ALOSIOUS, S/O P.S. PETER v. STATE OF KERALA & OTHERS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **TUESDAY, THE 15TH DAY OF JANUARY 2013/25TH POUSHA 1934** ## **WP(C).No. 1061 of 2013 (G)** **--------------------------** **PETITIONER(S): ---------------------------** **ALOSIOUS, S/O. P.S. PETER,HEALTH SUPERVISOR, NORTH PARAVOOR MUNICIPALITY,ERNAKULAM.** **BY ADVS.SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA** **RESPONDENT(S): -----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM - 695 001.** **2. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM- 695 001.** **3. T.K. BEENA, HEALTH SUPERVISOR,KOCHI CORPORATION, ERNAKULAM - 682 031.** ## **4. VIDHYADHARAN,HEALTH SUPERVISOR, TRIPUNITHURA MUNICIPALITY - 682 301.** ## **R1 & R2 BY GOVERNMENT PLEADER SRI.M.A.FAYAZ** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 15-01-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.1061/2013** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT-P1- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 03/07/2012** - **EXHIBIT-P2- TRUE COPY OF THE FORWARDING LETTER OF THE PARAVOOR MUNICIPALITY DATED 04/07/2012.** - **EXHIBIT-P3- TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT NO. E5-2878/12(1) DATED 25/07/2012.** - **EXHIBIT-P4- TRUE COPY OF THE ORDER OF THE 2ND RESPONDENT NO. E5-2878/2012 DATED 25/07/2012.** - **EXHIBIT-P5- TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT ON 02/08/2012 WITH POSTAL ACKNOWLEDGMENT.** **EXHIBIT-P6- TRUE COPY OF THE JUDGMENT DATED 21/08/2012 IN W.P(C) 19783/2012** - **EXHIBIT-P7- TRUE COPY OF THE STATEMENT SUBMITTED BY THE PETITIONER ON 07/12/2012.** **EXHIBIT-P8- TRUE COPY OF THE G.O.NO. 3507/2012/LSGD DATED 18/12/2012** **EXHIBIT-P9- TRUE COPY OF THE G.O(MS) 105/2207 LSGD DATED 04/04/2007** ## **RESPONDENTS' EXHIBITS :** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN,J.** -----------------------------------WP(C) No. 1061 of 2013 -----------------------------------Dated this the 15[th] day of January, 2013 ## **JUDGMENT** The petitioner who is presently working as Health Supervisor in North Paravur Municipality has filed this writ petition challenging Ext.P8 order dated 18.12.2012 passed by the State Government, rejecting his request for an immediate transfer to Cochin Corporation but with the observation that in the vacancy which will arise on 30.11.2013 in Cochin Corporation his request for transfer should be considered. 2. The petitioner belongs to Mattancherry. He was promoted as Health Inspector Grade-I in April 2010 while he was working in Cochin Corporation and was transferred and posted in Manjeri Municipality in Malappuram District. He was thereafter transferred and posted as Health Inspector Grade-I in Vatakara Municipality and later as Health Inspector Grade-I in North Paravur Municipality in May, 2011. Long after joining duty in North Paravur Municipality (the distance from Mattancherry to North Paravur-via-Vypin is 35-38 Kms) he submitted Ext.P1 representation dated 3.7.2012 to the Director of Urban Affairs, Thiruvananthapuram, requesting for a transfer to Cochin Corporation or Tripunithura Municipality. In that representation he stated that on the retirement of Sri.James P. Thomas on 31.05.2012 a vacancy has arisen in Cochin Corporation and on the retirement of Sri.P.S.Sundar WP(C) No. 1061 of 2013 2 Raj on 3.6.2012, a vacancy has arisen in Tripunithura Municipality. He also brought to the notice of the Director of Urban Affairs the fact that he will be retiring from service on 31.5.2014. The said representation was forwarded by the Secretary, North Paravur Municipality to the Director of Urban Affairs along with Ext.P2 letter dated 4.07.2012. 3. Shortly after Ext.P1 representation was forwarded by the Secretary, North Paravur Municipality to the Director of Urban Affairs, the Director of Urban Affairs issued Ext.P3 order dated 25.7.2012 promoting 18 first grade Health Inspectors to the category of Health Supervisor on a temporary basis. The third respondent who was working in Eloor Municipality as Health Inspector Grade-I was promoted and posted as Health Supervisor in Cochin Corporation. On the same day, the Director of Urban Affairs issued Ext.P4 order dated 25.7.2012 transferring the fourth respondent, who was working as Health Supervisor in Changanassery Municipality to Tripunithura Municipality on his request. The petitioner thereupon submitted Ext.P5 representation dated 2.8.2012 to the Secretary to Government requesting for a transfer to Cochin Corporation or Tripunithura Municipality after cancelling the order transferring the third respondent to Cochin Corporation and the order transferring the fourth respondent to Tripunithura Municipality. He thereafter filed W.P.(C)No.19783 of 2012 in this Court inter alia seeking a direction to WP(C) No. 1061 of 2013 3 the State of Kerala to consider Ext.P5 representation dated 2.8.2012 and pass orders thereon within a time limit to be fixed by this Court. 4. W.P.(C) No.19783 of 2012 came up for hearing before a learned single Judge of this Court on 21.8.2012. After hearing the learned Government Pleader appearing for the official respondents, this Court disposed of the said writ petition with a direction to the State of Kerala to consider Ext.P5 representation and pass orders thereon after affording the petitioner and respondents 3 and 4 an opportunity of being heard. The Government accordingly heard the petitioner and respondents 3 and 4 on 7.6.2012. At the time of hearing, the petitioner submitted Ext.P7 statement dated 7.12.2012. He contended that it was without considering his request for transfer in Ext.P1 representation that respondents 3 and 4 were transferred and posted in Cochin Corporation and Tripunithura Municipality respectively He also pointed out that Sri.P.K. Thampi, who is presently working as Health Supervisor in Cochin Corporation will retire from service on 30.11.2013, that he is a native of Perumbavoor that a vacancy of Health Supervisor exists in Perumbavoor Municipality and that he can be accommodated in Cochin Corporation by transferring Sri.P.K.Thampi to Perumbavoor, his home town. The Government after considering the rival contentions issued Ext.P8 order dated 18.12.2012 whereby the Government directed the Director of Urban WP(C) No. 1061 of 2013 4 Affairs to consider the petitioner's claim for transfer to Cochin Corporation in the vacancy which will arise in Cochin Corporation on 30.11.2013. Ext.P8 is under challenge in this writ petition. 5. I heard Sri.K.Mohanakannan, learned counsel appearing for the petitioner and Sri.M.A.Fayaz, learned Government Pleader appearing for respondents 1 and 2. I have also gone through the pleadings and the materials on record. Ext.P8, the order impugned in the writ petition discloses that the petitioner has a total service of 30 yeas and out of the said period of 30 years he had worked in Ernakulam District for a period of 21 years. It is also not in dispute that the petitioner was promoted to the category of Health Inspector Grade-I while he was working in Cochin Corporation and he was transferred to Manjeri Municipality only in April 2010. Shortly thereafter, he was promoted as Health Supervisor and transferred to Vatakara Municipality and still later to North Paravur Municipality where he joined duty in May, 2011. In other words, within a period of one year from the date on which he was promoted and transferred as Health Inspector Grade-I from Cochin Corporation to Manjeri Municipality he was promoted as Health Supervisor and transferred to Vatakara Municipality. He was able to secure a transfer back to North Paravur Municipality in Ernakulam District, in May 2011. More than an year later, he submitted Ext.P1 representation requesting for a WP(C) No. 1061 of 2013 5 transfer and posting either in Cochin Corporation or in Tripunithura Municipality. He made such a claim, alleging that one vacancy will arise in Cochin Corporation on 31.5.2012, when Sri.James P.Thomas retires and in Tripunithura Municipality one vacancy will arise on 30.6.2012 when Sri.P.S.Sunder Raj retires. The Government have in the impugned order held that the fourth respondent who is a member of a scheduled caste community and is also entitled to the benefits extended to intercaste married couple cannot be disturbed. As regards the third respondent the Government have in Ext.P8 stated that her mother is sickly and therefore, she is not in a position to be away from Cochin. The Government after considering the rival contentions and taking note of the fact that the petitioner has served for 21 out of the total service of 30 years in Ernakulam District and is presently working in North Paravur (which is only 35-38 Kms away from Mattancherryvia-Vypin) did not find it fit and proper to interfere with the order transferring respondents 3 and 4 to Cochin Corporation and Tripunithura Municipality respectively, but directed that in the vacancy which will arise on 30.11.2013 in Cochin Corporation, the petitioner's claim should also be considered. After hearing learned counsel on both sides and on going through Ext.P8, I am of the opinion that no grounds have been made out warranting interference with Ext.P8. WP(C) No. 1061 of 2013 6 6. The petitioner is a native of Mattancherry. He is presently working in North Paravur Municipality. Paragraph 14 of Ext.P9 guidelines stipulates that as far as possible those who are due to retire within two years shall be posted to the station of their choice. It is relying on this stipulation in Ext.P9 guidelines that the petitioner seeks a transfer to Cochin Corporation. The petitioner who is presently working in North Paravur which is only 35-38 Kms away from his home town cannot be heard to contend that failure to extend to him the benefit of paragraph 14 of Ext.P9 will visit him with adverse consequences. The Apex Court has in **State of U.P. and others v. Gobardhan Lal (2004)11 SCC 402)** held that an order of transfer can be interfered with only if it violates any statutory rule or is issued by an incompetent person or is vitiated by _mala fides_ . The petitioner has no case that the order transferring respondents 3 and 4 is issued by an incompetent authority. He has also no case that the said orders were passed for extraneous considerations or that they are vitiated by _mala fides_ . He does not also attribute any _mala fides_ to the Government when it issued Ext.P8 order. In such circumstances, as Ext.P9 is in the nature of a guidelines and cannot be enforced, I find no merit in the petitioner's contention that he should be accommodated in Cochin Corporation or Tripunithura Municipality after displacing respondents 3 and 4. The petitioner who did not choose to challenge WP(C) No. 1061 of 2013 7 the order transferring respondents 3 and 4 in time by filing a writ petition and who is presently working in North Paravur Municipality which is only 35-38 Kms away from his home town cannot in my opinion to be heard to contend that merely for the reason that he is retiring from service on 31.5.2014, he should be accommodated either in Cochin Corporation or in Tripunithura Municipality. The Government have taking note of the report submitted by the Director of Urban Affairs observed in Ext.P4 that his claim for transfer to Cochin Corporation should be considered in the vacancy which will arise on 30.11.2013. The writ petition fails and is accordingly dismissed with the observation that the petitioner's claim for transfer to Cochin Corporation in the vacancy which will arise on 30.11.2013 should be considered and if there is no other claimant who will retire earlier than the petitioner, the petitioner should as far as possible be accommodated in that vacancy. ## **P.N.RAVINDRAN, JUDGE** cms