P.K.RAMACHANDRAN NAIR v. KERALA WATER AUTHORITY

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** ## **THURSDAY, THE 20TH DAY OF SEPTEMBER 2012/29TH BHADRA 1934** ## **WP(C).No. 4259 of 2012 (F)** **--------------------------** **PETITIONER(S):** - **----------------------------** **P.K.RAMACHANDRAN NAIR, S/O.KARUNAKARAN NAIR, AGED 49 YEARS, LOWER DIVISION, WATER SUPPLY, SUB DIVISION, KERALA WATER AUTHORITY, TRIPUNITHURA.** **BY ADVS.SMT.C.G.BINDU SMT.C.G.AJITHA** **RESPONDENT(S):** - **------------------------------** **1. MANAGING DIRECTOR KERALA WATER AUTHORITY,'JALA BHAVAN', THIRUVANANTAHPURAM.** **2. ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, TRIPUNITHURA.** **3. THE SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY,'JALA BHAVAN', THIRUVANANTHAPURAM.** **4. NOUSHAD,LOWER DIVISION, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, TRIPUNITHURA.** **5. STATE OF KERALA,REPRESENTED BY THE CHIEF SECRETARY** **TO THE STATE,SECRETARIAT, THIRUVANANTHAPURAM.** **6. MR. SURESH GEORGE, LINE MAN,** - **OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, TRIPUNITHURA-682 023** **7. MR. K.A VARGHESE,DRAFT MAN, OFFICE OF THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, TRIPUNITHURA-682 023** **R1 TO R3 BY ADV. SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY SRI.JOSEPH JOHN, SC, KERALA WATER AUTHORITY R5 BY GOVERNMENT PLEADER SMT.M.J.RAJASREE** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20-09-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** **WP(C)NO.4259/2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS** **EXHIBIT P1- TRUE COPY OF THE JUDGMENT DT.10.7.2002 IN OP NO.19020/2002 OF THIS HON'BLE COURT.** - **EXHIBIT P2- TRUE COPY OF THE JUDGMENT DT.13/11/2008 IN OP NO.33453/2008 OF THIS HON'BLE COURT.** - **EXHIBIT P3- TRUE COPY OF THE ORDER DT.23/11/2009 OF CHIEF ENGINEER CENTRAL REGION KOCHI.** - **EXHIBIT P4- TRUE COPY OF THE ORDER DT.8.2.2012 OF 3RD RESPONDENT SENIOR ADMINISTRATIVE OFFICER.** - **EXHIBIT P5- TRUE COPY OF THE REPRESENTATION DT.9.2.2012 SUBMITTED BEFORE THE CHIEF MINISTER OF KERALA.** - **EXHIBIT P6- TRUE COPY OF THE LIST SHOWING THE STRENGTH AND VACANCY POSITION OF THE OFFICE OF THE 2ND RESPONDENT.** - **EXHIBIT P7- TRUE COPY OF THE APPLICATION DATED 14/1/2009 SUBMITTED BY THE PETITIONER UNDER RIGHT TO INFORMATION ACT BEFORE THE 3RD RESPONDENT.** - **EXHIBIT P8- TRUE COPY OF THE INFORMATION DATED 28/1/2009 FURNISHED BY THE 3RD RESPONDENT.** - **EXHIBIT P9- TRUE COPY OF THE INFORMATION DATED 27/2/2009 FURNISHED BY THE 2ND RESPONDENT.** - **EXHIBIT P10- TRUE COPY OF THE CUIDE LINE ISSUED BY THE 1ST RESPONDENT.** - **EXHIBIT P11- TRUE COPY OF THE MARRIAGE CERTIFICATE OF THE PETITIONER SHOWING INTERCASTE MARRIAGE** - **EXHIBIT P12- TRUE COPY OF THE ORDER DATED 4/2/2012 ISSUED BY THE 1ST RESPONDENT.** ## **RESPONDENTS' EXHIBITS :** ## **NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.R. RAMACHANDRA MENON, J.** ## **---------------------------------------** ## **W.P.(C). No. 4259 of 2012 ---------------------------------------Dated this the 20[th] day of September, 2012** ## **JUDGMENT** Whether Ext.P4 order dated 08.02.2012, transferring the service of the petitioner as ordered by the third respondent is within the power, reach and competence of the third respondent, is the legal question involved. Factual position is that, as per the transfer order, the petitioner has been shifted only from Thripunithura to Ernakulam, which in no way does impress this Court to call for any interference, but for the legal question. 2. The case of the petitioner is that, the petitioner is a person belonging to forward community, but having contracted marriage with a member of Scheduled Caste, is eligible for certain benefits by virtue of the inter-caste marriage. The petitioner was earlier transferred to the office of Chief Engineer, Central Region, Kochi-11, which was sought to be intercepted by filing O.P.No.19020/2002. It was disposed of vide Ext.P1, directing to consider the representation preferred by the petitioner. Thereafter, the petitioner was given a transfer to W.P.C. No. 4259 of 2012 -2- Thripunithura and was continuing there. In the meanwhile, the petitioner was again transferred to the Project Division at Piravom, which was the subject matter of challenge in W.P.(C). No.33453/2008, wherein interference was declined and the writ petition was dismissed as per Ext.P2 judgment dated 13.11.2008, placing reliance on the decision rendered by the Apex Court as reported in **State of U.P. And Others v. Gobardhan Lal (2004 (11) SCC 402)** . 3. Later, in the year 2008, the petitioner was transferred again to Public Health Division, which was challenged in W.P.(C). No.22954 of 2009. The said case was dismissed declining interference and hence took up in appeal by way of W.A.No.2202/2009. The said appeal was disposed of, directing the representation preferred by the petitioner to be considered by the Chief Engineer. It was favourably considered and the petitioner was transferred by shifting the post to the present office of the second respondent, i.e., the Water Supply Sub Division, Tripunithura vide Ext.P3. According to the petitioner, he joined there on 30.11.2009 and the minimum tenure is still to be W.P.C. No. 4259 of 2012 -3- completed. It was in the meanwhile, that the petitioner was transferred again vide Ext.P4 order dated 8.2.2012, which in turn is challenged in this writ petition. 4. Initially, there was an interim order passed by this Court intercepting the transfer, which however came to be vacated as per order dated 28.5.2012, more so, when the transfer was only from Tripunithura to Kochi, a place situated hardly 10 km apart. However, the learned counsel for the petitioner very much presses for the reliefs, particularly with reference to the lack of power and competence for the third respondent to effect the transfer and in the light of the dictum laid down by the Apex Court holding that, if the transfer is totally without power or jurisdiction, it will stand vitiated ( **State of U.P. And Others v. Gobardhan Lal 2004 (11) SCC 402).** 5. In the course of hearing, the learned counsel for the petitioner submits that the respondent Water Authority has framed Regulations, namely, Kerala Water Authority (Powers of Employees) Regulations, 1998, invoking the power under Section 65(2) of the Kerala Water Supply and Sewerage Act, 1986, by W.P.C. No. 4259 of 2012 -4- virtue of which, though the power of appointment is vested upon the authorities mentioned in Clause 1.01 of Appendix-1 including upon the 3[rd] respondent, the authorities who are vested with the power of transfer and postings are separately dealt with under Clause 1.02, where the 3[rd] respondent does not find a place. Ext.P4 order is sought to be intercepted in the circumstance. 6. The learned Standing Counsel for the respondent Water Authority submits that, the transfer by virtue of Ext.P4 was necessitated only pursuant to shifting of certain posts because of administrative exigency, as ordered by the first respondent vide Ext.R1(a). Ext.P4 is only a consequential order and this being the position, no interference is liable to be made. It is also pointed out that the 3[rd] respondent, who is the Senior Administrative Officer ( re-designated post of Administrative Officer) is very much an 'appointing authority' as per Clause 1.01 of Appendix -1 of the Regulations and as such, by virtue of Rule 32(b) of Part II KS & SSR, the appointing authority stands vested with the power to effect transfer as well. 7. True, the appointing authority is having the power, even W.P.C. No. 4259 of 2012 -5- to dismiss an employee from the service, the latter being contrary to the former. Transfer is an incident of service and as such, normally there cannot be any inhibition with regard to the power of the appointing authority to intercept the transfer as well, more so, in the light of Rule 32(b) Part II KS & SSR. But here the question is something different. Notwithstanding the existence of the General Rule 32(b) Part II KS & SSR, invoking the power vested under Section 65(2) of the Kerala Water Supply and Sewerage Act, 1986, the respondent Water Authority has formulated certain Regulations, known as The Kerala Water Authority (powers of Employees) Regulations, 1998, which specifically deal with the power of appointment and so also the power for transfer and postings separately. These two powers are segregated and differentiated in the manner as given in Clauses 1.01 and 1.02, separately which read as follows: ## “ **1.01 Appointments** 1. Managing Director, Kerala Water Authority (a) To make appointments up to and including the post of Executive Engineers in the technical branch and Administrative Gr.1 in the Administrative branch and W.P.C. No. 4259 of 2012 -6- Internal Auditor in the Account branch subjected to rules. (b) To make appointments under dying-in-harness scheme where relaxation of rules are not involved. The guidelines raised by Government from time to time shall mutatis mutandis apply to such appointments in the Authority. 2. Chief Engineer (P.S.&Gl.) To make appointments up to and including the categories of Assistant Executive Engineers, Senior Superintendents and Divisional Accountants. 3. Chief Engineers (Regional & IPD) To make appointment up to and including the categories of Assistant Executive Engineers. Senior Superintendents, Divisional Accountants other than the initial appointments and promotions. 4. Deputy Chief Engineer (GL) To make appointments in the Technical posts of upto an below the rank of Assistant Engineers subjected to rules. 5. Deputy Chief Engineer (Regional) To make appointments up to and including the Technical posts of Assistant Engineers other than the initial appointments and promotions. 6. Superintending Engineers To make appointments up to and including the Technical post of Assistant Engineers other than the initial appointments and promotions and to make appointments of menials charged to office W.P.C. No. 4259 of 2012 -7- contingencies in sanctioned posts. 7. Executive Engineers: To make appointments up to and the rank of overseer Grade III/Meter Reader, etc. other than the initial appointments and promotions and to make appointments of menials charged to office contingencies in sanctioned posts. 8. Administrative Officer Grade I (HQ) To make appointments up to and including the posts of Junior Superintendents subject to rules. 9. Administrative Officer Grade II (Regional) To make appointments up to and including the posts of the Junior Superintendents other than initial appointments and promotions. ## **1.02 Transfers and Postings** 1. Managing Director, Kerala Water Authority To order Transfer and Posting of Officers up to and including rank of Executive Engineers in the technical branch and Administrative Officer/Internal Auditor in the Administrative branch. 2. Chief Engineer (P.S.&Gl) To order Transfer and Posting of Officers up to and including the Rank of Assistant Executive Engineers, Senior Superintendent and Divisional Accountant. W.P.C. No. 4259 of 2012 -8- 3. Chief Engineers (Regional) To order Transfer and Posting of up to and including the rank of Assistant Executive Engineer, Senior Superintendent, Divisional Accountant. 4. Deputy Chief Engineer (Gl) To order transfer and posting of Officers up to and including the rank of Assistant Engineers. 5. Deputy Chief Engineer (Regional) To order Transfer and posting of Officers up to and including the rank of Assistant Engineers. 6.Superintending Engineer. To order transfer and posting of officers upto and including the rank of Assistant Engineer, Junior Superintendent, etc. 7. Executive Engineers. To order and Posting of officers up to and including the rank of Draftsman Grade I, Head Clerk etc.” 8. Going by the above provisions, it is very much clear that, the 'transfer and postings' of employees in the Water Authority was intended to be given a separate treatment in the manner as specified in the Regulations. The Regulations have been framed by the Water Authority itself and framing of Regulations can't be for merely to be violated by the authority W.P.C. No. 4259 of 2012 -9- itself. There is no dispute with regard to the settled law that, transfer cannot normally be intercepted by this Court, except under the specified circumstances, where there is an instance of malafides or when the authority concerned who issued the order of transfer is not vested with the power of transfer. This case belongs to the latter group. Going by the terms of Regulations, this Court finds that, the 3[rd] respondent was not having the power and competence to have ordered the transfer of the petitioner. This is more so, since the power vested with the original authority to issue Ext.R1(a) order, shifting the post to the place in question, has not even delegated the power to the third respondent, as to be inferred either from Ext.P4 or from Ext.R1 (a). 9. In the above circumstances, the transfer ordered by the 3[rd] respondent shifting the petitioner from Tripunithura to the office of Chief Engineer, Central Region, Kochi-11 is hereby intercepted and set aside. The petitioner shall be permitted to continue in the station at Tripunithura and this shall be given effect forthwith at any rate within 'one week' from the date of W.P.C. No. 4259 of 2012 -10- receipt of a copy of this judgment. However, it is made clear that, the 'competent authority' is at liberty to effect the transfer of the petitioner as well, on merits, if there is any administrative exigency, or better claim, in accordance with law, which could be effected at the time of 'general transfer' for the next year. Writ petition is allowed to the said extent. No cost. **P.R. RAMACHANDRA MENON, JUDGE.** Kp/-