Sakeer Ahammed Bhuto M.S. v. The Khadi and Village Industries Board and Others

1 WPC 11434 OF 2020 ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE C.S.DIAS** **THURSDAY, THE 25TH DAY OF JUNE 2020 / 4TH ASHADHA, 1942** ## **WP(C).No.11434 OF 2020(D)** ## **PETITIONER/S:** **SAKEER AHAMMED BHUTO M.S.** **ASST. REGISTRAR, DISTRICT OFFICE, KHADI AND VILLAGE INDUSTRIES, THIRUVANANTHAPURAM-695001. (UNDER ORDERS OF PROMOTION AS PROJECT OFFICER, MALAPPURAM DISTRICT, KHADI VILLAGE AND INDUSTRIES OFFICE)** **BY ADV. SRI.R.RAJASEKHARAN PILLAI** ## **RESPONDENT/S:** - **1 THE KHADI AND VILLAGE INDUSTRIES BOARD REPRESENTED BY ITS SECRETARY, KHADI BHAVAN, VANCHIYOOR, THIRUVANANTHAPURAM-695035.** - **2 THE SECRETARY, KHADI AND VILLAGE INDUSTRIES BOARD, KHADI BHAVAN, VANCHIYOOR, THIRUVANANTHAPURAM-695035.** - **3 THE VICE CHAIRMAN, KHADI AND VILLAGE INDUSTRIES BOARD, KHADI BHAVAN, VANCHIYOOR, THIRUVANANTHAPURAM-695035.** **BY ADV. SRI.N.RAJAGOPALAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1906-2020, THE COURT ON 25-06-2020 DELIVERED THE FOLLOWING:** 2 WPC 11434 OF 2020 ## **JUDGMENT** ## (Dated this the 25[th] day of June 2020) The petitioner is aggrieved by Ext.P4 order transferring him from the Thiruvananthapuram office to the Malappuram office of the 1[st] respondent. 2. The petitioner had joined the first respondent Board as a Lower Division Typist in the year 1993. He was promoted to the post of U.D Typist, Junior Co-operative Inspector, Senior Cooperative Inspector, Senior Co-operative Inspector, Senior Cooperative Inspector (Spl.Gr.) and is presently working as Assistant Registrar. 3. It is the case of the petitioner that he is an active worker of the Kerala State Khadi Board Employees Union and has been holding the responsibilities of working Chairman and General Secretary. Due to his relationship with union, at the instigation of a rival union, the petitioner was earlier transferred by the second respondent without the authority of the Board of the first respondent. The transfer was stayed by Ext.P1 order passed by this Court. Accordingly, the petitioner is continuing at 3 WPC 11434 OF 2020 the District Office. 4. The petitioner's father was a freedom fighter. After he passed away, the benefits of a freedom fighter have been conferred on his mother. By virtue of Ext.P3, the Government has ordered that the children of freedom fighters should be given preference in the matter of transfer and posting. The petitioner is the only member in his family to look after to his aged and infirm mother. 5. While so, the petitioner has been promoted as Project Officer as per Ext.P4, but has been transferred and posted to the Malappuram Office of the first[t] respondent. According to the petitioner, almost all persons who have been promoted along with him, have been retained at their respective offices. The transfer has been effected at a time when there is no public transport system in the State. Moreover, in the spate of daily increasing corona virus, the petitioner has been shunted to Malappuram. Although the petitioner has made Ext.P5 representation to the second respondent, no action has been taken. The petitioner has also submitted Ext.P6 representation to the third respondent, ventilating his grievances. He prays that his transfer may be stayed as long as the threat of Covid-19 4 WPC 11434 OF 2020 pandemic looms large all over the world, particularly in Malappuram District. The petitioner contends that Ext.P4 is mala fide and illegal and, therefore, the same is to be quashed to the extent it orders the petitioner's posting at Malappuram. 6. The second respondent has filed a statement. The respondents have refuted the allegations in the writ petition. It is the case of the respondents that the petitioner who joined service in 1993, was promoted from time to time and he is at present working as Assistant Registrar. He has been promoted as Project Officer and posted to Malappuram District, where there is a vacancy. The promotion and posting of the petitioner is purely on the basis of administrative convenience and public interest. The petitioner is attempting to characterize his promotion and posting at Malappuram, to be out of union rivalry. Ext.R1(a) relieving order has been passed on 11.6.2020, on the basis of the proceedings held on 5.6.2020 by the Board. The respondents have not received Ext.P5 as alleged in the writ petition. The petitioner has been working at Thiruvananthapuram, from the date of joining the Board, for the last 27 years. As per Ext.P4, 26 employees have been transferred and posted in different offices of the Board. All the 5 WPC 11434 OF 2020 other employees have joined their respective stations, as ordered by Ext.P4. It is the specific contention of the respondents that Ext.P2 does not reveal that the petitioner is the son of a freedom fighter. The petitioner has not been discriminated by the Board. The Board has transferred some Project Officers during the last few months. Some Deputy Directors are retained in the Project Offices, especially in the northern part of Kerala, for the purpose of effective development of the Village Industries. Transport facilities have been restored due to the relaxation of the lock-down. The transfer and posting of the petitioner cannot be tainted as mala fide or as an act of victimisation, as alleged in the writ petition. Hence the respondents pray that the writ petition may be dismissed. 7. Heard Sri.R.Rajasekharan Pillai, the learned counsel for the petitioner and Sri.N.Rajagopalan Nair, the learned Standing Counsel appearing for the respondents. 8. The learned counsel for the petitioner argued that Ext.P4 is actuated by arbitrariness and mala fides. The petitioner has been transferred out of Thiruvananthapuram only out of political rivalry. The petitioner is the son of a freedom fighter and he is therefore entitled to the benefit under Ext.P3. 6 WPC 11434 OF 2020 Even though this Court had passed an order to maintain “status quo” on 11.6.2020, Ext.R1(a) reveals that the petitioner has been relieved on 11.6.2020 i.e., on the date of passing of the order. He further contended that due to the COVID -19 pandemic, it is dangerous for the petitioner to travel to Malappuram, which is a hot spot , and join duty there. The third respondent may be directed to consider Ext.P6 representation submitted by the petitioner, until then the petitioner may be directed to retained at Thiruvananthapuram. 9. Per contra, the learned Standing Counsel appearing for the respondents argued that Ext.P4 order is purely administrative in nature and issued in public interest. 26 employees under the first respondent have been transferred and posted at different stations, as evidenced by Ext.P4. Other than for the petitioner, all the other employees have joined duty. Going by Ext.P4, it can be seen that the petitioner has been promoted from Assistant Registrar to Project Officer, which by itself establishes that the Board has no personal vengeance against the petitioner or his transfer is not hit by mala fides, as alleged by the petitioner. The Board decision was taken on 4.6.2020 and Ext.R1(a) was issued on 11.6.2020. There is no 7 WPC 11434 OF 2020 violation of the “status quo” order passed by this Court. The petitioner has been working in Thiruvananthapuram for the last 27 years. On an earlier occasion, on the representation of the petitioner, he was permitted to continue in Thiruvananthapuram. The petitioner does not have any vested legal right to continue in Thiruvananthapuram, especially when he is granted a promotion. It was the petitioner's father who was a freedom fighter who is now no more. Hence, the petitioner cannot claim the benefit under Ext.P3. Moreover, the directives under Ext.P3 are only directory in nature. The COVID-19 restrictions have been relaxed and unlocked, and there is no difficulty for the petitioner to travel to Malappuram and work there in the promotion post. Therefore, there is no circumstances warranting interference by this Court, with the transfer of the petitioner, under Article 226 of the Constitution of India. 10. The sole question that emerges for consideration in this writ petition is whether Ext.P4 transfer and posting order is justifiable or not. 11. 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 host of judicial 8 WPC 11434 OF 2020 ## pronouncements by the Hon'ble Supreme Court. 12. In **Shilpi Bose and Others v. State of Bihar and Others** [(1991) Supp 2 SCC 659] the Hon'ble Supreme Court observed 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 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 trasnfer 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.” 13. The above legal proposition has been reiterated by the Hon'ble Supreme Court in **State of M.P. and Another v. S.S.Kourav and others** [(1995) 3 SCC 270], wherein, it is laid down thus: “4..............................................................The Courts or Tribunals are not appellate forums to decide on transfer of officers on administrative grounds. The wheels of administration should be 9 WPC 11434 OF 2020 allowed to run smoothly and the Courts or Tribunals are not expected to interdict the working of the administrative system by transferring the officers to proper places. It is for the administration to take appropriate decision and such decisions shall stand unless they are vitiated either by mala fides or by extraneous consideration without any factual background foundation..................................................................... ........................................................” ## 14. Again, in **Somesh Tiwari v. Union of India and** **Others** [(2009) 2 SCC 592], the Hon'ble Supreme Court observed as follows: “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.” ## 15. A Division Bench of this Court in **Gopinathan M and** **Another v. State of Kerala and Others** [ 2014 (4) KLT 285] observed as follows: **“** 11. Therefore, if the service of an employee is found to be not satisfactory at a particular place for whatever reasons, it would be open to the employer to take such remedial measures as are permissible under law to meet the requirements of that situation, like initiation of disciplinary proceedings or transferring the employee out of that place. If the employer opines that mere transfer of the employee would suffice the 10 WPC 11434 OF 2020 interest of the administration and accordingly orders transfer of such employee, such order of transfer need not necessarily be a measure of punishment to such employee.” xxxxxxxxxxxxxxxxxxxxxxxxxxxx ## xxxxxxxxxxxxxxxxxxxxxxxxxxxx 14. It is the choice of the employer to determine how long the service of an employee is required in a particular post or at a particular place. The order or transfer does not affect any legal rights of the employee and the Court or Tribunal cannot interfere with an order of transfer or posting, which is made in public interest or on administrative exigency. However, if the power of transfer is abused or the transfer is not made in public interest, but for collateral purposes and with oblique motive, the order would stand vitiated, warranting interference of the Court or Tribunal.” 16. On a reading of Ext.P4 transfer and posting order, it can be seen that the petitioner has been promoted from the post of Assistant Registrar to the post of Project Officer. The transfer and posting is an incident of service as discernible from Ext.P4. Ext.P4 also reveals that 26 employees have been transferred by the General Transfer Order. 17. The trump card of the petitioner is that, Ext.P3 confers him with a preference to be posted at the place his mother is residing. Admittedly, it was the petitioner's father who was a 11 WPC 11434 OF 2020 freedom fighter. Although the benefits have been conferred on the petitioner's mother, being dependent of the deceased freedom fighter, strictly speaking the petitioner's mother is not a freedom fighter by herself. Be that as it may, Ext.P3 is only a guideline, which is only directory in nature, especially to Boards like the respondents. Therefore, I hold that Ext.P3 is not applicable to the facts of this case to interdict Ext.P4 transfer order. 18. Further more, it is an undisputed fact that the petitioner has been working in Thiruvananthapuram for the last 27 years. On an earlier occasion also, as evidenced by Ext.P1, the petitioner was directed to be retained at Thiruvananthapuram. The petitioner cannot be permitted to contend that he has to be perpetually posted at Thiruvananthapuram. 19. The other grievance of the petitioner is that due to the Covid-19 pandemic restrictions, it is difficult for him to travel from Thiruvananthapuram to Malappuram. According to me, after the unlocking of the restrictions and transport facilities being restored, the said contention falls into a pale of insignificance. The petitioner can now easily travel from 12 WPC 11434 OF 2020 Thiruvananthapuram to Malappuram and join the concerned station. 20. I reiterate that, the petitioner cannot have any vested legal right to perpetually continue in Thiruvananthapuram, especially after he has been promoted and posted as Project Officer. I do not find any discrimination or mala fides in Ext.P4 transfer order, which is purely administrative in nature and issued in public interest. 21. It is trite law that a Government Servant has no vested legal right to dictate terms to the employer that he should be posted at a particular station to suit to his convenience. Transfer is an incident of service and there is no scope for judicial review unless the same is vitiated by mala fides and arbitrariness. 22. On an anxious consideration of the rival pleadings and the submissions made by the respective counsel and the settled law enunciated in the aforesaid precedents, I am of the firm opinion that Ext.P4 order passed by the respondents, transferring the petitioner from Thiruvananthapuram to Malappuram, is not vitiated by mala fides, but is passed to meet administrative exigences and is an incident of service. Hence I 13 WPC 11434 OF 2020 hold that Ext. P4 is legal. I do not find any ground warranting interference by this Court, in the exercise of its powers under Article 226 of the Constitution of India, in Ext.P4 order, transferring the petitioner from Thiruvananthapuram to Malappuram. Resultantly, this writ petition is dismissed. **Sd/-** **C.S.DIAS** Ma/22.6.2020 **JUDGE** 14 WPC 11434 OF 2020 ## **APPENDIX** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE INTERIM ORDER DATED 5.8.2016 IN W.P.(C) NO.25519/2016 OF THIS HON'BLE COURT.** - **EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE PETITIONER'S MOTHER'S FREEDOM FIGHTER'S FAMILY PENSION BOOK.** - **EXHIBIT P2 A TRUE COPY OF THE FREE PASS ISSUED BY KSRTC TO THE PETITIONER'S MOTHER.** - **EXHIBIT P3 TRUE COPY OF THE ORDER NO.G.O. (P)NO.24/92/P&ARD DATED 20.5.1992.** - **EXHIBIT P4 TRUE COPY OF THE ORDER NO.KB.10385/16/E1(A) OF THE 2ND RESPONDENT.** - **EXHIBIT P5 TRUE COPY OF THE SUBMISSION OF THE PETITIONER SUBMITTED BEFORE THE 2ND RESPONDENT.** - **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION DATED 5.6.2020 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT.** **RESPONDENTS EXHIBITS** **EXHIBIT R1(A)** TRUE COPY OF RELIEVING ORDER NO.T-P743/2016 ESTT DATED 11.6.2020