Rajkumar S. v. Life Insurance Corporation of India (LIC) – W.P.C. No.13298 of 2020 (J)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE C.S.DIAS** **TUESDAY, THE 18TH DAY OF AUGUST 2020 / 27TH SRAVANA, 1942** ## **WP(C).No.13298 OF 2020(J)** ## **PETITIONER/S:** **RAJKUMAR S. AGED 54 YEARS S/O. SIVARAJA PILLA, RESIDING AT VARANASYAM, RG210B, KOCHULLOR, MCH P. O., THIRUVANANTHAPURAM - 695 011, SENIOR BRANCH MANAGER, LIFE INSURANCE CORPORATION OF INDIA, CITY BRANCH - 5, KARAMANA, THIRUVANANTHAPURAM - 695 002. (UNDER ORDER OF TRANSFER) BY ADVS. SRI.K.JAYAKUMAR (SR.) SRI.P.B.SUBRAMANYAN SRI.SABU GEORGE SRI.MANU VYASAN PETER SMT.MEERA P. SMT.B.ANUSREE SRI.P.B.KRISHNAN** ## **RESPONDENT/S:** **1 LIFE INSURANCE CORPORATION OF INDIA SOUTHERN ZONAL OFFICE, LIC BUILDING, 153, ANNA SALAI, CHENNAI, TAMILNADU - 600 002., REPRESENTED BY ITS REGIONAL MANAGER (P AND IR) 2 K. KADIRESAN AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER, ZONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, SOUTHERN ZONAL OFFICE, LIC BUILDING, 153, ANNA SALAI, CHENNAI, TAMILNADU - 600 002. 3 DEEPA SIVADASAN AGE AND FATHERS NAME NOT KNOWN TO THE PETITIONER, SENIOR DIVISIONAL MANAGER, LIFE INSURANCE CORPORATION OF INDIA, DIVISIONAL OFFICE, PATTAM, THIRUVANANTHAPURAM - 695 004. R1-3 BY SHRI.S.EASWARAN, SC, LIFE INSURANCE CORPORATION OF INDIA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-08-2020, THE COURT ON 18-08-2020 DELIVERED THE FOLLOWING:** WPC No.13298 of 2020 2 ## **JUDGMENT** The petitioner is working as Senior Branch Manager (Class-1 Officer) in the Life Insurance Corporation of India, City Branch – 5, Karamana, Thiruvananthapuram – the 1[st] respondent (hereinafter referred to as "Corporation"). He was appointed in the above Branch as per Ext.P-1 order dated 14.5.2019. 2. According to the petitioner, the transfer of Class-1 Officers of the Corporation is governed by Ext.P-2 Transfer and Mobility Policy. Ext.P-3 is the administrative instructions issued in this behalf through the Central Office Circular. By clause 5 (d) of Ext.P-2 policy, the normal period of posting for an officer in the cadre of ADM is three years in one position and six years in one station. The petitioner has hardly completed one year in the present position and four years in the present station. As per clause 6 (c) of Ext.P-2, the maximum tenure in WPC No.13298 of 2020 3 one station is not applicable when there is no incoming transfer. 3. It is the case of the petitioner that his daughter is suffering from epilepsy and had undergone brain surgery at Sree Chitra Tirunal Institute for Medical Sciences, as evidenced by Ext.P- 4. As per clause 12 (b) of Ext.P-2, the transfer of an employee must be considered favourably, if the employee, spouse, or dependent child is suffering from any disease covered under high-cost treatment. The petitioner is suffering from Disc Desiccation and Spondylotic changes of the Spinal Cord. He has undergone Ayurvedic treatment. The petitioner is also under treatment for high blood pressure, obstructive sleep apnoea, and related cardiological ailments. The petitioner is aggrieved by Ext.P-9 order of transfer, transferring him from the present station to Sivakasi branch of the Corporation. The transfer is arbitrary and vitiated by mala fides because of the WPC No.13298 of 2020 4 personal animosity of the respondents 2 and 3 towards the petitioner. 4. The petitioner has also contended that the Government of India decided to lockdown the Country and instructed to shut down all offices. Instead of closing the offices, as per the instruction of the 2[nd] respondent, the 3[rd] respondent kept the offices open. The petitioner, in his capacity as the General Secretary of an Association, questioned the decision. The said act was the starting point for the animosity. On a non-resident Indian visiting the office, the petitioner took the decision to close down the office from 24.3.2020 onwards, which was communicated to the respondents 2 and 3. Although the decision was made as per the instructions in Ext.P-10 circular, the decision infuriated the 2[nd] respondent. The 2[nd] respondent targeted the petitioner by calling for an explanation and initiated disciplinary proceeding. The second respondent has WPC No.13298 of 2020 5 colluded with the 3[rd] respondent to give a complaint on some WhatsApp communication allegedly sent by the petitioner in the WhatsApp group. The petitioner had given a prompt reply. The matter was closed with a warning letter. The 2[nd] respondent in a video conference meeting of SDMs of the Southern Zone of the Corporation held in April, 2020, openly stated that he would take the petitioner to task, as he was the only person who dared to question the Senior Divisional Manager and Zonal Manager, on the violation of covid protocol and lock-down procedures. 5. The petitioner has further contended that there are vacancies in the Trivandrum city in the cadre of Senior Branch Managers, and the transfer of the petitioner is done disregarding the stipulations in Exts.P-2 and P-3. Ext.P-9 order of transfer was sent in the WhatsApp group at 11.30 p.m on 29.6.2020. The petitioner was on casual leave for two days. The WPC No.13298 of 2020 6 incumbent appointed to the post of the petitioner has taken charge on 30.6.2020, after informing the petitioner over the phone that she is joining as per the instructions from the higher officials. Two posts of Senior Branch Manager are vacant in Trivandrum City. The action of the respondents in transferring the petitioner is illegal, arbitrary, and unjust. Hence Ext.P-9 order may be quashed. 6. The 1[st] respondent has filed a counter affidavit. It is contended that the attempt of the petitioner to attribute malafides on the part of the respondents 2 and 3 is untenable. Ext.P-9 order of transfer has been passed on administrative exigencies, based on Exts.P-2 and P-3, which has been formulated in accordance with the Regulations 20 and 80 of the Life Insurance Corporation of India (Staff) Regulations, 1960. The petitioner has not stated the facts correctly with regard to his continuous tenure of posting in Trivandrum Division. WPC No.13298 of 2020 7 As per the table in the counter affidavit, the career of the petitioner as an officer of the Corporation at least from 2001 onwards, shows that he has not worked outside Trivandrum Division, except for a short tenure from 8.5.2006 to 4.6.2008. The guidelines relied on by the petitioner are in the form of administrative instructions, which cannot be enforced through a writ petition. Transfer of Class-I officers of the Corporation is not solely governed by Exts.P-2 and P-3, but are governed by the Regulations. Exts.P-2 and P-3 cannot be applied in isolation and has to be interpreted subject to relevant provisions of the Regulations. Even though the petitioner has strongly relied on Ext.P-2, he has conveniently omitted to mention the various clauses in Ext.P3. Under Clause 3 (a) of Ext.P-3, the authority is entitled to count the tenure of continuous service of an officer as Assistant Branch Manager (Sales), Branch Manager and Senior Branch Manager WPC No.13298 of 2020 8 in the cadres of Assistant Administrative Officer, Administrative Officer and Assistant Divisional Manager, respectively. The maximum tenure at the station shall be taken inclusive of continuous tenure in all cadres. Even though the petitioner has contended that when no incoming transfer is available, the maximum period is not applicable, the same has to be read with proviso to Clause 3(a), which makes it clear that in case of office exigencies, the stipulation will not apply. A reading of clause 6 of Ext.P-2 would substantiate that Exts.P-2 and P-3 are issued consistent with each other. Both the guidelines take note of an administrative exigency as an exception to the condition that when there is no incoming request for transfer, the stipulation of maximum tenure will not be applicable. 7. The 1[st] respondent has further contended that the petitioner's daughter is pursuing her studies in Bangalore. As per Annexure R-1(a), the petitioner WPC No.13298 of 2020 9 had on an earlier occasion requested for a transfer to Bangalore. Therefore, there is no merit in the contention that the petitioner's daughter is undergoing treatment in Trivandrum. The petitioner who had requested for a transfer to Bangalore, cannot now turn around and contend that he finds the present out of State transfer unacceptable to him. 8. The 1[st] respondent has also contended that the petitioner has miserably failed to substantiate the allegation of mala fides. The mere use of the word "mala fide" cannot sustain the plea. The 3[rd] respondent, who is the Senior Divisional Manager of the Trivandrum Division, has no role to play in the decision making process, which has led to Ext.P-9. There is no specific instance of mala fides alleged in the writ petition against the 3[rd] respondent. 9. The 1[st] respondent also has a case that an explanation was also called for from the petitioner by WPC No.13298 of 2020 10 the 2[nd] respondent, due to the manner and the language in which the petitioner addressed his immediate Senior Officers. Also, the petitioner had widely circulated a letter addressed to the Chairman in the WhatsApp group, violating Annexure R-1 (b) instructions. The contention of the petitioner that there are two vacancies in Trivandrum is denied. There are no available vacancies in the post of Senior Branch Manager in the Trivandrum Division. Hence the writ petition may be dismissed. 10. The 2[nd] respondent - the Zonal manager, who has been impleaded in his individual capacity, has also filed a counter affidavit. He has denied the allegations in the writ petition. According to him, the petitioner has raised only vague and vexatious allegations of malafides without any substantive proof. The allegation that he colluded with the 3[rd] respondent, to call for an explanation from the petitioner for issuing instructions to close down the WPC No.13298 of 2020 11 branch office, is incorrect. He has also contended that the petitioner has exceeded his authority by addressing the Chairman. The petitioner without any substantiation has simply stated that during the routine video conferencing business review meeting with SDM's of Southern Zone held in April, 2020, the 2[nd] respondent openly spoke of taking further action against the petitioner. None of the persons who were present in the meeting are impleaded in the writ petition to prove the allegation in paragraph 21 of the writ petition. Hence the writ petition may be dismissed. 11. The petitioner has filed a reply affidavit, inter alia, contending that the Corporation is bound to follow the fundamental principles and the law of the land. It cannot make its own laws that violate the basic feature of the Constitution of India. The posting details furnished by the 1[st] respondent in the counter affidavit are misleading. The 1[st] respondent has not WPC No.13298 of 2020 12 mentioned the petitioner's posting in Ooty under Coimbatore Division from 1998 to 2001 in the Class-1 cadre. Out of the petitioner's 31 years of service, he has worked in Trivandrum Division only for 17 years and in Trivandrum city only for 18 years, that too not continuously, but in various cadres ranging from Assistant Branch Manager to Senior Branch Manager. No policy or rule of the Corporation prevents any officer from serving in one Division for any number of years. There are a good number of officers with less age and more service than the petitioner who are working in the same Division. Clause 5 (c) of Ext.P-2 clearly defines a station. Trivandrum Corporation limits are considered as one station, and outside it is considered as different stations. There are ten branches and sixteen satellite offices outside the city at various locations. So the postings within Trivandrum Division cannot be considered together. Considering the said criteria, WPC No.13298 of 2020 13 the contention that the petitioner has been continuously posted for four years in one station is misleading. The petitioner was subjected to seven transfers outside the Division in the last 14 years of service. There is no administrative exigency for transferring the petitioner from Trivandrum to Sivakasi. Moreover, there is no incoming request from any officer from outside the Division or within the Division to Trivandrum city. There was a vacancy of Senior Branch Manager, which has been filled up by job rotation. Similarly, the vacancy of an existing Senior Branch Manager was also filled up in advance by job rotation. The petitioner is a generalist in the marketing wing and has no other expertise to lead a rural branch. The language in Sivakasi is alien to the petitioner and would be an obstacle to his marketing activities. Ext.P-9 is issued by the Regional Manager (P&IR) without proper authority, and the same is null and void in the eyes of WPC No.13298 of 2020 14 the law. Even if the petitioner goes to Sivakasi, he would have to remain in quarantine for 14 days, and whenever he returns to his native place, he would have to again stay in quarantine for 14 days. The petitioner has high blood pressure, and he is in the pre-diabetic stage. These are dangerous factors for a corona attack. Given the petitioner's morbid condition, it is likely that he may not even survive if he is transferred to Sivakasi. As there is a violation of Ext.P-2 policy, the writ petition be allowed, and Ext.P9 be quashed. 12. Heard Sri.K.Jayakumar, the learned Senior Counsel appearing for the petitioner and Sri.S.Easwaran, the learned Standing Counsel appearing for the respondents. 13. The learned Senior Counsel appearing for the petitioner argued that Ext.P-9 order of transfer is issued in flagrant violation of Exts P2 and P3 and out of the vendetta of the respondents 2 and 3. Clauses WPC No.13298 of 2020 15 12(b) & (e) of Ext.P2 prohibits the respondents from transferring the petitioner from his present station. Exts.P4 to P6 medical records substantiate that the petitioner's daughter is suffering from serious medical illness. Ext.P7 is a scheme of Ex-gratia reimbursement. Even though the petitioner had applied for a transfer to Bangalore, where his daughter is pursuing her studies, the same was declined by the Corporation. Now due to the pandemic, the petitioner's daughter is in Trivandrum and is attending online classes. Ext.P-8 establishes that the petitioner is also suffering from spondylitis. Clause 3 (a) of Ext.P-3 also vitiates the transfer. As the petitioner is holding the post of ADM, he can be retained at a particular station for six years. Since there is no incoming transfer request, there is no prohibition for the petitioner to continue at the present station. The petitioner's replacement at Serial No.42 in Ext.P9 has been transferred from the WPC No.13298 of 2020 16 Marketing Division of the Corporation. The reason for the transfer is because the petitioner has submitted Ext.P-12 complaint before the Chairman of the Corporation against the 2[nd] respondent. Similarly, the 2[nd] respondent had in the video conferencing meeting held in April, 2020, openly stated that he would take the petitioner to task. This proclamation tantamounts to malice, and therefore the transfer is bad. The counter affidavit filed by the respondents 1 and 2 would in fact, improvise the case of the petitioner that the transfer is actuated by malice. There are no administrative exigencies in transferring the petitioner to Sivakasi. The petitioner has been singled down by transferring him out of the State. The petitioner does not know the local language, and hence he would be a misfit to be transferred to Sivakasi. The learned Senior Counsel relied on paragraphs 16 to 23 of the decision of the Hon'ble Supreme Court in **Rajaneesh Khajuria v.** WPC No.13298 of 2020 17 **Wockhardt Limited and Another** [(2020 3 SCC 86); paragraph 24 of the decision this Court in **Pushpakaran v. Chairman , Coir Board** [1978 KLT 539]; paragraphs 4 to 6 of the decision of this Court in **Mohammed v. Director of Panchayats and Others** [1982 KLT 258] to drive home his contention that Ext.P-9 order of transfer is arbitrary and vitiated with malafides. 14. The learned Standing Counsel appearing for the respondents, on the other hand, argued that other than for the mere assertion of malafides, the same has not been properly pleaded or proved by the petitioner. He drew the attention of this Court to paragraphs 9, 20 and 21 of the writ petition, which are the main allegations against the transfer. According to him, no person has been impleaded to prove the act of malafides on the part of the Corporation. He contended that the core allegation is that the 2[nd] respondent had in the video WPC No.13298 of 2020 18 conference meeting of SDMs of the Southern Zone of the Corporation held in April, 2020, openly stated that the petitioner would be taken to task for complaining to the Chairman. He relied on paragraph 19 of the decision of the Hon'ble Supreme Court in **Rajaneesh Khajuria v. Wockhardt Limited and Another** (cited supra) and contended that, if the petitioner had such a case, he ought to have impleaded the persons who had attended the conference in order to prove the allegation. There is no iota of proof to prove the malafides, as alleged in paragraph 21 of the writ petition. Similarly, the allegation that the daughter of the petitioner is suffering from illness, cannot be believed because she is pursuing her studies in Bangalore. On an earlier occasion, the petitioner had himself applied for a transfer to Bangalore to live with his daughter. At that time, the petitioner did not have any grievance of moving out of Kerala. The petitioner's WPC No.13298 of 2020 19 alleged illness in paragraph 9 of the writ petition is only to gain sympathy and to stall Ext.P-9 order of transfer. He then contended that Ground B of the writ petition is not sustainable in law. A reading of clauses (5) and (12) of Ext.P-2 and clause (3) of Ext.P3 would substantiate that the petitioner has been transferred in accordance with the guidelines of the Corporation. The learned counsel further argued that the petitioner has tried to improvise his case through the reply affidavit, which cannot be permitted in view of Rule 153 of the Rules of the High Court of Kerala and the decision of the Hon'ble Supreme Court in **Airports Authority of India v. Rajeev Ratan Pandey and Others** [(2009) 8 SCC 337]. According to him, clause 5 (d) of Ext.P2 permits an officer in the cadre of ADM and above, who has been posted in the same position for a period of three years can be redeployed/transfer. The learned counsel also contended that clause 5 (e) of Ext.P2 enables the WPC No.13298 of 2020 20 Corporation to transfer any employee without request due to office exigencies. The proviso to clause 3 of Ext.P3 permits the Corporation to transfer any employee to meet office exigencies, even if there is no incoming transfer. He placed reliance on the table in paragraph 6 of the counter affidavit and contended that the petitioner has been holding the position of Branch Manager from 2016 to 2017 in Trivandrum Branch-I, from 2017-2019 as Senior Branch Manager in Trivandrum Branch-I and thereafter from 2019-2020 in Trivandrum Branch - 5 as Senior Branch Manager. The petitioner is ripe for transfer by virtue of holding the same position for a period of three years. There is no whisper in the writ petition as to how the 3[rd] respondent had influenced the petitioner's transfer. The petitioner being a Class1 Officer of the Corporation, has to work anywhere in India, to meet the administrative exigencies of the Corporation, and he cannot frown on being WPC No.13298 of 2020 21 transferred to Sivakasi. The learned counsel relied on paragraph 10 of the decision of the Hon'ble Supreme Court in **Union of India & Others v. S.L.Abbas** [(1993) 4 SCC 357] and paragraph 11 of the decision of the Division Bench of this Court in **Gopinathan.M and Another v. State of Kerala & Others** [2014 (4) KHC 315]. 15. The scope of judicial review in matters relating to transfer and posting of employees, under Article 226 of the Constitution of India, is well settled in a plethora of judicial pronouncements by the Hon'ble Supreme Court. 16. The Hon'ble Supreme Court in **Shilpi Bose and Others v. State of Bihar and Others** [(1991) Supp 2 SCC 659] held as follows: "4. In our opinion, the courts should not interfere with a transfer order which are made in public interest and for administrative reasons (unless the transfer orders are made in violation of any mandatory statutory rule or on the ground of mala fide. A Government servant holding a transferable post has no vested right to remain posted at one place or the other, he is WPC No.13298 of 2020 22 liable to be transferred from one place to other. Transfer orders issued by the competent authority do not violate any of his legal rights. Even if a transfer order is passed in violation of executive instructions or orders, the Courts ordinarily should not interfere with the order instead affected party should approach the higher authorities in the Department. If the courts continue to interfere with day to day transfer orders issued by the Government and its subordinate authorities, there will be complete chaos in the Administration which would not be conducive to public interest. The High Court over looked these aspects in interfering with the transfer orders." ## 17. In **Somesh Tiwari v. Union of India and** **Others** [(2009) 2 SCC 592], the Hon'ble Supreme Court declared thus: "20. Indisputably an order of transfer is an administrative order. There cannot be any doubt whatsoever that transfer, which is ordinarily an incident of service should not be interfered with, save in cases where inter alia malafide on the part of the authority is proved. Mala fide is of two kinds – one malice in fact and the second malice in law." ## 18. In a recent decision reported in **Union of** **India and another vs Deepak Niranjan Nath Pandit** [(2020) 3 SCC 404] the Hon'ble Supreme Court has held as follows: WPC No.13298 of 2020 23 ## **“** 3. x x x x x x x x x x x x In our view, neither of these reasons can furnish a valid justification for the High Court to take recourse to its extraordinary jurisdiction under Article 226 of the Constitution in passing an order of injunction of this nature. Significantly, the High Court has not even found a prima facie case to the effect that the order of transfer was either mala fide or in breach of law. The High Court could not have dictated to the employer as to where the respondent should be posted during the period of suspension. Individual hardships are matters for the Union of India, as an employer, to take a dispassionate view. (emphasis supplied) 19. On an evaluation of the ratio decidendi in the above cited precedents, the Hon'ble Supreme Court has delineated the two cardinal ingredients to be pleaded and proved in a challenge against an order of transfer, i.e., (i) malice and/or (ii) infraction of a statutory provision. 20. The points that arise for consideration in this writ petition are (i) Whether Ext.P-9 order of transfer is passed in violation of Exts.P-2 and P-3 ? WPC No.13298 of 2020 24 - (ii) Whether there is malafides in passing Ext.P-9 order of transfer? (iii) Whether the petitioner is entitled to get protection from transfer due to his daughter's affiliction? ## **POINT NO.I** 21. The relevant clauses for the determination of Point I are clauses 5 (d) (e), 6 (c) and 12 (b) and (e) of Ext.P-2 and clause 3 (a) of Ext.P-3. The said clauses are extracted hereinbelow for the sake of convenience. ## 22. The relevant clauses in Exhibit P-2 are: ## **5) Definitions:** xxx xxx xxx xxx xxx xxx xxx xxx d) **Normal Period of Posting:** Continuous posting of officers in the cadre of ADM and above in SAME POSITION for a period of three years and in SAME STATION for a period of six years (For Metros it is 10 years) & continuous posting of officers in the cadre of AAO/AO in SAME POSITION for a period of 3 years and in SAME STATION for a period of 8 years (For Metros it is 10 years) after which an officer becomes due for Redeployment/Transfer. Period spent on Deputation in the same station shall also be taken for computing NPP. e) **Administrative Transfer:** Transfer made without request due to office exigencies. He/She may be posted anywhere as per needs of the Corporation. ## **6) Maximum tenure:** WPC No.13298 of 2020 25 xxx xxx xxx xxx c) Officer in the cadre of ADM/AAO will be redeployed after every three years. In case there are no incoming transfer requests for a particular station, maximum tenure conditions shall not be applicable in these cases. However, in the office exigencies the Competent Authority will have the right to transfer any officer irrespective of tenure. ## **12) Transfers based on Government OMs:** xxx xxx xxx xxx b) In case of employees who have differently abled dependent, posting shall be done as per DOPT OM dated 6.6.2014 (No.42011/3/2014-Estt (Res)) and C.O Circular Ref: Per/Adm/Trf/1415 dated 10[th] October, 14. As per the above OM, an employee who is also a care giver of disabled child may be exempted from the routine exercise of transfer subject to Administrative constraints. xxx xxx xxx xxx e) **Medical Grounds:** Transfer of officers who themselves or members of their nuclear family (Wife and Dependent Children) are suffering from any of the diseases entitled for reimbursements of High Cost treatment will be considered, as far as possible, to their desired place. ## 23. The relevant clause in Exhibit P-3 are: ## **3) Normal Period of Posting/Maximum tenure:** a) Maximum stay duration at a station of 10 years shall apply only to Metro cities. In other cases it shall be 8 years in a station for AAO/AO and 6 years in a station for ADM and above officers. The maximum tenure at a station shall be taken inclusive of tenure in all cadres. In cases there are no incoming transfer requests for a particular station, maximum tenure conditions shall not be applicable in these cases. However, in the office exigencies the Competent Authority will have the right to transfer any officer irrespective of tenure. ## 24. On going through Ext.P-9 order of posting on ## promotion and transfer of the Senior Branch ## Manager in the cadre of Assistant Divisional WPC No.13298 of 2020 26 Manager of the Corporation dated 29.6.2020, it is seen that 47 officers of the Corporation have been transferred and posted to different offices of the Corporation. The petitioner figures at Serial No.27 in Ext.P-9. 25. A reading of clauses 5 (d) and 6 (c) of Ext.P2 substantiates that an officer in the cadre of ADM and above who has been in the same position for 3 becomes due for years re-deployment/transfer. Likewise, clause 5 (e) of Ext.P-2 and proviso to clause 3 of Ext.P-3 confers power on the Corporation to transfer any employee to meet the office exigencies, irrespective of his tenure in a position or station. 26. Undisputedly, as per the tables shown in paragraph 6 of the counter affidavit and in paragraph 4 of the reply affidavit, the petitioner was transferred from Neyyattinkara to Trivandrum on 21.5.2009; from 21.5.2009 to 4.6.2012, he was working in the Satellite Office at Peroorkada in Trivandrum; from WPC No.13298 of 2020 27 4.6.2012 to 11.5.2015, he was working in the Satellite Office, Kadakkal, Trivandrum; from 12.5.2015 to 3.5.2016 in Satellite Office, Balaramapuram, Trivandrum; from 4.5.2016 to 10.5.2017 in Trivandrum Branch-I Office; from 10.5.2017 to 20.5.2019 as ADM in Trivandrum Branch Office –I, Trivandrum; and from 21.5.2019 to 29.6.2020 as ADM in Trivandrum Branch-5, Trivandrum. Therefore, it is an undisputed fact that the petitioner has been working in Trivandrum Branch- I and Branch - 5 from 3.5.2016 till 29.6.2020, which is more than three years. Thus, by virtue of clauses 5 (d) and 6 (c) of Ext.P-2, the petitioner is due for transfer since he has completed three years in the same position. In addition to the same, the Corporation has found that the petitioner's services are necessary at Sivakasi Branch, due to office exigencies. Clauses 5 (e) and 6 (c) of Ext.P-2 and the proviso to Clause 3 (a) of Ext.P-3 enables the WPC No.13298 of 2020 28 Corporation to transfer an employee even if he has not completed the stipulated time period, to meet office exigencies. Therefore, given the above facts, I am of the definite opinion that there is no infraction of Exts.P-2 and P-3. Hence, Point No.I is found against the petitioner. ## **POINT NO.II** 27. It is the specific case of the petitioner that Ext.P-9 order of transfer is due to the malafide action of the respondents 2 and 3, who are instrumental in the transfer. There is no specific allegation against the 3[rd] respondent. The allegation leveled against the 2[nd] respondent is categorically denied by him in his counter affidavit. The allegation is imputed in paragraph 21 of the writ petition that the 2[nd] respondent had allegedly proclaimed that he would take the petitioner to task for submitting Ext.P-12 complaint to the Chairman of the Corporation. Other than for the said assertion, the petitioner has not WPC No.13298 of 2020 29 produced any proof to prove the said allegation. The Hon'ble Supreme Court in paragraph 21 of the judgment in **Rajaneesh Khajria v. Wockhardt Ltd & Another** (cited supra) has categorically held that, if an employee states that the transfer is actuated by malafides in a conference, the so-named persons have to be impleaded in the writ petition, which has not been done in this writ petition. Moreover, there is no allegation of malice against the Regional Manager (P&IR) of the Corporation, who has passed Ext.P-9 order, because the same is mandatory as per the ratio in **Rajaneesh Khajria v. Wockhardt Ltd & Another** (cited supra). Though the petitioner has pleaded malafides against the respondents 2 and 3, he has failed to prove the same with cogent material. The Hon'ble Supreme Court in **Union of India v. Ashok Kumar** [(2005) 8 SCC 760] has held that allegations of malafides are often made than proved, and the very seriousness of such allegations demands WPC No.13298 of 2020 30 proof of a high order of credibility. The said decision was passed relying on the earlier decision of in **E.P Royappa v. State of Tamil Nadu & Another** [(1974) 4 SCC 3]. In view of my aforesaid findings, I am of the opinion that the petitioner has not proved that Ext.P-9 is actuated by malice. Therefore, I find Point No.II also against the petitioner. ## **POINT NO.III** 28. The next contention of the petitioner is entitled to protection from transfer in light of clause 12 (b) and (e) of Ext.P-2. Firstly, Clause 12 (b) exempts employees with differently-abled children from routine transfer. Clause 12(e) permits an employee with a dependent child, **as far as possible** , for a transfer to the desired place. The petitioner does not dispute the fact that his daughter is pursuing her studies in Bangalore. Pursuant to petitoner's daughter shifting to Bangalore, he had submitted Ext.R-1 (a) request, seeking a transfer to WPC No.13298 of 2020 31 Bangalore. It is only now, as submitted by the learned Senior Counsel, that the petitioner's daughter is in Trivandrum, due to the pandemic, and attending classes from home. Furthermore, the words used in clause 12(e) is as far as possible. In view of the office exigencies and that the petitioner has completed his tenure in Trivandrum, I do not think that clause 12 (e) can override the other clauses which gives unfettered rights on the Corporation, to transfer an employee to meet office exigencies. Thus, Point No.III is also found against the petitioner. In light of the findings of this Court on the above Points and the law laid down by the Hon'ble Supreme Court in the afore-cited decisions, I am of the definite view that there is no illegality in Ext.P9 order of transfer passed by the Corporation. The writ petition fails and is hence dismissed. **Sd/-C.S.DIAS, JUDGE** **ma/14.8.2020** WPC No.13298 of 2020 32 ## **APPENDIX** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 A TRUE COPY OF THE OFFICE ORDER DATED 14.05.2019 (RELEVANT PORTION)** **EXHIBIT P2 A TRUE COPY OF THE TRANSFER AND MOBILITY POLICY FOR CLASS - I OFFICERS IN LIC.** **EXHIBIT P3 A TRUE COPY OF THE CENTRAL OFFICE CIRCULAR PER.ADMN./ZD/329 DATED 22.10.2016.** **EXHIBIT P4 A TRUE COPY OF THE CASE SUMMERY AND DISCHARGE RECORD, DATED 23.04.2018.** **EXHIBIT P5 A TRUE COPY OF THE EEG REPORT DATED 14.05.2020. EXHIBIT P6 A TRUE COPY OF THE CLINICAL NOTE, DATED 15.05.2020. EXHIBIT P7 A TRUE COPY OF CHAPTER 10 OF MANUAL OF LIC CONTAINING THE LIST OF HIGH COST TREATMENT.** **EXHIBIT P8 A TRUE COPY OF THE DISCHARGE SUMMERY, DATED 04.06.2020.** **EXHIBIT P9 A TRUE COPY OF THE OFFICE ORDER DATED 29.06.2020.** - **EXHIBIT P10 A TRUE COPY OF THE CIRCULAR, DATED 22.03.2020.** - **EXHIBIT P11 A TRUE COPY OF THE CIRCULAR NO.ERA/COVID - 19 DATED 27.03.2020 ISSUED BY EXECUTIVE DIRECTOR (PERSONAL).** - **EXHIBIT P12 A TRUE COPY OF THE LETTER DATED 17.04.2020.** - **EXHIBIT P13 A TRUE COPY OF THE REPLY DATED 30.03.2020.** **EXHIBIT P14 A TRUE COPY OF THE LETTER DATED 22.04.2020.** RESPONDENTS EXHIBITS: WPC No.13298 of 2020 33 Ext.R1(a): CERTIFIED EXTRACT OF ONLINE REQUEST FOR TRANSFER SUBMITTED BY THE PETITIONER EXT.R1(b): A TRUE COPY OF THE CODE OF CIRCULAR NO.PER/ERDiscipline/Cir 214/2019 dated 19.3.2019 Ext.R1(c): A TRUE COPY OF THE ORDER NO.40-3/2020 -DM-I (A) DATED 24.3.2020 WITH ANNEXURE ISSUED BY MINISTRY OF HOME AFFAIRS