C. Asokan v. State of Kerala

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR** **FRIDAY, THE 4TH NOVEMBER 2011 / 13TH KARTHIKA 1933** **WP(C).No. 17607 of 2011(A)** **---------------------------------------** ## **PETITIONER(S):** **-------------------------** **C.ASOKAN, ASSISTANT COMMANDANT,SPECIAL ARMED POLICE, PEROORKADA, THIRUVANANTHAPURAM-695 005** **BY ADVS. SRI.B.RAGUNATHAN SRI.R.SRINATH SRI.PRASANTH.P. M.M.LALBIND** ## **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA REP.BY PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001** **2. DIRECTOR GENERAL OF POLICE (STATE POLICE CHIEF)POLICE HEAD QUARTERS, THRIUVANANTHAPURAM-695 010** - ***ADDL.R3 & R4 ARE IMPLEADED** - ***R3: SHRI.G.PRAKASH, ASSISTANT COMMANDANT MSP, MALAPPURAM.PIN-676 505.** - ***R4: SHRI.P.V.RAJU, ASSISTANT COMMANDANT KAP V BATTALLION, MANIYAR PATHANAMTHITTA.PIN-689 662.** - ***ADDL.R3 & R4 ARE IMPLEADED AS PER ORDER DATED 28/7/2011 IN IA NO.12341/2011.** **R1 & R2 BY GOVERNMENT PLEADER SRI.V.MANILAL, ADDL.R3 & R4 SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE, ADVS.SMT. K. RADHAMANI AMMA, SRI. K.MURALEEDHARAN NAIR.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/11/2011,ALONG WITH WPC NO.17719 OF 2011 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.17607/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **P1 COPY OF THE G.O.(RT)NO.1909/2011/HOME DATED 27/6/2011. P2 COPY OF THE G.O.(RT)NO.1017/2011/HOME DATED 21/3/2011. RESPONDENT'S EXHIBITS: NIL /TRUE COPY/** **P.S.TO.JUDGE** **sts** ## **C.T. RAVIKUMAR, J** **- - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P.(C)Nos.17607 & 17719 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 4[th] day of November, 2011** ## **J U D G M E N T** The petitioners in these writ petitions are presently working as Assistant Commandants in Special Armed Police Battalion Thiruvananthapuram. It is challenging the order of transfer in G.O(Rt) No.1909/2011/Home dated 27.6.2011, produced respectively as Ext.P1 in both these writ petitions that these writ petitions have been filed. As per Ext.P1 the petitioner in the former writ petition has been transferred and posted from SAP Thiruvananthapuram to Kerala Armed Police I Battalion at Thrissur and the petitioner in the latter writ petition has been transferred and posted from SAP Thiruvananthapuram to Kerala Armed Police II Battalion at Palakkad. The respondents are common in both the writ petitions. That apart, there is commonness in the claims, contentions, and grievances of the petitioners and therefore, they were heard jointly. 2. The petitioner in the former writ petition was appointed as Assistant Armed Police Inspector under sports WPC.Nos.17607 & 17719/2011 : 2 : quota on 14.10.1986 and the petitioner in the latter writ petition was appointed as Police Constable under sports quota on 5.3.1984. On getting further promotions they reached the present post viz., Assistant Commandant. In fact, both of them were promoted to the post of Assistant Commandant by one and the same order viz., G.O(Rt)No.1017/2011/Home dated 21.3.2011. According to the petitioners they opted Thiruvananthapuram as their home station. The petitioner in the former writ petition is a native of Kannur where as the petitioner in the latter writ petition is a native of Thiruvananthapuram. The contention of the petitioners is that they have been transferred from their respective present units as per Ext.P1 order dated 27.6.2011 not on account of any public interest or exigency of service. The petitioner in the former writ petition had been in the security unit of the Finance Minister during 2006-10 and the petitioner in the latter writ petition had been in the security unit of the Minister for Law and Parliamentary Affairs from 8.9.2010 to 21.3.2011. According to them, it is their association with the said ministers of the previous government in the aforesaid capacities that led to their transfer from Thiruvananthapuram as per Ext.P1 dated 27.6.2011. Ext.P1 order of transfer WPC.Nos.17607 & 17719/2011 : 3 : would create considerable inconveniences and hardships to them and their family members besides being violative of transfer norms, it is contended. It is further contended that the order of transfer is politically motivated and as such, it is an outcome of a mala fide exercise of power. In the writ petition it was stated that nobody was specifically posted in their respective places and Ext.P1 order of transfer was not served on them and as such they are continuing in the present stations. While admitting these writ petitions this court passed interim orders directing the respondents to allow the petitioners to continue as Assistant Commandants in their respective units at Thiruvananthapuram and it is on its strength that they are, now, continuing as Assistant Commandants in Thiruvananthapuram in the aforesaid units. Subsequently, additional respondents 3 and 4 who are holding the post of Assistant Commandant in Kerala Police Service have been arrayed as parties to these writ petitions. In fact, as per Ext.P1 transfer order they were transferred and posted to SAP Battalion at Thiruvananthapuram. The grievance of the additional 3[rd] and 4[th] respondent is that on account of the interim orders pased by this Court in these writ petitions they are not able to join at the transferred places viz., SAP WPC.Nos.17607 & 17719/2011 : 4 : ## Battalion at Thiruvananthapuram. 3. A counter affidavit has been filed in this writ petition on behalf of the second respondent. The second respondent has refuted the allegation of the petitioners that that Ext.P1 is politically motivated. It is stated therein that the petitioners have been continuing in Thiruvananthapuram for the past several years and that the order of transfer has been issued purely on administrative grounds. 4. I have heard the learned counsel for the petitioners, the learned Government Pleader and also the learned Senior Counsel for the additional respondents 3 and 4. 5. As already noticed hereinbefore, the petitioners assail Ext.P1 order of transfer alleging that it is politically motivated. The petitioner in the former writ petition had been in the security unit of the Finance Minister of the State from 200610 and the petitioner in the latter writ petition had been in the security unit of Minister for Law and Parliamentary Affairs from 8.9.2010 to 21.3.2011. It is their contention that they have been transferred as per Ext.P1 solely on account of the same. It is in the said circumstances, that they attribute malafides and contend that they have been transferred on account of extraneous and irrelevant considerations. It is WPC.Nos.17607 & 17719/2011 : 5 : further contended that the additional respondents have been working in Thiruvananthapuram for the past ten years or thereabouts and, therefore, there is absolutely no reason or justification for transferring the petitioners from Thiruvananthapuram citing long continuance. The learned Senior Counsel for the party respondents relied on a decisions of this Court in **Dr.Sivaramakrishnan P. v. State of Kerala (2008(2)KHC 891)** , **Basheer J v. State of Kerala(2010(3) KHC 701)** and the decisions of the Hon'ble Apex Court reported in **Rajendra Singh v. State of U.P.(2009(15)SCC 178)** and **Union of India v. Muralidhara Menon (2009(9) SCC 304)** . In the decision of the Hon'ble Apex Court in **Rajendra Singh v. State of U.P.(2009(15)SCC 178)** it has been held that a Government servant has no vested right to remain posted at a place of his choice, nor can he insist that he must be posted at one place or the other. It is further held that the Government servant is liable to be transferred in the administrative exigencies from one place to the other. In **Union of India v. Muralidhara Menon (2009(9)SCC 304)** the Hon'ble Apex Court held that transfer is an incident of service and no employee has a right to be posted at a WPC.Nos.17607 & 17719/2011 : 6 : particular place. Further it was held that such a discretionary jurisdiction exercised by statutory authorities calls for no interference unless a clear case for interference is made out. In **Basheer J v. State of Kerala(2010(3)KHC 701)** a Division Bench of this Court held that mere violation of administrative guidelines while transferring an employee would not confer any enforceable right on such employee to challenge the same. In the decision in **Dr.Sivaramakrishnan P. v. State of Kerala (2008(2)KHC 891)** it was held that unless the concerned petitioner establishes that the transfer was vitiated by malafides or that it was against statutory rules or that the authority had acted beyond jurisdiction an order of transfer calls for no interference. Relying on the aforesaid decision it is contended by the respondents that the petitioners have failed to establish that Ext.P1 order to the extent it pertains to them as also the additional respondents 3 and 4 was issued on extraneous and irrelevant considerations and that the order of transfer is vitiated by malafides. The mere contention that it is violative of transfer norms cannot be a reason for interfering with Ext.P1, it is further contended. As already noticed hereinbefore, the petitioners' contention is WPC.Nos.17607 & 17719/2011 : 7 : that the transfer is vitiated by malafides and it is only on account of extraneous and irrelevant consideration that they had been in the security units of Ministers under the previous Government that they have been ordered to be transferred as per Ext.P1. I have carefully considered the grounds raised by the petitioner to assail Ext.P1. Apart from the vague allegations that Ext.P1 was issued on extraneous and irrelevant consideration and that it is politically motivated, the petitioners have failed to establish the same. The mere contention that they had been in the security unit of the Ministers under the previous Government and therefore they have been chosen for transfer, cannot be a reason to interfere with an order of transfer. Transfer is an incident of service. Merely because some others including party respondents are having longer stay in Thiruvananthapuram District cannot be accepted as a reason for interferring with an order of transfer. So also, the mere fact that Thiruvananthapuram has been chosen by the petitioners as their home station cannot confer on them any vested right to get posted at Thiruvananthapuram itself, at all times. Evidently, they have been in Thiruvananthapuram for quite a long time. No grounds have been made out by the petitioners warranting interference WPC.Nos.17607 & 17719/2011 : 8 : with the power exercised by the first respondent by issuing Ext.P1 order of transfer. The petitioners did not dispute the fact that they have been in Thiruvananthapuram District for the past 5 years. The petitioners cannot contend that they are having a right to remain posted in Thiruvananthapuram itself. The said settled position together with the failure to establish that Ext.P1 is actuated by malafides persuade this Court to reject the challenge against Ext.P1 made by the petitioners. As a result, these writ petitions are liable to fail. Accordingly, these writ petitions are dismissed. Sd/- ## **(C.T. RAVIKUMAR, JUDGE)** jma ///true copy/// P. A to Judge