OP(KAT) No.361 of 2021

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS & THE HONOURABLE MR.JUSTICE VIJU ABRAHAM MONDAY, THE 17[TH] DAY OF JANUARY 2022 / 27TH POUSHA, 1943 OP(KAT) NO. 361 OF 2021 AGAINST THE ORDER DATED 08.12.2021 IN OA 2152/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ## PETITIONERS/RESPONDENTS 1 AND 2 IN O.A.: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, INDUSTRIES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695001. KERALA. 2 THE DIRECTOR OF MINING AND GEOLOGY DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695004. BY SR.GOVERNMENT PLEADER SRI.ANTONY MUKKATH ## RESPONDENTS/APPLICANT & RESPONDENTS 3 TO 5 IN OA: 1 DR.SAJI KUMAR.S,AGED 54 YEARS S/O. SUKUMARAN (LATE), GEOLOGIST HIGHER GRADE, PRESENTLY WORKING AT DIRECTORATE OF MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695004, RESIDING OF ANANTHAPATHMAM, TC 8/1569(2), VECHAVODE, SREEKARIYAM P.O, THIRUVANANTHAPURAM, KERALA - 695017. 2 SMT. GEETHA S.R, GEOLOGIST, PRESENTLY WORKING AT DISTRICT OFFICE OF MINING AND GEOLOGY, KESAVADASAPURAM, THIRUVANANTHAPURAM - 695004. 3 DR. A. BADARUDEEN ASSISTANT GEOLOGIST, PRESENTLY WORKING AT DISTRICT OFFICE OF MINING AND GEOLOGY, COLLECTORATE, KOTTAYAM - 686002, (NOW PROMOTED AS GEOLOGIST AND POSTED AT DIRECTORATE OF MINING AND GEOLOGY), KERALA. 2 OP(KAT) No.361 of 2021 4 SMT. SHAJIMIL P.K, ASSISTANT GEOLOGIST, PRESENTLY WORKING AT THE KERALA MINERAL SQUAD (CR), THRISSUR - 680020, (NOW PROMOTED AS GEOLOGIST AND POSTED AT THE DIRECTORATE OF MINING AND GEOLOGY), KERALA. R1 BY ADVS. SRI.M.FATHAHUDEEN SRI.JELSON J.EDAMPADAM THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: 3 OP(KAT) No.361 of 2021 ## **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** **................................................................. O.P.(KAT) No.361 of 2021** _[Arising out of the impugned interim order dated 08.12.2021 in O.A. No.2152 of 2021on the file of the KAT, TVM Bench]_ **.................................................................** Dated this the 17[th] day of January, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The 1st respondent herein has filed the instant Ext.P1 Original Application, O.A.No.2152 of 2021 before the Kerala Administrative Tribunal, Thiruvananthapuram Bench on 18.11.2021, ## with the following prayers: - _“i) Call for the records leading to Annexure A-1 and quash the same to the extent it transfers the applicant from his present station, Directorate of Mining and Geology to District Office, Kozhikode._ - _ii) Direct the Respondents 1 and 2 to retain the applicant at his present station at the Directorate of Mining and Geology._ _iii) Such other and further reliefs as this Hon'ble Tribunal may deem fit and proper in the circumstances of the case.”_ 2. The interim prayer/interim relief raised in Ext.P1 Original ## Application is as follows: _“.......... to stay the operation and implementation of Annexure A-1 order to the extent it transfers the applicant from his present station at the Directorate of Mining and Geology to District Office, Kozhikode and direct the Respondents 1 and 2 to retain the applicant at his present station at the Directorate of Mining and Geology, Thiruvananthapuram.”_ 3. The Tribunal has initially passed Ext.P2 interim order dated 18.11.2021 in the instant O.A.No.2152 of 2021 which reads as 4 OP(KAT) No.361 of 2021 ## follows: _“Applicant is a Geologist who impugns Annexure A1 order of transfer. As per Annexure A1 order dated 17.11.2021 the applicant is transferred and posted to District Office, Kozhikode against a vacancy which has arisen due to the promotion of the incumbent Geologist who is now promoted as per the same order, as Deputy Director and is posted in the Directorate of Mining and Geology. It is stated that the above order dated 17.11.2021 was published in the official website only on 18.11.2021. The applicant seeks retention at the Directorate pointing out that he was posted at the Directorate only in the year 2019._ _2. The learned Government Pleader, submits that the applicant has been continuing at Thiruvananthapuram from the year 2016 and has completed more than 5 years and the transfer was necessitated due to the promotion order. It is also submitted that relieving orders have been duly issued on the F.N of 18.11.2021. This fact is disputed by the counsel for the applicant who states that the applicant is a gazetted officer who is on leave today._ _Post on 23.11.2021. The learned Government Pleader will get instructions as to availability of a vacancy of Geologist at the Directorate and whether the applicant could be retained against the above post. Learned Government Pleader will also make available the relieving orders, if any, issued as on 18.11.2021._ _Status quo, as on today will be maintained till 23.11.2021.”_ 4. Later, when the official respondents in the O.A. had apprised the Tribunal that the original applicant was already relieved from service, as on the date on which Ext.P2 interim order of status quo was rendered by the Tribunal on 18.11.2021 and that R3 in the O.A./R2 herein Smt.Geetha S.R. had already taken charge in the post in the head office at Thiruvananthapuram held by the applicant, etc., the Tribunal has passed the impugned Ext.P6 interim order dated 08.12.2021, ordering to retain the applicant in the post in the Directorate at Thiruvananthapuram, until the final disposal of the 5 OP(KAT) No.361 of 2021 O.A. 5. Now the State of Kerala and the Director of Mining and Geology/respondents 1 & 2 in the O.A. have filed the instant Original Petition under Articles 226 & 227 of the Constitution of India, with the following prayers: - _“1. To set aside Exhibit P6 Interim Order dated 08.12.2021 of the Kerala Administrative Tribunal in O.A.No.2152/2021 and dismiss the Exhibit P1 Original Application._ _2. To issue other reliefs, this Honourable Court may deem fit in the Original Application.”_ 6. Heard Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners in the O.P./official respondents 1 & 2 in the O.A. and Sri.M.Fathahudeen, learned Advocate appearing for R1 in the O.P./sole original applicant in the O.A. In the nature of the orders proposed to be passed by this Court in the O.P., notices to contesting respondents 2 to 4 in the O.P./contesting respondents 3 to 5 in the O.A., will stand dispensed of. 7. The applicant herein is essentially aggrieved by the impugned Annexure-A1 transfer order as per G.O.(Rt) No.1249/2021/ID dated 17.11.2021 issued by the Government in the Industries Department whereby it has been ordered that the applicant who has been continuing in Thiruvananthapuram, in the head office, will stand transferred as District Geologist, Kozhikode and in his 6 OP(KAT) No.361 of 2021 place, R2 herein Smt.Geetha S.R. will stand transferred and posted accordingly. The impugned Annexure-A1 order is an order for transfer and posting of six incumbents in the cadre of Geologist, either on the basis of promotion or otherwise. One of the prime contention taken by the original applicant is that he has only 1½ years to retire from service in as much as he is due to retire on 31.05.2023 and that therefore, going by the transfer guidelines, posting an incumbent like the applicant to a far off place at Kozhikode is not proper and correct, etc. 8. Per contra, the contention of the State and Departmental authorities is that the original applicant has already completed more than 5 long years in various capacities in Thiruvananthapuram and that the transfer and posting has been made in the exigencies of service, taking note of promotion of certain incumbents and to fill up the existing vacancy, etc. as can be seen from a reading of AnnexureA1 order. 9. The Tribunal initially has passed the impugned Ext.P2 interim order dated 18.11.2021 ordering that the status quo as on that date (18.11.2021) should be maintained by the official respondents in the O.A. as regards the transfer and posting of the applicant. The contesting respondents in the O.A./petitioners herein had thereafter 7 OP(KAT) No.361 of 2021 apprised the Tribunal that as on the day on which Ext.P2 interim order was passed by the Tribunal on 18.11.2021, the original applicant was already relived from his post as Geologist in the Directorate of mining and Geology, Thiruvananthapuram and that Smt.Geetha S.R. who was transferred from her earlier post as District Geologist, Thiruvananthapuram, has already taken charge in the post of Geologist at Directorate held by the applicant on 18.11.2021 fore noon and that therefore, the interim status quo order as per Ext.P2 dated 18.11.2021 has become infructuous. Further that with the implementation of the impugned Annexure-A1 transfer order all the sanctioned posts of Geologist in the Directorate and in Thiruvananthapuram District have already been filled up and therefore, allowing the applicant to continue in the Directorate at Thiruvananthapuram, is not legally permissible, etc. 10. The Tribunal after hearing both sides has rendered the impugned Ext.P6 interim order 08.12.2021 holding that the very relieving of the applicant from the post at Directorate, Thiruvanathapuram and the consequential assuming of charge by R2 herein (Smt. Geetha S.R.), is against the norms as per Part I of Appendix III of KSR, etc. and by placing reliance on the decision rendered by the learned Single Judge of this Court in the case in 8 OP(KAT) No.361 of 2021 ## _**Ramavarma Thirumulpad v. State of Kerala [ILR 1985 (2)**_ _**Ker. 355=1985 KHC 405]**_ , etc. Being aggrieved by the present impugned interim order at Ext.P6 dated 08.12.2021, the State and the Director of Mining and Geology have preferred the instant O.P. as aforesaid. 11. Now the prime contentions raised by Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioners are two fold. Firstly that the impugned transfer order at Annexure-A1 was made in the exigencies of service and that the applicant has already completed 5 long years of service in Thiruvananthapuram in various capacities. Further that the impugned transfer order at Annexure-A1 was made in the exigencies of service in as much as certain transfers and postings had to be made due to promotions to certain incumbents like R3 herein (Dr.A.Badarudeen) and R4 herein (Smt.Shajimol P.K.), etc. and to fill up the existing vacancy at Kozhikode that therefore the consequential transfer and posting of the applicant had also to be made as per Annexure-A1. It is pointed out that the officer who was working as District Geologist, Kozhikode, the post to which the applicant has now been transferred as per Annexure-A1, was promoted to the next higher category post of Deputy Director of Mining and Geology and there thus existed a vacancy in the post of 9 OP(KAT) No.361 of 2021 District Geologist at Kozhikode. Further that R3 herein (Dr.A.Badarudeen) was an Assistant Geologist at the District Office of Mining and Geology Department, Kottayam and R4 herein (Smt.Shajimol P.K.) was an Assistant Geologist then working at Thrissur and both of them are promoted to the next higher category post of Geologist and they have to be provided posting to the said promotion post of Geologist, that in these circumstances that since the applicant has continued in Thiruvananthapuram for five long years, it was decided in the exigencies of service that he had to be transferred and posted as District Geologist, Kozhikode in the existing vacancy and that Smt.Geetha S.R., had to be transferred from the post of District Geologist, Thiruvananthapuram to the post of Geologist, Directorate of Mining and Geology held by the applicant. That in the consequential vacancy of R2 herein Smt.Geetha S.R., one Sri.Bijumon P.N. was posted, as evident from Ext.P4 dated 23.11.2021 and further that R3 herein and R4 herein on promotion were posted as Geologists in the other two existing vacancies of Geologists in the Directorate of Mining and Geology. Further that R2 herein had assumed duty as per the rules, consequent to Annexure-A2 and R3 herein, R4 herein and the abovesaid Sri.Bijumon P.N. covered by Ext.P4 had also by then joined duty to the respective posts concerned. In the result that no 10 OP(KAT) No.361 of 2021 post is now available to accommodate the applicant and that the continuance of the applicant would result in an anomalous and legally incorrect state of affairs in as much as two incumbents, both R2 herein and the original applicant are continuing in the Directorate at Thiruvananthapuram as against a single sanctioned post. Further it is pointed out that the reliance placed by the Tribunal on _**Ramavarma**_ _**Thirumulpad**_ 's case _**(1985 KHC 405)**_ is misplaced in as much as it has been clearly held in para No.7 thereof that in the said case, nobody had a case that the petitioner therein was on leave as indicated in Part I of Appendix III, etc. In the instant case it is pointed out by the learned Senior Government Pleader that even going by the case of the original applicant, he was on leave as on 18.11.2021 (the day on which Ext.P2 interim status quo order was rendered by the Tribunal), in pursuance of impugned Annexure-A1 transfer order dated 17.11.2021 and that therefore the rules clearly permit the other incumbent like R2 herein Smt.Geetha S.R. to assume charge of the post held by the original applicant, in consequence of Annexure-A1 transfer order, etc. and that hence the dictum laid down by the learned Single Judge of this Court in _**Ramavarma Thirumulpad**_ 's case (supra) is not applicable to the instant case and this crucial aspect has been completely overlooked by the Tribunal, etc. 11 OP(KAT) No.361 of 2021 12. Per contra, Sri.M.Fathahudeen, learned counsel appearing for R1 herein/original applicant would point out that the applicant has hardly about 1½ years to retire from service in as much as he is due to retire from service on 31.05.2023 and that going by the transfer norms personnel who have less than two years to retire from service ordinarily shall not be disturbed with a transfer, etc. To this, the learned Senior Government Pleader would point out that the said norm is not inflexible and that transfer order can be made notwithstanding such law in the exigencies of service and in the instant case, the crucial and relevant aspect of the matter is that the applicant had already enjoyed continuous posting in Thiruvananthapuram for the last five years and therefore, ordering his transfer to a responsible position like District Geologist, Kozhikode cannot be said to be beyond the authority of the State Government. 13. The learned counsel for R1 herein would also point out that the family situation of the original applicant has not been considered and that his wife is working as a teacher in Palakkad District and she is away from their family home at Thiruvananthapuram and that the applicant has only a single child (minor boy aged 11 years and now studying in standard V in a school at Thiruvananthapuram) and that the only persons to take care of the minor son of the applicant are the 12 OP(KAT) No.361 of 2021 parents of the applicant’s wife who are now in Thiruvananthapuram and that if the applicant is transferred to Kozhikode, both the applicant and his wife who is at Palakkad will not be able to take care of the boy during office hours, as most of the time the child was then undergoing online schooling and presence of someone at home is highly necessary and hence the disturbance of the applicant from Thiruvananthapuram by transfer to Kozhikode would result in a situation that the young son of the applicant may face serious schooling problems, etc. 14. After hearing both sides, we are not much impressed with the stand taken by the Tribunal by placing reliance on _**Ramavarma Thirumulpad**_ 's case (supra) _**(1985 KHC 405)**_ , in as much as the specific case of the applicant himself that he was already on leave on 18.11.2021, the day on which Ext.P2 status quo order was passed. The learned Senior Government Pleader has strongly urged that since the applicant was admittedly on leave on 18.11.2021, the only way to implement the transfer order in the normal course of things was for R2 herein to assume charge in the said post, which is clearly permitted by the provisions contained in Appendix III of Part I of KSR and that the said exemption is clearly called down in para No.7 of this Court’s decision as per _**Ramavarma Thirumulpad**_ 's case (supra). 13 OP(KAT) No.361 of 2021 15. However, after hearing both sides, we see that the impugned transfer order was issued as per Annexure-A1 on 17.11.2021 and it was very much into the knowledge of the official respondents in the O.A. that the schools could be formerly closed by the end of March 2022, and at that point of time, Sri.Bijumon P.N. covered by Ext.P4 dated 23.11.2021 was not ordered to be transferred to Thiruvananthapuram in the post held by R2 herein. Therefore if the transfer and posting was justified by exigencies of service, the same could have been withheld for some time atleast till the beginning of 2[nd] week of March 2022, so that the schooling of the only child of applicant is not seriously impaired. We say so only vis-a-vis with regard to the interlocutory arrangement made by the Tribunal. This comment of ours cannot be construed as an expression of opinion on our part regarding the merits of the main controversy, which will have to be decided on merits by the Tribunal. The aspects regarding the schooling affairs of the only child of the applicant and fact that the applicant’s wife is already working in Palakkad, etc. have been duly taken note of. If so, sufficient steps could have been taken to ensure that those aspects of the matter have been duly taken care of as mentioned hereinabove. Now the Tribunal has passed the present impugned interim order as per Ext.P6 and the schools would be closed 14 OP(KAT) No.361 of 2021 by the last week of March 2022 and we feel that the interlocutory arrangement made by the Tribunal need not be disturbed by us, atleast till then. 16. Sri.M.Fathahudeen, learned counsel appearing for the applicant in the O.A. submits that the main matter in the O.A. itself can be heard and decided by the Tribunal as the matter in issue is quite simple since it relates to a transfer order and that this Court may ensure the early final disposal of the main matter in the O.A., well before the 2[nd] week of March 2022 or so, etc. We see strong force in the submission made by Sri.Antony Mukkath, learned Senior Government Pleader appearing for the petitioner in the O.P., that allowing two personnel to continue at Thiruvananthapuram as against the single sanctioned post is quite anomalous and is not the right manner of dealing with things in a transfer issue. However, taking note of the peculiar facts and circumstances of the case relating to the issues of the only child of the applicant and taking note of the further passage of time and as the school will be closed by the 3[rd] week of March 2022 also, the following orders are passed: It is ordered that the Tribunal may take all reasonable endeavours possible to ensure the early final disposal of the main matter in Ext.P1 O.A.No.2152 of 2021, without any further delay, at any rate, by the 15 OP(KAT) No.361 of 2021 2[nd] week of March 2022 or so. However, we make it clear that if for any reason the Tribunal is not in a position to render its final verdict in the O.A. within the said time line or at least before 25.03.2022, then the petitioners herein will be at liberty to relieve the applicant from his present post at Thiruvananthapuram and the applicant will have to join duty at Kozhikode, in pursuance of Annexure-A1, but this will be without prejudice to his contentions in the O.A. We make this provision to protect the rights and interests of both sides and also to ensure that the anomaly of allowing two personnel to continue as against a single sanctioned post is rectified as early as possible. We make it clear that we have not entered into the merits of the controversy in any manner and the abovesaid orders are passed by us only as an interim arrangement. All issues are at large. Since from the submissions made on behalf of the petitioners in the O.P. it is made clear that they are not in a position to reconsider the transfer order, etc., the Tribunal will adjudicate on the merits of the issue regarding the legality and correctness of the impugned Annexure-A1 transfer order. The learned Senior Government Pleader submits that the petitioners may be given liberty to ensure that additional charge arrangement is made to man the post of District Geologist, Kozhikode, etc. We need not pass any orders in that regard for it is fully within the province and domain of the State authorities 16 OP(KAT) No.361 of 2021 concerned to take care of such aspects, pending the final disposal of the O.A. as above. Hence the impugned directions and orders of the Tribunal, will stand modified as above. With these observations and directions, the above Original Petition, will stand disposed of. Sd/- **ALEXANDER THOMAS JUDGE** Sd/- **VIJU ABRAHAM JUDGE** cks 17 OP(KAT) No.361 of 2021 ## APPENDIX OF OP(KAT) 361/2021 - PETITIONER EXHIBITS Exhibit P1 PHOTOCOPY OF THE O.A. NO. 2152/2021 ALONG WITH ANNEXURES. - ANNEXURE A1 TRUE COPY OF GO(RT) NO. 1249/2021/ID DATED 17.11.2021 OF GOVERNMENT OF KERALA. - ANNEXURE A2 TRUE COPY OF GO(P) NO.3/2017/P&ARD DATED 25.02.2017 OF GOVERNMENT OF KERALA. - Exhibit P2 PHOTOCOPY OF THE INTERIM ORDER DATED 18.11.2021 ISSUED BY THE TRIBUNAL. - Exhibit P3 PHOTOCOPY OF THE MEMORANDUM FILED BY THE GOVERNMENT PLEADER DATED 23.11.2021 REGARDING PRODUCTION OF DOCUMENTS, DOCUMENTS, DOCUMENT 1 : REPORT OF TRANSFER OF CHARGE, DOCUMENT 2 : PHOTO COPY OF THE GOVERNMENT LR. NO. 9860/E1/2020 DATED 18.11.2021 ISSUED BY THE DIRECTOR OF MINING & GEOLOGY THIRUVANANTHAPURAM. - Exhibit P4 PHOTOCOPY OF THE MEMORANDUM FILED BY THE GOVERNMENT PLEADER DATED 25.11.2021 REGARDING PRODUCTION OF DOCUMENTS, DOCUMENTS DOCUMENTS 1 : PHOTO COPY OF THE GO(RT) NO. 1273/2021/ID DATED 23.11.2021 OF THE INDUSTRIES DEPARTMENT., DOCUMENTS 2 : PHOTO COPY OF THE GOVERNMENT LR.NO. ID-A1/256/2021/ID DATED 23.11.2021. - Exhibit P5 PHOTOCOPY OF M.A.NO.2330/2021 ALONG WITH ANNEXURES A3 TO A9 ON 24.11.2021. - ANNEXURE A3 TRUE COPY OF THE FINAL ORDER DATED 18.08.2021 IN OA NO.1124/2021 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL. - ANNEXURE A4 TRUE COPY OF THE MEMO 3689/M4/2019 DATED 22.02.2021 OF THE 2ND PETITIONER. - ANNEXURE A5 TRUE COPY OF THE ORDER NO. 292/202122/9719/E1/2020 DATED 31.08.2021 OF THE 2ND PETITIONER. - ANNEXURE A6 TRUE COPY OF THE SUBMISSION DATED 18 OP(KAT) No.361 of 2021 10.11.2021 SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER. ANNEXURE A7 TRUE COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF NOVEMBER 2021. ANNEXURE A8 TRUE COPY OF THE ADVANCE COPY OF THE SUBMISSION DATED 18.11.2021 THROUGH PROPER CHANNEL SUBMITTED BY THE RESPONDENT BEFORE THE 1ST PETITIONER. ANNEXURE A9 TRUE COPY OF THE SUBMISSION DATED 19.11.2021 SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER. Exhibit P6 PHOTOCOPY OF INTERIM ORDER DATED 08.12.2021 ISSUED BY THE TRIBUNAL.