Sindhu Madhavan v. Kerala Water Authority

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN** ## **THURSDAY, THE 19TH DAY OF JANUARY 2012/29TH POUSHA 1933** ## **WP(C).No. 597 of 2012 (Y) -------------------------------------** **PETITIONER(S) :** **----------------------** **SINDHU MADHAVAN, U.D.CLERK, WATER WORKS SUB DIVISION, KALOOR, ERNAKULAM.** ## **BY ADV. SRI. J. OMPRAKASH** ## **RESPONDENT(S) :** ## **------------------------** **1. THE KERALA WATER AUTHORITY (K.W.A.) , REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, THIRUAVNANTHAPURAM P.O., PIN. 695 001** **2. THE SENIOR ADMINISTRATIVE OFFICER, KERALA WATER AUTHORITY, JALABHAVAN THIRUVANANTHAPURAM - 695 001** **3. THE ASSISTANT EXECUTIVE ENGINEER, P.H.DIVISION, KERALA WATER AUTHORITY, KALOOR,KOCHI-17.** **4. THE ASSISTANT EXECUTIVE ENGINEER, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, KALAMASSERY P.O., ERNAKULAM. PIN. 683 104.** **5. SHIBU VARGHESE, L.D.CLERK, WATER SUPPLY SUB DIVISION, KERALA WATER AUTHORITY, KALAMASSERY P.O., ERNAKULAM, PIN. 683 104.** ## **BY ADV. SMT.AMBIKA DEVI, S.C., K.W.A.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19-01-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **NS** ## **WP(C).No. 597 of 2012** ## **APPENDIX** ## **PETITIONER(S) EXHIBITS :** **EXT.P1 : COPY OF THE ORDER OF THE 2ND RESPONDENT DATED 5/1/2012.** **EXT.P2 : COPY OF THE ORDER OF THE ASSISTANT EXECUTIVE ENGINEER DATED 28/2/2011.** **EXT.P3 : COPY OF THE CASTE CERTIFICATE ISSUED BY THE TAHSILDAR DATED 13/4/2004.** **EXT.P4 : COPY OF THE CERTIFICATE DATED 6/1/2012 ISSUED BY DR.SHEELA MOHAN OF THE MOTHER AND CHILD HOSPITAL.** ## **RESPONDENTS' EXHIBITS : NIL** **/ TRUE COPY /** **NS** **P.A. TO JUDGE** ## **K.SURENDRA MOHAN, J. -----------------------W.P(C). NO. 597 OF 2012 ------------------------** Dated this the 19th day of January, 2012 **JUDGMENT** The petitioner, who is presently working as a U.D.Clerk in the Water Works Sub Division, Kaloor, has filed this writ petition challenging her transfer to the Water works Sub Division Kalamasserry. The 5[th] respondent is the person who has been transferred to the place of the petitioner. The petitioner is serial No.10 in Ext.P1 transfer order while the 5[th] respondent is serial number 11. It is the contention of the petitioner that she had been transferred to Kaloor only on 28/2/2011 as per Ext.P2. The petitioner belongs to Malayarayan Community which is a scheduled Tribe. Ext.P3 certificate issued by the Tahsildar, Udumbanchola is relied upon in support of the said claim of the petitioner. The petitioner, therefore, claims that she is entitled to continue in her present station for a period of five years as per the existing transfer guidelines. 2. The petitioner has a further case that she is seven months pregnant as evidenced by Ext.P4 and is, therefore , not W.P.(C). No. 597/2012 2 in the proper health condition to travel to Kalamassery from her residence every day. She is residing at Vytilla. Her husband is posted at Kannur. She has to look after her aged mother and child. Since the Kalamassery office to which she has been transferred, is 12 K.Ms away from her present place of residence, it is contended that the present transfer works a lot of hardship and inconvenience to her. Further, as part of her duties she would have to go for collection to the field at Varapuzha which is a further 8 K.Ms. away from Kalamasserry. Such field duty would have to be undertaken for at least 10 days in a month. 3. A statement has been filed by the Deputy Chief Engineer(CR), Kerala Water Authority, refuting the contentions of the petitioner. According to the statement, Ext.P1 transfer has been ordered in the interests of the administration. Since Ext.P1 is a general order that concerns transfers and postings of as many as 20 employees of the Water Authority, it is submitted that the same has been issued for the purpose of bringing more efficiency into the administration. Transfers and postings have been ordered after ascertaining and identifying alternative postings for each of the incumbents transferred. The W.P.(C). No. 597/2012 3 same has been issued in good faith. It is the further case of the respondent that the petitioner had been working from 19/6/2004 to 28/2/2011 at the Water Works Sub Division at Pallimukku. Thereafter, it was on her request that she was posted to Kaloor as per Ext.P2. At Pallimukku office, the petitioner had been stationed continuously for a period of six years. Clause 6 of the Guidelines for Transfer makes it clear that service in a district (Revenue District) within a radius of 15 kms is to be considered as service in the same station. In the light of the above clause, it is contended that the petitioner has been working in the same station continuously for a period of 8 years. Even her present posting, which is within the said distance of 15 k.m., cannot be termed as a transfer and is only a posting within the same station. For the above reasons, it is contended that no prejudice whatsoever has been caused to the petitioner. Since transfer is an incident of service, the minor hardships associated with the same would have to be borne by the employees. 4. The learned counsel for the petitioner Sri.J.Omprakash submits that Ext.P1 order does not specify any reason for the W.P.(C). No. 597/2012 4 transfer ordered. The reason of administrative necessity has been put forth for the first time only in the statement filed. Relying on the decision reported in Mohinder Singh Gill and Another v. the Chief Election Commissioner, New Delhi and others (1978)1 Supreme Court Cases 405) , the learned counsel contends that the reason has to be disclosed by the order itself and cannot be supplied later on, by filing an affidavit. According to the learned counsel, since the petitioner is in an advanced stage of pregnancy, she is not in a proper health condition to accept the transfer. 2. Smt. S.Ambika, Devi who appears for the respondents, points out that though the petitioner, being a member of a scheduled Tribe, is entitled to the protection in terms of the guidelines of transfer, such protection ceased on completion of the five years' period of continuous service in a particular place. Thereafter, she is liable to be transferred like any other employee as held by this court in the decision in Sunilkumar v. Secretary to Government (2011 (1) KLT 442 ). Relying on the decision reported in Rajendra Roy v. Union of India and Another (1993 (1) SCC 148) , it is contended that unless a transfer is vitiated W.P.(C). No. 597/2012 5 by the violation of a statutory provision or mala fides, the same cannot be interfered with. Since no allegations of mala fides are raised or substantiated in this case, it is contended that the transfer order in this case does not call for any interference. Reliance is also placed on the decision reported in Union of India and others v. S.L.Abbas (1993 (4) SCC 357) to submit that the transferring authority is not obliged to justify the transfer by disclosing the reason therefor. It is also contended that a transfer cannot be quashed for the mere reason of violation of the guidelines. Learned counsel also placed reliance on the decision in Basheer J v. State of Kerala and others (2010 (3) KHC 701) where it has been reiterated that transfer is an incident of service. It is normally made by the State taking into account various factors like exigency of service, efficiency, etc. It is not necessary to disclose the reasons for transfer in every case. The learned counsel on the basis of the above dicta submits that the writ petition may be dismissed. 6. I have considered the rival contentions advanced before me anxiously. It is worth noticing that Ext.P1 is a general order of transfer by which as many as 20 persons have been W.P.(C). No. 597/2012 6 transferred to different places. It is true that Ext.P1 order does not mention any ground for such transfer. It is also true that the present transfer is not made at the normal time that is stipulated for general transfer. Though Ext.P1 is an untimely transfer, for the said reason alone it cannot be characterized as vitiated. Transfers and postings of as many as 20 employees have been ordered. They can only be on the grounds of administrative necessities or exigencies. It is also worth noticing that the petitioner has been transferred from Kaloor to Kalamassery a place just 12 Kms. away, within the same district. Therefore, in terms of clause 6 of the guidelines of transfer, the transfer can only be described as a posting within the same station. Since the petitioner had been working at Pallimukku from 19/6/2004 onwards, it cannot be said that her transfer to Kalamassery is unreasonable or harsh. It is true that Ext.P2 refers to the petitioner's posting at Kalamassery as a posting to an existing vacancy. Whereas the petitioner has been actually posted in the place of the 5[th] respondent. However, the said discrepancy in the transfer order does not appear to cause any prejudice to the petitioner because in her writ petition her case is W.P.(C). No. 597/2012 7 that she has been posted in the place of the 5th respondent. Though the petitioner complains that she is in an advanced stage of pregnancy, it cannot be said that her transfer to a place at a small distance of 10 or 12 Kms. would cause any adverse affects on her present health conditions. As held by this court in the decision reported in Sunilkumar v. Secretary to Government (cited supra), the petitioner cannot claim any immunity from transfer for the reason that she belongs to a scheduled tribe since she has already completed five years of service in the same station. There are no allegation of mala fides against the transfer in Ext.P1. In the above circumstances, it has to be held that transfer of the petitioner, as per Ext.P1, does not call for any interference at the hands of this court. For the above said reasons, the writ petition fails and is, accordingly, dismissed. **Sd/-** **K.SURENDRA MOHAN, JUDGE** dpk /True copy/ P.A to Judge. W.P.(C). No. 597/2012 8