IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 27TH MAY 2009 / 6TH JYAISHTA 1931 WP(C).No. 14671 of 2008(V) --------------------------------------- PETITIONER(S): ----------------------- 1. S.M.HABEEB MOHAMMED, DRIVER(SENIOR GRADE, EXCISE RANGE OFFICE, NEYYATTINKARA-695 010. 2. V.JAYAKUMAR, DRIVER (GRADE-I), EXCISE RANGE OFFICE, THIRUVANANTHAPURAM-695010. BY ADVS.MR.B.RAGUNATHAN MR.G.S.MOHANDAS SMT.P.RETNAKUMARI MR.R.SRINATH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, TAXES (EXCISE), DEPRTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001. 2. COMMISSIONER OF EXCISE,PUBLIC OFFICE BUILDINGS, THIRUVANANTHAPURAM-695033. 3. ASSISTANT EXCISE COMMISSIONER, THIRUVANANTHAPURAM-695023. 4. SHRI.B.S.SANAL KUMAR, DRIVER(GRADE-I) COMMISSIONERATE OF EXCISE, THIRUVANANTHAPURAM- 695033. 5. C.G.RAJU,DRIVER GRADE-I, EXCISE RANGE OFFICE, CHIRAYINKEEZHU-695304. GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/05/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.14671/2008 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DT. 7.5.08 ISSUED BY THE 3RD RESPONDENT. P2:- COPY OF THE ORDER DT. 7.4.07 ISSUED BY THE 3RD RESPONDENT. TRUE COPY P.A. TO JUDGE TSS P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.14671 of 2008 -------------------------------------- Dated 27th May, 2009 JUDGMENT Heard Sri.B.Raghunathan, the learned counsel appearing for the petitioners and Sri.Antony Mukkath, the learned Government Pleader appearing for respondents 1 and 3. Though respondents 4 and 5 have been served, they have not chosen to enter appearance. 2. The petitioners are Drivers working in the Excise Department. They have filed this writ petition challenging Ext.P1 order dated 7.5.2008 passed by the Assistant Excise Commissioner, Thiruvananthapuram transferring the first petitioner from Excise Range Office, Neyyattinkara to the Commissionerate of Excise, Thiruvananthapuram and the second petitioner from Excise Range Office, Thiruvananthapuram to the Office of the Deputy Commissioner of Excise, South Zone, Thiruvananthapuram. Respondents 4 and 5 are the substitutes appointed in the place of the petitioners at Excise Range Office, Neyyattinkara and Thiruvananthapuram respectively. 3. The petitioners challenge their transfer as per Ext.P1 on the ground that it violates Rule 10 of the Special Rules for Kerala Excise and Prohibition Subordinate Service. The petitioners contend that the Commissionerate of Excise and the Office of the Deputy WP(C).No.14671/2008 2 Commissioner of Excise constitute Special Units and that as per the Special Rules, staff to be posted in the Special Units have to be drawn from various divisional units throughout the State based on seniority to serve for a period of three years by rotation. They also contend that as they have earlier worked in the Special Units for 5-6 years, they are not again liable to be posted in the Special Units unless the chain of transfers is complete applying the rule of rotation. It is contended that very many persons are still in service without being transferred and posted in the Special Units and that their transfer is thus in violation of the Special Rules. The third respondent has filed a counter affidavit. However, the affidavit does not touch up on the contention raised by the petitioners relying on Rule 10 of the Special Rules. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. When this writ petition was admitted on 13.5.2008, I had passed an interim order holding that prima facie the transfer of the petitioners is bad for the reason that it violates Rule 10 of the Special Rules. The respondents have however not chosen to answer the contention raised by the petitioners that they are transferred violating Rule 10 of the Special Rules. If the order of transfer violates any statutory rule, it is a good ground on which the transfer order can be attacked. In the instant case, the petitioners WP(C).No.14671/2008 3 contend that their transfer is in violation of Rule 10 of the Special Rules. Rules 10 and 11 of the Special Rules read as follows: “10. Unit of appointment, discharge and reappointment, Seniority and appointment as full membr – For the purposes of appointment or reappointment to the service, whether as a full member or not, discharge from the service and seniority among the members of the service, the State shall be the unit in the case of Excise Inspectors and the Excise Divisions shall be units in the case of Excise Preventive Officers, Excise Guards and Drivers: (Provided that the Offices of the Board of Revenue (Excise), the Joint Commissioner of Excise, the Deputy Commissioners of Excise, the Assistant Commissioner of Excise (Inspection and Training), Excise Division Offices, and the Office of the Assistant Commissioner of Excise (Distilleries and Pharmaceuticals) shall constitute a separate Special Unit. The Staff to be posted in the Offices constituting the Special Unit shall be drawn from the State/Divisional Units for a maximum period of 3 years, based on seniority, retaining their lien in their parent units, by rotation.) 11. Postings and transfers – (1) Postings and transfers of all persons appointed to service from one unit to another within an Excise Zone shall be made by the Deputy Commissioner of Excise concerned. (2) Postings and transfers from one Excise Zone to another Excise Zone and to and from the special unit shall be made by the Additional Secretary (Excise), Board of Revenue. Note: An Excise Zone is a group of Excise Divisions under the jurisdiction and control of a WP(C).No.14671/2008 4 Deputy Commissioner of Excise.” 5. On the terms of Rule 10 of the Special Rules, the Commissionerate of Excise and the Office of the Deputy Commissioner of Excise are special units. As per the Special Rules, the staff to be posted in special units have to be drawn from State/Divisional units based on seniority by rotation for a period of three years. Rule 11 states that postings and transfers of all persons appointed to service from one unit to another within an Excise Zone shall be made by the Deputy Commissioner of Excise. In the instant case, the order of transfer is passed by the Assistant Excise Commissioner, Thiruvananthapuram. On the terms of Rule 11, as the transfer is from one unit namely the Divisional Unit, Thiruvananthapuram to the Special Unit, the Assistant Excise Commissioner was incompetent to order the transfer. Further, posting of staff in Special Units has to be on the basis of rotation based on seniority for a period of three years. The petitioners have admittedly served in the Special Units to which they are now posted earlier for a period of 5-6 years. The petitioners also contend that many other Drivers having lesser service have not so far been posted in the Special Units applying Rule 10 on the basis of rotation and without complying with Rule 10, the staff of Excise Department cannot be posted in Special Units. Since the respondents WP(C).No.14671/2008 5 do not dispute the said fact, I am proceeding on the basis that Rule 10 governs the posting of Excise staff in Special Units. 6. The respondents do not dispute the fact that the petitioner had earlier served in the Special Units. The respondents also do not dispute the fact that the persons having lesser service than the petitioners are yet to serve in the Special Units. When the rule prescribes the method for posting of staff in Special Units and also the Officer who has to pass such orders, the Assistant Excise Commissioner cannot in violation of the said rule transfer the petitioners from the Range Offices in Neyyattinkara and Thiruvananthapuram to the Special Units to which the petitioners have been posted as per Ext.P1. The transfer of the petitioners has been made in violation of Rules 10 and 11 of the Special Rules referred to above. I accordingly hold that the transfer of the petitioners to the stations mentioned in Ext.P1 is bad in law. Ext.P1 in so far as it transfers the petitioners from the Excise Range Offices at Neyyattinkara and Thiruvananthapuram to the Commissionerate of Excise and the Office of the Deputy Commissioner of Excise, Thiruvananthapuram is quashed and the official respondents are directed to retain them in the stations in which they were working immediately before Ext.P1. Needless to say this will not stand in the WP(C).No.14671/2008 6 way of the official respondents from transferring out the petitioners to other units as per rules and in accordance with the norms governing transfer and posting of Government servants. The writ petition is allowed to the extent indicated above. No costs. P.N.RAVINDRAN Judge TKS