Jose Kurian.T v Union of India and others

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** **&** **THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH** **WEDNESDAY, THE 18TH DAY OF JANUARY 2017 / 28TH POUSHA 1938** **OP (CAT).No. 21 of 2017** **AGAINST THE ORDER/JUDGMENT IN OA 180/00785/2015 of CENTRAL ADMINISTRATIVE TRIBUNAL,ERNAKULAM BENCH** ## **PETITIONER(S)/APPLICANT** **JOSE KURIAN.T AGED 53 YEARS, S/O.T T KURIAN, HR.NO.199000540, WORKING AT PRESENT AS SDE, BSNL, THALAYOLAPARAMBU, KOTTAYAM, KERALA, PRESENTLY RESIDING AT THECKUMVELIL HOUSE, NAZARATH HILLS P O, KURUVINLANGAD- 683366.** **BY ADVS.SRI.K.R.MICHAEL SRI.FRANCIS JOSEPH KURISUNKAL SRI.G.CHANDRASEKHAR** ## **RESPONDENT(S)/RESPONDENTS:** ## **1. UNION OF INDIA** **REPRESENTED BY THE SECRETARY TO GOVERNMENT OF INDIA, MINISTRY OF DOI & IT, SANCHAR BHAVAN, NEW DELHI.** ## **2. THE CHAIRMAN & MANAGING DIRECTOR,** **BSNL, NEW DELHI.** ## **3. THE GENERAL MANAGER(P) PERSONNEL II SECTION** **4TH FLOOR, BHARATH SANCHAR BHAVAN, H.C.MATHUR LANE, JANPATH, NEW DELHI - 110001.** **4. THE CHIEF GENERAL MANAGER TELECOM BSNL, PMG JUNCTION, TRIVANDRUM.** ## **5. THE CHIEF GENERAL MANAGER** **BSNL, NETF, GUVAHATTI.** **R1 BY ADV. SMT.C.G.PREETHA, CGC R2-R5 BY ADV. SRI.T.SANJAY, SC, BSNL R1 BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL R BY SRI.MATHEWS K.PHILIP,SC, BSNL** **THIS OP (CAT) HAVING COME UP FOR ADMISSION ON 18-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **SHG/** **OP (CAT).No. 21 of 2017 (Z)** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** **EXHIBIT P1 A TRUE COPY OF THE ORIGINAL APPLICATION WITH ANNEXURE A1 TO A6 AND REJOINDER WITH ANNEXURE A7 TO A11 FILED BY THE PETITIONER EXHIBIT P2 TRUE COPY OF THE ORDER DTD 22/12/2016 IN OA NO 180/00785/2015 OF THE CENTRAL ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH.** **True copy P.A. TO Judge** ## **C.T. RAVIKUMAR & K.P. JYOTHINDRANATH, JJ.** **- - - - - - - - - - - - - - - - - - - - - - - O.P.(CAT)No.21 of 2017** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 18[th] day of January, 2017** ## **J U D G M E N T** ## **Ravikumar, J.** The unsuccessful applicant in O.A.785/2015 on the files of the Central Administrative Tribunal, Ernakulam Bench filed the captioned original application challenging the order passed by the Tribunal thereon and also Annexure A1 order in Ext.P1 whereby he was transferred to North Eastern Task Force Circle (NETF). Annexure A1 is dated 26.8.2015. In fact, it was on being aggrieved by Annexure A1 that the petitioner had filed the aforementioned original application before the Tribunal. The petitioner took up the contention of inability to join at the transferred place owing to diseases like diabetes mellitus, sino nasal polyposis, asthma and cholesterol. That apart, he claimed the benefit of paragraph 6(g) of Annexure A4 Transfer Rules & Guiding Principles as his wife is an employee of State Bank of Travancore at its Kozha branch in Kottayam District. 2. The challenge against Annexure A1 was resisted O.P.(CAT)No.21 of 2017 2 by the respondents. It was their case that the petitioner had been working in Kerala circle for the past 25 years and going by the transfer policy the circle tenure of Sub Divisional Engineers is only 18 years. That apart, it was their precise case that taking into account the length of stay in Kerala circle they had prepared a list and the petitioner is serial No.7 therein. Further it was contended by them that all the others above him in the list were already transferred out from Kerala circle. The Tribunal had considered the rival contentions and dismissed the original application as per the impugned order. Hence, this original petition. 3. We have heard the learned counsel for the petitioner, the learned Assistant Solicitor General of India for the first respondent and also the learned Standing Counsel appearing for respondents 2 to 5. 4. In **National Hydroelectric Power Corporation Ltd. v. Shri Bhagwan & Anr. [AIR 2001 SC 3309]** the Hon'ble Apex Court held that no Government servant or O.P.(CAT)No.21 of 2017 3 employee of a public sector undertaking got any legal right to be posted forever, at any particular place since transfer of a particular employee appointed to the class or category of transferable posts from one place to other is an incident of service and it does not result in alteration of conditions of service. 5. Bearing in mind the aforesaid position, we will consider the challenge mounted against Ext.P2 order passed by the Tribunal in O.A. and also against Annexure A1 in Ext.P1. Annexure A4 is the transfer policy. There can be little doubt with respect to the position that violation of transfer guidelines by itself cannot be a reason for interference with an order of transfer as it is an incident of the service. Ext.P4 guidelines is not statutory in nature. In this case while the respondents contend that the petitioner was transferred out in compliance with the provisions and taking note of the guidelines the learned counsel appearing for the petitioner contends that the respondents had failed to take note of paragraph 6 (g) of Annexure A4 guidelines. It O.P.(CAT)No.21 of 2017 4 is also submitted that though the petitioner has submitted an application on being aggrieved by Annexure A1, despite its receipt, the respondents have not taken a decision thereon. True that paragraph 6 (g) of Annexure A4 permits posting of husband and wife at the same station as far as possible and within the constraints of the administrative feasibility, if one of the spouses is serving in Central/State Government or a Public Sector Undertaking. The contention of the petitioner is that his wife is working in State Bank of Travancore. While appreciating the contention of the petitioner one indisputable fact has to be looked into. The precise case of the respondents is that the petitioner has been working in Kerala circle for the past 25 years. The said contention put forth by the respondents remains unrebutted. The contention of the petitioner is that it is a fact that some others had also continued in Kerala circle for the same length of period or even more than that. But at the same time it is to be noted that the precise case of the respondents is that they have already prepared a list of O.P.(CAT)No.21 of 2017 5 persons who had put in long years of stay in Kerala circle. In the said list the name of the petitioner appears as serial No.7. Persons in serial No. 1 to 6 also had put in longer period of stay in Kerala circle than the petitioner, were already been transferred out. In such circumstances, merely relying on paragraph 6 (g) of Annexure A4 the petitioner cannot be heard to contend that he should be permitted to continue in Kerala circle. It may be true that in view of the said provision despite the fact that he had already put in more than 18 years viz., the normal circles tenure, he was not transferred out, earlier. In other words, he was permitted to work in Kerala service for 25 years. But, that cannot be a reason for the petitioner to contend as a matter of right that he shall not be transferred out. The petitioner got another contention that he has certain ailments. He is afflicted with diabetes mellitus, sino nasal polyposis, asthmatic and he is also a chronic cholesterol patient. A perusal of Annexure A4 guideline would reveal that the immunity from transfer is available only in the case O.P.(CAT)No.21 of 2017 6 of persons afflicted with dreaded diseases like cancer, brain tumer etc. Diabetes mellitus, sino nasal polyposis cannot be equated with such diseases. 6. We have carefully gone through Ext.P2 order of the Tribunal. A scanning of the said impugned order would reveal that the Tribunal had considered all aspects and the relevant provisions in the guidelines as also the other relevant factors. The consideration cannot be said to be without application of mind and the decision of the Tribunal cannot be said to be a perverse order warranting an appellate interference. Evidently, the Tribunal found that the petitioner had already completed the circle tenure of 18 years and he has been working in Kerala circle for more than 25 years. The fact that persons who are having such long tenure in Kerala circle are already transferred out to accommodate the persons who had completed the hard tenure in places in North East, Assam, Jammu & Kashmir, Andaman & Nicobar Island was also taken into account by the Tribunal. Necessarily, if persons who had already O.P.(CAT)No.21 of 2017 7 worked in such hard tenure places has to be accommodated on completion of their tenure in such hard tenure places. The petitioner or the similarly situated persons cannot be heard to contend that they could not work in such areas. If such requests from persons like the petitioner are accepted that would definitely cause impediment in posting of persons who had already completed the hard tenure in places as aforesaid. For all these reasons, we do not find any reason to interfere with Ext.P2 order passed by the Tribunal whereby the challenge against Annexure A1 in Ext.P1 was repelled. In such circumstances this original petition is liable to fail. When faced with such a situation the learned counsel for the petitioner submitted that the representation submitted by him may be directed to be considered by the 2[nd] respondent. Evidently Annexure A5 representation was addressed to the 2[nd] respondent. We will make it clear that the dismissal of this O.P. will not stand in the way of consideration of the said representation and it is only just and proper for any authority which is O.P.(CAT)No.21 of 2017 8 clothed with the power to consider a matter against which grievances are raised in a representation. In such circumstances, if the said representation is already received and pending, let the 2[nd] respondent forward the same to the third respondent for consideration, and on such receipt, it shall be considered, expeditiously. We may hasten to add that this order shall not act as order staying the implementation of the transfer order. We only mean that implementation of the order of transfer or dismissal of this Original Petition, shall not act as an impediment for consideration of such a representation. Subject to the above observations, this writ petition is dismissed. Sd/- ## **C.T. RAVIKUMAR** **JUDGE** Sd/- ## **K.P. JYOTHINDRANATH** shg/ **JUDGE** //True copy// P.A. TO JUDGE