Sam Joseph v. Indian Railway Catering and Tourism Corporation Ltd

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE** ## **&** **THE HONOURABLE MR. JUSTICE GOPINATH P.** **FRIDAY, THE 07TH DAY OF AUGUST 2020 / 16TH SRAVANA, 1942** ## **WA.No.976 OF 2020** **AGAINST THE JUDGMENT IN WP(C) 14865/2020(G) OF HIGH COURT OF KERALA DATED 24/7/2020** ## **APPELLANTS:** **SAM JOSEPH AGED 47 YEARS S/O. P J JOSEPH, RESIDING AT HOUSE NO. 39/108 E, BTSRRA 129 BYE LANE 12, BTS ROAD EDAPPALLY P.O, ERNAKULAM 682 024** ## **BY ADV. SMT.SANDHYA RAJU** ## **RESPONDENTS:** **1 CHAIRMAN AND MANAGING DIRECTOR INDIAN RAILWAY CATERING AND TOURISM CORPORATION LTD REGD AND CORP. OFFICE, IIND FLOOR, STATESMAN HOUSE, B-148, BARAKHAMBA ROAD, NEW DELHI 110001** **2 DIRECTOR -TOURISM, INDIAN RAILWAYS CATERING AND TOURISM CORPORATION LTD (IRCTC) REGD AND CORPORATE OFFICE 11TH FLOOR STATESMAN, B-148, BARAKAMBHA ROAD, NEW DELHI 110 001** **3 JT GENERAL MANAGER (HRD) INDIAN RAILWAYS CATERING AND TOURISM CORPORATION LTD (IRCTC) REG AND CORPORATE OFFICE 11TH FLOOR STATESMAN, B-148, BARAKAMBHA ROAD, NEW DELHI 110 001** **4 GROUP GENERAL MANAGER, IRCTC SOUTH ZONE, 6A, THE RAIN TREE PLACE, MC NICHOLS RD, CHETEPET, CHENNAI, 600 031** **R1-4 BY SMT.ASHA CHERIAN, SC, IRCTC** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 30-07-2020, THE COURT ON 07-08-2020 DELIVERED THE FOLLOWING:** WA No.976/2020 -:2:- ## **J U D G M E N T** Dated this the 7[th ] day of August, 2020 _**Shaffique, J.**_ Petitioner in WP(C) No. 14865/2020 has preferred this appeal against judgment dated 24/7/2020 by which his writ petition challenging an order of transfer came to be dismissed. 2. Petitioner joined the service of Indian Railway Catering and Tourism Corporation Limited (for short 'IRCTC') as Assistant Manager in July, 2007. He was working in various stations where he was transferred on account of promotion. He was promoted as Deputy General Manager in the year 2016 and he got a posting at Ernakulam Region. By Ext.P8 order dated 24/6/2019, petitioner was promoted to the post of Joint General Manager and he was given a posting at Bangalore. 3. Petitioner submits that his eldest child, who is now aged 15 years, had been diagnosed with mental illness combined with autism spectrum disorder having 55% bench mark disability. He has got another girl child who is only 5 years old. According to the petitioner, the elder minor child requires his support and WA No.976/2020 -:3:- assistance and therefore, he had sent representations earlier itself for exempting him from rotational transfers on compassionate grounds. Ext.P4 is one such representation given on 8/3/2019 and Ext.P5 is yet another representation given on 8/6/2019. When the representations remained without any response, petitioner filed WP(C) No.17712/2019 for a direction to the respondents to consider his representation Exts.P4 and P5. The respondents agreed to consider his representations and accordingly the writ petition was withdrawn. However, by Ext.P9 order dated 18/6/2020, petitioner was transferred to the Regional Office at Bangalore. He submitted a representation as Ext.P10 on 22/6/2020 to exempt him from the rotational transfers considering the fact that his elder child requires his support and presence especially in his adolescent age. It is pointed out that his wife will not be in a position to handle both the children. He again filed WP(C) No.12805/2020 challenging the order of transfer to Bangalore. The learned Single Judge by judgment dated 1/7/2020 directed the respondents to consider Ext.P10 representation within a specified time. Pursuant to the said direction, the 4[th] respondent issued letter dated 15/7/2020 WA No.976/2020 -:4:- rejecting his claim for continuing at Ernakulam Region. While disposing of the representation of the petitioner, the respondents have _inter alia_ stated that there is a requirement of a senior officer in Tourism at Bangalore to handle CM Special Train and to boost other tourism products in the present situation. A conscious decision was taken to transfer him to Bangalore where medical as well as educational facilities are more than Ernakulam Region and he can comfortably look after his son in a better manner. It was also mentioned that, being a senior officer, he has responsibility towards his job assignment as well and he was given sufficient time at his home State. 4. The learned Single Judge after evaluating the respective contentions dismissed the writ petition. Reference has been made to the judgment of the Apex Court in _**Shilpi Bose and Others v. State of Bihar and Others**_ [(1991) Supp 2 SCC 659], _**State of M.P and another v. S.S.Kourav and Others**_ [(1995) 3 SCC 270] and _**Somesh Tiwari v. Union of India and Others**_ [(2009) 2 SCC 592] for the proposition that ordinarily the Court will not interfere with an order of transfer unless it is actuated by malafides. The learned Single Judge also took note WA No.976/2020 ## -:5:- of the fact that petitioner was working at Ernakulam for about 4 years and when the petitioner had been transferred to Bangalore to meet administrative exigencies in the Corporation, it may not be possible for the Court to interfere with such matters. Further, there are better educational and medical facilities in Bangalore where the petitioner could admit his son and though the sympathies are with the petitioner, that cannot override administrative exigences especially in a case where the petitioner holds a senior managerial post. Learned Single Judge also placed reliance on the judgment of the Apex Court in _**Union of India and another v. Deepak Niranjan Nath Pandit**_ [(2020) 3 SCC 404]. It was held that in the absence of any malafides on the part of the respondents in transferring the petitioner to Bangalore and that too in a promotion post, there is no reason for the Court to interfere in the matter. 5. We have heard the learned counsel for the appellant and the learned counsel appearing for the respondents. 6. Counsel for appellant would submit that the respondents have completely ignored the guidelines issued by the Government of India, Ministry of Personnel, Public Grievances WA No.976/2020 -:6:- and Pensions which are produced as Exts.P6 and P7. Ext.P7 is dated 30/9/2009 which refers to the guidelines where direction had been issued to post the spouses employed under various departments of the Central Government or Public Sector Undertakings or State Government in the same station in order to lead a normal family life and to take care of the children at least till the age of 18. Ext.P6 office memorandum had been issued in the light of Rights of Persons with Disabilities Act, 2016 wherein it has been specifically indicated that a Government employee who is a care-giver of dependent with specified disability as certified by the certifying authority as a person with Benchmark Disability as defined under S.2(r) of the Rights of Persons with Disabilities Act, 2016 may be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints. Learned counsel submits that the authorities have failed to consider the aforesaid factual aspects while transferring and posting the petitioner/appellant to Bangalore. 7. Learned counsel appearing for the respondents however supported the stand taken by the respondents. It is WA No.976/2020 -:7:- submitted that the respondents have taken into consideration all relevant aspects while effecting the order of transfer. The petitioner is a senior person working in a managerial capacity and has been promoted as Joint General Manager. The petitioner was posted at Ernakulam in a regular promotion transfer in the year 2016 and once he has been promoted as Joint General Manager, he has an obligation to join at Bangalore where his services were required for administrative exigencies. It is further pointed out that another person Sri.Ratheesh Chandran Nair who was working at New Delhi had been transferred to Ernakulam Region as Joint General Manager who has already taken charge. 8. It is true that the petitioner has to take care of his elder child who has a medical problem and his presence and attention might be required for the child. This aspect of the matter had been considered by the department while rejecting his representation as per letter dated 15/7/2020. According to the department, medical as well as educational facilities are more at Bangalore than at Ernakulam. They also require the service of a senior employee at Bangalore. In Ext.P6 order dated 8/10/2018, there is no impediment on the part of the employer in WA No.976/2020 -:8:- transferring a Government employee who is a care-giver to a disabled dependent son. But it only prohibits routine exercise of transfer/rotational transfer subject to the administrative constraints. In Ext.P12 letter dated 15/7/2020, department has also stated some administrative exigencies which cannot be ignored by this Court. Hence, we do not find any reason to interfere with the judgment of the learned Single Judge. 9. However, having regard to the peculiar factual situation that has arisen in the case, the respondents may consider whether the petitioner could be brought back to Ernakulam Region, so that he could be accommodated in a suitable post. Writ appeal is dismissed with the above observation. **Sd/-** **A.M.SHAFFIQUE** Rp **JUDGE Sd/GOPINATH P. JUDGE** WA No.976/2020 -:9:- ## **APPENDIX** **APPELLANT'S EXHIBITS:** **ANNEXURE A1 COPY OF THE RELIEVING ORDER BERING NUMBER IRCTC/ER/HRD/P[ERSONAL FILE/4735 DATED 21ST JULY 2020** **ANNEXURE A 2 COPY OF THE SUMMARY OF MEDICAL CONDITION OF THE APPELLANT'S SON** True Copy PS to Judge Rp