J. Basheer v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 WA.No. 1152 of 2010 --------------------AGAINST THE JUDGEMENT IN WPC.20425/2010 DATED 01/07/2010 .................... APPELLANT/PETITIONER IN WPC.20425/2010: -------------------------------------------------- J.BASHEER, JUNIOR SUPERINTENDENT, DIRECTORATE OF TREASURES, POWER HOUSE ROAD, THIRUVANANTHAPURAM, RESIDING AT ARIF MANZIL, KULLOOMUKKU, KALLAMBALAM, KARAVARAM VILLAGE, CHIRAYINKEEZH TALUK, THIRUVANANTHAPURAM DISTRICT. BY ADV. SRI.VADAKARA V.V.N.MENON RESPONDENTS/RESPONDENTS: ---------------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE FINANCE SECRETARY, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. J.C.LEELA, JOINT DIRECTOR OF TREASURIES, DIRECTORATE OF TREASURIES. THIRUVANANTHAPURAM. 3. THE DIRECTOR OF TREASURIES, DIRECTORATE OF TREASURIES, POWER HOUSE ROAD, THIRUVANANTHAPURAM. R1 & R3 BY SPL. GOVT. PLEADER, SRI. MANOJ KUMAR N. R2 BY ADV. SRI. MATHEWS J. NEDUMPARA. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 20/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **J.Chelameswar, CJ. & P.N.Ravindran, J** . - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 1152 OF 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 20[th] day of July, 2010 ## **JUDGMENT** ## **J.Chelameswar, CJ.** The unsuccessful petitioner in W.P.(C) No.20425 of 2010 preferred this appeal aggrieved by the dismissal of the said writ petition by judgment dated 01.07.2010. 2. The appellant was posted in the Directorate of Treasuries as a Junior Superintendent at Thiruvananthapuram by an order dated 13.04.2010. Shortly thereafter, i.e. on 26.06.2010, by another order Ext.P4, he was transferred from Thiruvananthapuram to Kottayam. Therefore, the appellant approached this Court by way of the abovementioned writ petition challenging Ext.P4 transfer order. The writ petition was filed essentially on the ground that the appellant, who is due to retire on 31.03.2011, is sought to be transferred contrary to certain executive instructions issued by the State in GO(P) No.12/04/P&ARD dated 10.09.2004 read with GO(P) NO.13/2000/P&ARD dated 27.04.2000. The relevant Clauses WA No. 1152 of 2010 -:2:- relied on by the appellant in his writ petition are as follows: ## “Clause 3 'No employee who has completed 3 years of service in a particular station need necessarily be transferred unless there is a claimant who has worked three years in an outside station to be provided there; or unless a transfer of the existing incumbent has become necessary in public interest.' ## Clause 13 'Employees who have only two years to retire maybe posted to vacancies in Stations of their choice, giving preference to those who are due to retire earlier.'” 3. When the writ petition was taken up by the learned Judge, the learned Government Pleader on instructions submitted before the learned Judge that the appellant/writ petitioner had to be transferred by Ext.P4 order in view of his unsatisfactory performance in discharging his duties. Taking note of the said submission, the learned Judge of this Court dismissed the writ petition vide judgment under appeal and hence the appeal. 4. The only submission made by the learned counsel for WA No. 1152 of 2010 -:3:- the appellant is that the allegation of unsatisfactory performance of his duties made against the appellant tantamount to attaching a stigma to the order of transfer and therefore such an order which can be passed without complying with the requirements of the principle of natural justice is required to be held illegal. 5. We may point out that the original plea in the writ petition was one of non-compliance of the guidelines issued by the State. In the writ appeal that plea is not raised and a new ground is sought on the basis of the stand taken by the State in the writ petition. 6. Administrative guidelines such as one relied upon by the appellant do not confer any enforceable legal right, more particularly, in the context of the employment under the State is too well settled in law in this country which need not have elaboration. 7. However, the new ground that sought to be urged is very vehemently insisting upon inviting the attention of this Court. According to us, even this ground is to be rejected in WA No. 1152 of 2010 -:4:- view of the Apex Court decision in **Union of India v. Janardhan Debanath** [(2004) 4 SCC 245]. The Supreme Court repeatedly held that the transfer is incidence of service which is not to be interfered by the Court in exercise of its jurisdiction under Articles 226 and 227 of the Constitution of India. Transfers are normally made by the State in the exigencies of service taking various factors into account such as the efficiency of the administration, the desirability of continuing a particular individual at a particular station for a long period etc. If the service of an employee of the State is found to be not satisfactory at a particular station, for whatever good or bad reasons, it is open to the employer/State to take such remedial measures as are permissible under law to meet the requirements of the situation including initiation of disciplinary action. But the employer need not resort to such an action in every case; but opine that mere suffering of the employee would suffice the interests of the administration. Such transfer need not necessarily be a measure of punishment to the employee. WA No. 1152 of 2010 -:5:- The primary consideration of the State is to improve the efficiency of the administration. Therefore, the State may decide to replace the existing inefficient employee with a more efficient employee. Assessment of efficiency of an employee is a matter for the subjective satisfaction of the State and its officers. 8. An employee sought to be transferred on the ground that his performance was found lacking in efficiency by his superiors, in our opinion, cannot be heard to say that the expression of such an opinion when called upon by the Court to explain the reasons for transfer would tantamount to attaching stigma to the order of transfer. In our opinion, accepting such an argument would be pushing the State to be in an enviable position where it would fall on the ground of arbitrariness, if no reason whatsoever is given for the transfer and would fall on the ground of non-compliance with the requirements of the principles of natural justice when the State seeks to give reasons for the transfer. We are of the opinion that the law cannot be so unreasonable. The various authorities of the WA No. 1152 of 2010 -:6:- Apex Court which held that, an order of transfer with stigma is required to be preceded by a reasonable opportunity to the employee, in our view, must be understood to be those cases of transfer where such a stigma is apparent on the face of order of transfer. In **Janardhan Debanath's** case (supra), at paragraph 14 the Supreme Court held as follows: “The allegations made against the respondents are of serious nature, and the conduct attributed is certainly unbecoming. Whether there was any misbehaviour is a question which can be gone into in a departmental proceedings. For the purposes of effecting a transfer, the question of holding an enquiry to find out whether there was misbehaviour or conduct unbecoming of an employee is unnecessary and what is needed is the prima facie satisfaction of the authority concerned on the contemporary reports about the occurrence complained of and if the requirement as submitted by the learned counsel for the respondents, of holding an elaborate enquiry is to be insisted upon the very purpose of transferring an employee in public interest or exigencies of administration to enforce decorum and ensure probity would get frustrated. The question whether the respondents could be transferred to a different division is a mater for the employer to consider depending upon the administrative necessities and the extent of solution for the problems faced by the administration. It is not for this Court to direct one way or the other.” WA No. 1152 of 2010 -:7:- 9. In that case the respondent was sought to be transferred on a serious allegation of misbehaviour by a superior officer (a woman). It appears from the abovementioned judgment that the transfer order of the respondent therein contained an expression that the undesirable conduct of the respondent prompted to transfer of the respondent. Even in such circumstances the Supreme Court is of the opinion that no stigma is attached to the order of transfer. At paragraph 12 the Supreme Court held as follows: “The manner, nature and extent of exercise to be undertaken by courts/tribunals in a case to adjudge whether it casts a stigma or constitutes one by way of punishment would also very much depend upon the consequences flowing from the order and as to whether it adversely affected any service conditions - status, service prospects financially - and the same yardstick, norms or standards cannot be applied to all categories of cases, Transfers unless they involve any such adverse impact or visit the persons concerned with any penal consequences, are not required to be subjected to same type of scrutiny, approach and assessment as in the case of dismissal, discharge, reversion or termination and utmost latitude should be left with the department concerned to enforce discipline, decency and decorum in public service which WA No. 1152 of 2010 ## -:8:- are indisputably essential to maintain quality of public service and meet untoward administrative exigencies to ensure smooth functioning of the administration.” In the circumstances we are of the opinion that, the appeal not only lacks merits but also an abuse of the process of this Court. The appeal is therefore dismissed with costs of Rs.5,000/-. **J.Chelameswar, Chief Justice.** **P.N.Ravindran, Judge.** ttb