M.M. Suhara Beevi v. Director of Treasuries, Ernakulam; State of Kerala and D. Jayaraman

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE ANTONY DOMINIC** **WEDNESDAY, THE 26TH MAY 2010 / 5TH JYAISHTA 1932** **WP(C).No. 14666 of 2010(G)** **--------------------------** ## **PETITIONER(S):** **------------------------** **M.M.SUHARA BEEVI, AGED 54 YEARS, DISTRICT TREASURY OFFICER, ERNAKULAM.** **BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) SRI.MATHEW SUNNY** **RESPONDENT(S):** **-------------------------** ## **1. THE DIRECTOR OF TREASURIES, ERNAKULAM.** **2. STATE OF KERALA, REPRESENTED BY THE SECRETARY FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **3. D.JAYARAMAN, DISTRICT TREASURY OFFICER, KOTTAYAM** **ADV. SRI.C.V.MANUVILSAN FOR R3 SRI.G.SUDHEER (THURAVOOR) FOR R3 SP.GOVERNMENT PLEADER SRI.N.MANOJ KUMAR FOR R1&2** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WPC NO.14666/10** ## **APPENDIX** ## **PETITIONER'S EXHIBITS** **EXT.P1: TRUE COPY OF THE ORDER GO(RT) NO.4149/09/FIN. DT 8.6.2009. EXT.P2: TRUE COPY OF THE REQUEST DT 24.9.2009 FILED BY THE PETITIOENR TO THE FIRST RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER GO(RT) NO.3377/2010/FIN. DT 13.4.2010. EXT.P4: TRUE COPY OF THE NEWSPAPER REPORT DT 7.5.2010. EXT.P5: TRUE COPY OF THE ORDER GO(RT) NO.3830/2010/FIN. DT 4.5.2010. EXT.P6: TRUE COPY OF THE INTERIM ORDER DT 11.5.2010 IN WPC NO.14666/2010 WITH ENDORSEMENT MADE BY THE 1ST RESPONDENT DT 12.5.2010.** ## **//TRUE COPY//** **P.A. TO JUDGE** **Rp** ## **ANTONY DOMINIC, J. ================ W.P.(C) NO. 14666 OF 2010 (G) =====================** ## **Dated this the 26[th] day of May, 2010** ## **J U D G M E N T** Petitioner is a District Treasury Officer, who was posted at Palakkad. At the time of general transfer 2010, petitioner opted for transfer to Alleppey, Ernakulam or Trichur. In so far as the 3[rd] respondent, who was then working as Assistant Director in the Directorate of Treasuries is concerned, his only option was for transfer to Alleppey. 2. Subsequently, Ext.P2 order of transfer was issued, by which the petitioner was transferred and posted to Ernakulam. The 3[rd] respondent was transferred and posted to Kottayam. It also needs to be mentioned that by Ext.P2 order, one Sri.B.Madhu, who is junior to both the petitioner and the 3[rd] respondent, who was then an Assistant Treasury Officer was promoted and posted at Alleppey, the only station opted by the 3[rd] respondent. 3. Petitioner took charge at Ernakulam in pursuance to Ext.P2 on 28/4/2010 and the 3[rd] respondent also took charge at Kottayam on 30/4/2010. According to the petitioner, on 7/5/2010, **WPC No. 14666/10** **:2 :** she came across a news paper report to the effect that she was transferred to Idukki and the 3[rd] respondent was posted in her place. It is stated that 8[th] and 9[th] May were holidays, and that, on 10/5/2010, the 3[rd] respondent came to her office and demanded to assume charge on the basis that he was transferred and posted in her place. Thereupon, petitioner pleaded ignorance of the transfer, as until then, copy of the order was not served on her, and according to her, she availed of casual leave for two days and left the office. 4. On 10/5/2010 itself, this writ petition was filed in the vacation court and the matter came up for admission before the Court on 11/5/2010. This Court admitted the writ petition and ordered that in case the petitioner has not been relieved pursuant to the transfer order dated 4/5/2010, she shall be permitted to continue in the present office for a period of one month. According to the petitioner, on 12/5/2010, she obtained a copy of the order and faxed it to the 1[st] respondent, and it is stated that, the 1[st] respondent directed the 3[rd] respondent to comply with the Court order. It is stated that she reported in the office on 13/5/2010, and has been discharging the duties of the District **WPC No. 14666/10** ## **:3 :** Treasury Officer. According to her, inspite of the Court order, on the plea that in her absence, the 3[rd] respondent assumed charge, 3[rd] respondent also continued in the office and that position continues even as on date. 5. Subsequently, producing a copy of the order dated 4/5/2010, transferring the petitioner to Idukki and posting the 3[rd] respondent in her place and marking the same as Ext.P5, the writ petition was got amended incorporating a prayer for quashing this order as well. The contention raised by the learned counsel appearing for the petitioner is that she having been transferred by Ext.P2 and taken charge only on 28/4/2010, there was no exigency of service or public interest, requiring the issuance of another transfer order, viz., Ext.P5, on 4/5/2010. It is also contended that the case set up by the respondents that the 3[rd] respondent assumed charge as District Treasury Officer, Ernakulam in her absence is totally unsustainable as it is impermissible in the light of the law laid down by this Court in _**Ramavarma Thirumulpad v. State of Kerala and Others**_ {1985 (2) I.L.R. KERALA 355}. 6. Counter affidavit has been filed on behalf of the 2[nd] **WPC No. 14666/10** **:4 :** respondent, where Ext.P5 order of transfer is sought to be justified as one issued in public interest. It is stated that employees who have only two years of service to retire are to be posted in stations of their choice, giving preference to those who are due to retire earlier. It is stated that as the 3[rd] respondent will retire from service on 31/3/2011, he is entitled to a posting in a station, which is more convenient to him. It is further stated that one Sri.G.Prasad, District Treasury Officer, Malappuram on transfer by Ext.P5, joined at Kottayam and thereupon the 3[rd] respondent got relieved on 7/5/2010, and that, it was therefore that he reported at Ernakulam and assumed charge relieving the petitioner. It is further stated that the petitioner stands automatically relieved when the 3[rd] respondent assumed charge as District Treasury Officer, Ernakulam on 10/5/2010, and therefore the interim order had become infructuous. The learned Government Pleader would therefore contend that the transfer was in public interest, that the 3[rd] respondent was entitled to a posting to a place chosen by him by virtue of Government Order dated 10/9/2004, that as any order in this writ petition in favour of the petitioner will be affecting Sri.G.Prasad and without **WPC No. 14666/10** **:5 :** Sri.G.Prasad also impleaded a party to the writ petition, the writ petition cannot be entertained. 7. The 3[rd] respondent submits that he has served long in Trivandrum and got a transfer to Kottayam. It is stated that he was transferred immediately thereafter, and it was therefore that he had assumed charge at Ernakulam. Though he claims the benefit of the Government Order dated 10.9.2004, he categorically states that the station opted by him was Alleppey and that he did not choose Ernakulam for a posting. 8. In the nature of the facts as above, what is to be decided is whether the transfer ordered by Ext.P5 can be justified on grounds of public interest, which is the only ground urged by respondents 1 and 2. The sustainability of this contention necessarily will depend upon the contents of Ext.P5 order and the averments in the counter affidavit. It should first be stated that the expression “public interest” does not find a place anywhere in Ext.P5 transfer order. It is the settled position of law that the validity of an executive order has to be tested in the light of the contents of the order and not with the support of the reasons supplied through affidavits filed in court. See in this connection **WPC No. 14666/10** **:6 :** _**Mohinder Singh v. Chief Election Commissioner**_ (AIR 1978 SC 851) and _**State of Kerala v. Balakrishnan**_ (1992(1) KLT 420). Therefore, if the law thus laid down in these judgments is applied, the order is unsustainable and has to be set aside for the reason that it does not disclose any public interest. 9. In my view, even if the averments in the counter affidavit are referred to, that also will not help the Government to sustain Ext.P5 on ground of public interest. The only factual justification that is mentioned in the counter affidavit is that in view of the provisions contained in GO(P) No.12/2004/P&ARD dated 10/9/2004, employees who have two years to retire are to be posted at stations of their choice, giving preference to those who are to retire earlier. It is stated that while the petitioner is to retire only on 31/3/2012, the 3[rd] respondent is due to retire on 31/3/2011, and therefore, is entitled to a posting in a station, which is more convenient to him. The fallacy of this contention is that even according to the 3[rd] respondent, he did not opt for transfer to Kottayam or Ernakulam, and his option was for transfer to Alleppey, availing of the concession extended by the Government Order dated 10/9/04. Therefore, even if the 3[rd] **WPC No. 14666/10** **:7 :** respondent was to be given the benefit of this concession, that ought to have been given by transferring him to Alleppey, the only station opted by him, when options were exercised before Ext.P2 general transfer order was issued. It is to be remembered that, on the other hand, in Ext.P2, a person junior both to the petitioner and the 3[rd] respondent, was promoted and posted as District Treasury Officer, Alleppey and he is continuing there even now. Therefore, if at all, the benefit of the concession available under the Government Order dated 10/9/2004 was to be extended to the 3[rd] respondent, he ought to have been accommodated in Alappuzha, which was not done. If that be so, the contention that the 3[rd] respondent was given the benefit of Government Order dated 10/9/2004, now urged in the counter affidavit reflects only the desperate attempt of the respondents to justify Ext.P5 and I am satisfied that the power to order transfer was exercised not for reasons disclosed in the counter affidavit, but for some other hidden reasons. Therefore, the plea of public interest has to fail. 10. Since public interest is the only ground urged to justify Ext.P5, and as I have negatived the plea of public interest as **WPC No. 14666/10** **:8 :** above, necessarily, Ext.P5 to the extent the petitioner is transferred from Ernakulam to Idukki has to be interfered with. Accordingly, Ext.P5 to the extent the petitioner is transferred from Ernakulam to Idukki is set aside and the respondents are directed to permit the petitioner to continue as District Treasury Officer, Ernakulam. 11. There is considerable dispute whether the 3[rd] respondent had assumed charge or not. The manner in which gazetted officers are to be relieved and charge taken over has been dealt with by this Court in the judgment in _**Ramavarma Thirumulpad v. State of Kerala and Others**_ {1985 (2) I.L.R. KERALA 355}. 12. Having regard to the fact that I have interfered with the order of transfer and directed the continuance of the petitioner as District Treasury Officer, Ernakulam, I do not think a resolution of this controversy is necessary. If as stated in the counter affidavit, the petitioner has committed any irregularity, it is upto the respondents to deal with that issue in appropriate proceedings, about which, this Court need not pronounce in this writ petition. ## **WPC No. 14666/10** **:9 :** Therefore, the writ petition is allowed. Ext.P5 to the extent the petitioner is transferred from Ernakulam to Idukki is quashed. The first and second respondent are directed to retain the petitioner at Ernakulam as District Treasury Officer. ## **ANTONY DOMINIC, JUDGE** Rp