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1993 DIGILAW 330 (KER)

Venkitaramanan Potti v. Travancore Devaswom Board

1993-07-20

K.P.BALANARAYANA MARAR, K.S.RADHAKRISHNAN

body1993
Judgment :- Paripoornan, J. The petitioner, Shri.N. Venkitaramanan Potti, is the Santhikaran in the service of the Travancore Devaswom Board. In this original petition, he prays for the issue of a writ of certiorari to quash the order of the second respondent-Devaswom Commissioner, Travancore Devaswom Board-transferring the petitioner from the Kannarikulangara Devaswom at North Paravur to the Koottala Devaswom, Mookkannurand Ext.P4 dated 16-5-1992 issued by the fourth respondent - Devaswom Sub Group Officer, Kannankulangara - purporting to relieve the petitioner from the Kannankulangara Devaswom. The petitioner also prays for the issue of a writ of mandamus directing respondents 1 to 4 to allow him to continue to function as Santhikaran in the Kamiankulangara Devaswom at North Paravur. There are six respondents in this original petition. The first respondent is the Travancore Devaswom Board, the second respondent is the Commissioner of Devaswoms (Devaswom Commissioner), Travancore Devaswom Board, the third respondent is the Assistant Commissioner of Devaswoms, North Paravur, the fourth respondent is the Devaswom Sub Group Officer, Kannankulangara, the fifth respondent is the Devaswom Sub Group Officer, Kothakulangara, Angamali, and the sixth respondent is Shri K.U: Krishnan Potti, Kannankulangara temple, North Paravur. 2. The petitioner avers that he has got 29 years of service as Santhikaran and he is the seniormost Santhikaran in the North Paravur Group. When he was posted as Santhikaran in Koottala Devaswom at Mookkannur, he filed Ext.P1 representation on 27-4-1992 before the first respondent praying that he may be transferred to Kannankulangara Devaswom, North Paravur or Markandeswaram Temple or Minor Iravipuram Devaswom in Thiruvaloor Sub Group or Sree Krishna Temple at Aluva as Santhikaran. The request was considered by first respondent Board and orders were issued on 29-4-1992. By Ext.P2 dated 5-5-1992, the second respondent transferred the petitioner to the Kannankulangara Devaswom. Shri Krishnan Potti, Santhikaran of the said temple (R6), was transferred to the Koottala Temple, Mookkannur. In other words, the petitioner and the sixth respondent were mutually transferred. The fifth respondent relieved the petitioner on 12-5-1992 from Koottala Temple at Mookkannur and issued Ext.PS letter dated 12-5-1992 informing the Sub Group Officer at Kothakulangara about the said fact. The petitioner states that he joined duty at Kannankulangara temple on 12-5-1992. In other words, the petitioner and the sixth respondent were mutually transferred. The fifth respondent relieved the petitioner on 12-5-1992 from Koottala Temple at Mookkannur and issued Ext.PS letter dated 12-5-1992 informing the Sub Group Officer at Kothakulangara about the said fact. The petitioner states that he joined duty at Kannankulangara temple on 12-5-1992. Within four days, on 16-5-1992, the Devaswom Sub Group Officer in-charge, Kannankulangara, the fourth respondent, issued Ext.P4 proceedings relieving the petitioner from Kannankulangara Temple and informed that the sixth respondent is transferred from Kooltala temple at Mookkannur to Kannankulangara temple. In Ext.P4, the communication of the Devaswom Commissioner dated 15-5-1992 is referred as the basis of the said re-transfer. In this original petition, the main attack is against Ext.P4. The petitioner attacks the re-transfer effected by respondents 4 & 5 within a period of four days after the petitioner was transferred to the Kannankulangara Temple as per the orders o f the Board - Ext. P2 - as unreasonable and mala f ide. G rounds (2), (4), (6) and (7) of the original petition narrate the basis in which it is stated that Ext.P4 is unreasonable, mala fide and an arbitrary exercise of power. Grounds (2), (4), (6) and (7) of-the original petition are extracted herein below: "2. The action of the second respondent in order in transfers of the petitioner and sixth respondent, undoing the transfers ordered as per Ext.Pl, within four days after it was issued, is mala fide. It is not an act done in the regular course of or with interests of proper administration of the temples under the Travancore Devaswom Board. It is done only with the object of conferring an undue favour on the sixth respondent, to enable him to continue in a place where he was working for the past more than four years. It is not done in conformity with any of the usual norms for ordering transfers. 4. The petitioner understands that the action of the second respondent in re transferring the petitioner and sixth respondent within four days of the transfer as per Ext.P1 was on account of pressure exerted by a union of a section of the employees of the first respondent known as Federation of the Employees of the Travancore Devaswom Board. This union has exerted such pressure only to procure unfair advantage to the sixth respondent, who is a member of that union. This union has exerted such pressure only to procure unfair advantage to the sixth respondent, who is a member of that union. The second respondent exercised his power maliciously with an oblique motive, to oblige the union of a section of employees. This amounts to a misuse of power and is therefore illegal. 6. Absolutely no reason has been disclosed as to why the transfer of the petitioner to the Kannankulangara Devaswom at Paravur, granted by the first respondent on a consideration of the petitioner's request, is undone within four days. The second respondent's proceeding in this regard is clearly mala fide. 7. The transfer of the petitioner back to the Koottala Devaswom at Mookkannur within four days after he was transferred from there is in clear violation of all accepted norms of transfer of employees who are in the service of statutory authorities like the first respondent. It is an arbitrary exercise of power". 3. The third respondent in the original petition has filed a detailed counter affidavit dated 26-6-1993. The said counter affidavit is filed for and on behalf of respondents 1, 2,4 and 5 as authorised by them. The 6th respondent has not entered appearance. In para.3 of the counter affidavit, after referring to Exts.P1, P2 and P3, it is stated thus: "It was found subsequently that the order of transfer dated 5-5-1992 evidenced by Ext.P2 was passed in violation of the existing guidelines and without considering the claim of the sixth respondent. It was therefore felt that the order should be cancelled. Accordingly the second respondent issued an order cancelling the transfer of the petitioner to Kannankulangara Devaswom. The second respondent has now directed the Assistant Commissioner to give a posting to the petitioner to any one of the temples specified in Ext.P1 of her than the temples Kannankulangara and Aluva Sreekrishnaswami. The second respondent has also directed the Assistant Commissioner to cancel the order transferring the petitioner back to Mookkannur Devaswom. On the basis of the direction of the second respondent, the petitioner was posted as Santhikaran at the Eravipuram Devaswom where he has joined and working as a Santhi with effect from 27-6-1992. The second respondent has also directed the Assistant Commissioner to cancel the order transferring the petitioner back to Mookkannur Devaswom. On the basis of the direction of the second respondent, the petitioner was posted as Santhikaran at the Eravipuram Devaswom where he has joined and working as a Santhi with effect from 27-6-1992. In view of the order of the Commissioner to give a posting to the petitioner as Santhi in any one of the temples mentioned by him in Ext.P1 and also cancellation of the order transferring him back to Mookkannur Devaswom and his being posted at Eravipuram the grievance of the petitioner stands redressed". There is no counter by the 6th respondent in the case. 4. We heard counsel. The relevant files were also placed before us. 5. At this juncture, we should notice that in consequence to the subsequent posting of the petitioner in Iravipuram Devaswom, Thiruvalur Sub Group, as stated in the counter affidavit, one Shri.M.N. Viswanathan Namboothiri, who was acting as Santhi in Iravipuram Devaswom, filed O.P. No.8272 of 1992 attacking the posting of the petitioner in the said temple and transferring Shri. M.N. Viswanathan Namboothiri as Santhikaran in Koottala Devaswom at Mookkannur contending, inter alia, that the transfer of the petitioner, Shri.M.N. Viswanathan Namboothiri, was solely to accommodate the petitioner herein and not due to any administrative reasons and so, illegal and unauthorised. We heard the said original petition - O.P.No.8272 of 1992 - along with this original petition and a separate judgment is delivered in the said original petition today. 6. In a recent decision of the Supreme Court - Union of India and others v. S.1. Abbas (JT 1993 (3) SC 678 - speaking for the Bench, B.P. Jeevan Reddy, J. has stated the law thus: "An order of transfer is an incident of Government service Who should be transferred where, is a matter for the appropriate authority to decide. Unless the order of transfer is vitiated by mala fides or is made in violation of any statutory provisions, the Court cannot interfere with it. While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration .... While ordering the transfer, there is no doubt, the authority must keep in mind the guidelines issued by the Government on the subject. Similarly, if a person makes any representation with respect to his transfer, the appropriate authority must consider the same having regard to the exigencies of administration .... guideline however does not confer upon the government employee a legally enforceable right". It is undoubted law that the person appointed to a particular cadre of transferable post is transferable from one office to the other and it is an incident of service. Transfer from one place to another is generally a condition of service and the employee has no , choice in the matter. No employee has a legal right for being posted in any particular place. The power to transfer, which is a condition of service, is an inherent right of the employer. It is settled law, that if the power of transfer is abused, the exercise of the power is vitiated. Transfer is an incident of service and the employee has no legal right, in that behalf. In cases where there are guidelines for transfer which are not statutory, they are only meant for the guidance of the employer, the transferring authority. The above aspects, highlighted in Gujarat Electricity Board and another v. Atmaram Sungomal Poshani (1989 (2) SCC 602), Varadha Rao v. State of Karnataka (AIR 1986 SC 1955), Babu v. State of Kerala (1988 (2) KLT 258) and other decisions were analysed and the matter was exhaustively considered in a Bench decision of this Court in State of Kerala v. Rajan (1989 (2) KLT 666). Malimath, C.J. laid down the law in categoric terms thus: "Except in cases where the transfer itself is regulated by statutory provisions which confer enforceable conditions of service or in cases where the transfer is effected malafide. there would be no scope for this Court to interfere under Art.226 of the Constitution in the matter of transfer. Even though the State Government enunciated guidelines in the matter of Affecting transfers, any deviation from those guidelines also does not amount to violation of any conditions of service...." Again at page 670, the learned Chief Justice stated thus: "....The only limited scope for interference when the transfer is effected in respect of a transferable post is when the action of the authorities effecting transfer is mala fide...". In a later case, wherein the order of transfer was sought to be sustained as one passed in public interest, a Bench of this Court, to which one of us was a party, stated thus: "....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 wit h 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 Bench decision of this Court in State of Kerala v. Rajan (1989 (2) KLT 666) that court should not interfere with 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 " (State of Kerala v. P. Balakrishnan -1992 (1) KLT 420 =1992 (2) ILR 593) (Kerala). 7. The authorities are clear that if the transfer is vitiated by mala fides, (he action is tainted and it is open to the court to interfere, in exercise of the powers vested in it under Art.226 of the Constitution of India. So far as this case is concerned, the definite averments in the original petition - Grounds (2), (4), (6) and (7) - extracted herein above, specifically point out that the order of re-transfer within a period of four days is mala fide. So far as this case is concerned, the definite averments in the original petition - Grounds (2), (4), (6) and (7) - extracted herein above, specifically point out that the order of re-transfer within a period of four days is mala fide. It was so done on account of the pressure exerted by a union of a section of the employees of the first respondent known as 'Federation of the Employees of the Travancore Devaswom Board' and such pressure was exerted to the advantage of the sixth respondent, who is a member of that union. In other words, the order of re-transfer of the petitioner is attacked as arbitrary, unreasonable and only due to the pressure tactics of the trade union representing the sixth respondent and so, mala fide. Such definite averments contained in Grounds (2), (4), (6) and (7) have not been expressly controverted or dealt with in the detailed counter affidavit filed on behalf of respondents 1 to 5 dated 26-6-1993. The only reason stated in defence of the re-transfer is that it was realized that Ext.P2 was passed in violation of the existing guidelines and without considering the claims of the sixth respondent. What are the guidelines that were violated and what are the claims of the sixth respondent, are not stated. No files relating thereto were placed before us. It is also stated by the respondents that since the petitioner has been subsequently transferred to another alternative place of his choice, his grievance stands redressed. There are indications in the file that there-transfer of the petitioner was done at the instance of the trade union initialed by communication dated 14-5-1992. 8. On a consideration of the matter in the light of the pleadings in the case, it is clear that the respondents have not denied specifically the allegation of malafides made against respondents 2 to 5. It is a matter of common knowledge that the proceedings under Art.226 of the Constitution of India are ordinarily adjudicated on the basis of the averments contained in the affidavits filed by the parties. An averment in the original petition, which is not traversed by the respondents in the counter affidavit, must be taken to have been admitted. Facts admitted expressly or by the law of pleading need not be proved. An averment in the original petition, which is not traversed by the respondents in the counter affidavit, must be taken to have been admitted. Facts admitted expressly or by the law of pleading need not be proved. In the absence of a clear denial of the specific averments contained in the original petition, the inference is that the averments in the original petition have to be taken as true (see C.S. Rowjee v. State of Andhra Pradesh - AIR 1964 SC 962). So, it follows that (a) the plea that the re-transfer of the petitioner to Koottala temple at Mookkannur is motivated by mala fides, arbitrary and unreasonable stands unrebutted, (b) that, on the facts of this case, it is not explained what guidelines were not conformed to in passing Ext.P2 order when the mutual transfer of the petitioner and the sixth respondent were ordered and what were the claims of the sixth respondent ignored, which were put forward as reasons for the re-transfer in the counter affidavit, and (c) no reason is stated for the retransfer ordered within four days in Ext.P4. It was passed at the ipse dixit of the authority, to give effect to the dictates of the particular trade union, of which the sixth respondent is a member. 9. In the light of the above, we hold that the order of re-transfer of the petitioner from Kannankulangara tern pie at North Paravur to Koottala temple at Mookkannur and the consequential Ext.P4 proceedings relieving the petitioner from Kannankulangara Devaswom are arbitrary, unreasonable and vitiated by mala fides. The employer (Board or its officials) failed to exercise their independent mind in the matter. Extraneous consideration weighed in the retransfer effected. An order or action so done is tainted. We hold so. We annul the 're-transfer' so made, unfairly, unreasonably and arbitrarily. Since the order of re-transfer of the petitioner to Koottala temple at Mookkannur stands annulled the status quo ante, as specified in Ext.P2, will stand restored. We declare accordingly. 10. Before concluding, we should state that in a matter of importance like the transfer of a Santhikaran from one place to another, the Board has not so far laid down any guidelines. We are not informed whether any guidelines have been laid down by the Travancore Devaswom Board with regard to the transfer of other employees as well. 10. Before concluding, we should state that in a matter of importance like the transfer of a Santhikaran from one place to another, the Board has not so far laid down any guidelines. We are not informed whether any guidelines have been laid down by the Travancore Devaswom Board with regard to the transfer of other employees as well. Usha, J. in referring the matter to a Division Bench by order dated 1-7-1992, has slated that the Cochin Devaswom Board has laid down guidelines in pursuance to the directions issued by the Supreme Court regarding Santhikars. The learned judge has further staled that number of Sanlhikars are approaching this Court challenging their transfer from one temple to the other under the Travancore Devaswom Board and that it is absolutely necessary that the Travancore Devaswom Board should have a set of guidelines to govern such situation. We concur with Usha, J. and hold that it is necessary that the Travancore Devaswom Board should have a set of guidelines in the matter of transfer of employees in general and more particularly, in the case of Santhikars. We arc aware that there are imponderables and difficulties in laying down guidelines regarding the transfer of Santhikars. But that cannot absolve a responsible Board from framing appropriate guidelines to the extent possible. In order that the action of the Board is fair and informed with reason, it is high time that appropriate guidelines are laid down by the Board reJarding transfers in general and more particularly, regarding Santhikars. We expect the Board to do so soon and Act in accordance with law. We are distressed to note that the statutory authority in the instant case succumbed to the pressure of a trade union in ordering a re-transfer within a period of four days without caring to apply its independent mind and totally ignoring public interest! We hope that in future the Board and its officials will take a positive and real view in the matter and pass orders of transfer reasonably, honestly and fairly, uninfluenced or unhampered in any manner by any pressure tactics. 11. We also make it clear that the petitioner herein will be entitled to the salary and other emoluments for the interim period also (till he joined Eravipuram temple), during the time he did not take charge at Koottala Devaswom as per the orders of this Court in CMP.No.10579 of 1992. 11. We also make it clear that the petitioner herein will be entitled to the salary and other emoluments for the interim period also (till he joined Eravipuram temple), during the time he did not take charge at Koottala Devaswom as per the orders of this Court in CMP.No.10579 of 1992. The original petition is allowed, with costs. Issue photo copy to the counsel for the petitioner and to the counsel for the Board, on usual terms, forthwith.