IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 23RD DECEMBER 2010 / 2ND POUSHA 1932 WA.No. 2091 of 2010 ----------------------- AGAINST THE ORDERS IN WPC.35975/2010 Dated 01/12/2010 & 10/12/2010 .................... APPELLANT/4TH RESPONDENT: ---------------------------------- SABU.K.K., ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, TRANSMISSION CIRCLE, TRISSUR (ON TRANSFER). BY ADV. SRI.K.S.MADHUSOODANAN SRI.T.V.JAYAKUMAR NAMBOODIRI SRI.THUSHAR NIRMAL SARATHY SRI.M.M.VINOD KUMAR SRI.P.K.RAKESH KUMAR RESPONDENTS/PETITIONER & RESPONDENTS 1,2,3 & 5: -------------------------------------------------------------- 1. P.B.HARSHAN, ASSISTANT ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD, THOTTIYAR HYDRO ELECTRIC PROJECT, KARIMANAL, IDUKKI DISTRICT. 2. CHAIRMAN, KERALA STATE ELECTRICITY BOARD VAIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004. 3. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004. 4. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004. WA.No. 2091 of 2010 5. BASTIN.C.L, ASSISTANT EXECUTIVE ENGINEER, KERALA STATE ELECTRICITY BOARD, PALAKKAD (PRESENTLY AT TRANSMISSION CIRCLE, TRISSUR-682020). R1 BY ADV. SRI. ELVIN PETER P.J. R2 TO R4 BY ADV. SRI. ASOK M.CHERIYAN, SC, KSEB R5 BY ADV. SRI.P.M. MUHAMMED SHIRAZ. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 23/12/2010,ALONG WITH WPC NO. 35975 OF 2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. ------------------------------------------ W.A. No.2091 of 2010 & W.P.(C) No.35975 of 2010 ------------------------------------------ Dated this the 23rd day of December, 2010 JUDGMENT Ramachandra Menon, J. The writ appeal has been preferred by the 4th respondent in W.P.(C) No.35975 of 2010 challenging the interim orders passed by the learned Single Judge, whereby the post of the Assistant Executive Engineer, Buildings and Stores Division, Kerala State Electricity Board at 'Angamaly' which became vacant on retirement of one Smt.Santhakumari on 30.11.2010 has been ordered to be kept vacant, simultaneously observing that the Board is at liberty to accommodate the 4th respondent at 'Brahmapuram', to which place, the writ petitioner stands transferred out. The appellant has already been relieved (pursuant to Annexure R4(d) transfer order) from Thrissur and by virtue of the interim orders he is not in a position to join duty at Angamaly, in view of the claim put forth by the writ petitioner for a posting at Angamali. 2. For the purpose of convenience of reference, the parties are referred to in the manner in which they have been arrayed in the writ petition. WA No.2091/2010 & WPC No.35975/2010 - 2 - 3. The writ petition was filed seeking for a direction to the respondents to give a transfer and posting to the petitioner as Assistant Executive Engineer in the vacancy that 'has arisen' due to the retirement of one Santhakumari from the said post at Angamaly, in preference to the 4th respondent. There is an alternative prayer to transfer and post the petitioner as Assistant Executive Engineer, K.S.E.B. Transmission Circle, Thrissur in the vacancy that 'will arise due to the transfer and posting of the 4th respondent' as Assistant Executive Engineer, K.S.E.B, Buildings & Stores Division, Angamaly. 4. The claim has been put forward by the petitioner stating that the petitioner is having nearly 17½ years of continuous service in a remote forest area and that he is entitled to have preference over the 4th respondent in the writ petition for a posting either in Thrissur or Angamaly. It is also the case of the petitioner that the writ petitioner has been repeatedly requesting for a transfer and posting to Thrissur, which was not considered earlier. It is also stated that the petitioner was transferred out as per Ext.P2 order dated 18.2.2009 from Athirappally Hydro Electric Project and was posted in the present station. It was taking note of the chance to occur a vacancy at Angamaly on 30.11.2010, that the petitioner submitted Ext.P3 representation, seeking for a placement there; but apprehending that the said vacancy is likely to be filled up by accommodating the 4th WA No.2091/2010 & WPC No.35975/2010 - 3 - respondent, the petitioner has approached this Court, seeking the reliefs mentioned herein before. 5. When the writ petition came up for admission, the learned Single Judge passed an interim order on 1.12.2010, directing the Board to keep the vacancy that arose due to the retirement of Smt.Santhakumari at Angamali vacant until further orders. Subsequently, the 4th respondent turned up and it was brought to the notice of the Court that he was already relieved from Thrissur pursuant to the transfer order and that because of the interim order, he was not in a position to join at Angamaly as well. It was in the said circumstances, that the order dated 10.12.2010 came to be passed by the learned Single Judge, observing that, if the Board so wished, it could very well fill up the available vacancy at 'Brahmapuram', by accommodating the 4th respondent. 6. Respondents 4 and 5 as well as the third respondent Electricity Board have filed their counter affidavits seeking to dismiss the writ petition as devoid of any merit or bona fides. 7. The writ petitioner, referring to his credentials contends that he is having a better claim to have a posting either in Thrissur or Angamaly. That claim is sought to be resisted from the part of the Electricity Board as well as the respondents 4 and 5, stating that the petitioner was being posted at the particular station in the hilly area, WA No.2091/2010 & WPC No.35975/2010 - 4 - pursuant to the request made by the petitioner himself and that the petitioner is permanently put up very near to the present station, within a range of 10 KMs. It is further stated that the petitioner has not challenged Ext.P2 order whereby he was transfered out to the present station and the said order was passed in the last year, on 18.2.2009. Unless and until the petitioner completes the minimum tenure of 'two years' in that station, the petitioner is not entitled to claim any further transfer, as per the Guidelines/norms for Transfers and Postings of officers of the Kerala State Electricity Board, a copy of which has been produced as Ext.R4(f) from the part of the 4th respondent. It is also brought to the notice of this Court that the petitioner has not chosen to challenge the present common order of transfer whereby the 4th respondent has been placed at Angamaly and the petitioner has been ordered to be posted at Brahmapuram. 8. True, the petitioner has filed an application (I.A.No.17212 of 2010) for amending the writ petition on 9th December, 2010. It is after the filing of the counter affidavit by the 4th respondent stating that there is no challenge against the transfer order and as such, no interference is liable to be made by this Court with regard to the prayers sought for by the petitioner. It remains a fact that the petitioner was transferred out from the earlier place to the present station where he is now working (Karimanal) as per Ext.P2 order which admittedly was WA No.2091/2010 & WPC No.35975/2010 - 5 - never under challenge. Going by the norms contained in Ext.R4(f), the petitioner is still to complete the minimum tenure of 'two years' before seeking for any further transfer. 9. It is pointed out by the third respondent Board, that the request made by the petitioner (oral request) to have a transfer was considered 'on humanitarian ground' and it was accordingly, that the petitioner was given a posting at Brahmapuram as per Ext.R4(d), though he is actually not entitled to have any such relief. The relevant paragraphs in the counter affidavit filed by the third respondent Board read as follows: “7. It is submitted that, considering the requests of Sri.P.B.Harshan and Sri.K.K.Sabu to B & S Division, Angamaly, the most eligible person was considered for a transfer to B & S Division, Angamaly. The 4th respondent Sri.K.K.Sabu was considered for the following reasons. a) The 4th respondent is working out of his native place since 06/2000 and he was given transfer to B & S Division, Angamaly vide order dated 29.11.2010. b) The petitioner, Sri.P.B.Harshan was working at Thottiyar Hydro Electric Project with effect from 03/2009. c) As per guidelines he should complete 2 years at a place more than 40 Kms. away from his home station. WA No.2091/2010 & WPC No.35975/2010 - 6 - 8. It is submitted that, considering the request of the petitioner, Sri.P.B.Harshan, he was also considered for transfer to Ernakulam District due to humanitarian grounds and was given transfer to BDPP, Brahmapuram, Ernakulam as item No.10 of Exhibit P4. It is submitted that, transfer order of officers dated 29.11.2010 were ordered in accordance to the exigencies of work and in public interest.” It is relevant to note that the alleged request made by the petitioner as per Ext.P3 to have a posting in Angamaly is on 22.11.2010 which is rather premature. The petitioner has not established any better right or claim to have a posting at Angamali, but for stating that he has some hearing impairment. Still, the request made by the petitioner to have a transfer from the present station was considered on 'humanitarian grounds' and a posting at Brahmapuram has been given to him as per the common order of transfer, though the petitioner actually is not entitled to have any such posting as per the norms. 10. In the above circumstances, this Court finds that there is absolutely no merits or bona fides in the writ petition. It is open to the petitioner either to join duty at 'Brahmapuram' as ordered in Ext.R4 (d) or to make a request to the third respondent Board to retain him at the present station at 'Karimanal' till his eligibility to get a transfer and WA No.2091/2010 & WPC No.35975/2010 - 7 - posting in accordance with Ext.R4(f) norms comes through. Accordingly, interference is declined and the writ petition is dismissed. The writ appeal stands allowed, making it clear that the appellant-4th respondent in the writ petition is entitled to join duty at Angamaly in terms of Ext.R4(d). No costs. J.Chelameswar, Chief Justice P.R.Ramachandra Menon, Judge vns