High Court of KeralaSingle Judge2017-11-21Writ petition dismissed; the transfer order sta...

Thilakan N v. Kerala State Electricity Board Limited & Others

Case / Petition Number:WP(C).No. 37105 of 2017 (L)

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: P. V. ASHA
Judgment Date: 2017-11-21
Court Decision / Holding: Writ petition dismissed; no interference with the transfer order. The court held that transfer guidelines are non-statutory and cannot be enforced by the court, and that the employer’s prerogative in transfers should be respected absent statutory violation or demonstrated malafide.
Final Disposition: Writ petition dismissed; the transfer order stands and guidelines are non-statutory.

Parties to the Case

Appellants / Petitioners

Thilakan N.

Respondents

Kerala State Electricity Board Limited represented by its Secretary
The Secretary (Administration), Kerala State Electricity
The Chief Engineer (HRM), KSEB Limited
The Chairman, Kerala State Electricity Board Limited
The Appeal Committee for Transfer Grievances of KSEB
The Executive Engineer, KSEB Electrical Divisional Kollam

Legal Representation & Advocates

Counsels for Petitioners

• Sri C. Unnikrishnan (Kollam)
• Sri S. Biju (Kizhakkanela)
• Sri P. P. Shameer
• Sri K. P. SuFiyan

Counsels for Respondents

• Smt. Aneetha A.G., SC

Case Synopsis & Summary

Thilakan N., a Senior Assistant of the Kerala State Electricity Board (KSEB), challenges Ext.P1 transfer order dated 02 September 2017 sending him from Kollam to Thanoor Electrical Section, Tirur. He had recently completed three years at Kollam and contends that the cut-off date fixed by Ext.P7 and the general transfer norms Ext.P2 are applied in a discriminatory and arbitrary fashion, contrasting the treatment of other employees who have remained at stations for decades. He asserts violation of Articles 14 and 16 of the Constitution, arguing the transfer violates rules that require consideration of valid requests and a fair seniority reckoning; that station seniority must consider time spent on other arrangements and leave. He points to differences in transfer practice across stations and alleged malafides in the process. He cites the fixed cut-off, queuing of transfers, and the need for a transparent, rule-based approach, including the note on being domicile at Kollam. He seeks enforcement of Ext.P2 guidelines and an order restraining or altering the transfer. The respondents defend the transfer as within the employer's exclusive domain, noting no vacancy in Kollam and the petitioner’s domicile as Kollam; They emphasize that transfers follow internal norms and long-standing practices, and rely on decisions limiting judicial interference under Article 226. The court, after hearing, dismisses the petition, holding that guidelines are non-statutory and not enforceable and that the transfer cannot be interfered with, citing Union of India v. S. L. Abbas and related decisions.

Provisions of Law Cited

Constitution of India, Articles 14 and 16Constitution of India, Article 226

Legal Doctrines & Maxims

Transfers and postings are within the exclusive domain of the employer; courts should not interfere except on statutory violations or malafides.
Guidelines for transfer are non-statutory and cannot be enforced by the court.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner contends that the Ext.P1 transfer order, issued on 02.09.2017, transferring him after three years, violates the transfer guidelines Ext.P2 and Ext.P7 cut-off; the cut-off date was arbitrarily fixed and applied unequally across stations, enabling long tenure at certain stations while compelling him to shift; the decision is discriminatory and violative of Articles 14 and 16; the guidelines, including clause 5 providing a 3-year posting limit, should be applied uniformly to all employees, and consideration should be given to valid requests and seniority; he also argues malafide in the transfer process and that the Appeal Committee did not properly address his contentions as per the guidelines.

Contentions of Respondents

The respondents submit that transfers and postings fall within the employer’s exclusive domain and courts should not interfere under Article 226 except for statutory violations or malafides; there is no vacancy in Kollam for him and his domicile is Kollam; Ext.P2 guidelines are non-statutory and cannot be enforced; the transfer was based on long-standing norms and practices; the appeal committee considered his grievances; references to decisions like Union of India v. S. L. Abbas, Kendriya Vidyalaya Sangathan v. Damodar Prasad Pandey, Syndicate Bank v. Ramachandran Pillai and State of Kerala v. Rajan support deference to managerial prerogative and non-interference by the court.

Cited Precedents (5)

Case Name	Citation	Treatment	Explanation
Union of India v. S. L. Abbas	4 SCC 357; 1993 SC 2344	Positive	Used to support the proposition that transfers/postings are within the employer’s domain and that courts should not interfere under Article 226 except for statutory violations or malafide actions.
Kendriya Vidyalaya Sanghathan v. Damodar Prasad Pandey	2004 (12) SCC 499	Positive	Cited in context of employer prerogative and limits on judicial intervention, reinforcing non-statutory nature of transfer guidelines.
Syndicate Bank v. Ramachandran Pillai	2011 (15) SCC 398	Positive	Supports that transfer guidelines are non-statutory and cannot be enforced by the court.
Nirmalanandan v. Divakaran	1989 (1) KLT 126	Positive	Cited to reinforce non-enforceability of transfer guidelines and deference to employer’s prerogative.
State of Kerala v. Rajan	1989 (2) KLT 666	Positive	Cited as part of the jurisprudence recognizing limits of judicial interference in transfers.

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Extracted Judgment Text

Exact text extracted from official judgment records.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE SMT. JUSTICE P.V.ASHA** **TUESDAY, THE 21ST DAY OF NOVEMBER 2017/30TH KARTHIKA, 1939** ## **WP(C).No. 37105 of 2017 (L)** **----------------------------** **PETITIONER :** **-----------------** **THILAKAN N, SENIOR ASSISTANT, KERALA STATE ELECTRICITY BOARD LTD ELECTRICAL DIVISION, KOLLAM, RESIDING AT 'SUPRABHA' MALIBHAGAM, CHAVARA SOUTH PO., THEKKUMBHAGAM VILLAGE, KARUNAGAPPALLY TALUK PIN-691584** **BY ADVS.SRI.C.UNNIKRISHNAN (KOLLAM) SRI.S.BIJU (KIZHAKKANELA) SRI.P.P.SHAMEER SRI.K.P.SUFIYAN** **RESPONDENTS :** **----------------------** **1. KERALA STATE ELECTRICITY BOARD LIMITED REPRESENTED BY ITS SECRETARY, VYDYUTHI BHAVAN PATTOM, THIRUVANANTHAPURAM PIN-695004** **2. THE SECRETARY (ADMINISTRATION), KERALA STATE ELECTRICITY THIRUVANANTHAURAM PIN-695004** **3. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVAN,PATTOM THIRUVANANTHAPURAM PIN-695004** **4. THE CHAIRMAN KERALA STATE ELECTRICITY BOARD LIMITED, VYDYUTHI BHAVAN,PATTOM THIRUVANANTHAPURAM PIN-695004** **WP(C).No. 37105 of 2017 (L)** ## **---------------------------------------** **5. THE APPEAL COMMITTEE FOR TRANSFER GRIEVANCES OF KSEB, VYDYUTHI BHAVAN, PATTOM THIRUVANANTHAPURAM PIN-695004** **6. THE EXECUTIVE ENGINEER, KSEB ELECTRICAL DIVISIONAL KOLLAM-6910001** **BY SMT. ANEETHA A.G., SC,** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 21-11-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **bp** **WP(C).No. 37105 of 2017 (L)** **---------------------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -------------------------------------** - **EXHIBIT P1: TRUE COPY OF THE RELEVANT PAGES OF TRANSFER ORDER DATED 02.209.2017 ISSUED BY E 3RD RESPONDENT** - **EXHIBIT P2: TRUE COPY OF THE BO(FTD) NO.848/2017 (PSIA/3879/2016) DATED 31.3.2017 ISSUING GUIDELINES** - **EXHIBIT P3: TRUE COPY OF THE APPEAL DATED 07.09.2017 SUBMITTED BY THE PETITIONER** - **EXHIBIT P4: TRUE COPY OF THE WORKING STATION SENIORITY LIST OF SENIOR ASSISTANTS IN CHATHANNOOR KOLLAM KUNDARA PUBLISHED IN THE KSEB WEBSITE ON 10.05.2017** - **EXHIBIT P5: TRUE COPY OF THE INSTRUCTIONS ISSUED IN NOTE NO.EB7/GENERAL/ONLINE TRANSFER/2017 DATED 10.5.2017 BY THE KSEB** - **EXHIBIT P6: TRUE COPY OF THE REPRESENTATION DATED 14.08.2017 SUBMITTED BY THE PETITIONER BEFORE THE CHIEF ENGINEER (HRM)** - **EXHIBIT P7: TRUE COPY OF THE DECISION DATED 30.08.2017 OF THE KSEB REGARDING CUTOFF DATED AND TRANSFERRED STATION** - **EXHIBIT P8: TRUE COPY OF THE INCUMBENCY DETAILS OF THE PETITIONER** - **EXHIBIT P9: A TRUE COPY OF THE JUDGMENT DATED 14.9.2017 IN WPC NO. 29663/2017** - **EXHIBIT P10: A TRUE COPY OF THE ORDER NO.EB3(B)/GL/19/2017 DATED 8.11.2017** **RESPONDENT(S)' EXHIBITS :** **NIL.** **//TRUE COPY//** ## **P.A. TO JUDGE** **bp** ## **P.V.ASHA, J.** ## **W.P.(C) No.37105 of 2017** ## **Dated this the 21[st] day of November, 2017** ## **JUDGMENT** The petitioner, who is working as Senior Assistant under the KSEB is aggrieved by his transfer as per Ext.P1 order issued on 02.09.2017 from Kollam to Thanoor Electrical Section, Tirur. Ext.P3 appeal, which was directed to be considered by this Court as per Ext.P9 judgment dated 14.9.2017 in WP(C) No.29663 of 2017, was rejected as per Ext.P10 order. The order Ext.P7 by which the respondents fixed a cut off date for transfer is also under challenge in this writ petition, along with Exts.P1 and P10. 2. As interim order of stay was declined by me, the learned counsel for the petitioner insisted for a disposal and I do so. 3. According to the petitioner, he had just completed three years at Kollam when Ext.P1 order of transfer was issued. At the time when the proposal for transfer was made, he had not completed 3 years. In case the transfer orders were issued during April/May 2017, as provided in the norms of transfer, he would not have been transferred as he had not completed three years of service at that time in the present station. According to him, the order of transfer is W.P.(C) No.37105/17 **==> picture [14 x 10] intentionally omitted <==** discriminatory, arbitrary and violative of Articles 14 and 16 of the Constitution of India. It is pointed out that cut off date fixed was different in different stations as per Ext.P7 order, by which a large number of Senior Assistants are allowed to continue in the same station for about 22 years and more; whereas the petitioner is transferred as soon as he completed three years on account of the arbitrariness in fixing the cut off date. Petitioner submits that the transfer is ordered in violation of clause (1) as well as clause (5) of the guidelines-Ext.P2, which provides that general transfer shall be ordered by 30[th] April of every year coinciding with the academic annual vacation. Clause 5 of the guidelines provides that workmen will not be allowed to continue in a station for more than 3 years, if there is a valid request from another employee for a posting at that station. In order to consider valid requests for transfer to a station where open vacancies do not exist, employees who have put in continuous combined service of 3 years or more at that station and adjacent stations are liable to be transferred out. Employees with longer service in the station where they are presently working will be transferred out to distant places and those with lesser service in such stations will be posted to places of lesser distance. Period spent on working W.P.(C) No.37105/17 **==> picture [14 x 10] intentionally omitted <==** arrangement/foreign service/leave without allowance except on medical grounds will be included for reckoning station seniority. 4. Pointing out that several persons are allowed to continue in Thiruvananthapuram District while the petitioner who has just completed only three years is transferred to Thanoor in Malappuram, petitioner submits that there is violation of the guidelines which are discriminatory. It is pointed out that there is malafides in effecting the transfer. Moreover, it is pointed out that while considering his appeal, the appeal committee has not gone into his contentions in the right perspective in tune with the guidelines issued by them. 5. Heard the learned Standing Counsel also, who supported the orders of transfer as well as Ext.P10 order. It is pointed out that this Court cannot interfere with the transfer and there are no grounds on which the transfer can be set aside. It is also pointed out that there are several employees who were subjected to transfers on the basis of long term agreements between the trade union and the employer. Learned Standing Counsel submits that the petitioner has declared his domicile as Kollam and that there is no vacancy in Kollam, that aspect has already been considered by the appeal committee. 6. It is settled law, by way of a catena of decisions of the W.P.(C) No.37105/17 **==> picture [14 x 10] intentionally omitted <==** Apex Court and this Court that transfers and postings come under the exclusive domain of the employer and courts, under Article 226 are not supposed to interfere with the same except when there is violation of statutory rules or proved malafides, which are to be established on the basis of the pleadings, or when the order is issued by a person without jurisdiction [ **Union of India v. S. L.Abbas:** (1993)4 SCC 357: 1993 SC 2344; **Kendriya Vidyalaya Sanghadan v. Damodar Prasad** **pandey** (2004)12 SCC 499, etc.]. The present case does not come under any of these circumstances. Therefore, there is no circumstances warranting interference with the order of transfer. 7. What the petitioner seeks in this writ petition is enforcement of Ext.P2 norms. It is settled law by a series of decisions, that guidelines for transfer are not statutory and are only meant for the guidance of the transferring authority and this Court cannot direct or enforce guidelines which do not have any statutory force. ( **Syndicate Bank v. Ramachandran Pillai** :2011(15) SCC 398, **Nirmalanandand v. Divakaran** :1989 (1) KLT 126, **State of Kerala v. Rajan** :1989(2)KLT 666, etc). Even though the petitioner has alleged discrimination in effecting the transfers and personal hardships, I find that the appeal committee has considered all his W.P.(C) No.37105/17 :5: grievances. In the above circumstances, I do not find any reason to interfere with the orders passed in this case transferring the petitioner. Accordingly, the writ petition is dismissed. Sd/- **P.V.ASHA JUDGE** rkc