Ajai B. Pillai v. State of Kerala and Others

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V TUESDAY, THE 14[TH] DAY OF NOVEMBER 2023 / 23RD KARTHIKA, 1945`** ## **`WP(C) NO. 37617 OF 2023`** ``` PETITIONER: ``` ``` AJAI.B.PILLAI AGED44YEARS S/OP.BALAKRISHNAPILLAI,CONDUCTORGRADE-I, K.S.R.T.C,ADOORDEPOT,PATHANAMTHITTA.(RESIDINGAT AJIBHAVAN,KUNNIDA,KURUMPAKARAP.O. - PATHANAMTHITTA-689695),PIN691523 BYADVS. S.SHAJI RAJESH.R ``` ``` RESPONDENTS: ``` ``` 1STATEOFKERALAREP.BYITSPRINCIPALSECRETARY TRANSPORTDEPARTMENT,GOVT.SECRETARIAT, - THIRUVANANTHAPURAM,PIN695001 2THECHAIRMAN&MANAGINGDIRECTOR K.S.R.T.C,TRANSPORTBHAVAN,FORTP.O., - THIRUVANANTHAPURAM,PIN695023 3THEDISTRICTOFFICER DISTRICTOFFICE,K.S.R.T.C,PATHANAMTHITTA, - PIN689645 SRI.DEEPUTHANKAN,SCFORKSRTC ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 14.11.2023,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` W.P.(C.) No. 37617 of 2023 2 ## **JUDGMENT** The petitioner states that he is working as Conductor Grade I in the Kerala Road Transport Corporation. He joined the service on 10.4.2010, and his home station was noted as Adoor. According to the petitioner, by the general transfer order, a copy of which is produced as Ext.P10, the petitioner stands transferred to Aluva. 2. The petitioner states that he has already applied before the respondents to change the home station from Adoor to Pathanapuram. It is without considering his request and without taking note of his station seniority that the transfer order has been issued. The learned counsel submits that while issuing the general transfer, the transfer guidelines, which have been produced as Ext P1, should have guided the respondents. He asserts that despite the fact that the petitioner had not filed any application for transfer, the respondents have taken a unilateral decision to transfer the petitioner to a place which is about 200 km away from his home. He states that he has a wife and six-year-old daughter, and transfer of the petitioner to a distant place would work out serious hardship. It is further stated that the respondents have retained certain employees who W.P.(C.) No. 37617 of 2023 3 were bound to be transferred in the place of the petitioner. The petitioner would also contend that he had earlier preferred Ext.P7 before the Executive Director and Ext.P8 before the Government. However, no action has been taken. Later, the petitioner preferred Ext.P11 before the 1st respondent with a copy to the 2nd respondent. He asserts that the petitioner may either be transferred to his home unit at Pathanapuram or to nearby stations like Punaloor, Konni etc. and also prays that the order of transfer be stayed until a decision is taken on Exhibit P11 by the concerned respondent. 3. The learned Standing Counsel appearing for the respondents submitted that a draft transfer list was initially issued, which was frozen based on objections received from persons from several quarters. It is submitted that out of 18000 employees working in the Corporation, only 4000 have been transferred in the general transfer order. The learned counsel submits that the petitioner is still working at Adoor for more than 13 years. The respondents have considered the request of scores of employees who have sought a transfer to Adoor. According to the learned counsel, the question of whether an employee is to be transferred to a different division etc., is a matter for the employer to consider depending upon the administrative necessities as transfer is an incidence of service. It is for the employer to decide where an employee should be deployed for an W.P.(C.) No. 37617 of 2023 4 effective discharge of his/her duties for the establishment. Reliance is placed on the law laid down in **Babu v. State of Kerala[1]** , **P.Pushpakaran v. Chairman, Coir Board[2]** , **Shilpi Bose v. State of Bihar[3]** and **Union of India v. S.L.Abbas[4]** . According to the learned counsel, the petitioner has no case that the order of transfer is tainted with mala fides. 4. I have considered the submissions advanced and gone through the records. 5. The grievance of the petitioner in the instant case concerns the inclusion of the petitioner in the general order of transfer. By the order, he has been transferred from Adoor to Aluva. It is apparent from the petition that he entered into service in the year 2010, and he has been working in the same station since then. His prime contention is that the transfer guidelines have been violated, and his seniority has not been reckoned. He also asserts that his wife is a teacher and he has a young child, and if he is transferred, serious injustice would be caused. ## 6. In **Nixy James v. Kerala State Road Transport Corporation[5]** , a learned Single Judge of this Court had occasion to > 1 (1988 (2) KLT 258) > 2 [(1979) 1 SLR 309 (Ker)]/(1978 KLT 539) > 3 (1991 Supp (2) SCC 659) > 4 (1993 (4) SCC 357) > 5 [2023 (3) KLT 893] W.P.(C.) No. 37617 of 2023 5 encapsulate the law relating to the transfer of employee by referring to the earlier precedents. It would be appropriate to extract paragraph Nos. 6 to 9, which I feel applies to the facts of the instant case. 6. 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 is vitiated by statutory violations or mala fides, Courts should be loathe in interfering with the same. Courts will be extremely circumspect, will act with restraint and may not ponder into hairsplitting arguments, to scan the decisions in orders of transfer. The Corporation cannot effectually work when the employees act intolerably or spitefully amongst themselves or is engaged in activities which go against the best interests of the Corporation. Transfer can be effected on administrative grounds as long as it is intended to aid proper administration and to sub-serve internal discipline. 7. When an employee is transferred to maintain the smooth running of an organization, it is not to be understood as a punishment. The element of punishment is absent therein. The idea is to maintain the internal harmony of the organisation and to safeguard its smooth functioning. In every case of erratic or in appropriate behaviour by a subordinate, the employer is not bound to initiate departmental action and to impose punishment. For effecting a transfer, there need not be any enquiry conducted to first ascertain whether there was misbehaviour or conduct unbecoming of an employee. To hold otherwise would frustrate the very purpose of transferring an employee in public interest or exigencies of W.P.(C.) No. 37617 of 2023 6 ## administration, to enforce a decorum and ensure probity. 8. The question whether an employee is to be transferred to a different division etc., are matters 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 he who knows best, where an employee should be deployed for an effective discharge of his/her duties for the establishment. The inconvenience caused to the employee and his family consequent on the transfer are not sufficient to interfere with the orders of transfer. A transfer can always be done in public interest. (Babu v. State of Kerala (1988 (2) KLT 258), Vasu v. High Court of Kerala (1989 (1) KLT 16), Dinamony v. Dt. Superintendent of Police, Kollam (1994 (1) KLT 326), P.Pushpakaran v. Chairman, Coir Board (Ker.) (1978 KLT 539 ), Rajan v. Director General of Police (1999 (2) KLT 673), Shilpi Bose v. State of Bihar (1991 Supp. (2) SCC 659), Union of India v. S.L.Abbas (1993) 4 SCC 357), National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan (2001) 8 SCC 574), Union of India & Ors. v. Sri Janardhan Debanath & Anr. (2004) 4 SCC 245), Divyamol R.S. v. Director General Central Industrial Security Force, New Delhi & Ors. (2022 (4) KLT OnLine 1093). 9. In addition to the law on transfers as noticed supra, it is appropriate to refer to clause 11 of the Transfer Guidelines in Appendix-IV of the Long-Term Settlement Agreement, 2012 of the Corporation. A copy of the same has been produced along with the counter affidavit as Annexure-R1(a). Clause 11 thereof deals with “Transfer on Administrative ground due to disciplinary issues”. Therefore, the Corporation is enabled even under the W.P.(C.) No. 37617 of 2023 7 Transfer Guidelines to effect transfers of its employees on administrative grounds, to maintain a harmonious and working atmosphere at its offices. 7. This Court has held that the transfer is an incidence of service, and the employee has no legal right to interdict the same unless there are materials to suggest that the order of transfer is vitiated by statutory violations or mala fides. Transfer can be effected on administrative grounds as long as it is intended to aid proper administration and to sub-serve internal discipline. The question of whether an employee is to be transferred to a different division, etc., is a 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. The inconvenience caused to the employee and his family consequent to the transfer is not sufficient to interfere with the orders of transfer. A transfer can always be done in the public interest. Furthermore, as per the relevant clause of the Transfer Guidelines in Appendix-IV of the Long-Term Settlement Agreement, 2012, the Corporation is entitled to effect transfers of its employees on administrative grounds to maintain a harmonious working atmosphere at its offices. A person who has been working in the same station since 2010 cannot claim the entitlement of staying in the same place when exigency of service demands his transfer. W.P.(C.) No. 37617 of 2023 8 Furthermore, in **Babu** (supra), it has been held by a Division Bench of this Court that guidelines for transfer are not statutory, and they are meant for guidance in the matter of transfer. They are not exhaustive. In administration, a variety of situations not contemplated by the guidelines may arise, which have to be taken into account. Merely because a guideline has been violated in the matter of transfer, that would not by itself be a sufficient ground for interference. In that view of the matter, I am not inclined to interfere with the order of transfer. I find that the petitioner has submitted Ext.P11 before the 1st respondent with a copy to the 2nd respondent. If Ext.P11 is pending before the 2nd respondent and if the same is registered, the same shall be considered, and appropriate orders shall be passed within eight weeks. This petition is disposed of. Sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** IAP W.P.(C.) No. 37617 of 2023 9 ## **`APPENDIX OF WP(C) 37617/2023`** ``` PETITIONER’SEXHIBITS: ``` - `Exhibit P1 TRUE COPY OF THE TRANSFER GUIDELINE APPLICABLE IN THE KSRTC FOR THE EMPLOYEE INTERMEDIATE, LOWER DIVISION` - `Exhibit P2 TRUE COPY OF THE MEMORANDUM DATED 30.04.2022 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P3 TRUE COPY OF THE RELEVANT PAGES OF THE MEMORANDUM DATED 16.05.2023 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P4 TRUE COPY OF THE RELEVANT PAGES OF 2ND DRAFT TRANSFER LIST ISSUED BY THE 2ND RESPONDENT AS PER THE MEMORANDUM DATED 29.05.2023.` - `Exhibit P5 TRUE COPY OF THE OBJECTION SUBMITTED BY THE APPLICANT DATED 05.06.2023.` - `Exhibit P6 TRUE COPY OF THE RELEVANT PAGES OF THE PROCEEDINGS NO.700/CMD(SPC)/2023/RTC DATED 15.07.2023 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P7 TRUE COPY OF THE OBJECTION SUBMITTED BY THE PETITIONER DATED 19.07.2023 AND RECEIPT` - `Exhibit P8 TRUE COPY OF THE APPEAL SUBMITTED BEFORE THE 1ST RESPONDENT DATED 25.07.2023 SUBMITTED BY THE PETITIONER ALONG WITH THE EVIDENCE OF DISPATCH OF THE APPEAL.` - `Exhibit P9 TRUE COPY OF THE MEMORANDUM DATED 02.08.2023 ISSUED BY THE 2ND RESPONDENT` W.P.(C.) No. 37617 of 2023 10 ``` ExhibitP10TRUECOPYOFTHERELEVANTPAGESOFTHE PROCEEDINGSNO.700/CMD(SPC)/2023/RTCDATED 04.11.2023ISSUEDBYTHE2NDRESPONDENT. ExhibitP11TRUECOPYOFTHEREPRESENTATIONSUBMITTEDBYTHE PETITIONERBEFORETHE1STRESPONDENTDATED 10.11.2023. ```