Dhanya Ganesh v. Kerala Livestock Development Board

1 WPC 10907 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **WEDNESDAY, THE 24TH DAY OF JUNE 2020 / 3RD ASHADHA, 1942** **WP(C).No.10907 OF 2020(K)** ## **PETITIONER/S:** **DHANYA GANESH AGED 40 YEARS D/O. KAVIL BALAKRISHNAN, DEPUTY MANAGER (FD), KERALA LIVESTOCK DEVELOPMENT BOARD, MATTUPATTY UNIT ON WORKING ARRANGEMENT AT DHONI UNIT, RESIDING AT QUARTERS NUMBER B4, KLDB QUARTERS, DHONI, PALAKKAD 678 009.** **BY ADVS. SRI.JACOB SEBASTIAN SRI.K.V.WINSTON SMT.ANU JACOB** ## **RESPONDENT/S:** |**1**|**KERALA LIVESTOCK DEVELOPMENT BOARD**| |---|---| ||**GOKULAM, PATTOM, THIRUVANANTHAPURAM 695 004,**| ||**REPRESENTED BY ITS MANAGING DIRECTOR.**| |**2**|**THE MANAGING DIRECTOR,**| ||**KERALA LIVESTOCK DEVELOPMENT BOARD, PATTOM,**| ||**THIRUVANANTHAPURAM 695 004.**| |**3**|**THE UNIT HEAD,**| ||**KERALA LIVESTOCK DEVELOPMENT BOARD DHONI UNIT,**| ||**DHONI, PALAKKAD 678 009.**| |**4**|**THE UNIT HEAD,**| ||**KERALA LIVESTOCK DEVELOPMENT BOARD, KULATHUPUZHA**| ||**FARM, KULATHUPUZHA, KOLLAM 691 310.**| ## **R1-4 BY ADV. SRI.MILLU DANDAPANI** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19-062020, THE COURT ON 24-06-2020 DELIVERED THE FOLLOWING:** 2 WPC 10907 OF 2020 ## **C.S.DIAS, J. ====================== WP(C) No.10907 of 2020 ====================== Dated this the 24[th] day of June, 2020.** ## **JUDGMENT** The petitioner is aggrieved by Ext P1 order passed by the second respondent, transferring her from Dhoni Unit (In Charge of Field Level Fodder Plan Scheme) and posting her at Kulathupuzha farm of the first respondent. 2. It is the case of the petitioner that, she was appointed as an Assistant Manager in the first respondent Board. She was working at Mattupatty and Dhoni for different spells. She was promoted on 30.1.2018 as Deputy Manager and was posted at Mattupatty farm. On 16.4.2018, the second respondent had issued orders permitting the petitioner to work at Dhoni under a working arrangement. Thereafter, on 31.5.2019, the second respondent issued orders transferring the petitioner to the Unit at Mattupatty. But, the second respondent issued orders placing the petitioner at Dhoni Unit under working arrangement. Now, by Ext P1 order, the petitioner has been transferred from 3 WPC 10907 OF 2020 Dhoni Unit to Kulathupuzha Unit. 3. The petitioner has averred that she is suffering from fibroid in her uterus, and her father is partially paralyzed due to Parkinson disease and is under treatment. The petitioner is a divorcee. She has a eleven year old son, pursuing his studies at Palakkad. Her aged and infirm parents are residing with her. The farm at Kulathupuzha, to where she stands transferred, is a remote location in a difficult terrain. There are no treatment or educational facilities at Kulathupuzha, hence, the petitioner cannot leave her child and parents at Palakkad and go to Kulathupuzha. The petitioner has also pointed out that in Ext P1 order, no one else is appointed/placed as substitute for the petitioner. The petitioner is a native of Kasargod and she has never been posted at a station of her choice. 4. Aggrieved by Ext P1 order of transfer and posting, the petitioner has submitted Ext P3 representation before the second respondent, seeking to reconsider the decision. The petitioner also has a case that Kulathupuzha is now a Covid10 hotspot and it would be dangerous for her to go over there. Hence, the petitioner seeks to quash Ext P1 order of 4 WPC 10907 OF 2020 transfer, so far as it relates to her, and direct the second respondent to consider Ext P3 representation and pass appropriate orders on it. 5. The respondents 1 to 4, have through their learned Standing Counsel, filed a statement. The respondents have refuted the allegations in the writ petition. It is the case of the respondents that Ext P1 is a general order of transfer, by which 32 employees have been transferred to different Units. Ext P1 has been issued as per Clause 31 of the Staff Rules and Regulations of the Board. Except for the petitioner, the other 31 employees have already reported to the transferred stations and joined duty. The respondents have stoutly denied the allegation that the petitioner has never been placed at station of her choice. The respondents have placed reliance on Exts R1(b) to R1 (d) orders to substantiate their contention, that the petitioner has always been granted a posting of her choice that too on her representations. 6. According to the respondents, the petitioner was engaged on working arrangement with the Kudumbasree Linked Forage Development. The Scheme was funded by the Government. But due to financial constraints in view of the 5 WPC 10907 OF 2020 Covid-19 pandemic, the Government has decided to curtail the Scheme. Therefore, there is no necessity to maintain professionals like the petitioner at the Dhoni farm. Accordingly, the first respondent has taken the decision to redeploy the officers in the cadre of Deputy Managers of the Dhoni farm and other field staff of the agricultural wing extension to other Units. It is in the above exigency that Ext P1 transfer and posting order has been issued by the second respondent, transferring and posting 32 employees to different stations as mentioned in Ext P1. 7. The specific contention of the respondents is that out of the total 8 years of service that the petitioner has rendered, seven years have been at Dhoni farm itself. The contention of the petitioner that it is dangerous for her to be transferred to Kulathupuzha due to Covid-19 pandemic is of no significance because different Units of the Board are within the Covid-19 hot spots and all the other 31 employees have joined the respective stations without any demur or protest, and the lockdown restrictions have been been eased. The respondents have relied on the precedents of the Hon'ble Supreme Court to drive home their contention that 6 WPC 10907 OF 2020 Government servants have no vested legal right to be posted at a particular station, that transfer is an incident of service and that the scope of judicial review in the matters of transfer is limited. 8. Heard Sri.Jacob Sebastian, the learned counsel appearing for the petitioner and Smt.Sumathi Dandapani, the learned Senior Counsel appearing for the respondents. 9. The learned counsel for the petitioner argued that the petitioner has never been posted at a place of her choice, after she joined service in the year 2012. Kulathupuzha is situated in Kollam district near the Tamil Nadu border. It is very difficult for the petitioner to travel all the way from Palakkad to Kulathupuzha, where there is no medical and educational facilities. The petitioner would have to stay at Kulathupuzha, leaving her child and aged parents at Palakkad. He prayed that Ext P1, so far as it relates to the petitioner, may be quashed and the second respondent may be directed to compassionately consider Ext P3 and the petitioner may be retained at Dhoni itself. 10. The learned Senior Counsel appearing for the respondents argued that the petitioner has been working at 7 WPC 10907 OF 2020 Dhoni Unit for the last seven years. Although, the petitioner was transferred on more than three occasions, to different places, on the petitioner's request, the Board has shown utmost benevolence and acceded to the petitioner's request. The learned Senior Counsel pointed out that, in 2012, the petitioner was transferred to Mattupatty. On the day she joined duty, she submitted a representation for transfer to Dhoni, where she was last posted, citing the convenience of her family. This was accepted by the first respondent as per Ext R1 (c). Again on completing five years of service in the feeder category at Dhoni, the petitioner was promoted on 30.1.2018, as Deputy Manager and posted at Mattupatty. On 19.2.2018, the petitioner reported in the promoted post and joined Mattupatty. Immediately, she availed leave and requested for transfer to Dhoni, on health grounds. The first respondent took a compassionate view as per Ext R1(d) and permitted the petitioner to rejoin at Dhoni. The learned Senior Counsel contended that while joining in the Kudumbasree Linked Forage Development Scheme, the petitioner was very well aware that her assignment would be completed by 31.3.2020. On the request made by the 8 WPC 10907 OF 2020 petitioner to permit her to continue at Dhoni during the lockdown period, the same was also favourably considered. All these facts substantiate that utmost leniency has been shown to the petitioner. Even during the pendency of this writ petition, the petitioner had requested for time to join duty at Kulathupuzha, which was also favourably considered by extending the date for joining duty by ten days. Now, the petitioner has submitted a letter to the Manager of Kulathupuzha, seeking for further extension by ten days to join the station. The above facts reveal that the petitioner wants to somehow stick to Dhoni, where her services are no longer required, as the Government has curtailed the Scheme. Hence, there are no grounds warranting interference by this Court under Article 226 of the Constitution of India. 11. The sole question that emerges for consideration in this writ petition is whether Ext P1 transfer and posting order is justifiable or not. 12. The scope of judicial review, in matters relating to transfer and posting of employees, under Article 226 of the Constitution of India, is well settled in a host of judicial 9 WPC 10907 OF 2020 pronouncements rendered by the Hon'ble Supreme Court. 13. In **Shilpi Bose and Others v. State of Bihar and Others** [(1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed as follows: ## “ 4. In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day trasnfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders.” 14. The above legal proposition has been reiterated by the Hon'ble Supreme Court in **State of M.P. and Another v.** **S.S.Kourav and others** [(1995) 3 SCC 270], wherein, it is laid down thus: “4..............................................................The 10 WPC 10907 OF 2020 Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation................................................................ .............................................................” ## 15. Again, in **Somesh Tiwari v. Union of India and** **Others** [(2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows: “20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law.” 16. A Division Bench of this Court in **Gopinathan M and Another v. State of Kerala and Others** [ 2014 (4) KLT 285] observed as follows: **“** 11.Therefore, if the service of an employee is found to be not satisfactory at a particular place for whatever reasons, it would be open to the employer to take such remedial measures as are permissible 11 WPC 10907 OF 2020 under law to meet the requirements of that situation, like initiation of disciplinary proceedings or transferring the employee out of that place. If the employer opines that mere transfer of the employee would suffice the interest of the administration and accordingly orders transfer of such employee, such order of transfer need not necessarily be a measure of punishment to such employee.” xxxxxxxxxxxxxxxxxxxxxxxxxxxx xxxxxxxxxxxxxxxxxxxxxxxxxxxx 14. It is the choice of the employer to determine how long the service of an employee is required in a particular post or at a particular place. The order or transfer does not affect any legal rights of the employee and the Court or Tribunal cannot interfere with an order of transfer or posting, which is made in public interest or on administrative exigency. However, if the power of transfer is abused or the transfer is not made in public interest, but for collateral purposes and with oblique motive, the order would stand vitiated, warranting interference of the Court or Tribunal.” 17. Ext P1, a general transfer and posting order, shows that 32 employees of the first respondent Board have been transferred and posted at different stations, on the basis of an administrative decision taken by the first respondent Board, to meet administrative exigencies. The petitioner does not dispute Exts R1 (b) to R1 (e), whereby the first 12 WPC 10907 OF 2020 respondent has compassionately acceded to all the earlier requests made by the petitioner, on one ground or the other. The petitioner has been working at Dhoni for the last seven years, out of her eight years service. The petitioner also does not dispute the stand of the respondents that the Government has curtailed the Kudumbasree Linked Forage Development Scheme due to the Covid-19 pandemic, consequentially the services of professionals in the field of agricultural wing at Dhoni farm are no longer required there. Therefore, the first respondent has redeployed the employees from the Dhoni Unit to other Units of the first respondent. Moreover, the petitioner does not have a case that Ext P1 is actuated by malafides or favoritism. The personal difficulties and the Covid-19 pandemic restrictions projected by the petitioner, according to me, falls into a pale of insignificance and stands overridden in public interest, in light of administrative reasons assigned by the respondents. 18. It is trite law that an employee has no vested legal right to dictate terms to the employer, that he has to be posted at a particular station of his choice, to suit his convenience. When there is no malafides in the transfer or 13 WPC 10907 OF 2020 the same is not vitiated by arbitrariness, but is an incident of service, there is no scope for judicial review. 19. On an anxious consideration of the the rival pleadings and the submissions made by the respective counsel, and the settled law in the afore-cited precedents, I am of the firm opinion that Ext P1 order passed against the petitioner is not vitiated by malafides, but is passed to meet an administrative exigency and is an incident of service. Therefore, I hold Ext P1 order, legal. I do not find any ground warranting interference by this Court, in the exercise of its powers under Article 226 of the Constitution of India, in the transfer of the petitioner as per Ext.P1 order. Resultantly, this writ petition is dismissed. At the time of pronouncing this judgment, the learned counsel appearing for the petitioner sought for a weeks time to join the present station. The learned Senior Counsel appearing for the the respondents, on instructions, submitted that the petitioner has already given ample time to join at Kulathupuzha farm, which has expired on 08.06.2020. However, taking a lenient view to give the petitioner a breathing time to join a new station, I feel that the petitioner 14 WPC 10907 OF 2020 can be granted a week's time to make all the necessary arrangements. Accordingly, I direct the petitioner to join the Kulathupzha farm of the 1[st] respondent on or before 01.07.2020. sd/- **C.S.DIAS JUDGE** sks/19.6.2020 15 WPC 10907 OF 2020 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE ORDER DATED 26.05.2020 ISSUED BY THE SECOND RESPONDENT. EXHIBIT P2 A TRUE COPY OF THE CERTIFICATE DATED 31.05.2020 ISSUED FROM THE SOUPARNIKA AYURVEDIC HOSPITAL, PONNANI BY THE DOCTOR TREATING THE PETITIONERS FATHER. EXHIBIT P3 A TRUE COPY OF THE REPRESENTATION DATED** **A TRUE COPY OF THE REPRESENTATION DATED 30.05.2020 SUBMITTED BY THE PETITIONER ALONG WITH POSTAL RECEIPT.** **TRUE COPY OF THE LETTER BEARING NO.PMB/147/2018 EXHIBIT (ANNEXURE) DATED 8.6.2020 ISSUED BY THE SECOND RESPONDENT TO THE PETITIONER R1(A)** **TRUE COPY OF THE ORDER BEARING NO.PM-B/3819/2011 EXHIBIT (ANNEXURE) DATED 23.3.2012 R1(B) EXHIBIT (ANNEXURE) TRUE COPY OF THE TRANSFER ORDER BEARING NO.PMB/510/2005 DATED 12.3.2013 R1(C) TRUE COPY OF THE ORDER BEARING NO.PMB/510/2005 EXHIBIT (ANNEXURE) DATED 16.4.2018 ISSUED TO THE PETITIONER R1(D)** **TRUE COPY OF THE E-MAIL DATED 30.3.2020 THROUGH EXHIBIT (ANNEXURE) WHICH THE COORDINATOR, SEED UNIT DHONI HAD R1(E) FORWARDED A REPRESENTATION REQUESTING PERMISSION TO CONTINUE AT DHONI UNIT DURING THE PERIOD OF LOCKDOWN IN CONNECTION WITH COVID-19 AS THE PERIOD IS ENDED ON 31.3.2020 EXHIBIT (ANNEXURE) TRUE COPY OF THE JOINING REPORT BEARING NO.B766/2020 DATED 5.6.2020 AND B-765/2020 DATED R1(F) 4.6.2020 RESPECTIVELY RECEIVED FROM THE KULATHUPUZHA UNIT EXHIBIT (ANNEXURE) R1(G) TRUE COPY OF THE LETTER BEARING NO.PMB/147/2018 DATED 5.6.2020 ISSUED BY THE SECOND RSPONDENT TO THE PETITIONER.** 16 WPC 10907 OF 2020