BINOY A.M. v. Chief Conservator of Forests, Southern Circle, Kollam; M. Gayathri Devi; C. Jayachandran

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT :** ## **THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN** **MONDAY, THE 21ST NOVEMBER 2011 / 30TH KARTHIKA 1933** **WP(C).No. 20094 of 2011(J)** **--------------------------------------** **PETITIONER(S):** **---------------------** **BINOY A.M., U.D.CLERK, SOCIAL FORESTRY DIVISION, ALAPPUZHA. (UNDER ORDERS OF TRANSFER TO GOVERNMENT TIMBER DEPOT., THENMALA).** **BY ADVS. SMT.P.V.ASHA** **SMT.VINEETHA B.** **RESPONDENT(S):** **-------------------------** **1. CHIEF CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, VANASREE, CHINNAKKADA, KOLLAM-691 001.** **2. SMT. M.GAYATHRI DEVI, UDC, DIVISIONAL FOREST OFFICE, KOTTAYAM, PIN-686 002. (UNDER ORDERS OF TRANSFER TO SOCIAL FORESTRY DIVISION, ALAPPUZHA-688 007).** **3. SRI. C.JAYACHANDRAN, LDC, GOVERNMENT TIMBER DEPOT., THENMALA, PIN-691 308. (UNDER ORDERS OF TRANSFER TO SOCIAL FORESTRY DIVISION, ACHENCOIL).** **R1 BY SPL.GOVT.PLEADER SRI.M.P.PRAKASH R2 BY ADVS. SRI.S.SANAL KUMAR** **SMT.BHAVANA VELAYUDHAN SMT.T.J.SEEMA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **AV** ## **WPC.NO.20094/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** **EXT.P1 : COPY OF SERVICE ORDER NO.12/2010 DATED 22/03/2010.** **EXT.P2 : COPY OF SERVICE ORDER NO.6/2011 DATED 1/6/2011.** **EXT.P3 : COPY OF SERVICE ORDER NO.11/2011 DATED 20/07/2011.** **EXT.P4 : COPY OF LETTER DATED 27-3-2008 OF THE FIRST RESPONDENT. EXT.P5 : COPY OF APPLICATION DATED 3-2-2009 AND 8-1-2010 OF PETITIONER. EXT.P6 : COPY OF APPLICATION DATED 8-1-2010 OF PETITIONER.** ## **RESPONDENT'S EXHIBITS : NIL** ## **/TRUE COPY/** **P.A TO JUDGE** **AV** ## **K.SURENDRA MOHAN, J** --------------------------------------------- W.P.(c)No.20094 of 2011 --------------------------------------------Dated this the 21[st] day of November 2011 ## **JUDGMENT** The petitioner has filed this writ petition challenging his transfer from the Social Forestry Division, Alappuzha to Thenmala as per Ext.P3 order. According to the petitioner, he has been transferred only to accommodate the second respondent. The fourth respondent has been transferred to Achencoil Division in an existing vacancy. 2. According to the petitioner, he is a person who belongs to Muhamma in Alappuzha District. Therefore, he had submitted a request for transfer to his home station. His request was granted and he was transferred to the Social Forestry Division, Alappuzha as per Ext.P1 order dated 22.3.2010. Pursuant to Ext.P1, he joined duty on 31.3.2010. Thereafter, the general transfer for the year 2011 was effected as per Ext.P2 order dated 1.6.2011. The name of the petitioner does not find a place in Ext.P2. Wpc No.20094/2011 2 Subsequently, after the general transfer was over, Ext.P3 order dated 20.7.2011 has been issued transferring the petitioner to Government Timber Depot, Thenmala. The petitioner is Sl.No.2 in the said order. As per the very same order, the second respondent has been transferred to the Social Forestry Division, Alappuzha in the place of the petitioner. The second respondent is Sl.No.11 in Ext.P3. 3. It is the specific case of the petitioner in his writ petition that the transfer of the second petitioner to Alappuzha was on request and that it was to accommodate the second respondent that the petitioner was transferred to Thenmala. Further, the petitioner having joined at Alappuzha only on 31.3.2010, a second transfer within such a short span of time was absolutely uncalled for and unjustified. It is also contended that the transfer of the petitioner as per Ext.P3 is violative of the transfer norms and is vitiated by extraneous consideration. Therefore, he seeks the issue of appropriate directions setting aside Ext.P3 order of transfer. 4. A counter affidavit has been filed on behalf of the Wpc No.20094/2011 3 first respondent. The explanation in the counter affidavit is that from the 12 incumbents who are transferred as per Ext.P3, the petitioner has been transferred on administrative grounds while the second respondent has been transferred on her request. It is further stated in the counter affidavit that the petitioner had been on deputation for varying periods, initially to the Tailoring Workers Welfare Fund Board, Alappuzha and thereafter to the Kerala Toddy Workers Welfare Fund Board, Alappuzha. While, being on deputation, he had managed to stay on at Alappuzha for the past many years, it is pointed out. Thus, out of his total service of 10 years and five months, he was in Alappuzha District for about 6 and ½ years. 5. In the case of the second respondent, after her initial entry into service in 1995 at Thiruvananthapuram, till 1997, she was in the Veeyapuram Depot of Alappuzha District. Thereafter, she was in the Social Forestry Division, Alappuzha. From 11.6.2001 to 25.9.2009, she was in the office of the Conservator of Forests, Southern Circle, Kollam. Thereafter, from 26.9.2001 to 23.4.2002, Wpc No.20094/2011 4 she again worked in the Social Forestry Division, Alappuzha. From 24.4.2002 to 2.6.2003, she worked in the office of the Conservator of Forests, Kottayam and thereafter, till 16.11.2009 at the Social Forestry Division, Alappuzha. From 17.11.2009 to 4.3.2010, she worked in the same office as an Upper Division Clerk. From 5.3.2010 to 7.7.2011, she was on leave without allowances and she joined the Divisional Forest Office, Kottayam only on 8.7.2011. It was in the above circumstances that she was transferred to Alappuzha again as per Ext.P3 on 20.7.2011 on her request. According to the first respondent, the transfers and postings in Ext.P3 were not vitiated by malafides. 6. The second respondent has filed a counter affidavit more or less on the same terms as the counter affidavit of the first respondent. In addition, she contends that her request for a transfer to Alappuzha District was on health grounds. She is a person suffering from tuberculoma. Since she had to undertake long journeys consequent to her transfer to Kottayam District, she had been on leave for four months together, foregoing her Wpc No.20094/2011 5 salary. Her husband is a practising lawyer and her only daughter is aged 14 years studying in the 10[th] class. Further, according to the second respondent, the petitioner has suppressed a material fact in his writ petition that he had been on deputation to the Toddy Workers Welfare Fund Board for a period of five years. The above suppression, according to her, disentitles him from claiming any discretionary relief from this Court. 7. According to the counsel for the petitioner, though this Court has held in a number of decisions that transfers and postings on administrative grounds are permissible, such power is neither unfettered nor unbridled. Reliance is also placed on a decision of this Court where it has been held that effecting a mutual transfer on the request of one of the parties cannot be sustained on the ground of administrative convenience. The learned Government Pleader contended that since the transfer was one made on administrative grounds and since there is no material available to conclude that the same was vitiated in any manner, the writ petition may be dismissed. The counsel for the second respondent also Wpc No.20094/2011 6 contended that this writ petition is liable to be dismissed. 8. I have heard the counsel for the contesting parties in detail. I have given anxious consideration to the various contentions advanced before me. 9. It is not in dispute that the petitioner was posted to Alappuzha as per Ext.P1 order dated 22.3.2010, on his request. It appears that the petitioner was on deputation to the Kerala Toddy Workers Welfare Fund Board till then, but was remaining posted at Alappuzha. However, as rightly pointed out by the counsel for the petitioner, as per clause-5 of G.O.(P) No.12/04/P&ARD dated 10.9.2004 containing the transfer norms, deputation period is not to be counted while computing the period that a person had been posted at a particular station. In view of the above express stipulation, the period of deputation cannot be reckoned while considering whether the petitioner was posted at Alappuzha before his transfer or not. It is worth noticing from Ext.P1 that as per the very same order, the petitioner has been transferred and posted to Kottayam Division. She is Sl.No.19 in Ext.P1. The date of Ext.P1 is 22.3.2010. Though she was transferred to Kottayam Wpc No.20094/2011 7 Division as per Ext.P1, as evident from the statements contained in paragraph-5 of the counter affidavit filed on behalf of the first respondent, she has not worked there at all, for the reason that she had been on leave without allowances from 5.3.2010 to 7.7.2011. She joined duty at Kottayam only on 8.7.2011 just before Ext.P3 order was issued on 20.7.2011. 10. Further, as per Ext.P3, though 12 persons have been transferred and posted to various places, it has been specifically stated in the last paragraph thereof that, “the transfer of the Clerks except Sl.Nos.2 and 5 are at their request; they are not entitled for joining time” 11. Sl.No.2 is the petitioner. Sl.No.5 has been posted to an existing vacancy. Therefore, it is clear from Ext.P3 that all the transfers made as per the said order are on the basis of requests. It is thus clear that the petitioner has been transferred only to provide a posting for the second respondent. The conduct of the second respondent who was continuously on leave from 5.3.2010 in joining duty on 8.7.2011 just before the issue of Ext.P3 is also a circumstance that arouses suspicion. It appears Wpc No.20094/2011 8 as though she had joined duty only to receive the transfer order that she had been expecting. 12. A similar situation had come up for consideration before this Court in **Ambika** v **Chief Engineer, P.W.D.Administration** (2010(2) KLT 610). After considering the question, C.T.Ravikumar,J. has made the following observation at page 613. “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”. 13. In the present case also, for the reasons noted above, it is clear that the petitioner has been displaced to provide a convenient posting for the second respondent. As rightly held by this Court in the decision referred to above, 'administrative grounds' is not an expression that could be used to clothe every action with a cloak of legality. In the facts and circumstances of the present Wpc No.20094/2011 9 case, it is clear that there is no administrative ground involved in the transfer of the petitioner. 14. Apart from the above, the petitioner who had been granted a transfer on request as per Ext.P1 was not permitted to remain in the station opted by him for the period stipulated by the transfer norms. Therefore, the transfer order Ext.P3 is in violation of the norms as well. Further, Ext.P3 order has been issued after the issue of Ext.P2 order of general transfer. Ext.P3 is therefore an untimely order of transfer, displacing the petitioner who was not sought to be transferred as per the order of general transfer, Ext.P2. 15. For the foregoing reasons, Ext.P3 is held to be unsustainable and is accordingly set aside to the extent it seeks to transfer the petitioner from Alappuzha to Thenmala and post the second respondent in his place. This writ petition is allowed on the above terms. No costs. **SD/-K.SURENDRA MOHAN, JUDGE** TRUE COPY **css/** P.S.TO JUDGE