Sunil kumar K. v. Kerala State Financial Enterprises Ltd.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** ## **MONDAY, THE 30TH DAY OF JANUARY 2017/10TH MAGHA, 1938** ## **WP(C).No. 33743 of 2016 (P)** **-----------------------------------------** **PETITIONER(S) : ------------------------** **SUNILKUMAR K., CODE 4506, OFFICE ATTENDANT, KSFE, PARALI BRANCH, (UNDER TRANSFER TO THE EDAPPAL BRANCH) RESIDING AT PEEDIKATHODI HOUSE, MATHUR P.O, PALAKKAD 678 571.** **BY ADVS. SMT.SREEDEVI KYLASANATH SMT.KAMALAKSHY KYLASANATH SRI.R.MAHESH MENON SRI.JOSELAL GEORGE SRI.ACHUTH KYLAS** ## **RESPONDENT(S) :** - **----------------------------** **1. THE KERALA STATE FINANCIAL ENTERPRISES LTD., REPRESENTED BY THE MANAGING DIRECTOR, REGISTERED OFFICE, BHADRATHA, THRISSUR-680 020.** **2. THE MANAGING DIRECTOR, THE KERALA STATE FINANCIAL ENTERPRISES LIMITED, KSFE HEAD OFFICE, THRISSUR-680 020.** **3. STATE OF KERALA, REPRESENTED BY ITS SECRETARY, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **R1 TO R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS** **R3 BY SR. GOVERNMENT PLEADER SRI. T.RAJASEKHARAN NAIR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30-01-2017, ALONG WITH W.P(C).NO. 33065 OF 2016 AND W.P(C).NO. 33886 OF 2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** Msd. **WP(C).No. 33743 of 2016 (P) -----------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS :** - **EXHIBIT P1 TRUE COPY OF THE TRANSFER GUIDELINES OF WORKMEN IN KSFE.** - **EXHIBIT P2 TRUE COPY OF THE OFFICE ORDER NO. 4307/ADMN DATED 01/09/2016 OF 2ND RESPONDENT TRANSFERRING THE PETITIONER.** - **EXHIBIT P3 TRUE COPY OF THE NEWSPAPER REPORT IN MATHRUBHUMI DAILY DATED 03/09/2016 ABOUT THE POLITICAL TRANSFER IN 1ST RESPONDENT.** - **EXHIBIT P4 TRUE COPY OF THE REPRESENTATION OF THE DATED 30/09/2016** - **EXHIBIT P5 TRUE COPY OF THE GOVERNMENT ORDER G.O(P).NO.12/04/P&ARD DATED 10/09/2004.** - **EXHIBIT P6 TRUE COPY OF THE JUDGMENT OF THE HON'BLE HIGH COURT DATED 06/09/2016 IN W.P(C).NO. 29732/2016.** - **EXHIBIT P7 TRUE COPY OF THE LETTER NO. 36127/P DATED 03/10/2016 OF THE 2ND RESPONDENT.** - **EXHIBIT P8 TRUE COPY OF THE STAY ORDER DATED 18/10/2016 IN W.P(C).NO. 33065/2016.** - **EXHIBIT P9 TRUE COPY OF LETTER NO. 36123/16 DATED 26.11.2016 OF THE 2ND RESPONDENT.** ## **RESPONDENT(S)' EXHIBITS & ANNEXURES :** - **ANNEXURE R1(A): TRUE COPY OF THE ORDER DATED 03.12.2016 ISSUED BY KSFE TO THE WRIT PETITIONER.** - **ANNEXURE R1(B): TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 33672/2011 DATED 25.01.2012 ISSUED BY THE HON'BLE COURT.** - **ANNEXURE R1(C): TRUE COPY OF THE JUDGMENT IN W.P(C).NO. 29372/2016 DATED 26.10.2016 ISSUED BY THE HON'BLE COURT.** **//TRUE COPY//** **P.S.TO JUDGE.** Msd. ## **P.V.ASHA, J.** ----------------------------------------------------- ## W.P(C) Nos.33743 of 2016-P, 33065 of 2016-G and 33886 of 2016-I ---------------------------------------------------------------------Dated this the 30[th] day of January, 2017 ## **JUDGMENT** All these cases relate to transfer of office attendants under the respondents. Therefore the cases were heard together and being disposed of by this common judgment. ## W.P(C) No.33743 of 2016 2. The petitioner is an Office Attendant who was transferred as per Ext.P2 order dated 01.09.2016 from Palari branch of the 1[st] respondent in Palakkad District to Edappal branch in Malappuram district. On the basis of the interim order passed by this court, his representation was considered and as per Ext.R1(a) order he was posted to Perinthalmanna, which is also in Malappuram District. The learned counsel on either side submit that the petitioner joined Perinthalmanna during the pendency of this writ petition. 3. The petitioner is a last grade servant. According to the petitioner, it is for the first time that the Office Attendants/last grade servants under the 1[st] respondent are W.P(C) No.33743 of 2016-P 2 transferred outside the district. At the same time, the contention of the respondent is that the petitioner has completed 10 years of service in Palakkad district and it is for the first time that he was transferred out of the district. According to the respondents, there is requirement of personnels in Malappuram district. 4. In the representation submitted by the petitioner Ext.P4, he had pointed out that vacancies were existing in Ottappalam and Kuzhalmannam in his home district. However the respondents have not considered the same, despite the direction in Ext P6. According to the respondents, the nature of work in the office in which the petitioner is working requires shifting of personnels from time to time in public interest and Ext.P2 is an order of a general transfer involving 316 persons on account of the fact that most of the employees joined the stations to which they were transferred; even thereafter they have considered the representations submitted by the petitioner giving him a posting at Perinthalmanna. However the case of the petitioner is that there are several persons with longer service in the same station who are left undisturbed and the alleged requirement in Malappuram district is factually incorrect 3 W.P(C) No.33743 of 2016-P as there are sufficient number of personnels available. 5. I heard the learned counsel for the petitioner, the learned Government Pleader and the learned Standing Counsel for respondents 1 and 2. 6. It is settled law that the jurisdiction of this court to interfere with transfers and postings is very limited and that transfer is an incidence of service which is exclusively within the domain of the executive. However, the case of the employees in lowest strata/last grade servants require special consideration. 7. Just because the guidelines provide for transferability within the State or that the orders of appointment of persons like the petitioner provide for a posting anywhere in the State, that does not mean that the respondents employer should post the last grade servants in far off stations. Even when the guidelines provide for applicability of the same to last grade employees, it specifies that as far as possible they should be posted in offices situated in their home districts, subject to availability of vacancies. Even though Smt. Thushara, the learned Standing Counsel appearing for respondents 1 and 2 vehemently argued justifying the action of the respondents in transferring the petitioner pointing out the requirement of the transfer and the W.P(C) No.33743 of 2016-P 4 transferability of last grade servants, I am of the view that transfers of last grade servants to far off stations outside the district and even inside the district depending on the distance, transportation facilities, etc will be arbitrary. 8. As far as Edappal and Perinthalmanna branches are concerned, there will not be a practical difference as far as the last grade servant like the petitioner is concerned. In view of the cost of living and the liability to run two establishments, it will be difficult for a last grade servant to work with contentment in a station far away from his residence. In this context the observations of the Apex Court, in **B. Varadha Rao v. State of Karnataka,** [(1986) 4 SCC 131], even while reiterating that the transfer is incidence of service, is relevant: “One cannot but deprecate that frequent, unscheduled and unreasonable transfers can uproot a family, cause irreparable harm to a government servant and drive him to desperation. It disrupts the education of his children and leads to numerous other complications and problems and results in hardship and demoralisation. It therefore follows that the policy of transfer should be reasonable and fair and should apply to everybody equally. But, at the same time, it cannot be forgotten that so far as superior or more responsible posts are concerned, continued posting at one station or in one department of the government is not conducive to good administration. It creates vested interest and therefore we find that even from the British times the general policy has been to restrict the period of posting for a definite period. We wish to add that **the position of Class III and Class IV employees stand on a different footing** . We trust that the government will keep these considerations in view while making an order of transfer.” (emphasis applied) W.P(C) No.33743 of 2016-P 5 In order to see that the employer gets maximum output from the employees, the employer has to accommodate the last grade servants like the petitioner in stations which are most convenient to them. From Ext.R1(a) order it does not appear that such a consideration has been given to the petitioner. Even though the respondents have relied on Ext.R1(b) judgment of this court, that does not relate to a transfer outside the district. It was a case where a last grade servant was transferred on account of disciplinary action. Even in that case this court had directed the respondents to consider his request for a posting in the same district. 9. At any rate, since the petitioner has joined duty as per the modified orders of posting at Perinthalmanna, the respondents shall consider his request for a posting in his home district, especially when he had already pointed out the vacancy at Ottappalam and Kuzhalmannam. The petitioner also points out that even in the representation submitted by him he has pointed out the availability of vacancies at Ottappalam and Kuzhalmannam. Therefore, the respondents shall consider his case for a posting at Ottappalam, Kuzhalmannam or any other vacancy which is available, near his home town, without W.P(C) No.33743 of 2016-P 6 disturbing others. The petitioner will be free to submit a representation before the 2[nd] respondent within a period one week from the date of receipt of a copy of this judgment along with a copy of the writ petition in which case the respondents shall consider the same, within another period of three weeks, in the light of the above observations. The writ petition is disposed of as above. ## W.P(c).No.33065 of 2016 10. The petitioner, who has been working in Thrissur branch, is transferred to Kalikavu branch. The contention of the respondent is that the petitioner has been working in Thrissur district for the last 10 years. The petitioner points out that there are several vacancies in Thrissur district. Even though he had pointed out these vacancies in the writ petition as well as the representation submitted before the respondents, the respondents have not considered these aspects while passing Ext.R1(a) order. On the other hand, it appears that the respondents were under the impression that the persons who have completed 10 years of service in the same district should be posted outside the district. The petitioner continues at Thrissur on the basis of interim order. W.P(C) No.33743 of 2016-P 7 11. Under the above circumstances, the petitioner shall, within a period of one week, submit a representation again pointing out the vacancies available in Thrissur district. On receiving such representation and on ascertaining the availability of vacancies, the respondents shall consider the request of the petitioner for a posting in his home district itself, and pass orders on the same, within a period of three weeks from the date of receipt of a copy of the representation. Till then the petitioner shall be allowed to continue to work in the Thrissur branch. The writ petition is disposed of as above. ## W.P(c).No.33886 of 2016 12. The petitioner has been transferred from Iritty branch to Naduvil branch at Kannur district which is 85 kilometres away from the present station. The petitioner points out that he has been working in the Iritty branch only for a period of one year and nine months. He also points out that one Sri Ashraf who was under orders of transfer to Kollakkad branch wanted a transfer to Naduvil branch to which station the petitioner was transferred as per Ext.P1 order. When the representation was considered and orders were passed as per Ext.R1(a), the respondents stated 8 W.P(C) No.33743 of 2016-P that Sri Ashraf had already joined another branch and therefore there is no scope for re-opening the request as it will make administrative chaos. The petitioner submits that Sri Ashraf is interested in getting a posting at Naduvil branch even now and his joining at Kollakkad branch will cause irreparable prejudice to him. 13. While in the case of similarly situated persons, the contention of the respondents is that the incumbent had been continuing in the same station for a long time, in the case of the petitioner he has completed only one year and nine months. The respondents have not considered the request of the petitioner for mutual transfer, in the correct perspective. 14. Under the above circumstances, the petitioner shall, within a period of one week, submit a representation again pointing out the willingness of Sri Ashraf for a transfer to Naduvil branch so that the petitioner can be accommodated at Kollakkad branch instead of Naduvil branch. On receiving such representation and on ascertaining the willingness of Sri Ashraf, the respondents shall consider and pass orders on the same, within a period of three weeks from the date of receipt of a copy of the representation. W.P(C) No.33743 of 2016-P 9 The writ petition is disposed of as above. Sd/- **(P.V.ASHA, JUDGE)** rtr/