Pavithran K.V. v. The Kerala State Road Transport Corporation

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V MONDAY, THE 31 [ST ] DAY OF JANUARY 2022 / 11TH MAGHA, 1943 ``` ## **`W.P.(C) NO. 25773 OF 2021`** ## **`PETITIONER:`** ``` PAVITHRAN K.V., AGED 53 YEARS, S/O KARUNAN, DRIVER, THE KERALA STATE ROAD TRANSPORT CORPORATION, KOZHIKODE DEPOT, KOZHIKODE DISTRICT. (NOW UNDER ORDERS OF TRANSFER TO VELLANAD DEPOT IN THIRUVANANTHAPURAM DISTRICT) RESIDING AT KANNAMPILLY HOUSE, PAYYOLI P.O, KOZHIKODE DISTRICT. ``` ``` BY ADV O.D.SIVADAS ``` ## **`RESPONDENTS:`** - `1 THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN-695 023, REPRESENTED BY ITS MANAGING DIRECTOR.` - `2 THE CHAIRMAN AND MANAGING DIRECTOR, THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN-695 023.` - `3 THE EXECUTIVE DIRECTOR (ADMINISTRATION), THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, THIRUVANANTHAPURAM, PIN-695 023.` - `4 THE EXECUTIVE DIRECTOR (NORTH ZONE), THE KERALA STATE ROAD TRANSPORT CORPORATION, KOZHIKODE, PIN-673 001.` ``` WP(C) NO. 25773 OF 2021 ``` ``` 2 ``` ``` 5 THE DISTRICT TRANSPORT OFFICER, KERALA STATE ROAD TRANSPORT CORPORATION, KOZHIKODE DEPOT, KOZHIKODE, PIN-673 001. ``` ``` BY ADV SHRI.DEEPU THANKAN, SC, KSRTC ``` ``` THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 31.01.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` WP(C) NO. 25773 OF 2021 ``` ## **JUDGMENT** The petitioner states that he is working as a Driver in the Kerala State Road Transport Corporation (hereinafter referred to as “the Corporation”). He joined the service in the year 2008 and is due to retire on 18.05.2023. The prayer in this writ petition is for quashing Exhibit P8 proceedings dated 18.02.2021, as per which the petitioner herein was ordered to be relieved from Kozhikode Depot and also Exhibit P13 proceedings, as per which the 2nd respondent has issued proceedings dated 12.10.2021 finalising the transfer list. The petitioner contends that Exhibits P8 and P13 orders have been issued without affording an opportunity of being heard to the petitioner and without considering his contentions. 2. Brief facts are as under: Petitioner asserts that while he was working in the Thottilpalam Depot of the 1st respondent Corporation, by Exhibit P1 proceedings dated 17.08.2018, he was transferred to Kozhikode. Immediately thereafter, by Exhibit P2 proceedings he was relieved and was transferred to Pappanamcode. The petitioner contends that as per the transfer guidelines of ``` WP(C) NO. 25773 OF 2021 ``` ``` 4 ``` the 1st respondent Corporation, an incumbent who obtained a transfer to home circle/ home district will not be transferred out of the home circle/home district without completing two years of service. It is also stated in the transfer guidelines that an incumbent who is having less than two years of service is entitled to protection from the transfer. Taking note of these aspects the petitioner was posted to Kozhikode from Pappanamcode as per proceedings dated 25.3.2019. 3. While so, the 2nd respondent issued Exhibit P6 draft transfer list as per proceedings dated 30.01.2021. In Exhibit P6 proceedings, the name of the petitioner was not included. However, while finalising the draft transfer list, the petitioner’s name was included and he was transferred to Vellanad in Thiruvananthapuram, as per Exhibit P7 proceedings. The petitioner contends that Exhibit P7 is against the transfer guidelines of the Corporation. Immediately thereafter, Ext. P8 relieving order was issued on 18.02.2021. 4. Being aggrieved by the transfer order, the petitioner along with several others approached this Court and filed W.P(C) No.5660/2021. This Court, after considering the facts and circumstances and the claim raised by ``` WP(C) NO. 25773 OF 2021 ``` ``` 5 ``` ## petitioners disposed of the writ petition by issuing the following directions: “I feel that, it would be better in the interest of justice, if the transfer orders of all the three categories, namely drivers, conductors and mechanics, are kept in abeyance for a period of three months from today on the following conditions. (i) Those who have accepted the transfer or are ready and willing to join the transferred vacancy or have already taken charge, shall continue to remain at the transferred place. (ii) Those who have raised objection but have already shifted to the transferred vacancy, shall also remain to be there, subject to decision on the representation (iii) The objections/representations submitted, shall be considered by the committee constituted by the Managing Director on the basis of settled legal procedures, rules, regulations and guidelines and shall take appropriate decisions on individual merit basis. (iv) Pending the above, the status quo as mentioned above will follow on a firm belief that the entire process will be completed by the committee and the Corporation within three months period from today. The revised transfer list on the basis of decisions of the committee of all the above three categories shall come into operation after three months on the date to be specified by KSRTC.” ## 5. The petitioner contends that conditions Nos.(i) and (ii) would not be applicable to the petitioner as he has not been served with relieving order. ``` WP(C) NO. 25773 OF 2021 ``` ``` 6 ``` Further, he was entitled to continue without transfer from Kozhikode. In the said circumstances, the petitioner submitted Exhibit P10 representation before the 4th respondent on 22.03.2021. However, ignoring Exhibit P10 representation and ignoring the directions issued by this Court, respondents issued Exhibit P11 proceedings granting time up to 17.04.2021 to join the transferred station. 6. The petitioner asserts that Exhibit P11 is a clear violation of the directions issued by this Court. It is also contended that against all accepted norms, the petitioner was not permitted to attend duty at Kozhikode. 7. In the said circumstances, the petitioner approached this Court and filed W.P.(C) No.10389/2021. This Court taking note of Covid-19 pandemic issued Exhibit P12 interim order allowing the petitioner to continue at Kozhikode if he had not been relieved to date for a period of six weeks. Complaining of non-compliance of the directions issued by this Court, the petitioner had approached this Court and filed Cont. Case (C) No.1860/2021. The contempt case was closed by this Court by recording as follows: “This Court issued the order for a period of 6 weeks considering the ``` WP(C) NO. 25773 OF 2021 ``` ``` 7 ``` peculiar situation on the day on which the order was passed. Now, that period is already over. Admittedly, the interim order is not extended. The petitioner has not approached this Court for any alleged violation during the period when the above order was in force. Now after about 3 months of the expiry of the above order this contempt case is filed. In such circumstances, according to me, there is nothing to be considered in this contempt case” 8. The Petitioner contends that pursuant to Exhibit P9 common judgment, the 2nd respondent again published a draft transfer list, wherein the petitioner was not included and Exhibit P13 order was passed. While passing Exhibit P13 order, the request made by the petitioner in Exhibit P10 was not considered. The petitioner asserts that there cannot be any justification on the part of the respondent in transferring the petitioner who is in the last years of his service. It is on these grounds that the petitioner has approached this Court seeking the following reliefs: (i) Call for the records leading to Ext. P7 proceedings issued by the 2nd respondent, Ext.P8 proceedings issued by the 5th respondent and also Ext. P13 proceedings issued by the 2nd respondent by issuing writ of certiorari to the extent it provides transfer of the petitioner. (ii) issue a writ of mandamus or other appropriate writ, order or direction, to the 2nd respondent to reconsider the transfer of the petitioner to Vellanad in accordance with Ext. P4 transfer guidelines and direct the ``` WP(C) NO. 25773 OF 2021 ``` ``` 8 ``` respondents to permit the petitioner to continue at the Kozhikode Depot itself in accordance with Ext. P4 transfer guidelines. 9. A detailed counter affidavit has been placed on record by the 2nd respondent. It is stated that the Corporation was not able to effect general transfer for the last three years for various legitimate reasons. The appointments in the Corporation are done on a state-wide basis taking note of the proportion of geographical requirement and staff availability. Relying on a catena of decisions, it is stated that the transfer is an incident of service and no employee has a legal right for being posted at any particular place. It is also stated that it is in order to satisfy public interest and to carry out effective service operation that the Corporation took steps to deploy excess employees in any depot and transfer the same to the other depots. According to the respondents, the Corporation had issued a transfer order as per proceeding dated 12.10.2021 and prior to that on 15.02.2021, a draft transfer order was published by the Corporation. The petitioner was in fact transferred as per the said transfer order. The petitioner is due to retire on 18.05.2023 and in the transfer guidelines, an employee who has got two years or less service for retirement will be entitled to retain in the home ``` WP(C) NO. 25773 OF 2021 ``` ``` 9 ``` district itself. However, as on the date of issuance of the impugned transfer list, the petitioner was having more than two years to attain retirement. It was in the said circumstances, that the objection of the petitioner regarding the benefit of exemption of two years for retirement as per the transfer guidelines was not considered. It is also stated that, if the petitioner approaches the Corporation and places a request as per the norms, there will be no impediment in considering the request of the petitioner as only two years is left for his retirement on 18.5.2023. 10. I have considered the submissions advanced. 11. In **Babu v State of Kerala** [1988 (2) KLT 258], a Division Bench of this Court had occasion to hold that orders of transfer made in exercise of administrative discretion should not ordinarily be interfered with under Art.226 of the Constitution. It was held that guidelines for transfer are not statutory and are meant for guidance in the matter of transfer. In administration, a variety of situations not contemplated by the guidelines may arise which have to be taken into account. Merely because a guideline has been violated in the matter of transfer, that would not by itself be a sufficient ``` WP(C) NO. 25773 OF 2021 ``` ``` 10 ``` ground for interference. If the aggrieved parties approach this Court challenging the transfer effected, without resorting to the remedy available of making representations to the superior authorities, they must take the decision of this Court and the question of further consideration of their case by the administrative authorities thereafter should not normally be encouraged. 12. In the case on hand, the respondents had considered his request as directed by this Court and it was thereafter that the transfer order was passed. The guidelines which are relied on by the petitioner enables an employee to be stationed in his home station during the final years of his service. The respondents have reiterated in the counter that if the petitioner complies with the order of transfer and thereafter files a representation in terms of the guidelines issued by the Corporation, his request can be considered with all the sympathy that it deserves. 13. Having considered the entire facts, I am not inclined to interfere with the transfer orders issued by the respondents which are impugned in this writ petition. However, if the petitioner complies with the order of transfer ``` WP(C) NO. 25773 OF 2021 ``` ``` 11 ``` and after joining the station files a representation before the Managing Director within a period of one month from today, the said respondent shall consider the request made by the petitioner and take a decision as per the guidelines and in accordance with the law. Orders shall be passed with due notice to the petitioner, expeditiously, in any event within a period of 4 weeks from the date of filing of the representation as above ordered. Writ Petition is disposed of. **Sd/-** **RAJA VIJAYARAGHAVAN V JUDGE** ``` avs ``` ``` WP(C) NO. 25773 OF 2021 ``` ``` 12 ``` ## **`APPENDIX OF WP(C) 25773/2021`** ## **`PETITIONER’S EXHIBITS`** |`Exhibit`|`P1`|`TRUE COPY OF THE PROCEEDING DATED 17.8.2018`| |---|---|---| |||`ISSUED BY ASST. TRANSPORT OFFICER,`| |||`THOTTILPALAM`| |`Exhibit`|`P2`|`TRUE COPY OF THE PROCEEDING DATED 8.3.2019`| |||`ISSUED BY ASST. TRANSPORT OFFICER THOTTILPALAM`| |`Exhibit`|`P3`|`TRUE COPY OF THE PROCEEDING DATED 25.3.2019`| |||`TRANSFERRING THE PETITIONER FROM PAPPANAMCODE`| |||`TO KOZHIKODE`| |`Exhibit`|`P4`|`TRUE COPY OF THE TRANSFER NORMS ISSUED BY THE`| |||`2ND RESPONDENT`| |`Exhibit`|`P5`|`TRUE COPY OF THE CERTIFICATE SHOWING THE CASTE`| |||`STATUS OF PETITIONER`| |`Exhibit`|`P6`|`TRUE COPY OF THE RELEVANT PORTION OF THE DRAFT`| |||`TRANSFER ORDER ISSUED BY THE 2ND RESPONDENT AS`| |||`PER PROCEEDING DATED 30.1.2021`| |`Exhibit`|`P7`|`TRUE COPY OF THE RELEVANT PORTION OF THE`| |||`TRANSFER ORDER ISSUED BY THE 2ND RESPONDENT AS`| |||`PER PROCEEDING DATED 15.2.2021`| |`Exhibit`|`P8`|`TRUE COPY OF THE PROCEEDING DATED 18.2.2021`| |||`TRANSFERRING THE PETITIONER FROM KOZHIKODE TO`| |||`VELLANAD`| |`Exhibit`|`P9`|`TRUE COPY OF THE JUDGMENT DATED 17.3.2021 IN`| |||`WPC NO 5660 OF 2021 RENDERED BY THIS HON'BLE`| |||`COURT`| ``` WP(C) NO. 25773 OF 2021 ``` ``` 13 ``` ``` Exhibit P10 TRUE COPY OF THE REPRESENTATION DATED 22.3.2021 SUBMITTED BY THE PETITIONER Exhibit P11 TRUE COPY OF THE PROCEEDING DATED 15.4.2021 ISSUED BY THE 3RD RESPONDENT Exhibit P12 TRUE COPY OF THE ORDER DATED 23.4.2021 ISSUED BY THIS HON'BLE COURT IN WPC NO 10389 OF 2021 Exhibit P13 TRUE COPY OF THE PROCEEDING OF THE 12.10.2021 ISSUED BY THE 2ND RESPONDENT ```