T.N. Susmitha v. Kerala State Road Transport Corporation

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN** **TUESDAY ,THE 19TH DAY OF FEBRUARY 2019 / 30TH MAGHA, 1940** # **WP(C).No. 3963 of 2019** ## **PETITIONER:** **T.N.SUSMITHA AGED 38 YEARS W/O.BIJU, THULASIVANAM, VALLAMCODE, UKODU P.O., TRIVANDRUM - 695 042.** **BY ADV. SRI.SAJEEV KUMAR K.GOPAL** ## **RESPONDENTS:** - **1 THE KERALA STATE ROAD TRANSPORT CORPORATION, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM - 695 023.** - **2 THE CHAIRMAN AND MANAGING DIRECTOR THE KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM - 695 023.** - **3 THE ZONAL OFFICER CENTRAL ZONE, KSRTC, BOAT JETTY, ERNAKULAM - 682 011.** - **4 THE DISTRICT TRANSPORT OFFICER, KSRTC, ERNAKULAM - 682 011.** **SRI T.P. SAJAN, STANDING COUNSEL, KERALA STATE ROAD TRANSPORT CORPORATION** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 19.02.2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **W.P.(C)No.3963 of 2019** ## **:-2-:** ## **J U D G M E N T** The petitioner, who is working as a Selection Grade Assistant in Station Master's Office at Ernakulam Depot of KSRTC, has filed this writ petition under Article 226 of the Constitution of India, seeking a writ of certiorari to quash Ext.P4 order dated 29.1.2019 of the 2nd respondent to the extent the petitioner is transferred from the Central Zonal Office to Ernakulam Unit Office, so as to work in the Station Master's Office. The petitioner has also sought for a writ of mandamus commanding the 2nd respondent to consider Ext.P3 representation made by the petitioner, so as to enable her to get a posting at her Home Circle, Thiruvananthapuram. The further relief sought for is a declaration that the trasnfer of the petitioner from Thiruvananthapuram to Ernakulam Central Zone is in violation to Ext.P2 transfer ## **W.P.(C)No.3963 of 2019** **:-3-:** senoirity list of Assistants maintained in the Chief Office. 2. On 8.2.2019 when this writ petition came up for admission, the learned Standing Counsel for KSRTC took notice on admission for respondents 1 to 4. The learned Standing Counsel on instructions submitted that the petitioner has already been relieved on 8.2.2019 in terms of Ext.P4 memorandum. 3. A statement has been filed on behalf of the respondents, opposing the reliefs sought for in this writ petition. The petitioner has also filed reply affidavit. 4. Heard the learned counsel for the petitioner and also the learned Standing Counsel for KSRTC representing the respondents. 5. The challenge made in this writ petition against Ext.P4 order of transfer can be interfered with by this Court in exercise of writ jurisdiction ## **W.P.(C)No.3963 of 2019** ## **:-4-:** under Article 226 of the Constitution of India only when a case of malafides or oblique motives are specifically pleaded and established by reliable materials. 6. It is well settled that, the realm of judicial intervention in an order of transfer of an employee, even if there are guidelines governing such transfer, gets confined to a scrutiny as to whether there is any vitiating elements of mala fides, malice, substantial legal and factual perversity or arbitrariness, recognisable on the touch stones of the fundamental rights, as enshrined in the Constitution, to visit the executive decision of the employer. Therefore, it is not for this Court in exercise of the writ jurisdiction under Article 226 of the Constitution of India, to interfere in Ext.P4 order. It is the choice of the employer to determine how long the ## **W.P.(C)No.3963 of 2019** ## **:-5-:** service of an employee is required in a particular place. Since transfer is an incident of service, an employee working on a transferable post cannot claim, as a matter of right, that he should be retained in a particular post or at a particular place. 7. In **Santhosh K. and another v. Chief** **Engineer (HRM), Kerala State Electricity Board** **[2013 (4) KHC 624]** a Division Bench of this Court, in the context of the transfer guidelines of employees issued by the Kerala State Electricity Board, held as follows; "It is salutary that the contents of both the aforesaid KSEB orders cannot be treated as either statutory, or amounting to conditions of service. They are essentially guidelines, relating to transfers of employees of KSEB. The realm of judicial intervention in such matters gets confined to a scrutiny as to whether there is any vitiating element of mala fides, malice, substantial legal and factual ## **W.P.(C)No.3963 of 2019** ## **:-6-:** perversity or arbitrariness, recognisable on the touch stones of the Fundamental Rights, as enshrined in the Constitution, to visit the executive decision of the KSEB as the employer." 8. In **Mayadevi M. P. and another v. Canara Bank and others [2015 (4) KHC 874]** this Court held that, it is trite law that, an order of transfer cannot be interfered with in a proceedings under Article 226 of the Constitution of India, in the absence of any specific allegation of mala fides or at least a prima facie proof of vitiating circumstances influencing that order of transfer. It is far too late in the day to assert that, this Court in exercise of its jurisdiction under Article 226 of the Constitution of India can interfere with an order of transfer of an employee as if it is sitting in appeal over such an order issued by the employer. The scope of judicial review in this area is very limited. Unless mala fides or oblique ## **W.P.(C)No.3963 of 2019** ## **:-7-:** motives are specifically pleaded or can necessarily be inferred from the proof of facts, this Court cannot interfere with an order of transfer of an employee. Therefore, a mere assertion in the writ petition that, the orders of transfer are 'vitiated by extraneous considerations and imbued with mala fides', cannot therefore sound in realms of mala fides or extraneous considerations or oblique motives. The concept being basically different, this Court cannot even draw an inference that the order of transfer issued by the employer is vitiated by mala fides or on extraneous considerations or with oblique motives, unless it is specifically pleaded in the writ petition with reliable materials, which are sufficient to draw an inference of any vitiating circumstances influencing such an order of transfer. 9. Viewed in the light of the law laid down in ## **W.P.(C)No.3963 of 2019** **:-8-:** the decisions referred to supra, conclusion is irresistible that the grounds raised in the writ petition are not at all sufficient warranting an interference of this Court on Ext.P4 order dated 29.1.2019, in exercise of writ jurisdiction under Article 226 of the Constitution of India. 10. The learned counsel for the petitioner would point out that the petitioner is permanently settled at Thiruvananthapuram and her family consisting of her aged mother and daughter aged 5 years are still at Thiruvananthapruam. Her husband is abroad and as such the presence of the petitioner at Thiruvananthapuram is highly essential to maintain the family. ## 11. In **Som Prakash Rekhi v. Union of India** **[(1981) 1 SCC 449]** a Three-Judge Bench of the Apex Court held that, social justice is the conscience of our Constitution, the State is the promoter of ## **W.P.(C)No.3963 of 2019** ## **:-9-:** economic justice, the founding faith which sustains the Constitution and the country is Indian humanity. The public sector is a model employer with a social conscience not an artificial person without soul to be damned or body to be burnt. Later, in **Gurmail Singh and others v. State of Punjab and others, [(1991) 1 SCC 189]** the Apex Court reiterated that, the State as a model employer is expected to show fairness in action. 12. In **Sini Ben and another v. Union of India** **and others [ILR 2016 (1) Ker 798]** this Court held that, viewed in the light of the law laid down by the Apex Court in **Som Prakash Rekhi's case** and **Gurmail Singh's case** referred to supra, the Indian Railways, which is one of the biggest employers in India with more than 14 lakhs employees, should act as a model employer and show fairness in its action. ## **W.P.(C)No.3963 of 2019** **:-10-:** 13. The principle laid down in the decisions referred to supra is equally applicable in the case of KSRTC, which is a Road Transport Corporation established under Section 3 of the Road Transport Corporation Act, 1950. KSRTC is a 'State' within the meaning of Article 12 of the Constitution of India, which is presently having more than 40,000 employees. 14. The learned counsel for the petitioner would submit that Exts.P3 and P6 representations made by the petitioner are now pending consideration before the 2nd respondent and the said respondent may be directed to take a decision on those representations, with notice to the petitioner and after affording her an opportunity of being heard. 15. The learned Standing Counsel for KSRTC would submit that the 2nd respondent shall consider ## **W.P.(C)No.3963 of 2019** **:-11-:** the aforesaid representations, with notice to the petitioner and after affording her an opportunity of being heard. In such circumstances, this writ petition is disposed of by directing the 2nd respondent to consider Exts.P3 and P6 representations made by the petitioner and take appropriate decision, strictly in accordance with law, taking note of the law laid down in the decisions referred to supra, as expeditiously as possible, at any rate within a period of four weeks from the date of receipt of a certified copy of this judgment. Sd/- **ANIL K.NARENDRAN** **JUDGE** ami/ ## **W.P.(C)No.3963 of 2019** ## **:-12-:** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE ORDER DATED 24/07/2018 ISSUED BY THE 2ND RESPONDENT.** **EXHIBIT P2** **TRUE COPY OF THE TRANSFER SENIORITY LIST PUBLISHED BY THE CORPORATION.** **EXHIBIT P3 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER.** **EXHIBIT P4** **TRUE COPY OF THE ORDER NO.PL10/31662/2018 DATED 29/01/2019.** **EXHIBIT P5 TRUE COPY OF THE RELEVANT PORTION OF THE MANUAL WHICH DEALS WITH THE DUTIES AND RESPONSIBILITY OF THE STATION MASTER.** **EXHIBIT P6 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 26.7.2018** **EXHIBIT P7 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE HON'BLE CHIEF MINISTER OF KERALA.**