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2010 DIGILAW 143 (KER)

Ambika M. P. v. The Chief Engineer

2010-02-17

C.T.RAVIKUMAR

body2010
Judgment : 1. The petitioner is an Assistant Engineer(Works) presently working at Roads and Buildings, Central Circle, Aluva. As per Ext.P1 she was transferred to Puzhakkal Road Section in Thrissur District and the 3rd respondent who was working at Roads Section, Puzhakkal in Thrissur District was transferred to Roads and Buildings, Central Circle, Aluva. Thus, in effect it is a mutual transfer. In Ext.P1 it is stated that the transfers and postings have been effected on administrative convenience. The petitioner contends that the said reason assigned in Ext.P1 is not true to facts and that, as relates herself and the 3rd respondent, it was passed only on the request of the 3rd respondent. In short, according to the petitioner the convenience taken in to considerationis not the administrative convenience whilst it is the convenience of the 3rd respondent. The further contention is that the first respondent lacks jurisdiction to pass such a special order on compassionate grounds as the power to issue orders of transfer in relaxation of the norms and, especially, on compassionate grounds, is solely vested with the Government. 2. As noticed herein before, contentions of the petitioneris that the reason stated in Ext.P1 is not true to the facts and in fact, the petitioner and the 3rd respondent were mutually transferred based on the request of the 3rd respondent. Even while raising the aforesaid contentions and the other contentions regarding the right of the first respondent to effect transfers disregarding the norms and to issue special orders like Ext.P1, on compassionate grounds the learned counsel for the petitioner submits that the petitioner, in the light of Ext.P2, prepares to limit the prayer to defer the implementation of Ext.P1 order to the extent it relates to the petitioner and the 3rd respondent till the end of the academic year to enable her daughter to complete the 8th standard. In that context it is contended that by the time the respondents could also consider her request for transfer made as per Ext.P2. 3. The 3rd respondent herein has filed a counter affidavit. The learned counsel for the 3rd respondent submits that the 3rd respondent is not amenable to the suggestion of the petitioner to defer the implementation of the order and the 3rd respondent, in fact, insists for immediate implementation of Ext.P1 order of transfer. 3. The 3rd respondent herein has filed a counter affidavit. The learned counsel for the 3rd respondent submits that the 3rd respondent is not amenable to the suggestion of the petitioner to defer the implementation of the order and the 3rd respondent, in fact, insists for immediate implementation of Ext.P1 order of transfer. It is submitted that the transfer was made at the request of the 3rd respondent. Relying on Ext.R3(a) and (b) it is contended that the 3rd respondent really deserves a sympathetic consideration. 4. A scanning of the contentions would reveal that it is not the violation of the norms that is under attack whilst it is the competency of the first respondent to issue orders in its derogation, that too, in an unfair manner that is under challenge in this Writ Petition. Indisputably, Government have discretion in the matter of transfer of their employees in public interest and also on such other legally permissible grounds. Admittedly, instructions were issued by the Government specifying the guidelines which govern transfers of Government employees. Such guidelines have been issued with a view to have uniformity in the policy of transfer and also to avert arbitrariness, unfairness and abuse of power in the matter of implementation of such directions. Therefore, the competent authorities have a bounden duty to act within the norms / instructions and, at any rate, to desist from usurping the rights reserved by the Government in the matter of transfer. With this prelude I may examine the rival contentions. 5. The 3rd respondent has produced Ext.R3(f) as the relevant order carrying the transfer norms. The 3rd respondent himself admits that he has only 2 years and 4 months service at Roads Section, Puzhakkal in Thrissur District. Admittedly, the petitioner has completed the normal stay of 3years period at Roads and Buildings, Central Circle, Aluva and shortly thereafter, she submitted Ext.P2 application for transfer indicating three choice stations. Paragraphs 1 to 3 of Ext.R3 (f) norms assumes relevance in the context of theforesaid factual position. 1. General transfers my be made only once a year by the middle of May in all departments and in Vacation Departments during mid-summer vacation only. But in the case of the Schools, adjustment transfers can be made in July also. 2. Paragraphs 1 to 3 of Ext.R3 (f) norms assumes relevance in the context of theforesaid factual position. 1. General transfers my be made only once a year by the middle of May in all departments and in Vacation Departments during mid-summer vacation only. But in the case of the Schools, adjustment transfers can be made in July also. 2. Subject to the conditions regarding inter district transfer, employees who have not completed three years of service in a station shall not be transferred. 3. No employee who has completed three years ofservice in a particular station need necessarily be transferred unless there is a claimant who has worked for three years in an outside station to be provided there, or unless a transfer of the existing incumbent has become necessary in public interest. Going by paragraph 2, the 3rd respondent shall not be transferred from Roads Section, Puzhakkal till completion of 3 years. Going by paragraph 3, merely because the petitioner has completed 3 years of service at Roads and Buildings, Central Circle, Aluva she need not necessarily be transferred except for providing transfer to a claimant who has worked for three years in an outside station or her transfer has become necessary in public interest. Paragraph 1 extracted abovewould make it clear in the absence of such situations the petitioner need not have been transferred during February. The norm 'General transfers may be made only once a year by the middle of May in all departments' is issued mainly with a view to avert the unsettling of schooling of the wards of employees in the midst of an academic year. Thus, there is a policy based on public interest involved in the prescription of such a norm. Paragraph 23 of Ext.R3(f) says:- "Government may have the power to transfer an employee in public interest without and considering the guidelines. In fact, a perusal of Ext.R3(f) wouldreveal that Government reserved the right to transfer employees on public interest, on compassionate grounds and also by granting relaxation or disregarding the norms." 6. As per Ext.P1 the transfers made thereunder, including the mutual transfer of the petitioner and the 3rd respondent, were made an administrative convenience. Even if it is taken that the first respondent is clothed with the power to effect transfers on administrative convenience it has to be exercised in a fair manner. As per Ext.P1 the transfers made thereunder, including the mutual transfer of the petitioner and the 3rd respondent, were made an administrative convenience. Even if it is taken that the first respondent is clothed with the power to effect transfers on administrative convenience it has to be exercised in a fair manner. In the light of the specific contention of the 3rd respondent that the transfer as relates himself and the petitioner was made at his request and in the failure of respondents 1 and 2 to file counter affidavit refuting the contentions of the petitioner and the 3rd respondent to sustain the stand that it wade on administrative convenience, the contentions of the petitioner that the ground of administrative convenience assigned in Ext.P1 is wholly unsustainable and, in fact, it is the convenience of the 3rd respondent that was taken in to consideration have to be taken as true. At any rate, effecting mutual transfer on the request of one of the parties as has been done in this case cannot be sustained on administrative convenience. Though, generally an employee has no choice or voice in the matter of transfer mere whims and fancies of an authority cloaked by the expression 'administrative convenience' cannot be justified when it is clear that it not the 'administrative convenience' but the 'convenience of the claimant' that was the reason for the transfer. If an employee deserves consideration for transfer on compassionate grounds the manner in which it is to be considered has been specifically set out in Ext.R3(f) itself. The same cannot be by-passed by cloaking the expression 'administrative convenience'. It is specifically to avert the abuse of powers and acting on whims and fancies that a specific manner has been set out in the transfer norms. Adherence to such norms would not only weed out arbitrariness, unfairness and abuse but also would check fake claims on compassionate grounds. I endeavour to look in to the rival contentions in depth only on account of the spate of litigations flowing in the subject of transfer, now a days. Adherence to the norms for transfers and avoiding group transfers in view of proximate general transfer would definitely be the plausible way of implementing the policy of transfer and, at any rate, they would diminish discontent and uncertainty among the employees. 7. Adherence to the norms for transfers and avoiding group transfers in view of proximate general transfer would definitely be the plausible way of implementing the policy of transfer and, at any rate, they would diminish discontent and uncertainty among the employees. 7. Despite the aforesaid position obtained in this case, the learned counsel for the petitioner fairly submitted that he is not pressing for interference with the transfer of the 3rd respondent purported to be made on compassion and submitted that deferring implementation of Ext.P1 till the end of the academic year to the extent it relates the petitioner and the 3rd respondent would be sufficient to safeguard the future of her daughter who is studying in the 8th standard especially in view of the fact that her husband is working outside Kerala and there is none at home to care the daughter in case it is implemented immediately. 8. In view of my findings and also in the peculiar circumstances of the case above, I have no hesitation to appreciate the said limited prayer of the petitioner. It is evident from Ext.P1 that it was passed only on 9.2.2010. The 3rd respondent is on half-pay leave. The petitioner is continuing in the Roads and Buildings, Centre Circle, Aluva based on the interim order passed by this court on 11.2.2010. Admittedly, the petitioner has already applied for considering her claim for transfer during the general transfer. Thus, taking in to account all the aspects I am of the view that the first respondent shall be directed to defer implementation of Ext.P1 orders to the extent it relates the petitioner and the 3rd respondent till 31.3.2010. I is ordered accordingly. This Writ Petition is disposed of as above.