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2025 DIGILAW 2599 (KER)

Vidya K. R - v. State Of Kerala, Represented By Its Principal Secretary To Government, Department Of Health And Family Welfare

2025-10-06

ANIL K.NARENDRAN, MURALEE KRISHNA S.

body2025
JUDGMENT : Muralee Krishna, J. The applicant in O.A.(EKM)No.842 of 2025 on the file of the Kerala Administrative Tribunal, Additional Bench, Ernakulam (for short 'the Tribunal'), filed OP(KAT)No.384 of 2025 and the applicant in O.A.(EKM)No.849 of 2025 on the file of the very same Tribunal filed OP(KAT)No.385 of 2025, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , challenging the impugned common order dated 15.09.2025 passed by the Tribunal in those original applications. For convenience, the parties and documents are referred in this judgment as they are referred in OP(KAT)No.384 of 2025, unless otherwise stated. 2. The petitioner in OP(KAT)No.384 of 2025 was transferred to Palakkad as District Medical Officer (Health), vide Annexure A1 order dated 17.11.2023, while she was working in the cadre of Deputy Director, Directorate of Health Services, Thiruvananthapuram. According to the petitioner, she is entitled to continue at Palakkad for a period of three years. By Annexure A2 order dated 24.02.2025, she was transferred and posted as Additional District Medical Officer (Health), Ernakulam. The 3 rd respondent, who was working as District Programme Manager at National Health Mission, Palakkad, was promoted and posted in the place of the petitioner as District Medical Officer (Health) at Palakkad itself, consequent to the transfer of the petitioner to Ernakulam. The petitioner contends that since she has not completed three years in the present station, the 3 rd respondent, who is a fresh promotee, is liable to be posted wherever there is an open vacancy. Therefore, Annexure A2 order is illegal. By Annexure A2 transfer order, the petitioner in OP(KAT)No.385 of 2025, who was working as Additional District Medical Officer (Health), Ernakulam, has been transferred to Idukki as Superintendent in the District Hospital, Idukki. Challenging the transfer order, the petitioner in OP(KAT)No.385 of 2025 filed O.A.(EKM)No.338 of 2025 before the Tribunal, and the petitioner in OP(KAT)No.384 of 2025 filed O.A.(EKM)No.342 of 2025. The Tribunal, by way of interim orders, stayed the transfer of the petitioners in both the original applications. Thereafter, the original applications were disposed of by a common order dated 18.03.2025 with a direction to the 1 st respondent to consider and pass orders on the grievance of the petitioners. Consequently, the petitioners were heard on 08.04.2025 on behalf of the 1 st respondent and by Annexure A5 order dated 09.06.2025, their contentions were rejected. Thereafter, the original applications were disposed of by a common order dated 18.03.2025 with a direction to the 1 st respondent to consider and pass orders on the grievance of the petitioners. Consequently, the petitioners were heard on 08.04.2025 on behalf of the 1 st respondent and by Annexure A5 order dated 09.06.2025, their contentions were rejected. In that circumstance, the petitioners approached the Tribunal with the respective original applications filed under Section 19 of the Administrative Tribunals Act, 1985 . 3. In O.A.(EKM)No.842 of 2025, the 1 st respondent filed a reply statement dated 25.06.2025. It is contended by the 1 st respondent that the General Transfer Guidelines contained in Para 7(ii) of G.O.(P) No.3/2017/P&ARD dated 25.02.2017 are strictly applicable to transfers made by the Head of the Department and authorities below the Head of the Department. The said order is not applicable in the cases where the Government is the appointing authority. The Deputy Director post is a higher post in the Health Services Department, and when officers working in this post are transferred for administrative convenience, it is not right to raise arguments that they have not completed three years in the present station. As per Rule 32(b) of Part II KS&SSR, the power to appoint and transfer the Deputy Director is vested with the Government, who is the appointing authority. The 1 st respondent further contended that the 3 rd respondent has good practical experience by working as District Programme Manager in the National Health Mission, Palakkad. Considering the above aspect, Annexure A5 order dated 09.06.2025 has been issued in compliance with Annexure A4 order of the Tribunal, transferring the petitioner in OP(KAT)No.385 of 2025 as Superintendent, District Hospital, Idukki, and the petitioner in OP(KAT)No.384 of 2025 as Additional District Medical Officer, Ernakulam, and appointing the 3 rd respondent Assistant Director on deputation as District Medical Officer, Palakkad. It is contended by the 1 st respondent that the Apex Court, as well as this High Court, in several judgments held that the transfer is an incident of service coming under the domain of Government and that Government servants did not have any right to claim retention in a station or to choose the place of posting. It is contended by the 1 st respondent that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to the public interest. It is contended by the 1 st respondent that the person challenging the transfer ought to prove on facts that such transfer is prejudicial to the public interest. Interference is justified only in a case of malafide or infraction of any professed norm or principle. Moreover, in cases where the career prospects of a person challenging transfer remain unaffected and no detriment is caused, interference with the transfer must be eschewed. Evidence is required to prove such a transfer as prejudicial, and in its absence, interference is not warranted. Instead of joining the places where they are appointed, the Medical Officers are trying to cancel the orders and thereby hindering the smooth functioning of the health department, which results in administrative difficulty in the Health Services Department. 4. The 3 rd respondent also filed a reply statement dated 17.07.2025 in O.A.(EKM)No.842 of 2025, contending that the suitability of an officer to be posted in a particular post lies within the realm of the discretion of the Government. The petitioner is not to dictate terms in regard to the suitability and the station to which the incumbent is to be posted. It is further contended by the 3 rd respondent that after the issuance of Annexure A6, the 3 rd respondent had assumed charge as District Medical Officer (Health), Palakkad, on 10.06.2025, as the petitioner did not attend the office since 03.06.2025. He was handed over charge by Deputy District Medical Officer (Health), Palakkad, who was given the charge of District Medical Officer (Health), Palakkad. Immediately after assuming charge, the 3 rd respondent had informed the 2 nd respondent as well as the Accountant General with regard to the matter of assumption of charge as District Medical Officer (Health), Palakkad. As per the reply statement of the 3 rd respondent, the guidelines governing the transfer exist only for the sake of guidance and do not confer on the employee any enforceable right. It is further contended by the 3 rd respondent that there is no ground of malafides raised by the petitioner in the original application which may make the transfer a subject of challenge before a court of law. In the absence of such a contention, there is no merit in the contentions raised by the petitioner. It is further contended by the 3 rd respondent that there is no ground of malafides raised by the petitioner in the original application which may make the transfer a subject of challenge before a court of law. In the absence of such a contention, there is no merit in the contentions raised by the petitioner. Annexure A5 Government order was issued on the basis of the direction issued by the Tribunal in Annexure A4 order, after convincing that 3 rd respondent was eligible to be posted as District Medical Officer (Health), Palakkad, and only thereafter, Annexure A6 order was issued. 5. To the reply statements filed by respondents 1 and 3, the petitioner filed a rejoinder dated 21.07.2025 in the original application. The 1 st respondent filed an additional reply statement dated 28.07.2025 in O.A.(EKM)No.842 of 2025 narrating the key role of District Programme Manager, National Health Mission, the post which was held by the 3 rd respondent. 6. In O.A.No.849 of 2025 also the 1 st respondent filed a reply statement dated 12.08.2025 raising almost the very same contentions as those raised in O.A.(EKM)No.842 of 2025. 7. After hearing both sides and on appreciation of the materials on record, the Tribunal, by the impugned order dated 15.09.2025, dismissed the original applications. Paragraphs 9 to 11 of that order read thus; "9. The grounds urged for challenging the transfer in both these cases is violation of guidelines, as they have not completed three years in the respective stations. The further contention is that the untimely transfer is ordered to accommodate a fresh promotee. According to the 1 st respondent the presence of Dr.Rosh, the fresh promotee at Palakkad would be much helpful for the administration of health department and dealing with health issues in Palakkad District. 10. When Government categorically states that the administrative experience of Dr. Rosh is found necessary in Palakkad District, this Tribunal would not be in a position to substitute its decision, as transfer and posting of officers are entirely coming within the executive domain of the Government. But for the contention that the transfer is ordered to accommodate Dr. Rosh, there is no allegation of mala fides. No violation of any statutory rule is also alleged. 11. But for the contention that the transfer is ordered to accommodate Dr. Rosh, there is no allegation of mala fides. No violation of any statutory rule is also alleged. 11. As held in a series of judgments relied on by the respondents, for e.g., S.K. Naushad Rahaman and others v. Union of India and others [(2022)12 SCC 11], N.K. Singh v. Union of India & others [(1994) 5 SCC 981], Rajendra Roy v. Union of India & others ( AIR 1993 SC 1236 ], etc., transfer is an incidence of service. The applicants and 3 rd respondent are holding High level posts of District Head/equivalent posts in the Department. An employee does not have any right to insist for retention of posting in a particular station, just because he or she did not complete 3 years. In the absence of any allegation as to mala fides or violation of statutory rules interference of this Tribunal is not called for. The Original Applications are accordingly dismissed." 8. Heard the learned counsel for the petitioners in the original petitions, the learned Senior Government Pleader and the learned counsel for the 3 rd respondent. 9. When the learned counsel for the petitioners raised a contention that the transfer of the petitioners effected was violating the transfer guidelines issued by the Government with the sole intention to accommodate the 3 rd respondent at Palakkad, the learned Senior Government Pleader as well the learned counsel for the 3 rd respondent raised a contention that there is no malafides in the order of transfer and it is for administrative convenience the order was issued. 10. It is trite that whether an employee is to be transferred to a different division, etc, are matter for the employer to consider, depending upon the administrative necessities. The power to transfer an employee in a transferable service is within the prerogative of the employer. It is the employer who knows best where an employee should be deployed for an effective discharge of his or her duties for the establishment. The inconveniences caused to the employee and his family consequent to the transfer are not sufficient to interfere with the orders of transfer. It is the employer who knows best where an employee should be deployed for an effective discharge of his or her duties for the establishment. The inconveniences caused to the employee and his family consequent to the transfer are not sufficient to interfere with the orders of transfer. Generally, the Court exercising writ jurisdiction under Article 226 of the Constitution of India would not interfere in the orders of transfer of an employee issued by the employer, for administrative reasons, as it will adversely affect the smooth functioning of that institution. The circumstance under which the Court can interfere with the orders of transfer is laid down by the Apex Court as well as this Court in several judgments. 11. In Union of India v. S.L Abbas [ (1993) 4 SCC 357 ] the Apex Court held thus: "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.” (emphasis supplied) 12. In National Hydroelectric Power Corporation Ltd v. Shri Bhagwan [ (2001) 8 SCC 574 ] the Apex Court held thus: “It is by now well-settled and often reiterated by this Court that no Government servant or employee of public Undertaking has any legal right to be posted forever at any one particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is not only an incident, but a condition of service, necessary too in public interest and efficiency in the public administration. Unless an order of transfer is shown to be an outcome of mala fide exercise of power or stated to be in violation of statutory provisions prohibiting any such transfer, the Courts or the Tribunals cannot interfere with such orders as a matter of routine, as though they are the Appellate Authorities substituting their own decision for that of the Management, as against such orders passed in the interest of administrative exigencies of the service concerned.” (emphasis supplied) 13. In Pubi Lombi v. State of Arunachal Pradesh and others [2024 SCC Online SC 279] the Apex Court held thus: “15. In view of the foregoing enunciation of law by judicial decisions of this Court, it is clear that in absence of (i) pleadings regarding malafide, (ii) non-joining the person against whom allegations are made, (iii) violation of any statutory provision (iv) the allegation of the transfer being detrimental to the employee who is holding a transferrable post, judicial interference is not warranted. In the sequel of the said settled norms, the scope of judicial review is not permissible by the Courts in exercising of the jurisdiction under Article 226 of the Constitution of India.” (emphasis supplied) 14. This Court in Mayadevi M.P and another v. Canara Bank and others [ 2015 (4) KHC 874 ] held that an order of transfer cannot be interfered with in proceedings under Article 226 of the Constitution of India, in the absence of any specific allegation of mala fides or at least a prima facie proof of vitiating circumstances influencing that order of transfer. It is far too late in the day to assert that, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can interfere with an order of transfer of an employee as if it is sitting in appeal over such an order issued by the employer. The scope of judicial review in this area is very limited. Unless mala fides or oblique motives are specifically pleaded or can necessarily be inferred from the proof of facts, this Court cannot interfere with an order of transfer of an employee. Therefore, a mere assertion in the writ petition that, the orders of transfer are 'vitiated by extraneous considerations and imbued with mala fides', cannot therefore sound in realms of mala fides or extraneous considerations or oblique motives. Therefore, a mere assertion in the writ petition that, the orders of transfer are 'vitiated by extraneous considerations and imbued with mala fides', cannot therefore sound in realms of mala fides or extraneous considerations or oblique motives. The concept being basically different, this Court cannot even draw an inference that the order of transfer issued by the employer is vitiated by mala fides or on extraneous considerations or with oblique motives, unless it is specifically pleaded in the writ petition with reliable materials, which are sufficient to draw an inference of any vitiating circumstances influencing such an order of transfer. 15. Again, in Nixy James v. Kerala State Road Transport Corporation [ 2023 (3) KLT 893 ] , this Court held that the law is too well settled that transfer is an incidence of service and the employee has no legal right in this behalf. It is also well settled that, unless the orders of transfer are vitiated by statutory violations or mala fides, Court will not interfere with the same. 16. In the instant cases, the challenge raised by the petitioners is against Annexure A2 transfer order dated 24.02.2025. By the said order, the petitioner in OP(KAT)No.384 of 2025 is transferred as Additional District Medical Officer (Health), Ernakulam. The petitioner in OP(KAT)No.385 of 2025, who is working in that post, is transferred to Idukki as Superintendent, District Hospital. The 3 rd respondent, who is in the cadre of Assistant Director working as District Programme Manager, National Health Mission, Palakkad, is promoted and posted as District Medical Officer, Palakkad. When the Tribunal, by Annexure A4 order in O.A.(EKM)Nos.342 and 338 of 2025 filed by the petitioners, directed the 1 st respondent to consider and pass orders on the grievance raised by the petitioners, by Annexure A5 order dated 09.06.2025, the Government considered the matter in detail and held that though the petitioner in OP(KAT)No.385 of 2025 raised his grievance against transfer on compassionate ground of illness, the petitioner in OP(KAT)No.384 of 2025 did not raise any valid reasons to retain her at Palakkad. According to the Government, it was considering the experience of the 3 rd respondent in OP(KAT)No.384 of 2025, as District Programme Manager, National Health Mission, Palakkad, he is directed to be retained at Palakkad in the promotion post. 17. According to the Government, it was considering the experience of the 3 rd respondent in OP(KAT)No.384 of 2025, as District Programme Manager, National Health Mission, Palakkad, he is directed to be retained at Palakkad in the promotion post. 17. Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. Clause (2) of Article 227 provides that, without prejudice to the generality of the provisions under clause (1), the High Court may call for returns from such courts; make and issue general rules and prescribe forms for regulating the practice and proceedings of such courts; and prescribe forms in which books, entries and accounts shall be kept by the officers of any such courts. Going by clause (4), nothing in Article 227 shall be deemed to confer on a High Court powers of superintendence over any court or tribunal constituted by or under any law relating to the Armed Forces. 18. In Shalini Shyam Shetty v. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute. The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 19. In Jai Singh v. Municipal Corporation of Delhi [ (2010) 9 SCC 385 ] , while considering the nature and scope of the powers under Article 227 of the Constitution of India , the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well established principles of law. The exercise of jurisdiction must be within the well recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 20. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [ (2015) 12 SCC 39 ] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India , the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 21. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India , this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court. Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 22. In view of the law laid down in the decisions referred to supra, the High Court in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India cannot sit in appeal over the findings recorded by a lower Court or Tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower Court or Tribunal, acting within the limits of its jurisdiction. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower Court or Tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower Court or Tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower Court or Tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower Court or Tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 23. In the original applications, the pleadings pertaining to malafides is conspicuously absent, except stating a stray sentence in O.A (EKM) No.849 of 2025 that the order of transfer is vitiated by malafides. No supporting pleadings to prove this aspect were produced in the original applications as well as in the original petitions. According to the Government, which is the appointing authority of the petitioners, the respective petitioners are posted to the places concerned to obtain the best service from them, including from the 3 rd respondent, who has sufficient experience in the field working as District Programme Manager, National Health Mission, Palakkad. It is true that, as per the Governance structure, the petitioner in OP(KAT)No.384 of 2025, in her capacity as the District Medical Officer, is the Convenor of District Health Mission under the National Health Mission scheme, and the duty of the 3 rd respondent is to assist the convener in arranging the programmes etc. Even then, the subjective assessment by the 1 st respondent regarding the capability of the employees concerned is not a matter that can be decided in an original application filed before the Tribunal, without any pleadings to that effect. Having considered the pleadings and materials on record and the submissions made at the Bar, we find no reason to say that the order passed by the Tribunal is perverse or illegal, which warrants the interference of this Court by exercising the supervisory jurisdiction under Article 227 of the Constitution of India . In the result, the original petitions stand dismissed. In the result, the original petitions stand dismissed. All pending interlocutory applications stand closed.