence the question is not precisely what we would have decided at the first instance, but whether the conclusion made by the learned single judge is patently erroneous. (Neerlakanta Kartha v. Registrar, Kerala Agricultural University [1978 KLT 408] and Mayadevi v. Rajan [1985 KLT 376]. On a perusal of the file, we are inclined to think that the view taken by the learned single judge is also plausible. 8. No doubt, it remains an enigma that first respondent is not willing to accept a transfer to Thiruvananthapuram which is seemingly of much advantages to him. It is equally a riddle that the Government, which have no case of any allegation against first respondent, have chosen to file this appeal when the officer concerned has only a few months to retire from service. Neither side could give us a satisfactory explanation for the course adopted by each. Be that as it may, we do not think that this is an appropriate case where the discretion exercised by the learned single. Judge should be interfered with an appeal. Hence we dismiss this appeal.