Mohammed Shafeer K.M. v. The Chairman, Kerala State Electricity Board Ltd. and The Chief Engineer (HRM), Kerala State Electricity Board Ltd.

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 23[RD] DAY OF AUGUST 2022 / 1ST BHADRA, 1944** **WP(C) NO.19312 OF 2022** ## **- PETITIONER :** MOHAMMED SHAFEER K.M., AGED 45 YEARS S/O.MUHAMMED, EMPLOYEE CODE NO.1056781, OVERSEER, KERALA STATE ELECTRICITY BOARD LTD., ELECTRICAL SECTION, PARAD, THALASSERY DIVISION, KANNUR, PIN – 670 562 BY ADVS. P.MOHANDAS (ERNAKULAM) K.SUDHINKUMAR S.K.ADHITHYAN SABU PULLAN GOKUL D. SUDHAKARAN ## **- RESPONDENTS :** 1 THE CHAIRMAN KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004 2 THE CHIEF ENGINEER (H.R.M.) KERALA STATE ELECTRICITY BOARD LTD., VYDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM, PIN – 695 004 BY ADV SRI.K.S.ANIL, SC, KSEB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23.08.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO.19312 OF 2022 -: 2 :- ## **JUDGMENT** ## **Dated this the 23rd day of August, 2022** This writ petition is filed seeking the following reliefs :- - “(i) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P16 order No.EB4(b)/Ovr(Ele)/WPC 25134/2021 dated 31-052022 issued by the 2[nd] respondent as it is arbitrary and illegal. - (ii) to issue a Writ of Certiorari or such other appropriate writ, order or direction quashing Ext.P13 Audit Trial report changing the domicile of the petitioner from Kodungallur to Moothakunnam and to retain the domicile of the petitioner at Kodungallur itself. - (iii) to issue a Writ of Mandamus or order or direction to the 2[nd] respondent to consider Ext.P17 application for transfer submitted at the general transfer of 2022-2023 for a transfer to Kodungallur or to Marayoor.” 2. Heard the learned Senior Counsel for the petitioner and the learned Standing Counsel for the respondents. 3. It is submitted by the learned Senior Counsel appearing for the petitioner that the petitioner is an Overseer who was working at the Electrical Section, Moothakunnam. It is submitted that in the general transfer for the year 2020, he was transferred out to Parad in Thalassery. It is contended that the petitioner had submitted an option for posting at the WP(C) NO.19312 OF 2022 -: 3 :- Adimali Electrical Division in the Marine Electrical Section in Idukki District. It is contended that there are several Overseers having 20 – 25 years of service at Marayur and that therefore, he was eligible for a transfer to Marayur which is a remote and hilly area. However, the claim of the petitioner for a posting at Marayur was not considered and the petitioner stood transferred out to Parad. The petitioner submitted an appeal which was directed to be considered, the same has also been rejected. The petitioner again challenged the said order and by Ext.P11 judgment, this Court directed the consideration of his claim for a posting at Marayur. 4. It is submitted that in the general transfer for the year 2021-2022 also, in spite of Ext.P12 option submitted, the petitioner was again posted out to the Electrical Section, Parad, Thalassery. The petitioner again challenged the said transfer and by Ext.P15 judgment dated 23.3.2022, this Court found that the factual dispute regarding the petitioner's domicile station stands settled by Ext.R2(a) document referred therein. It was further held that the eligibility of the petitioner for transfer to Marayur has not been properly considered and a decision was directed to be taken thereon, after hearing the WP(C) NO.19312 OF 2022 -: 4 :- petitioner as well. Ext.P16 order was thereafter passed on 31.5.2022 rejecting the petitioner's claim which is also under challenge in this writ petition. 5. The learned counsel for the petitioner submits that the petitioner's domicile has been wrongly changed from Kodungallur to Moothakunnam to deny him the benefit of a posting in any of the available vacancies in or around his basic domicile. It is further contended that the specific claim of the petitioner for a posting to Marayur has not been properly considered in Ext.P16 either and the petitioner's specific case that several Overseers are working for 17 and 25 years at Marayur has not been adverted to in Ext.P16. On these grounds, the petitioner challenges Exts.P13 and P16 orders and seeks a re-posting to his place of domicile or any nearby station. 6. A counter affidavit has been placed on record by respondents 1 and 2. It is contended therein that the general transfers are carried out taking note of the administrative exigencies and that the issue with regard to domicile of the petitioner stands settled by Ext.P15 judgment. It is submitted that without taking up Ext.P15 judgment in appeal, the WP(C) NO.19312 OF 2022 -: 5 :- petitioner cannot now contend that there was illegality in the change of his domicile from Kodungallur to Moothakunnam. It is further submitted that the petitioner had applied for transfer only to offices under his domicile station, that is, under the North Paravur geographical area and a voluntary choice to Electrical Section, Marayur, Adimali. It is stated that the petitioner had been transferred to Electrical Section, Parad in the general transfer for the year 2020 and the petitioner did not join duty and it was only in November, 2021 that he had joined at Parad. It is submitted that the petitioner's request for a transfer to his domicile station in the general transfer 2022 will be considered as per the guidelines. It is contended that the transfer of the petitioner who had always worked near his domicile station is necessitated only in public interest and in view of the fact that there is severe dearth of personnel in the northern districts, especially in Kannur and that the said transfer is not liable to be interfered with. 7. With regard to the contention that there are persons having long years of service at Marayur who are due for a transfer, it is contended by the learned counsel for the respondents that the persons who have more than three years WP(C) NO.19312 OF 2022 -: 6 :- of service at Marayur have protection under the transfer guidelines, which is the reason they were not transferred. 8. The learned counsel for the respondents also places reliance on a decision of the Apex Court in **State of U.P. and others** v. **Gobardhan Lal** [(2004) 11 SCC 402] to contend that a mere violation of any provision in the transfer guidelines will not give employees of public authorities like the KSEBL any right to contend that they cannot be transferred out from the domicile stations or stations of their choice. It was held that the courts cannot substitute their own decisions in the matter of transfer and that even allegations of mala fides must be such as to inspire confidence in the court or based on concrete materials and cannot be entertained for the mere making of it or on consideration borne out of conjectures or surmises. The Apex Court, after considering the precedent law, pointed out that an order of transfer made even in transgression of administrative guidelines cannot be interfered with as the guidelines do not confer any legally enforceable rights. 9. I have considered the contentions advanced on either side. The specific case of the petitioner is that all the 36 WP(C) NO.19312 OF 2022 -: 7 :- Overseers transferred along with him to the northern districts had been brought back without joining duty in the northern districts. However, the documents produced by the petitioner do not disclose such situation. In any view of the matter, the petitioner did not join duty at Parad pursuant to the initial order of transfer, that is, Ext.P7. Admittedly it was only on 16.11.2021 pursuant to Ext.P14 that the petitioner joined duty at Parad. Now the petitioner is working at Parad. The contention raised by the petitioner that his request for a posting at Marayur has not been considered cannot be accepted in view of the specific findings in Ext.P16 that the petitioner is not entitled to a posting at Marayur since he is included in the list of employees due to be transferred out from his domicile station. Since the petitioner has now joined duty at Parad, he would be entitled to make his options for posting either to his domicile station or any nearby station or for a voluntary request for posting at Marayur, which will be considered in accordance with the transfer guidelines and taking note of the index points secured by the petitioner as well as any rival claimants and the employees who are working at Marayur. WP(C) NO.19312 OF 2022 -: 8 :- In the facts and circumstances of the instant case, I am of the opinion that the prayers as sought for by the petitioner cannot be granted. However, it is made clear that in case the petitioner submits his options for the next general transfer, they will be considered taking note of the fact that the petitioner has already joined duty at Parad. If the petitioner has submitted any options with regard to the present ongoing general transfer, the same shall be considered in accordance with law, taking note of the guidelines as well as the index points secured by the petitioner and the other similarly situated employees. This writ petition is ordered accordingly. **Sd/ANU SIVARAMAN JUDGE** Jvt/2.9.2022 WP(C) NO.19312 OF 2022 -: 9 :- ## **APPENDIX OF WP(C) 19312/2022** ## PETITIONER EXHIBITS |Exhibit-P1|TRUE COPY OF THE ID CARD NO. 1056781 ISSUED TO| |---|---| ||THE PETITIONER DATED 10-06-2015| |Exhibit-P2|TRUE COPY OF THE RATION CARD NO. 1845020054 OF| ||THE PETITIONER'S FAMILY DATED 15-03-2017| |Exhibit-P3|TRUE COPY OF THE ADHAR CARD NO. 225908440209| ||OF THE PETITIONER| |Exhibit-P4|TRUE COPY OF THE DRIVING LICENSE NO.| ||47/172/1995 DATED 1-2-2020 OF THE PETITIONER| |Exhibit-P5|TRUE COPY OF THE ELECTION ID CARD NO. LJG| ||1103217 DATED 22-07-2000 OF THE PETITIONER| |Exhibit-P6|TRUE COPY OF THE GUIDELINES ISSUED BY THE| ||BOARD IN RESPECT OF GENERAL TRANSFERS OF THE| ||YEAR 2020 - 2021 AS PER ORDER NO. BO(FTD)NO.| ||121/2020 (PS1(A)3214/GT/GUIDELINES FOR| ||WORKMEN) DATED 22-02-2020| |Exhibit-P7|TRUE COPY OF THE RELEVANT PAGE OF ORDER NO.| ||EB4(B)/OVR(ELE)/GT/2020 DATED 4-9-2020 ISSUED| ||BY THE 2ND RESPONDENT| |Exhibit-P8|TRUE COPY OF THE JUDGMENT DATED 9-11-2020 IN| ||W.P.(C)NO. 22293/2020| |Exhibit-P9|TRUE COPY OF THE ORDER NO. EB4(B)/OVR(ELE)/WPC| ||NO. 22293/2020 DATED 21-12-2020 ISSUED BY THE| ||2ND RESPONDENT| |Exhibit1-P10|TRUE COPY OF THE ORDER NO. EB4(B)/OVR/| ||(ELE)/GRIEVANCE/2020 DATED 16-10-2020 ISSUED| ||BY THE 2ND RESPONDENT| |Exhibit1-P11|TRUE COPY OF THE JUDGMENT DATED 10-08-2021 IN| ||W.P.(C)NO. 17/2021| WP(C) NO.19312 OF 2022 -: 10 :- Exhibit1-P12 TRUE COPY OF THE APPLICATION FILED BY THE PETITIONER DATED 15-07-2021 Exhibit-P13 TRUE COPY OF THE AUDIT TRIAL REPORT DATED 1801-2022 Exhibit-P14 . TRUE COPY OF THE RELEVANT PAGES OF THE ORDER NO. EB4(B)/OVR(ELE)/GT/2021 DATED 13-10-2021 ISSUED BY THE 2ND RESPONDENT Exhibit-P15 TRUE COPY OF THE JUDGMENT DATED 23-03-2022 IN W.P.(C)NO. 25134/2021 Exhibit-P16 TRUE COPY OF THE ORDER NO. EB4(B)/OVR(ELE)/WPC 25134/2021 DATED 31-05-2022 ISSUED BY THE 2ND RESPONDENT Exhibit-P17 TRUE COPY OF THE ACKNOWLEDGEMENT ACCEPTING THE APPLICATION SUBMITTED BY THE PETITIONER FOR GENERAL TRANSFER OF 2022 - 2023 DATED 6-6-2022