P.C. John v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN & THE HONOURABLE SMT. JUSTICE P.V.ASHA FRIDAY, THE 29TH DAY OF JANUARY 2016/9TH MAGHA, 1937 OP(KAT).No. 12 of 2016 (Z) --------------------------- AGAINST THE ORDER IN OA 1416/2015 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM DATED 23-12-2015 PETITIONER: ----------- P.C.JOHN ASSOCIATE PROFESSOR, GOVERNMENT LAW COLLEGE, CALICUT, PERMANENTLY RESIDING AT PUNNILATHU, PRANAVAM GARDENS, MANNANTHALA P.O., NALANCHIRA, THIRUVANANTHAPURAM, KERALA - 695 015. BY ADVS.SRI.A.JAYASANKAR SRI.C.V.MANUVILSAN SRI.MANU GOVIND RESPONDENTS: ------------ 1. THE STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA - 695 001. 2. THE ADDITIONAL SECRETARY TO GOVERNMENT HIGHER EDUCATION (C) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 3. SMT.SHEEMA S. DHAR ASSISTANT PROFESSOR, GOVERNMENT LAW COLLEGE, VANCHIYOOR P.O., THIRUVANANTHAPURAM - 695 035, RESIDING AT VASUDHA, VAZHAPPANA, KULATHOOR P.O., THIRUVANANTHAPURAM. R BY GOVERNMENT PLEADER SRI JOSEPH GEORGE THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 29-01-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 12 of 2016 (Z) --------------------------- ## **APPENDIX** PETITIONER'S EXHIBITS --------------------- EXT.P1 - TRUE COPY OF ORIGINAL APPLICATION NO.1416/2015 FILED BEFORE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXT.P2 - THE TRUE COPY OF THE REPLY STATEMENT DT. 25.11.2015 PREFERRED BY THE 1ST RESPONDENT. EXT.P3 - REPLY STATEMENT FILED ON BEHALF OF 2ND RESONDENT ON 21.10.2015. EXT.P4 - THE TRUE COPY OF THE REPLY STATEMENT DT. 22.9.2015 PREFERRED BY THE 3RD RESPONDENT. EXT.P5 - THE TRUE COPY OF THE ADDITIONAL REPLY STATEMENT DT. 03.11.2015 FILED BY THE 3RD RESPONDENT. EXT.P6 - TRUE COPY OF ORDER DT. 23.12.2015 IN OA NO. 1416/2015 ISSUED BY THE KERALA ADMIISTRAIVE TRIBUNAL, THIRUVANANTHAPURAM. RESPONDENT(S)' EXHIBITS ----------------------- NIL. /TRUE COPY/ P.S TO JUDGE **K.SURENDRA MOHAN & P.V ASHA, JJ. ----------------------------------------------------O.P(KAT) No.12 of 2016 ---------------------------------------------------Dated this the 29[th] day of January, 2016** ## **JUDGMENT** ## Surendra Mohan, J. The petitioner has filed this Original Petition challenging Ext.P6 order of the Kerala Administrative Tribunal (`K.A.T’ for short) in O.A No.1416 of 2015. The petitioner had invoked the jurisdiction of the K.A.T challenging Annexure-A2 order, that forms part of Ext.P1, dated 23.07.2015, by which he has been transferred from Thiruvananthapuram to Kozhikode. The petitioner is working as an Assistant Professor at the Government Law College, Thiruvananthapuram. He has been working there since 2003. The petitioner challenged Annexure A2 order contending that, his transfer was in violation of the guidelines for transfer. While transferring him out of Thiruvananthapuram, persons with lesser periods of outstation service have been retained, in violation of the principle that such persons have to be transferred in preference to the petitioner. **O.P(KAT) No.12 of 2016** 2 Therefore, it was contended that, the petitioner with a longer term of outstation service was entitled to be retained at Thiruvananthapuram. More so, for the reason that, he is on the verge of retirement, his date of superannuation being 31.03.2018. It is pointed out that, on an earlier occasion when he was transferred, he had challenged his transfer in O.A No.1637 of 2012. The K.A.T had allowed the said Original Application and set aside the transfer order. The petitioner has a case that, his present transfer is in retaliation to the said act of his. 2. The respondents contested the claim of the petitioner pointing out that, transfer of the petitioner was made as part of the general transfer. No employee has a right to complain against the general transfer, which is an incident of service. It is further contended that, the transfer guidelines are not enforceable and therefore, there were no grounds to interfere with the impugned order. 3. The Kerala Administrative Tribunal considered the rival contentions, examined the relevant files and found that there were no ground to interfere with the same. However, **O.P(KAT) No.12 of 2016** 3 considering the fact that the petitioner has more than 8 years’ out of station service to his credit, it was only appropriate that the petitioner was considered favourably for a transfer back during the general transfer, 2016. With the above direction, the impugned order has been upheld. The petitioner is aggrieved by the same. According to the learned counsel Advocate Manu Govind, the petitioner being a Lecturer in a Law College, there is no exigency in service that is comparable to other posts in which transfers are necessitated every 3 years. In the nature of the duties discharged by a Lecturer, there is no necessity for a transfer periodically for the reason that, the students continue to change every year. It is contended that, persons with lesser periods of outstation service have been retained at Thiruvananthapuram while transferring the petitioner. He is a person who has only a little more than two years to retire. Therefore, it is contended that, in the fitness of things, he ought to have been retained at Thiruvananthapuram. The learned counsel has placed reliance on a decision in **Girisankar S. S. v. State of Kerala and another** [2008 (3) KHC 929] in support of his contentions. In the said decision, the principles on the basis 4 **O.P(KAT) No.12 of 2016** of which transfers on compassionate grounds are to be granted has been set out in paragraph 5 thereof. Therefore, the learned counsel seeks interference with the order of the K.A.T. We have also heard the learned Government Pleader. 4. In the first place, it is necessary to notice that Annexure A2 is a general order of transfer. Of course, the petitioner has a contention that the same was issued only on 23.07.2015; whereas any general transfer order should have been issued in May. We notice that the K.A.T has considered the above aspect and found that the explanation of the respondents for the delay was acceptable. We do not find any reason to take a different view of the matter. 5. The K.A.T had called for files and examined them. It has been found that, there was nothing in the files to indicate that the transfer was vitiated by malafides or extraneous consideration. Therefore, the K.A.T has declined interference. However, taking into account the long outstation service that the petitioner has to his credit, he has been directed to be considered favourably for a transfer back during the general transfer 2016. We are satisfied that the said direction secures 5 **O.P(KAT) No.12 of 2016** the ends of justice. It is trite that guidelines for transfer are not enforceable through a court of law and are intended to guide the authorities while exercising the powers of transfer. Therefore, the violations pointed out as such, cannot entitle the petitioner to seek interference with the impugned order of transfer. In the exigencies of the service, individual cases, where compassion has to be exercised, would also arise. Therefore, issue of Annexure A6 order cancelling the transfer of some of the incumbents cannot be said to be unjustified. 6. In Ext.P6, the K.A.T has issued the following direction: “23. xxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx xxxxx But, at the same time, as the applicant has got more than 8 years of out station service it is only appropriate that the Government considers favourably the case of the applicant for a transfer back to Thiruvananthapuram during the next general transfer in 2016. There will be a direction to that effect, even though we are not interfering with Annexure A2 order of transfer. The major part of the academic year is also over. Therefore, Annexure A2 is upheld, but subject to the above direction.” It has also been made clear that the same is a positive direction. As rightly held by the K.A.T, a major portion of the academic year is over. Therefore, the above direction issued by the K.A.T takes care of the interests of the petitioner. We notice that the 6 ## **O.P(KAT) No.12 of 2016** petitioner is entitled to the said relief, in view of the further fact that, he is due to retire on 31.03.2018. With the above observations, this Original Petition is disposed of. _Sd/-_ _**K.SURENDRA MOHAN Judge**_ _Sd/-_ _**P.V.ASHA Judge**_ rtr/