Jincy Aji v. State of Kerala, Director of Panchayat, Deputy Director of Panchayat and Shajimon Kavoo

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE GOPINATH P.** ## **THURSDAY, THE 25[TH] DAY OF JANUARY 2024 / 5TH MAGHA, 1945** ## **WP(C) NO. 19477 OF 2020** ## **PETITIONER:** **JINCY AJI AGED 47 YEARS D/O. K.C.JOHN, PRESIDENT, KIZHAKKAMBALAM GRAMA PANCHAYAT, KIZHAKKAMBALAM P.O., ERNAKULAM-683562, RESIDING AT MUTTAMTHOTTIL HOUSE, KIZHAKKAMBALAM P.O., ERNAKULAM-683562.** **BY ADVS. BLAZE K.JOSE SMT.URMILA ZACHARIA** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **2 DIRECTOR OF PANCHAYAT, DIRECTORATE OF PANCHAYAT, PUBLIC OFFICE BUILDING, LMS VELLAYAMBALAM ROAD, UNIVERSITY OF KERALA SENATE HOUSE CAMPUS, PALAYAM, THIRUVANANTHAPURAM-695033.** - **3 DEPUTY DIRECTOR OF PANCHAYAT, FIRST FLOOR, CIVIL STATION, KAKKANAD, ERNAKULAM-682030.** - ***4 SHAJIMON KAVOO S/O GILBERT KAVOO, SECRETARY, KIZHAKKAMBALAM GRAMA PANCHAYATH, KIZHAKKAMBALAM, ERNAKULAM – 683 562** - **ADDITIONAL 4TH RESPONDENT IS IMPLEADED AS PER THE ORDER DATED 25.01.2024 IN I.A. NO.2/2021 IN W.P.(C.)NO.19477/2020.** ## **BY ADV. K.R. DEEPA, SPECIAL GOVERNMENT PLEADER (LSGD)** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25.01.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C.)NO.19477 OF 2020 2 ## **JUDGMENT** ## **Dated this the 25[th] day of January, 2024** The petitioner is the former president of the Kizhakkambalam Grama Panchayath and presently the Vice-President of the said Panchayath. The petitioner had approached this Court, being aggrieved by the fact that, owing to political considerations, the Government officials attached or working in the Kizhakkambalam Grama Panchayath are being transferred frequently in order to ensure that the development activities of the Panchayath are not completed in a proper manner. The immediate cause of action for approaching this Court was that the Secretary of the Grama Panchayath was proposed to be transferred. This Court by interim order dated 19.10.2020, directed as under:- “The President of Kizhakkambalam Grama Panchayat is the petitioner in the writ petition. It is stated that W.P.(C.)NO.19477 OF 2020 3 Kizhakkambalam Grama Panchayat is implementing various developmental projects in association with a charitable organization called "Twenty 20 Kizhakkambalam", with a view to promote the overall economic and social development of the people in the Panchayat. The grievance voiced by the petitioner in the writ petition concerns the frequent transfers of the officers of the Panchayat, especially that of persons who were officiating as the Secretary of the Panchayat. Ext.P3 is the statement indicating the particulars of persons who were officiating as the Secretary of the Panchayat. Placing reliance on Ext.P3, the petitioner contends that there were eleven Secretaries for the Panchayat during the last five years. According to the petitioner, such transfers are adversely affecting the Implementation of the various developmental projects undertaken by the Panchayat. The petitioner, therefore, seeks appropriate directions to respondents 1 to 3 to refrain from effecting transfers of the officers of the Panchayat, otherwise than in accordance with the provisions of the Panchayat Raj Act and the transfer guidelines issued by the Government. 2. A counter affidavit has been filed by the third respondent in the writ petition. The stand taken by the third respondent in the counter affidavit is that transfers and postings of Secretary were made in the exigencies of administration. It is, however, conceded in the counter affidavit that for the period from 05.06.2014 to 02.04.2020, there where eleven incumbents in the office of the Secretary of the Panchayat. W.P.(C.)NO.19477 OF 2020 4 3. It is seen that the average tenure of the Secretary of the Panchayat during the last six years has been less than six months. In T.S.R.Subramanian and others v. Union of India and others, (2013)15 SCC 732, the Apex Court has issued various directions to the Union and State Governments for the purpose of Improving the efficiency of public service. One of the directions issued in the said case was that the Union and the State Governments shall secure providing of minimum tenure of service to all civil servants. Paragraphs 35 and 36 of the said judgment read thus: "35. We notice, at present the civil servants are not having stability of tenure, particularly in the State Governments where transfers and postings are made frequently, at the whims and fancies of the executive head for political and other considerations and not in public interest. The necessity of minimum tenure has been endorsed and implemented by the Union Government. In fact, we notice, almost 13 States have accepted the necessity of a minimum tenure for civil servants. Fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. Repeated shuffling/transfer of the officers is deleterious to good governance. Minimum assured service tenure ensures efficient service delivery and also increased efficiency. They can also prioritize various social and economic measures W.P.(C.)NO.19477 OF 2020 5 intended to implement for the poor and marginalized sections of the society. 36. We, therefore, direct the Union State Governments and Union Territories to issue appropriate directions to secure providing of minimum tenure of service to various civil servants, within a period of three months." As seen from the extracted paragraphs of the judgment, the Apex Court has held in the said case that a fixed minimum tenure would not only enable the civil servants to achieve their professional targets, but also help them to function as effective instruments of public policy. It is also held by the Apex Court in the said case that repeated shuffling/transfer of the officers is deleterious to good governance and that minimum assured service tenure ensures efficient service delivery and also increased efficiency. It is observed by the Apex Court in the said case that if minimum assured service is provided for to the civil servants, they can certainly prioritize various social and economic measures intended to implement for the poor and marginalized sections of the society. 4. The latest transfer guidelines formulated by the State Government which is part of the records in the case indicates that the policy of the Government is that an officer shall not be disturbed from a particular station for a minimum period of three years. Though the third respondent has justified the frequent transfers of the Secretaries in the Panchayat on the ground of administrative exigencies, there is no whisper in the W.P.(C.)NO.19477 OF 2020 6 counter affidavit as to why the said minimum period of service of officers could not be secured while effecting transfers in the exigencies of administration. Needless to say, the matter needs examination. 5. In the circumstances, there will be an interim order directing the respondents that the Secretary of Kizhakkambalam Grama Panchayat shall not be transferred without further orders from this Court. The State Government shall file an additional affidavit in this matter stating whether the direction of the Apex Court in T.S.R.Subramanian has been complied with, and if not, the reason for non compliance. ## 2. Learned Special Government Pleader appearing for the Local Self Government Department would submit that, Ext.R3(a) is the transfer policy guidelines of the Government of Kerala. It is submitted that, while broadly the policy continues to be the same, it has been reissued as G.O.(P) No.79/2023/LSGD dated 22.03.2023. It is submitted that as per Ext.R3(a) transfer guidelines as also the transfer guidelines issued as per the Government Order dated 23.02.2023, the normal tenure of officials W.P.(C.)NO.19477 OF 2020 7 is three years. It is pointed out by the learned Government Pleader that, by virtue of the interim order of this Court dated 19.10.2020, the Secretary of the Grama Panchayath was not transferred and he continues to hold the post of Secretary of the Kizhakkambalam Grama Panchayath. It is submitted that, the Secretary has by now completed more than three years as the Secretary of Kizhakkambalam Grama Panchayath, and in terms of Ext.R3(a) transfer guidelines and the latest transfer guidelines issued on 23.02.2023 and referred to above, the Secretary of Grama Panchayath is now due for transfer. 3. Learned Counsel appearing for the petitioner would submit that Ext.R3(a) guidelines itself indicate that it is not mandatory that immediately on completion of three years, a Government Official posted at a particular station must be transferred. It is submitted that the present time is a crucial time for the Panchayath as several reports etc. have to be W.P.(C.)NO.19477 OF 2020 8 prepared and submitted in respect of the development activities of the Panchayath and if the Secretary is transferred immediately, the Panchayath will be put to serious prejudice and hardship. It is submitted that even going by the guidelines, normally the transfer will be affected only in the month of April. Learned Special Government Pleader would submit that even if the submission of the learned Counsel for the petitioner is to be accepted, the Secretary of the Grama Panchayath is due for transfer in the month of April, 2024. It is also pointed out that going by the provisions of the Clause 2(b) of the transfer guidelines issued on 22.03.2023, it is mandatory that officials who have been posted at a particular station for more than three years have to be transferred. 4. Having heard the learned counsel appearing for the petitioner and the learned Special Government Pleader, I am of the view that the Writ Petition can be disposed of directing that the transfer of officials W.P.(C.)NO.19477 OF 2020 9 posted to the Kizhakkambalam Grama Panchayath will also be considered only in terms of the transfer guidelines and frequent transfers, contrary to the guidelines shall not be effected, except for compelling circumstances. Insofar as the transfer of the incumbent Secretary is concerned, it is seen that, by virtue of the interim order dated 19.10.2020, he has already completed more than three years of service in the Panchayath. Therefore, going by the transfer guidelines, it will be open for the Government or the competent authority to transfer the said Secretary. However, considering the submission of the learned Counsel for the petitioner that, many reports have to be filed at this point of time and considering the Clause in the transfer guidelines, which indicate that normally the transfers would be effected even, in respect of those who have completed three years only in the month of April, I direct that any transfer order in respect of the present Secretary of 10 W.P.(C.)NO.19477 OF 2020 Kizhakkambalam Grama Panchayath shall be made, only in the month of April, 2024 and along with other general transfers. The Writ Petition is disposed of accordingly. **Sd/GOPINATH P. JUDGE** NB/25-1 W.P.(C.)NO.19477 OF 2020 11 ## **APPENDIX OF WP(C) 19477/2020** |**PETITIONER EXHIBITS**|| |---|---| |**EXHIBIT P1**|**A TRUE COPY OF THE JUDGMENT IN W.P.(C)**| ||**NO.3370/2018 DATED 11.6.2018.**| |**EXHIBIT P2**|**A TRUE COPY OF THE INTERIM ORDER IN W.P.(C)**| ||**NO.16137 OF 2020 DATED 19.8.2020.**| |**EXHIBIT P3**|**A TRUE COPY OF THE LIST OF SECRETARIES IN**| ||**KIZHAKKAMBALAM PANCHAYAT FROM 5.6.2014 TO**| ||**8.6.2020.**| |**EXHIBIT P4**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**15.9.2020 SUBMITTED BY THE PETITIONER TO THE**| ||**1ST RESPONDENT.**| |**EXHIBIT P5**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**15.9.2020 SUBMITTED BY THE PETITIONER TO THE**| ||**2ND RESPONDENT.**| |**EXHIBIT P6**|**A TRUE COPY OF THE REPRESENTATION DATED**| ||**15.9.2020 SUBMITTED BY THE PETITIONER TO THE**| ||**3RD RESPONDENT.**| |**EXHIBIT P7**|**A LIST OF OFFICERS TRANSFERRED IN THE**| ||**KIZHAKKAMBALAM PANCHAYAT FROM 1.10.2019 TO**| ||**20.1.2020**| |**RESPONDENTS’ EXHIBITS:**|| |**EXHIBIT R3(a)**|**A TRUE COPY OF GOVERNMENT ORDER DATED**| ||**25.02.2017**| |**EXHIBIT R3(b)**|**A TRUE COPY OF THE GO DATED 10.09.2004**| |**EXHIBIT R3(c)**|**A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**DATED 31.05.2014 ISSUED BY THE 2ND RESPONDENT**| |**EXHIBIT R3(d)**|**A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**DATED 04.06.2014 ISSUED BY THE 2ND RESPONDENT**| |**EXHIBIT R3(e)**|**A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**DATED 02.06.2017 ISSUED BY THE 2ND RESPONDENT**| |**EXHIBIT R3(f)**|**A TRUE COPY OF THE ORDER DATED 14.07.2017**| ||**ISSUED BY THE ADDITIONAL DIRECTOR OF**| ||**PANCHAYAT, THIRUVANANTHAPURAM**| |**EXHIBIT R3(g)**|**A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**DATED 02.08.2017 ISSUED BY THE ADDITIONAL**| ||**DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM**| |**EXHIBIT R3(h)**|**A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**DATED 10.07.2019 ISSUED BY THE ADDITIONAL**| ||**DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM**| |**EXHIBIT R3(i)**|**A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER**| ||**DATED 18.01.2020 ISSUED BY THE 2ND RESPONDENT**| |**EXHIBIT R3(j)**|**A TRUE COPY OF THE ORDER DATED 14.02.2020**| W.P.(C.)NO.19477 OF 2020 12 ## **ISSUED BY THE 3RD RESPONDENT** **EXHIBIT R3(k) A TRUE COPY OF THE ORDER DATED 04.03.2020 ISSUED BY THE 3RD RESPONDENT EXHIBIT R3(l) A TRUE COPY OF THE ORDER DATED 31.03.2020 ISSUED BY THE 2ND RESPONDENT (ORDER OF PROMOTION) EXHIBIT R3(m) A TRUE COPY OF THE RELEVANT EXTRACT OF ORDER DATED 08.06.2020 ISSUED BY THE ADDITIONAL DIRECTOR OF PANCHAYAT, THIRUVANANTHAPURAM** **TRUE COPY** **P.A. TO JUDGE**