W.P.(C) No.31314/2023

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 7[TH] DAY OF DECEMBER 2023 / 16TH AGRAHAYANA, 1945 WP(C) NO. 31314 OF 2023`** ## **`PETITIONER:`** ``` MOHAMMEDSHERIF, AGED57YEARS S/OLATEUMMER,JUNIORFARMOFFICER, BOTANYDIVISION,RRII,RUBBERBOARDPO, KOTTAYAM-686009, RESIDINGAT"SANDRAM"PADIVATTOM, - EDAPPALLYPO,KOCHI682024. BYADVS. R.REJIKUMAR P.R.JAYAKRISHNAN ``` ``` RESPONDENTS: ``` ``` 1THERUBBERBOARD REPRESENTEDBYITS:SECRETARY,RUBBERBOARD, KEEZHUKUNNU,SUBJAILROAD,COLLECTORATEPO, - KOTTAYAM,PIN686002 2THEEXECUTIVEDIRECTOR RUBBERBOARD,KEEZHUKUNNU,SUBJAILROAD, - COLLECTORATEPO,KOTTAYAM,PIN686002 3THERUBBERRESEARCHINSTITUTEOFINDIA REPRESENTEDBYITSDIRECTOROFRESEARCH, - RRII,RUBBERBOARDPO,KOTTAYAM,PIN686009 -- 4JESSYMD,DIRECTOROFRESEARCHINCHARGE,RRII, - RUBBERBOARDPO,KOTTAYAM,PIN686009 5GEORGEJOSEPH ASSISTANTFARMMANAGER,PLANTPATHOLOGYDIVISION,RRII, - RUBBERBOARDPO,KOTTAYAM,PIN686009 ``` W.P.(C) No.31314/2023 2 ``` 6VCJOSEPH JUNIORFARMOFFICER,CCESDIVISION, - RRII,RUBBERBOARDPO,KOTTAYAM,PIN686009 7BENNYKK FARMOFFICER,P&PRDEPARTMENTRUBBERBOARD, KEEZHUKUNNU,SUBJAILROAD, - COLLECTORATEPO,KOTTAYAM,PIN686002 8EACHACKO DEPUTYSECRETARY(P&A),RUBBERBOARD, KEEZHUKUNNU,SUBJAILROAD, - COLLECTORATEPO,KOTTAYAM,PIN686002 BYADVS. ABRAHAMJOSEPHMARKOS V.ABRAHAMMARKOS(K/354/1975) ISAACTHOMAS(K/571/2014) P.G.CHANDAPILLAIABRAHAM(MAH/002141/2016) JOHNVITHAYATHIL(K/001877/2021) ALEXANDERJOSEPHMARKOS(K/001270/2018) AIBELMATHEWSIBY(K/1376/2020) ``` ## **`OTHER PRESENT:`** ``` SRI.ABRAHAMJOSEPHMARKOS,SCFORRUBBERBOARD ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSIONON 07.12.2023,THECOURTONTHESAMEDAYDELIVEREDTHEFOLLOWING: ``` W.P.(C) No.31314/2023 3 ## **JUDGMENT** The petitioner is a Junior Farm Officer in the Botany Division of the Rubber Research Institute of India. This writ petition is filed seeking to set aside Ext.P2 Office Memorandum by which the petitioner has been transferred and posted to CES, Chethakkal. He has also impugned Ext.P15 order by which the representation filed by him seeking interference with the transfer has been dismissed by the Rubber Board. 2. Short facts are as under: The petitioner states that he joined the service on the Rubber Board on 11.05.1995 and has completed about 28 years of service. He has worked for about 14 years in various divisions of the Rubber Research Institute of India (‘the RRII’ for brevity) and has accumulated an excellent Annual Performance Appraisal Report (APAR) Grading. As per the Rules prevailing in the RRII, employees with longer outstation services are awarded higher credit points. As on date, he secured 80 credit points, which is much higher than 53 of his colleagues in the cadre of Junior Farm Officers. Instead of transferring employees with fewer credit points, the petitioner has been transferred, which, according to him, is illegal. W.P.(C) No.31314/2023 4 2.1. The respondent No. 5, by the very same order, was promoted and transferred to CES, Chethakkal. However, for reasons best known to the respondents, he was permitted to continue in RRII in the post of Farm Officer by drawing salary and allowances for the post of Assistant Farm Manager. The respondents 6 and 7 are all given undue benefits, and though they have fewer credit points, they are retained in the place of their choice. He would refer to the credit points accrued by persons holding the post of Junior Farm Officer as on 31.12.2022, and it has been argued that the petitioner has 80 credit points, which is much higher than all except one. 2.2. He would also highlight the credit points accrued to several employees, and it is contended that even persons with zero or less points are working in their respective hometowns for the past several years without being transferred. It is submitted that a detailed representation was submitted by the petitioner, but the same was rejected by Ext.P15 order. It is on these assertions that this writ petition is filed seeking the following reliefs: - “i) to issue a writ of certiorari or other appropriate writ, direction or order declaring that the Ext P.2 and P.15 orders are illegal and unsustainable; - ii) to issue a writ of certiorari or any other appropriate writ, direction or order quashing Ext P.2, and P.15 orders of transfer; W.P.(C) No.31314/2023 5 - iii) to issue a writ of certiorari or any other appropriate writ, direction or staying the implementation of Ext P.2, and P.15 orders of transfer; iv) to issue a writ of mandamus or any other appropriate writ, direction or order staying the operation of Ext P.2 and P.15 orders of transfer. - v) to issue a writ of mandamus or any other appropriate writ, direction or order directing the respondent to re -consider Ext P.13 representation in the light of clauses 7,10, 19 and 25 of the Ext P.3 order issued by the 1st respondent.” 3. A counter affidavit has been filed by the respondents. It is stated therein that Ext.P2 Office Memorandum by which the petitioner was transferred was issued under clause 4 of Ext.P3 office order, which regulates the transfers and postings of office and staff. The transfer to the Research Institute is done based on exigencies of service and not to suit the convenience of individuals. The petitioner has been stationed at Kottayam, his home station, continuously from 19.06.2009 onwards. Having garnered more than 13 years of experience in managing a large number of workers, a decision was taken by the management to use the competence of the petitioner to manage the substantial number of workers at Chethakkal. While taking such a decision, the management took note of the shortage of staff in the post of Junior Farm Officer at CES, Chethakkal as well. The unit to which the petitioner has been transferred is merely 40 kms away from his home station. The transfer was carried out under clause 4 of the office order after W.P.(C) No.31314/2023 6 considering the exigencies of administration and taking note of the expertise and experience of the petitioner. The credit points mentioned by the petitioner are used to determine eligibility for transfer when an employee requests for a transfer or in the normal course of service. The said Rule has no application in case of transfer because of exigencies. The retention of the 5th respondent, who is working as an Assistant Farm Manager, has nothing to do with the petitioner, who has been transferred as Junior Farm Officer. The 5th respondent is engaged in research in the Pathology Division, and it was as per the request of the Head of the Department that the respondents have taken a policy decision to drop the intended transfer of the 5th respondent to CES, Chethakkal with the intent to ensure that the research activities are not impeded. The majority of the Junior Farm Officers, who are about 32 in number, are working outside Kerala. 4. Sri P.R. Jayakrishnan, the learned counsel appearing for the petitioner, submitted that the respondents have not reckoned that the petitioner had worked in various divisions of the Institute for over 14 years and that he had accumulated enough credit points. Therefore, the only persons who had acquired less credit points than the petitioner ought to have been transferred. It is submitted that the respondents have perpetrated a W.P.(C) No.31314/2023 7 serious illegality in retaining the 5th respondent in the RRII. In the order impugned, the respondents have not mentioned that the petitioner is being transferred on account of exigency of service. Placing reliance on the law laid down in **B. Varadha Rao V. State of Karnataka and others[1]** , it was argued that if materials disclose that the power to transfer the petitioner was exercised based on extraneous considerations or an oblique motive, this Court will be well justified in interdicting the transfer order. Reliance is placed on the law laid down by the Hon’ble Supreme Court in **Ram Ganesh Tripathi V. State of UP and Others[2]** and it is argued that any executive instructions/order which runs counter or is inconsistent with the Statutory Rules cannot be enforced. 5. The learned counsel appearing for the respondents submitted that none of the contentions raised by the petitioner against the transfer order can be sustained under law. It is submitted that the orders of transfer made in exercise of administrative discretion may not be interfered with under Article 226 of the Constitution of India. Reliance is placed on the various clauses in Ext.P3 Office Order and it is argued that it would not come to the rescue of the petitioner. Clause 4 clearly says that transfers and postings of > 1 AIR 1986 SC 1955 > 2 AIR 1997 SC 1446 W.P.(C) No.31314/2023 8 officers and staff shall be done on the basis of exigencies of service and not to suit the convenience of individuals. However, as per the office order, management has the right to transfer employees at any point of time throughout the year under exigencies. It is pointed out that the petitioner has been stationed at the same unit for over 13 years, and the unit to which he has been transferred is just 40 kms away. He would argue that this Court in **Babu v. State of Kerala**[3] has held that the guidelines for transfer are not statutory and cannot be considered to be exhaustive. Reliance is also placed on the law laid down in **B Varadha Rao** (supra) to substantiate his contention. 6. I have carefully considered the submissions advanced and have gone through the records. 7. The grievance of the petitioner concerns Ext.P5 transfer order. His first contention is that the original memorandum transferring him is in violation of Ext.P3 office order. To appreciate the contentions of the petitioner, the relevant clauses of Ext.P3 need to be adverted. Clauses 4, 6, 10, and 12 are of some relevance. The same reads as under:- > 3 1988 (2) KLT 258 W.P.(C) No.31314/2023 9 4. Transfers and postings of Officers and staff shall be done on the basis of exigencies of service and not to suit convenience of individuals. Management reserves the right to transfer employees at any time of the year under exigencies. 6. Normally an employee shall not be transferred from his/her station of choice before completion of the period of posting asked for at that station or a period of three years whichever is less. This condition may be overlooked and transfer/posting may be made earlier in the case of employees who are (a) getting promotion in the meanwhile and (b) liable for transfer due to shorter outstation service. 10. Employees with comparatively higher points will be considered preferentially for home/request station posting and those with lower points for outstation posting. Regarding filling up of the post in NE/NT regions, persons with lesser credit points will be first in first out method and the person with least credit points will move first. This will be applicable to Board's employees on deputation to joint venture companies also. For cases in which credit points are same, general seniority of the employee shall be given weightage. 12. The effective tenure at a place of posting shall be three years unless otherwise stated. In all instances, marginal cases (for completion of prescribed period not exceeding 3 months shortage) may be considered at the time of general transfer. However, in the case of persons who enter service of the Board on first appointment, an effective period of three years will normally be insisted. 8. Clause 4 clearly states that the transfer and postings of officers shall be done on the basis of exigencies of service and not to suit the convenience of individuals. The management is also entitled to transfer employees at any time throughout the year. The petitioner has a case that W.P.(C) No.31314/2023 10 before transferring him the credit points which he had accumulated all through his service has not been considered. Clause 10 only says that employees with comparatively higher points will be considered preferentially for home/request station postings. It also says that employees with less credit points will move first. Clause 12 says that the effective tenure at a place of posting shall be three years. In the case on hand, the petitioner has enjoyed the benefits of a home posting for about 13 years. In that view of the matter, his contention that in view of the credit points accumulated by him, he has to be retained in the very same station cannot be sustained. 9. The petitioner has also raised a contention that the 5th respondent has been retained in the station despite being transferred. He also contends that he is being permitted to stay in a lower post and draw a higher salary. However, the said contention does not carry any merit as the 5th respondent has been promoted to the post of Assistant Farm Manager, whereas the petitioner herein is working in the post of Junior Farm Officer, which is much lower down the hierarchy. Furthermore, the respondents contend that the intended transfer of the 5th respondent was dropped based on the recommendations of the Head of the Department to ensure that the research activities that are being carried out are not disrupted. W.P.(C) No.31314/2023 11 ## 10. In **Gujarat Electricity Board and Another v Atmaram** ## **Sungomal Poshani**[4] , it was held by the Apex Court as under: **4.** Transfer of a government servant appointed to a particular cadre of transferable posts from one place to the other is an incident of service. No government servant or employee of Public Undertaking has legal right for being posted at any particular place. Transfer from one place to other is generally a condition of service and the employee has no choice in the matter. Transfer from one place to other is necessary in public interest and efficiency in the public administration. Whenever, a public servant is transferred he must comply with the order but if there be any genuine difficulty in proceeding on transfer it is open to him to make representation to the competent authority for stay, modification or cancellation of the transfer order. If the order of transfer is not stayed, modified or cancelled the concerned public servant must carry out the order of transfer. In the absence of any stay of the transfer order a public servant has no justification to avoid or evade the transfer order merely on the ground of having made a representation, or on the ground of his difficulty in moving from one place to the other. If he fails to proceed on transfer in compliance with the transfer order, he would expose himself to disciplinary action under the relevant rules, as has happened in the instant case. The respondent lost his service as he refused to comply with the order of his transfer from one place to the other. ## 11. In **State of M.P. and Another v. S. S. Kourav and Ors.[5]** , the ## Apex Court held that the Courts or Tribunals are not appellate forums to > 4 [1989 (2) SCC 602] > 5 [1995 SCC (L&S) 666] W.P.(C) No.31314/2023 12 decide on transfers of officers on administrative grounds. It is for the administration to take appropriate decisions and such decisions shall stand unless they are vitiated either by mala fides or extraneous considerations without any factual background foundation. ## 12. In **B. Varadha Rao (supra)** , it was held by the Apex Court as under: **5…………** “It is an accepted principle that in public service transfer is an incident of service. It is also an implied condition of service and appointing authority has a wide discretion in the matter. The government is the best judge to decide how to distribute and utilise the services of its employees. However, this power must be exercised honestly, bona fide and reasonably. It should be exercised in public interest. If the exercise of power is based on extraneous considerations or for achieving an alien purpose or an oblique motive it would amount to mala fide and colourable exercise of power. Frequent transfers, without sufficient reasons to justify such transfers, cannot, but be held as mala fide. A transfer is mala fide when it is made not for professed purpose, such as in normal course or in public or administrative interest or in the exigencies of service but for other purpose, that is to accommodate another person for undisclosed reasons. It is the basic principle of rule of law and good administration, that even administrative actions should be just and fair.” The observation that transfer is also an implied condition of service is just an observation in passing. It certainly cannot be relied upon in support of the contention that an order of transfer ipso facto W.P.(C) No.31314/2023 13 varies to the disadvantage of a government servant, any of his conditions of service making the impugned order appealable under Rule 19(1)(a) of the Rules. **6.** 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. 13. The Supreme Court has held unequivocally that the transfer is an inherent aspect and implied condition of government service, with the appointing authority holding discretionary power, subject to exercising it honestly and in public interest. Transfers made for improper purposes or without sufficient justification are considered mala fide. Frequent, unscheduled, and unreasonable transfers can cause severe hardships to W.P.(C) No.31314/2023 14 government servants and their families, disrupting their lives. It is essential to understand that no government servant or employee of a Public Undertaking possesses a legal entitlement to be posted at a specific location. The act of transferring an employee from one place to another is generally a condition of their service, and the employee does not have the discretion to choose otherwise. Such transfers are imperative for the promotion of public interest and the efficient functioning of public administration. It is crucial to emphasize that Courts or Tribunals do not serve as appellate forums to adjudicate on administrative transfer decisions. The responsibility for making appropriate decisions regarding transfers lies with the administration itself. These decisions should stand unless they are tainted by malice or extraneous considerations lacking factual foundation. 14. Having considered the facts of the instant case, in the light of the principles above, I am of the considered opinion that the petitioner has not made out any case for interference. sd/- **RAJA VIJAYARAGHAVAN V, JUDGE** PS/4/12/23 W.P.(C) No.31314/2023 15 ## **`APPENDIX OF WP(C) 31314/2023`** ``` PETITIONEREXHIBITS ``` ``` ExhibitP.1 ``` - `TRUE COPY OF THE OFFICE MEMORANDUM DATED 09-06-2022 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P.2 TRUE COPY OF THE OFFICE MEMORANDUM DATED 08-08-2023 ISSUED BY THE DEPUTY SECRETARY (P&A), RUBBER BOARD` - `Exhibit P.3 TRUE COPY OF THE OFFICE ORDER NO. 1009 DATED 10-03-2017 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P.4 TRUE COPY OF THE OFFICE ORDER NO. 1033 DATED 16-05-2018 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P.5 TRUE COPY OF THE OFFICE ORDER NO. 1051 DATED 16-06-2021 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P.6 TRUE COPY OF THE CREDIT POINTS IN RESPECT OF JUNIOR FARM OFFICER NOTIFIED BY THE 1ST RESPONDENT` - `Exhibit P.7 TRUE COPY OF THE OFFICE MEMORANDUM DATED 26-06-2023 ISSUED BY THE DEPUTY SECRETARY (P&A), RUBBER BOARD` - `Exhibit P.8 TRUE COPY OF THE CREDIT POINTS FOR THE POST OF FARM OFFICER NOTIFIED BY THE 1ST RESPONDENT` - `Exhibit P.9 TRUE COPY OF THE CREDIT POINTS IN RESPECT OF THE POST OF FARM ASSISTANT NOTIFIED BY THE 1ST RESPONDENT` ``` ExhibitP.10TRUECOPYOFTHEOMDATED06-04-2023ISSUED BYTHEDEPUTYSECRETARY(P&A),RUBBERBOARD ``` W.P.(C) No.31314/2023 16 ``` ExhibitP.11 ``` ``` TRUECOPYOFTHEOMDATED29-05-2023ISSUED BYTHEDEPUTYSECRETARY(P&A) ``` - `Exhibit P.12 TRUE COPY OF THE OFFICER ORDER NO.921 DATED 07-03-2007 ISSUED BY THE DEPUTY SECRETARY (P&A), RUBBER BOARD` - `Exhibit P.13 TRUE COPY OF THE REPRESENTATION DATED 09-08-2023 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT` - `Exhibit P.14 TRUE COPY OF THE JUDGMENT DATED 16-08-2023 IN WP (C) NO.26951/2023 OF THE HON'BLE HIGH COURT OF KERALA` - `Exhibit P.15 TRUE COPY OF THE ORDER DATED 21-09-2023 ISSUED BY THE 2ND RESPONDENT` - `Exhibit P.16 TRUE COPY OF THE REPRESENTATION DATED 23-09-2023 SUBMITTED BEFORE THE 2ND RESPONDENT BY THE PETITIONER` ``` ExhibitP.17TRUECOPYOFTHEOFFICENOTEDATED02-11-2023 ISSUEDBYTHE1STRESPONDENT ``` ``` ExhibitP.18TRUECOPYOFTHEMEMODATED20-11-2023ISSUED BYTHE3RDRESPONDENT ```