Dr. G. Rajasekharan Nair v State of Kerala and Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN FRIDAY, THE 19TH SEPTEMBER 2008 / 28TH BHADRA 1930 ## **WP(C).No. 17573 of 2008(P)** ## **PETITIONER** : DR.G. RAJASEKHARAN NAIR, SELECTION GRADE LECTURER IN LAW, GOVERNMNET LAW COLLEGE, KOZHIKODE. BY ADV. SRI.M.BALAGOVINDAN SRI.T.K.ANANDA PADMANABHAN ## **RESPONDENTS** : 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. PRINCIPAL, GOVERNMENT LAW COLLEGE, KOZHIKODE. ## **ADDITIONAL R3 IMPLEADED:** 3. S.BABU ABRAHAM, UNDER SECRETARY TO GOVERNMENT, HIGHER EDUCATION (C) DEPARTMENT, THIRUVANANTHAPURAM. ADDITIONAL THIRD RESPONDENT IS IMPLEADED AS PER ORDER DATED 26.6.2008 IN I.A.NO.8017 OF 2008. ## GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2008, ALONG WITH WP(C) NO.21630 OF 2008, THE COURT ON 19/09/2008 DELIVERED THE FOLLOWING: ## **APPENDIX (IN W.P.(C) NO.17573 OF 2008)** ## **' PETITIONER S EXHIBITS** : EXT.P1 TRUE COPY OF THE TRANSFER NORMS IN G.O.(MS) NO.19/2003/H.EDN. DATED 15.3.2003. EXT.P2 TRUE COPY OF THE REPRESENTATION DATED 7.2.2008. EXT.P3 TRUE COPY OF THE JUDGMENT IN W.P.(C) NO.12057 OF 2008 OF THIS COURT DATED 8.4.2008. EXT.P4 TRUE COPY OF THE ORDER IN G.O.(Rt) NO.819/2008 DATED 29.5.2008. EXT.P5 TRUE COPY OF THE ORDER IN G.O.(Rt) NO.794/2008 DATED 24.5.2008. EXT.P6 TRUE COPY OF THE ORDER IN G.O.(Rt) NO.880/2008/H.EDN. THIRUVANANTHAPURAM DATED 13.6.2008. ## **RESPONDENTS' EXHIBITS:** NIL //TRUE COPY// AHZ/ ## **K.T.SANKARAN, J.** **----------------------------------------------------W.P.(C) Nos.17573 & 21630 OF 2008 ----------------------------------------------------Dated this the 19[th] September, 2008** ## **JUDGMENT** The parties in these Writ Petitions are the same except that the third respondent in W.P.(C) No.21630 of 2008 is not a party to W.P.(C) No.17573 of 2008. These Writ Petitions were heard together and are being disposed of by this common judgment. Petitioner in both these Writ Petitions is Dr.G.Rajasekharan Nair (hereinafter referred to as the petitioner), who was working as Selection Grade Lecturer in law in Government Law College, Kozhikode and who was later promoted as the Principal and posted as such in the Government Law College, Thrissur. 2. W.P.(C) No.17573 of 2008 was filed at the time when the petitioner was working as Selection Grade Lecturer in law in the Government Law College, Kozhikode. His grievance was that his request for transfer to his home-station at Thiruvananthapuram was rejected as per Ext.P4 order dated 29.5.2008. The reason for rejection of the request was stated in Ext.P4 as follows: “Accordingly Government have examined the matter in detail and order that the transfer request (Exhibit P2) of Dr.G.Rajasekharan Nair, Lecturer in Law, Government Law College, Kozhikode cannot be considered now as there is no vacancy of Lecturer in Law in Government Law College, Thiruvananthapuram at present. This order is issued in compliance with the judgment read above.” W.P.(C) NOS.17573 & 21630 OF 2008 :: 2 :: 3. The petitioner had earlier filed W.P.(C) No.12057 of 2008 when his request for transfer was not considered by the first respondent. That Writ Petition was disposed of as per Ext.P3 judgment dated 8.4.2008, whereby the first respondent was directed to consider and pass orders on Ext.P2 representation submitted by the petitioner seeking a transfer to Government Law College, Thiruvananthapuram. Thereafter, the first respondent has passed Ext.P4 order dated 29.5.2008, the relevant portion of which is extracted above. The petitioner contended that on 24.5.2008, Smt. Usha, Selection Grade Lecturer in Law, Government Law College, Thiruvananthapuram, was promoted as Principal and was posted as such in the Government Law College, Thrissur. Therefore, a vacancy of Selection Grade Lecturer in Law was available in Government Law College, Thiruvananthapuram. The statement in Ext.P4 that there was no vacancy of Lecturer in Law in the Government Law College, Thiruvananthapuram as on 29.5.2008 is incorrect. On the basis of these facts, an interim order as prayed for was granted on 12.6.2008. The prayer for interim relief is to direct the first respondent not to pass any order to fill up the vacancies of Senior Lecturer in Government Law College, Thiruvananthapuram by any other incumbent other than the petitioner. I.A.No.8016 of 2008 was filed by the petitioner seeking to accept Ext.P6 order dated 13.6.2008, passed by the first respondent. In the affidavit accompanying the application, it is stated that after coming to ## W.P.(C) NOS.17573 & 21630 OF 2008 :: 3 :: know of the interim order dated 12.6.2008, the first respondent passed Ext.P6 order dated 13.6.2008, transferring one Dr.N.Krishna Kumar, Lecturer in Law, Government Law College, Thrissur and posting him in Government Law College, Thiruvananthapuram in the existing vacancy. I.A.No.8017 of 2008 was filed to implead Sri.S.Babu Abraham, Under Secretary to Government, as additional third respondent in W,P.(C) No.17573 of 2008. 4. On 14.7.2008, the first respondent passed an order by which the petitioner was promoted to the post of Principal and was posted as such in the Government Law College, Thrissur. By the very same order, Smt.S.Usha, Principal, Government Law College, Thrissur, was transferred and posted as such in the Government Law College, Thiruvananthapuram against the retirement vacancy of K.S.Ajayakumar. The petitioner has challenged the order dated 14.7.2008 in W.P.(C) No.21630 of 2008 wherein it is marked as Ext.P6. When W.P.(C) No.21630 of 2008 came up for admission on 17.7.2008, an interim stay of Ext.P6 order dated 14.7.2008 was granted for a period of two weeks. 5. In view of the subsequent events, W.P.(C) No.17573 of 2008 has practically become infructuous. Therefore, only W.P.(C) No.21630 of 2008 need be considered on the merits. W.P.(C) NOS.17573 & 21630 OF 2008 :: 4 :: 6. The case of the petitioner in W.P.(C) No.21630 of 2008 is that he has got only two years for superannuation; that he belongs to Thiruvananthapuram and that he has opted Thiruvananthapuram as his home-station. He claims that he is entitled to be posted at Thiruvananthapuram as he has completed three years of out-station service. The petitioner relies on Ext.P2 transfer norms dated 15.3.2003 (G.O.(MS)19/2003/H.Edn.) and also G.O.(P) No.13/2000/P&ARD dated 27.11.2000, which is referred to in Ext.P2. Petitioner also states that Smt.Usha (hereinafter referred to as the third respondent) is having four more years for retirement and that she is having only six months' outstation service. She was all along working at Thiruvananthapuram. The petitioner contends that he is the most eligible person to get transfer to Thiruvananthapuram. 7. The petitioner also contends that the first respondent passed the order dated 13.6.2008 referred to above only to defeat the interim order passed in W.P.(C) No.17573 of 2008. Thereafter, Ext.P6 order dated 14.7.2008 was passed by the first respondent whereby the petitioner was promoted as Principal and the third respondent who was working as Principal, Government Law College, Thrissur was transferred and posted as such in Government Law College, Thiruvananthapuram. W.P.(C) NOS.17573 & 21630 OF 2008 :: 5 :: According to the petitioner, he is the most eligible person to get a transfer to Thiruvananthapuram. He also contends that Ext.P6 order is violative of G.O.(P)No.13/2000. 8. The prayer in the Writ Petition is to quash Ext.P6 order to the extent to which it goes against the claim of the petitioner. It would appear that the contention of the petitioner is that after promotion as Principal, he should have been posted as such in Government Law College, Thiruvananthapuram. 9. In the counter affidavit, the third respondent has stated that she was relieved from Government Law College, Thrissur on 15.7.2008 as per Ext.R3(b) relieving order. She joined duty as Principal, Government Law College, Thiruvananthapuram on 16.7.2008 as evidenced by Ext.R3(c), before the date of the interim order in the Writ Petition. She contends that the petitioner has suppressed this material fact in the Writ Petition. She was transferred to Thiruvananthapuram as per her request in Ext.R3(e) representation dated 11.6.2008. 10. The third respondent disputes the statement of the petitioner that he joined service as Lecturer on 13.11.1986. She says that the petitioner was appointed as full time Lecturer only on 16.8.1989. The W.P.(C) NOS.17573 & 21630 OF 2008 :: 6 :: petitioner has outstation service of only three and a half years as against his claim that he has got outstation service for a period of twelve years. According to the third respondent, she has got more outstation service as Principal than that of the petitioner. The third respondent says that the petitioner was transferred from Law College, Thrissur to Law College, Kozhikode on the basis of a mass representation submitted by the students. The third respondent has averred in paragraph 12 of the counter affidavit thus: “12. The averments contained in para – 2 of the Writ Petition that the petitioner got two years more for superannuation is not correct and hence denied. It is submitted that the date of birth of the petitioner is 7.11.1955 and therefore normally the date of superannuation will be 7.11.2010. He is due to retire from service only on 31.3.2011. Therefore, it is clear that he is having 2 years 8 months and odd days to retire from service and 2 years 3 months and odd days for superannuation. Ext.P2 is the transfer norms fixed by the Government in respect of Lecturers in Law. Going by the above facts he is not even entitled for any preference under the said Order as claimed by the petitioner. Apart from that, the above G.O deals with the transfer norms of Lecturers in Law and the same has absolutely no connection with the 3[rd] respondent who was already promoted as Principal long before, which is a separate cadre in the service.” 11. The question to be considered in the matter is regarding the comparative merits of the petitioner and the third respondent to get a transfer to Government Law College, Thiruvananthapuram. In **Dr.George Jacob** v. **State of Kerala** (1989 (2) KLT 402, it was held: W.P.(C) NOS.17573 & 21630 OF 2008 :: 7 :: “I think it unnecessary – if not inexpedient – to evaluate comparative merits of two Government servants for purposes of transfer, or retention at a station. These are matters in the province of the Executive Government, so long as they act fairly.” ## 12. In **Dr.P.Sivaramakrishnan** v. **State of Kerala and others** (2008(2) KLJ 695 = 2008 (2) KHC 891) it was held as follows: “It is well settled that transfer of a government servant appointed to a particular cadre of transferable post is an incident of service. Transfer from one place to other, constitute a condition of service. There is no right vested in a government servant to continue at one station. No government servant has any legal right to claim for being posted at any particular place. An order of transfer would not be interfered with lightly in exercise of the extra ordinary jurisdiction under Article 226 of the Constitution of India, unless the court finds that the order is male fide or that it is against the service rules or that the authority who issued the order had no competence to pass the order. (See **Gujarat Electricity and another** v. **Atmaram Sungomal Poshani** ((1989) 2 SCC 602), **State of U.P and others v. Ashok Kumar Saxena and another** ((1998) 3 SCC 303), **State Bank of India v. Anjan Sanyal and others** ((2001) 5 SCC 508) and **Venkitaraman Potti v. Travancore Devaswom Board** (1993 (2) KLT 374).” 13. In the light of the principles of law mentioned above, it is apposite to consider the counter affidavit filed on behalf of respondents 1 and 4, wherein it is stated thus: “Government have examined the requests of said incumbents in detail and decided to transfer Smt.S.Usha, Principal, Government Law College, Thrissur to Government Law College, W.P.(C) NOS.17573 & 21630 OF 2008 :: 8 :: Thiruvananthapuram and Dr.G.Rajasekharan Nair, Selection Grade Lecturer in Law was promoted to the post of Principal and posted in Government Law College, Thrissur, since Smt.S.Usha is the Senior most among them. Accordingly orders has been issued vide G.O.(Rt) No.1036/08/H.Edn., dated 14-07-08 and Smt.S.Usha has taken the charge of Principal. It is submitted that by the time of receipt of interim order of this Honourable Court, Smt.S.Usha had taken charge on 16.7.2008 itself. 7. It is submitted that G.O.(Rt) No.1036/08/H.Edn. Dated 14-07-08 is not a general transfer order. It is a promotion order as far as the petitioner is concerned. As such Ext.P2 is not applicable in this case. It is also submitted that the petitioner is due to retire on 31-03-2011 thus he has more than 2 years of service for superannuation. The G.O.(MS) No.19/03/H.Edn., dated 15-032003 refers to norms of transfer and posting of lecturers. It has no relevance in the instant case as the appointment ordered are to the post of Principal. Hence, the averment of the petitioner is denied. ...... ....... 9. In the W.P.(C)No.21630/08, petitioner has claimed that he has more outstation service than Smt.S.Usha. It may be noted that G.O.(Rt)No.1036/08/H.Edn., dated 14-07-08 is not merely a general transfer order, it is a promotion, transfer and posting order and Smt.S.Usha who is senior to Dr.Rajasekharan Nair has legitimate claim to be posted at Thiruvananthapuram in the retirement vacancy. In the matter of appointment as Principal and Head of Institutions the norms for transfer of teachers contained in G.O.(MS)No.24/97/H.Edn need not apply. As such the contention as regard the outstation service is not applicable.” 14. In the facts and circumstances of the case, I do not think it proper to exercise the extra ordinary jurisdiction under Article 226 of the Constitution in favour of the petitioner to quash Ext.P6 order. However, if the petitioner is aggrieved by the non-consideration of his request for a transfer, the petitioner would be entitled to put forward his grievance before the first respondent. If an appropriate representation is submitted ## W.P.(C) NOS.17573 & 21630 OF 2008 :: 9 :: by the petitioner, the first respondent shall consider the same in accordance with law, after affording an opportunity of being heard to the petitioner and the third respondent as well as any other person who is likely to be affected, as expeditiously as possible. Accordingly, W.P.(C) No.17573 of 2008 is dismissed as infructuous and W.P.(C) No.21630 of 2008 is disposed of with the aforesaid observations and directions. No costs. **(K.T.SANKARAN) Judge** ahz/