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High Court of KeralaSingle JudgeDismissed

P. Rajendran Nair v. K. Pavithran and others

Case / Petition Number:WP(C).No.24879/2008-J
Neutral Citation:/null

Case Details & Bench

Court
High Court of Kerala
Hon'ble Judges
  • P. N. Ravindr an
Judgment Date
2008-09-29
Court Decision / Holding
The writ petition is dismissed. The court notes that the Apex Court in Gobardhan Lal supports the non-interference with transfer orders in the absence of malafides or statutory violation. An interim provision is recorded: if the petitioner joins Kollam on or before 3 October 2008, his continuity of service will be treated as continuous in the new station.
Final Disposition
Dismissed

Parties to the Case

Appellants / Petitioners

  • P. Rajendran Nair

Respondents

  • K. Pavithr an
  • The District Medical Officer (Homoeo), Kollam
  • The Director of Homoeopathy, Thiruvananthapuram
  • State of Kerala represented by the Secretary, Department of Health and Family Welfare, Government Secretariat, Thiruvananthapuram

Legal Representation & Advocates

Counsels for Petitioners

  • • Sri. Gopakumar R. Thaliy al
  • • Sri. N. P. Prajeesh

Counsels for Respondents

  • • Sri. Kaleeswaram Raj
  • • Smt. Anu Sivaram an

Case Synopsis & Summary

This writ petition challenges Ext.P3, an 11 August 2008 transfer order by the Director of Homoeopathy transferring P. Rajendran Nair (the petitioner) from Thiruvananthapuram to Kollam and appointing K. Pavithran as his substitute. The petitioner, who had been posted in different locations since 2000 and is Senior Superintendent in the Directorate of Homoeopathy, asserts two grounds: (i) with less than two years left to retirement, he is entitled to be retained at his native station in Thiruvananthapuram; and (ii) under transfer guidelines, after three years at a station one can only be replaced by an officer who has completed three years’ service at another station. He also contends that transfers on compassionate grounds cannot be effected outside a general transfer and relies on Ext.P7 to show that the first respondent was not due for transfer from Kollam. The petitioner’s Exhibits (EXT.P.1–P.14) reflect orders, representations, and attachments, while the respondents’ material (EXT.R1.A–R1.M) includes submissions and attendance registers. The court frames the legal question: whether the transfer order was vitiated by malafides or statutory violation, or issued by an incompetent authority; and whether guidelines create enforceable rights. Relying on the Apex Court decision in Gobardhan Lal, the court ultimately holds that transfers are not to be lightly interfered with and that guidelines are advisory unless malice or statutory breach is shown. The petition is dismissed; however, an interim clause provides that if the petitioner joins Kollam by 3 October 2008, continuity of service will be treated as continuous.

Legal Doctrines & Maxims

  • Transfer of an employee is an incident inherent in the terms of appointment; cannot be interfered with lightly in the absence of mala fides or statutory violation
  • Guidelines governing transfer are for guidance and do not confer enforceable rights
  • Mala fides as a ground to challenge transfer

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that, with less than two years to retirement, he is entitled to retention at Thiruvananthapuram (his native place). He contends that under transfer guidelines, despite three years at Thiruvananthapuram, he can be replaced only by an officer who has completed three years of service elsewhere, and that the first respondent had not completed three years at Kollam. He also argues that transfers on compassionate grounds cannot be effected outside the time of general transfer and relies on Ext.P7 to show the first respondent’s ineligibility for transfer. Ext.P3’s recitation of mutual transfer to benefit the first respondent and the claims of three-year tenure at Thiruvananthapuram are also highlighted. He contends mala fides via NGO influence, though without cogent materials.

Contentions of Respondents

The respondents argue that transfer is an inherent incident of public service and necessary in the public interest; guidelines are only advisory and do not confer enforceable rights. They contend Ext.P3 was a valid transfer, the petitioner had completed a three-year term at Thiruvananthapuram and could be transferred, and no mala fides or statutory violation is shown. The court should respect transfer orders unless vitiated by mala fides, incompetence, or statutory violations.

Cited Precedents (1)

Case NameCitationTreatmentExplanation
State of U.P. and others v Gobardhan Lal2004(11) SCC 402PositiveThe court cites Gobardhan Lal to establish that transfer orders are generally not subject to interference unless mala fides or statutory violations are shown; transfer guidelines are advisory rather than creating enforceable rights.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **MONDAY, THE 29TH SEPTEMBER 2008 / 7TH ASWINA 1930** **WP(C).No. 24879 of 2008(J)** **--------------------------------------** **PETITIONER:** - **-------------------** **P.RAJENDRAN NAIR, SENIOR SUPERINTENDENT, DIRECTORATE OF HOMOEOPATHY, THIRUVANANTHAPURAM, RESIDING AT POURNAMI, POWDIKONAM P.O., THIRUVANANTHAPURAM.** **BY ADV. SRI.GOPAKUMAR R.THALIYAL, ADV. SRI.N.P.PRAJEESH.** **RESPONDENTS:** - **-----------------------** **1. K.PAVITHRAN, SENIOR SUPERINTENDENT, DISTRICT MEDICAL OFFICE (HOMOEO), KOLLAM.** **2. THE DISTRICT MEDICAL OFFICER (HOMOEO), KOLLAM.** **3. THE DIRECTOR OF HOMOEOPATHY, THIRUVANANTHAPURAM.** **4. STATE OF KERALA, REPRESENTED BY THE SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** **GOVERNMENT PLEADER SMT. ANU SIVARAMAN FOR R2 TO R4, ADV. SRI.KALEESWARAM RAJ FOR R1.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/09/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C). NO.24879/2008-J:** ## **APPENDIX** ## **PETITIONERS' EXHIBITS:** **EXT.P.1: COPY OF THE ORDER PASSED BY THE R.3. DTD. 08/08/2008.** **EXT.P.2: COPY OF THE NOTE FILE ISSUED BY THE R.3.** **EXT.P.3: COPY OF THE ORDER ISSUED BY THE R.3. DTD. 11/08/2008.** **EXT.P.4: COPY OF THE ORDER ISSUED BY THE R.3. DTD. 16/07/2008.** **EXT.P.5: COPY OF THE ORDER ISSUED BY THE R.4. DTD. 04/07/2008.** **EXT.P.6: COPY OF THE NEWS ITEM PUBLISHED IN MALAYALA MANORAMA DAILY DTD. 13/08/2008.** **EXT.P.7: COPY OF THE ORDER ISSUED BY THE R.4. DTD. 15/04/2008.** **EXT.P.8: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DTD. 13/08/2008.** **EXT.P.9: COPY OF THE ORDER ISSUED TO THE PETITIONER DTD. 01/09/2008.** **EXT.P.10: COPY OF THE RECEIPT ISSUED TO THE PETITIONER DTD. 13/08/2008.** **EXT.P.11: COPIES OF THE REQUESTS DTD. 19/08/2008, 21/08/2008 AND 22/08/2008.** **EXT.P.12: COPY OF THE MEMO ISSUED TO THE PETITIONER DTD. 22/08/2008.** **EXT.P.13: COPY OF THE EXPLANATIONS SUBMITTED BY THE PETITIONER DTD. 26/08/2008.** **EXT.P.14: COPY OF THE ATTENDANCE SHEET FOR THE MONTH OF SEPTEMBER 2008.** ## **RESPONDENTS' EXHIBITS & ANNEXURE:** **EXT.R1.A: COPY OF THE SUBMISSION DTD. 12/08/2008 SUBMITTED BY R.1. BEFORE THE DMO.** **EXT.R1.B: COPY OF THE REPORT BY DMO, KOLLAM.** ## **W.P.(C). NO.24879/2008-J:** **EXT.R1.C: COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF AUGUST, 2008.** **EXT.R1.D: COPY OF THE SUBMISSION DTD. 12/08/2008 FILED BY R.1.** **EXT.R1.E: COPY OF THE REPORT OF TRANSFER OF CHARGE ISSUED BY THE DIRECTOR, HOMEOPATHY.** **EXT.R1.F: COPY OF THE ATTENDANCE REGISTER MAINTAINED IN THE DIRECTORATE OF HOMEOPATHY.** **EXT.R1.G: COPY OF THE MEMO DTD. 19/08/2008 ISSUED BY THE DIRECTOR.** **EXT.R1.H: COPY OF THE COMPLAINT FILED BY THE EMPLOYEES IN THE HOMEOPATHY DEPARTMENT.** **EXT.R1.I: COPY OF THE ORDER DTD. 16/07/2008 ISSUED BY THE DIRECTOR.** **EXT.R1.J: COPY OF THE SUBMISSION DTD. 13/08/2008.** **EXT.R1.K: COPY OF THE ATTENDANCE REGISTER IN THE DIRECTORATE OF ANOTHER SECTION FOR AUGUST, 2008.** **EXT.R1.L: COPY OF THE MEDICAL RECORDS IN CONNECTION WITH THE 1ST RESPONDENT'S TREATMENT.** **EXT.R1.M: COPY OF THE ATTENDANCE REGISTER FOR THE MONTH OF JULY 2008.** **ANNEXURE-I: TRUE COPY OF RTC.** **//TRUE COPY//** **P.A. TO JUDGE.** **prv.** ## P.N.RAVINDRAN, J. ====================================== W.P.(C)No.24879 of 2008 ====================================== Dated this the 29[th] day of September 2008 ## JUDGMENT The petitioner, who was working as Senior Superintendent in the Directorate of Homoeopathy at Thiruvananthapuram, challenges Ext.P3 order of transfer passed by the Director of Homoeopathy on 11.8.2008. The petitioner was promoted as Senior Superintendent and posted at District Medical Office (Homoeo) Kannur as per order dated 8.3.2000 issued by the Director of Homoeopathy. He was later transferred to Pathanamthitta by order dated 1.6.2000. After serving for three years at Pathanamthitta, the petitioner requested for a transfer to Thiruvananthapuram. That request was granted by order dated 24.11.2004 and he joined duty as Senior Superintendent in the District Medical Office (Homoeo), Thiruvananthapuram on 1.12.2004. In March 2005, the petitioner was transferred to Government Homoeo Hospital, Thiruvananthapuram and in August 2005 to the Directorate of Homoeopathy at Thiruvananthapuram. By Ext.P3, the petitioner was transferred to District Medical office (Homoeo), Kollam and the first respondent was transferred and posted as Senior Superintendent in the W.P.(C)24879/2008 2 petitioner's place at Thiruvananthapuram. The petitioner challenges Ext.P3 essentially on two grounds. The first contention is that as he has less than two years to retire, he is entitled to be retained at Thiruvananthapuram (his native place). The second contention is that as per the guidelines governing transfer, though he has completed three years at Thiruvananthapuram, he can be replaced only by an officer who has completed three years service at another station. The petitioner contends that the first respondent had served for less than two years at Kollam and therefore as per the guidelines he is not entitled to be transferred out and posted at Thiruvananthapuram. The petitioner has a further case that transfers on compassionate grounds cannot be effected otherwise than at the time of general transfer and Ext.P3 is bad on that count also. The petitioner also relies on Ext.P7 government order to contend for the position that the first respondent is not due for transfer from Kollam to Thiruvananthapuram. Ext.P3 recites that the petitioner and the first respondent are mutually transferred to give transfer to the first respondent on compassionate grounds. Ext.P3 also notices that the petitioner has completed three years term at Thiruvananthapuram. Going by the guidelines governing transfer, the petitioner is liable to be transferred out from W.P.(C)24879/2008 3 Thiruvananthapuram. Then the only question is whether the Director was right in posting the first respondent as the petitioner's substitute at Thiruvananthapuram. 2. The Apex Court has in _State of U.P. and others_ v _Gobardhan Lal_ [2004(11) SCC 402] held as follows: _“It is too late in the day for any government servant to contend that once appointed or posted in a particular place or position, he should continue in such place or position as long as he desires. Transfer of an employee is not only an incident inherent in the terms of appointment but also implicit as an essential condition of service in the absence of any specific indication to the contra, in the law governing or conditions of service. Unless the order of transfer is shown to be an outcome of a mala fide exercise of power or violative of any statutory provision (an Act or rule) or passed by an authority not competent to do so, an order of transfer cannot lightly be interfered with as a matter of course or routine for any or every type of grievance sought to be made. Even administrative guidelines for regulating transfers or containing transfer policies at best may afford an opportunity to the officer or servant concerned to approach their higher authorities for redress but cannot have the consequence of depriving or denying the competent authority to transfer a particular officer/servant to any place in public interest and as is found necessitated by exigencies of service as long as the official status is not affected adversely and there is no infraction of any career prospects such as seniority, scale of pay and secured emoluments. This Court has often reiterated that the order of transfer made even in transgression of administrative guidelines cannot also be interfered with, as they do not confer any legally enforceable rights, unless, as noticed supra, shown to be vitiated by mala fides or is made in violation of any statutory provision”._ W.P.(C)24879/2008 4 3. From the decision of the Apex Court, it is clear that an order of transfer cannot be lightly interfered with and that it can be set aside only if it is passed by an incompetent authority or is made in violation of any statutory rule or is proved to be vitiated by malafides. In the instant case, the petitioner has no case that the order of transfer evidenced by Ext.P3 was passed by an incompetent authority or that it is issued in violation of any statutory rule. The Apex Court has in the aforesaid decision held that guidelines governing transfer exist only for the sake of guidance and that they do not confer on the employee any enforceable right. Such being the situation, the transfer of the petitioner under Ext.P3 cannot be faulted either on the ground that it is in violation of any statutory rule or for the reason that it is passed by an incompetent authority. Further the petitioner has completed three years term at Thiruvananthapuram and was liable to be transferred out from Thiruvananthapuram. The petitioner cannot therefore legitimately complain about his transfer from Thiruvananthapuram. As regards the plea of mala fides, the petitioner has alleged that he had given evidence in support of the complaint lodged by Smt.Ajitha Kumari before the Police and the Kerala Womens Commission and that the office bearers of the NGO Union did not relish the same and were instrumental in W.P.(C)24879/2008 5 transferring out the petitioner. As noticed above, the petitioner does not dispute that he has completed the prescribed term at Thiruvananthapuram. Apart from merely alleging that the transfer is mala fide, the petitioner has not produced any cogent material based on which this Court can safely come to the conclusion that the petitioner's transfer was not in the exigencies of service, but motivated by other considerations. Therefore the transfer cannot be said to be bad on that ground as well. 4. The petitioner further relies on Ext.P7 to contend that the first respondent is not entitled to be transferred out from Kollam because he has not completed three years at Kollam. As noticed above, guidelines governing transfer exist only for the sake of guidance and the petitioner or any other employee cannot seek enforcement of the guidelines. The petitioner who has completed three years at Thiruvananthapuram cannot be heard to say that he can be replaced only by someone who has completed a similar term elsewhere. The transfer of the petitioner from Thiruvananthapuram to Kollam which is a neighbouring district cannot be said to be in any way illegal. The writ petition is in my opinion wholly without merit and misconceived. The writ petition fails and it is dismissed. It is submitted that on the strength of the interim order W.P.(C)24879/2008 6 passed by this Court on 18.8.2008, the petitioner has been continuing at Kollam though the first respondent had assumed charge on 12.8.2008. Since this Court had thought it fit and proper to grant a stay on 18.8.2004, if the petitioner joins duty at Kollam on or before 3.10.2008, the official respondents shall treat the petitioner as in continuous service without break in the station to which he is transferred. ## P.N.RAVINDRAN, JUDGE css/