Sabu K. Damodar v. Government of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930** **WP(C).No. 5844 of 2008(U)** **--------------------------------------** **PETITIONER(S):** **-------------------------** **SABU K.DAMODAR, SENIOR HYDRO GEOLOGIST & DISTRICT OFFICER, DEPARTMENT OF GROUND WATER, PATHANAMTHITTA.** **BY ADV. SRI. S.A.RAZZAK** **RESPONDENT(S):** ## **--------------------------** **1. GOVERNMENT OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY, WATER RESOURCES (GROUND WATER) DEPARTMENT, GOVT. OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE DIRECTOR GROUND WATER DEPARTMENT, THIRUVANANTHAPURAM.** **3. P.N.AJITH KUMAR, SENIOR HYDROGEOLOGIST & DISTRICT OFFICER, DEPARTMENT OF GROUND WATER, PAZHAVEEDU P.O. ALAPPUZHA.** **ADV. SRI.VIJAYAN. K.U. SRI.K.N.SREEKUMARAN GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R1** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C) NO.5844/2008** ## **APPENDIX** ## **PETITIONERS EXHIBITS** **P1:- COPY OF THE ORDER ON PROMOTION DT. 8.5.06.** **P2:- COPY OF THE PROMOTION ORDER DT. 24.8.07.** **P3:- COPY OF THE G.O. DT. 18.4.92.** **P4:- COPY OF THE G.O. DT. 10.9.04.** **P5:- COPY OF THE GOVT. CIRCULAR DT. 29.1.00.** **P6:- COPY OF THE REPRESENTATION DT. 3.12.07.** **P7:- COPY OF THE JUDGMENT DT. 18.1.07.** **P8:- COPY OF THE R2'S REPORT DT. 2.1.08 TO R1.** **P9:- COPY OF THE PETITIONERS REPN. TO R1.... P10:- COPY OF THE G.O.(RT) NO.89/08/WRD DT. 23.1.08. P11:- COPY OF THE G.O.(RT) NO.198/08/WRD DT. 13.2.08.** _**/**_ **TRUE COPY/** **P.S. TO JUDGE** **tss** P.N.Ravindran, J. ===================== W.P(C).No.5844 of 2008 ===================== Dated this the 16[th] day of October, 2008. ## JUDGMENT The petitioner is presently working as Senior Hydro Geologist & District Officer in the District Office of the Ground Water Department at Pathanamthitta. He entered service in the year 1990. He was promoted as Senior Hydro Geologist and posted in the District Office of the Ground Water Department at Alappuzha by Ext.P1 order dated 8.5.2006. Shortly thereafter, he was reverted to the post of Hydro Geologist. On reversion, the petitioner was posted as Hydro Geologist in the District Office of the Ground Water Department at Kollam. Later, by Ext.P2 order dated 24.8.2007, the petitioner was again promoted as Senior Hydro Geologist and posted at Pathanamthitta against the existing vacancy. The petitioner who belongs to a Scheduled Caste Community thereafter filed Ext.P6 representation dated 3.12.2007 before the Principal Secretary to Government, Water Resources Department relying on Ext.P5 circular dated 29.1.2000 and sought a transfer and posting in Alappuzha District in the vacancy that was to arise on 31.12.2007 on the retirement of Sri.S.Radhakrishnan, Senior Hydro Geologist & District Officer, Alappuzha. He thereafter, filed W.P.(C) No.37474 of 2007 in this Court. By Ext.P7 judgment delivered on 18.12.2007, this Court directed the State Government to consider the request made by the petitioner in Ext.P6 (marked as Ext.P7 in W.P.(C) No.37474 of 2007) and take a WP(C) 5844/08 -: 2 :- decision thereon within four weeks from the date of receipt of a copy of the judgment. 2. Pursuant to the direction issued by this Court in Ext.P7 judgment, the Director, Ground Water Department was asked to forward his remarks to the Principal Secretary to Government, Water Resources Department. Ext.P8 is a copy of the letter dated 2.1.2008 sent by the Director to the Principal Secretary to Government, Water Resources Department. Ext.P8 reads as follows: “I am to invite kind attention of Government to the reference cited above and furnishing the following remarks as directed. Sri. Sabu K. Damodar is a native of Kottayam District and now resides at Pallom. The SC/ST employees are to be given preference over other employees in the case of transfer. They are to be given a posting in their place of choice or must be accommodate at the nearest station. In the case of Sri.Sabu K.Damodar, he is working at Pathanamthitta which is the neighbouring district of Kottayam. The distance to Pathanamthitta or Allappey from his native place is more or less the same. He has requested transfer to Alleppey citing his poor health condition as one of the reasons. It may kindly be noted that the District Office, Alleppey is one of the offices where the work load is high, whereas the work load at Pathanamthitta is comparatively light. Moreover three Rotary rigs and two filter point units are being operated round the clock under the Alleppey office which requires continuous attention of District officer. At Pathanamthitta office there are only two WP(C) 5844/08 -: 3 :- DTH Rigs which need attention of the District Officer during office hours only. Moreover the District Office, Alleppey is implementing many plan schemes of local self government institutions. Sri.Sabu K.Damodar is working at Pathanamthitta for less than a year. Frequent transfers will definitely affect the plan progress. Sri.Sabu K. Damodar has been given due consideration as per the existing government directions for transfer and posting of SC/ST employees. No guidelines are violated in posting him at Pathanamthitta. So his representation may be rejected as he has been already posted at Pathanamthitta which is also the neighbouring district of Kottayam., In the above circumstances the request of Sri. Sabu K.Damodar for transfer to Alleppey district may be rejected as it doesn't deserve consideration.” 3. On coming to know of Ext.P8 letter, the petitioner submitted Ext.P9 letter dated 5.1.2008 in person to the Principal Secretary to Government, Water Resources Department. The State Government thereafter issued Ext.P10 order dated 23.1.2008 rejecting the petitioner's request for a posting in Alappuzha district as requested by him in Ext.P6. The Government have in Ext.P10 stated as follows: “The matter has been examined in detail with reference to the report of the Director, Ground Water Department and relevant guidelines on 'transfer of Government employees'. In the letter read as 4[th] paper above, the Director, Ground Water Department has reported to Government, that Shri. Sabu K.Damodar has been WP(C) 5844/08 -: 4 :- recently promoted as Senior Hydro geologist and on promotion he was posted in the District Office of Ground Water Department, Pathanamthitta with effect from 24.8.2007 vide Government Order read as 1[st] paper above. He has also reported that the petitioner in the above W.P.(C) is a native of Kottayam District and is residing at Pallom and that the distance from his native place to Pathanamthitta and Alleppey is more or less the same and that Alleppey is not his home district. He has further reported that since the petitioner is working at Pathanamthitta for less than a year, frequent transfers will definitely affect the implementation of plan schemes of the department. In addition to the above he has also reported that due consideration has been given to the petitioner as per the existing Government directions for transfer and posting of SC/ST employees.” 4. Pursuant to Ext.P10, by Ext.P11 order passed on 13.2.2008 the vacancy of Senior Hydro Geologist & District Officer, Alappuzha that arose on 1.1.2008 was filled up by promoting and posting the third respondent. The petitioner has in this Writ Petition challenged Exts.P10 and P11 and prayed for a writ in the nature of mandamus commanding the first respondent to reconsider the request made by him in Ext.P6. 5. I have heard Sri.S.A.Razzak, the learned counsel appearing for the petitioner, Sri.P.Nandakumar, the learned Government Pleader appearing for the official respondents and Sri.K.U.Vijayan, the learned counsel appearing for the third respondent. The short question that arises for consideration is whether Ext.P10 is liable to be interfered with WP(C) 5844/08 -: 5 :- and whether the grounds urged by the petitioner to challenge Exts.P10 and P11 are sustainable in law. 6. The petitioner challenges Exts.P10 on the short ground that it is not in tune with the stipulations in Ext.P5 circular and that while passing Ext.P10, the Government have not taken note of the directions issued in Ext.P7 judgment. By Ext.P7 judgment, this Court only directed the State Government to look into the request made by the petitioner in Ext.P7 (Ext.P6 herein) and take a decision on the request made by the petitioner for a posting in a place of his choice. As noticed earlier, the petitioner was promoted as Senior Hydro Geologist and posted at Pathanamthitta by Ext.P2 order dated 24.8.2007. The Director has in Ext.P8 letter addressed to the Principal Secretary to Government stated that the petitioner has been at Pathanamthitta for less than one year and that the distance from the petitioner's native district to Alappuzha and Pathanamthitta is more or less similar. The Government thereafter considered the request made by the petitioner in Ext.P7 (Ext.P6 herein) and held that as the petitioner has been working in Pathanamthitta for less than one year, he is not eligible to be considered for transfer to Alappuzha. The Government have in Ext.P10 also noticed that the petitioner was only recently promoted as Senior Hydro Geologist and that he was posted at Pathanamthitta only by order dated 24.8.2007. 7. The Apex Court has in State of U.P. and others v. Gobardhan Lal - (2004) 11 S.C.C. 402 held as follows: WP(C) 5844/08 -: 6 :- “7. 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.” WP(C) 5844/08 -: 7 :- 8. The Apex Court also further held that this Court, exercising jurisdiction under Article 226 of the Constitution cannot act as an appellate authority over orders passed by the transferring authority, assess the niceties of the administrative needs and requirements of the situation and substitute its own decision in the matter of transfer. In the light of the decision of the Apex Court in State of U.P. and others v. Gobardhan Lal (supra), the petitioner cannot contend that the Government ought to have strictly adhered to Ext.P5 and given him a posting at Alappuzha. All that Ext.P5 states is that as far as possible employees belonging to Scheduled Caste/Scheduled Tribe Communities should be given a posting in their own native district or any district of their choice. The native district of the petitioner is Kottayam. His request was for a posting at Alappuzha. He is stationed in Pathanamthitta District, which is also a neighbouring district. As held by the Apex Court, transfer and posting of employees is in the exclusive domain of the transferring authority and an order of transfer cannot be interfered with unless it is shown to be one passed by an incompetent authority or is passed in violation of any statutory rule or is proved to be one rested on extraneous considerations and vitiated by malafides. 9. In the instant case, apart from alleging that the third respondent was posted at Alappuzha ignoring the stipulations in Ext.P5, the petitioner has not made out a case warring interference with the order of transfer evidenced by Ext.P11. Whether the petitioner should be WP(C) 5844/08 -: 8 :- posted at Alappuzha or at Pathanamthitta or at Kottayam is essentially a matter for the transferring authority to decide, having regard to the requirements of the situation and administrative needs. As noticed by the Apex Court, guidelines governing transfer exist only for the sake of guidance and the Government employees cannot compel the Government to strictly adhere to the guidelines. The representation made by the petitioner was considered and rejected by the Government and this Court cannot sit in appeal over the said decision, interfere with the order of transfer and substitute its decision in the matter. In my considered opinion, the petitioner has not made out a case that his request for a transfer to Alappuzha was declined in violation of any statutory rule or that it is mala fide. The Writ Petition therefore fails and is accordingly dismissed. P.N.Ravindran, Judge. ess 17/10