OP(KAT) No. 214 of 2017 (Z)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **& THE HONOURABLE MRS. JUSTICE SHIRCY V.** **WEDNESDAY, THE 28TH DAY OF JUNE 2017/7TH ASHADHA, 1939** **OP(KAT).No. 214 of 2017 (Z)** **----------------------------** **AGAINST THE ORDER/JUDGMENT IN OA.1894/2016 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 08-03-2017** **PETITIONERS/RESPONDENTS 1 & 2 IN O.A.** **----------------------------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION (L) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM -695001** **2 THE DIRECTOR OF TECHNICAL EDUCATION, FORT. P.O, THIRUVANANTHAPURAM-695023** ## **BY ADV. GOVERNMENT PLEADER SRI.T.RAJASEKHARAN NAIR** **RESPONDENTS/APPLICANT AND THE 3RD RESPONDENT IN O.A.** **--------------------------------------------------------------------------------** **1. P.O.BOBEN, HEAD OF THE DEPARTMENT, MECHANICAL ENGINEERING, GOVERNMENT POLYTECHNIC COLLEGE, MEENANGADI, WAYANAD DIST., 673591, @ PLAVILA VAYALIL, EAST KALLADA, KOLLAM -691502** **2. MANGALANANDAN NAIR, HEAD OF THE DEPARTMENT, MECHANICAL ENGINEERING, GOVT. POLYTECHNIC COLLEGE ADOOR, PATHANAMTHITTA, -691502** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 28-06-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **OP(KAT).No. 214 of 2017 (Z)** **----------------------------** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **EXHIBIT P1 COPY OF THE O.A. NO.1894/2016 ALONG WITH ITS ANNEXURES** **EXHIBIT P2 COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 1ST RESPONDENT IN THE O.A. EXHIBIT P3 COY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 2ND RESPONDENT IN THE O.A. EXHIBIT P4 COPY OF THE EMPLOYEE DETAILS UPDATED BY THE APPLICANT.** **EXHIBIT P5 COPY OF THE REPLY OF THE 3RD RESPONDENT IN THE OA. EXHIBIT P6 COPY OF THE REJOINDER FILED BY THE APPLICANT IN THE O.A. ALONG with ANNEXURES EXHIBIT P7 COPY OF THE ORDER IN O.A. NO.1894/2016 DATED 8.3.2017 EXHIBIT P8 COPY OF THE APPLICATION FOR PRODUCTION OF ADDITIONAL DOCUMENTS.** ## **RESPONDENTS ANNEXURES** ## **NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **O.P(KAT)No. 214 of 2017** ## **------------------------------------------------------** ## **Dated this the 28[th] day of June, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Challenge is against the correctness and sustainability of Ext.P7 order, whereby the transfer of the applicant from the post as the Head of the Department of Mechanical Engineering, Government Polytechnic College at Adoor to the post as the Head of the Department of Mechanical Engineering Government Polytechnic College, Meenangadi in Wayanad District has been intercepted and the applicant has been directed to be given a posting back to the Station, in view of the repelling the contentions raised from the part of the petitioners/respondents. 2. Heard the learned Government Pleader at length. 3. The respondent herein was stated as working as the Head of the Department of Mechanical Engineering, Government Polytechnic at Adoor. As per Annexure A6 O.P(KAT)No. 214 of 2017 2 General Transfer order dated 5.8.2016, he was ordered to be transferred to the Mechanical Engineering, Government Polytechnic College, Meenangadi, Wayanad District even before completion of three years at Adoor. This was sought to be challenged by filing O.A No.1894 of 2016 with the following prayers: “ i) There may be finding that Annexure A6 transfer order is against the set guidelines of Government regarding granting of immunity from transfer as per Annexure A2 and A3. ii) The 1[st] respondent may be directed to cancel the Annexure A6 transfer order in respect of the applicant and retain him at Adoor itself in accordance with the existing guidelines. iii) As the transfer of the 3[rd] respondent is against existing guidelines issued by the 1[st] respondent. A6 orders issued in favour of 3[rd] respondent may be cancelled. iv) Any other relief the Hon'ble Tribunal may deem just and fair on the facts and circumstance of the case. 4. The main contention raised by the applicant was that he happened to be the President of “Government and O.P(KAT)No. 214 of 2017 3 Aided Polytechnic College Teaching Staff Association”(GPTSA), which is an Association recognized by the Government of Kerala, as per G.O (MS) 148 Public (D) Department dated 4.4.1966 and that he was having the protection to continue at Adoor. Another contention was that the transfer was ordered during the middle of the academic year which was not liable to be acted upon. Yet another contention was also there to the effect that he was transferred to the post as the Head of the Department of Mechanical Engineering, Government Polytechnic College at Adoor only as per the order G.O (Rt)No.1317/2014/H Education dated 24-6-2014 and the minimum tenure period of three years would be completed only by 20.6.2017 and hence, the order was sought to be intercepted. 5. The stand of the petitioners herein was taken before the Tribunal to the effect that the relevant orders/guidelines sought to be relied on by the applicant O.P(KAT)No. 214 of 2017 4 were good enough to be acted upon as having any statutory force. It was considering all the facts and figures that the applicant was ordered to be transferred out, so as to accommodate another person who had already completed three years of service in Wayanad District, who hence was accommodated at Adoor. The petitioners herein also contended that the status of the applicant as the President of GPTSA was not known to the Department and that it was obligatory for the applicant to have uploaded the factual position in this regard by virtue of the mandate of Rule. The status of the Association as such as to whether it was recognised or not was also disputed from the part of the respondents in the OA. 6. In the course of the proceedings, the stand taken by the Department sought to be rebutted by the applicant producing various documents especially Annexures A7 to A10, which are either notice or proceedings of the meeting held between the various O.P(KAT)No. 214 of 2017 5 Associations and also the Government at different levels. The above proceedings revealed the involvement of the applicant as office bearer of GPTSA Association who was accordingly addressed and permitted to participate in the proceedings. After having issued the said proceedings, it was quite improper on the part of the Deparment to have taken a U turn, contend pleading ignorance as to the status or whereabouts of the applicant as an officer bearer of the Association to deny the benefit of the relevant orders/guidelines. It was in the said circumstance, that the contention raised by the Department was repelled and the OA was allowed. However taking note of the fact that the transfer already ordered as per Annexure A6 had already come into force, the respondents/Department was directed to post the applicant back, giving appropriate directions in this regard, which in turn is under challenge at the instance of the State/Department. O.P(KAT)No. 214 of 2017 6 7. During the course of hearing, the learned Government Pleader points out and stressed as to bounden duty of the applicant to have uploaded the facts and particulars in the website. We have noted that there is a contention for the applicant that the relevant particulars have already been furnished and the correction of the website was within the domain of the departmental authorities and the applicant was in no way permitted to have the same middle with. That apart there is absolutely no explanation from the part of the petitioners in the present petition as to how they reconcile with the observations made by the Tribunal with reference to the contents of Annexures A7 to A10. The said observations are very relevant as reflected in paragraphs 8 and 9 which are reproduced below for convenience of reference. “ 8. The applicant has filed a rejoinder denying all the points raised by the respondents. He has produced Annexure A7 letter dated 17.5.2013 sent by the 2[nd] respondent to the applicant by name, in his capacity as President of the GPTSA to attend a O.P(KAT)No. 214 of 2017 7 meeting convened by the 2[nd] respondent to discuss certain service matters. Annexure A8 is the minutes of the meeting held on 25.3.2015 under the Chairmanship of the then Chief Minister, attended inter alia by the 1[st] and 2[nd] respondents in which the applicant is referred to by name as President of the GPTSA. Annexure A9 is the minutes of another meeting held on 28.10.2015 chaired by the 2[nd] respondent himself to discuss implementation of AICTE pay scales to teachers in which also the applicant is referred to by name as the President of GPTSA. Annexure A10 is a Government Order dated 11.4.2013 issued by the Personnel and Administrative Reforms Department approving certain amendments in the bye-laws of the Association. It is stated therein that the proposed amendments have been referred to the Government through the 2[nd] respondent, Director of Technical Education himself. All these documents categorically show that the applicant is the President of the GPTSA which is recognized by the Government. It is reiterated that the election of the office bearers have been intimated to the 2[nd] respondent from time to time. Annexure A11 dated 2.2.2016 is the latest such intimation wherein it is stated that the applicant has been elected President at the General Body Meeting of the GPTSA on 28.1.2016. Learned Counsel for the applicant also pointed out that the MIS datebase of the Department is to be updated by the office of the 2[nd] respondent and not by the applicant O.P(KAT)No. 214 of 2017 8 9. In the light of the overwhelming evidence, it is clear that the Association is duly recognized by the Personnel and Administrative Reforms Department in the Government. The official respondents have not denied that Adoor is the headquarters of the Association, they only say that they have not been informed, which is clearly incorrect in view of Annexure A5 representation submitted by the applicant to the 1[st] respondent before Annexure A6 transfer order has been issued. The contention of the 3[rd] respondent questioning the recognition of the Association, the applicant being its President and Adoor being its headquarters are also only to be rejected. We find that GPSTA is a recognised State level Association and the applicant is currently its President. The official respondents have not denied the claim of the applicant that Adoor is its headquarters. Clearly, by virtue of Annexure A2 Circular and Annexure A3 Government Order, he is entitled to retention in Adoor so long as he continues as the President of the Association. The transfer of the applicant through Annexure A6 Government Order is clearly violative of the guidelines. The incorrect contentions and evasive responses by the 1[st] and 2[nd] respondents are clearly indicative of the mala fides behind the transfer of the applicant to Wayanad. Accordingly, we quash Annexure A6 in so far as the applicant and the 3[rd] respondent are concerned. The first respondent will issue orders O.P(KAT)No. 214 of 2017 9 posting the applicant back to Adoor within four weeks from the date of receipt of a certified copy of this order. An appropriate alternate posting will be given to the 3[rd] respondent.” 8. There is a contention as put forth by the learned Government Pleader that by virtue of the law declared the Apex Court in _**Rajendran Nair v. Pavithran ]2008 (4) KLT SN 64]**_ and that of a Division Bench of this Court in _**Ramakrishan P vs. Union of India and others [2017 (1) KHC 801]**_ . The guidelines cannot having any statutory force and as such, they cannot be sought to be implemented as such. We are aware of the position. But having issued by the relevant norms of Government Orders by the Government, it is never open for the Government to flout the same and the reliance sought to be placed on the said decision which was intended to be sought to be relied on by the applicants cannot be taken as a boon for the Government also to flout the Government Orders/guidelines issued by the Government itself. There is no dispute with regard to the right flowing O.P(KAT)No. 214 of 2017 10 from the G.O. to the extent it is possible to be extended, merely for the reason that the applicant is continuing in Adoor for so many years, by itself may not be a ground to have it displaced for palatable reasons sustainable with reference to administrative exigencies or organisational interest in a better manner. There is no case for the petitioners ever before the Tribunal in this regard and the case was rather on technical aspects, especially with regard to the non uploading of the factual data as to the status of the applicant and also doubting the status of the applicant as an office bearer of the Association. In so far as the said aspect particularly with regard to the acceptance of the status of the applicant have been substantiated by producing Annexures A7 to A10 which have been acted upon by the Tribunal, it is no more open for the Government to contend anything in the present proceedings. In the said circumstance, we do not find any ground O.P(KAT)No. 214 of 2017 11 to interdict the verdict passed by the Tribunal. The challenge raised against Ext.P7 stands repelled. The Original Petition is dismissed. **P.R. RAMACHANDRA MENON JUDGE** **SHIRCY.V JUDGE** smm