IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 5245 of 2009(A) ------------------------------------- PETITIONER: ------------------- JOPPY JOSEPH, DRIVER, TALUK OFFICE, PONNANI. BY ADV. MR.V.C.JAMES. RESPONDENTS: ------------------------ 1. DISTRICT COLLECTOR, MALAPPURAM. 2. DEPUTY COLLECTOR (GENERAL), COLLECTORATE, MALAPPURAM. 3. K.PRAKASH, DRIVER, TALUK OFFICE, PERINTHALMANNA. R1 & R2 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/03/2009, THE COURT ON 03/04/2009 DELIVERED THE FOLLOWING: W.P.(C). NO.5245/2009-A: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE TRANSFER ORDER NO. A3-41883/06 DTD. 12/02/2009. EXT.P.2: COPY OF THE PETITIONER'S FORMER TRANSFER AND POSTINGS DTD. 30/10/2006. EXT.P.3: COPY OF THE PETITIONER'S FORMER TRANSFER AND POSTINGS DTD. 03/03/2007. EXT.P.4: COPY OF THE PETITIONER'S FORMER TRANSFER AND POSTINGS DTD. 24/07/2007. RESPONDENTS' EXHIBITS & ANNEXURE: EXT.R2.A: COPY OF THE LETTER DTD. 31/01/2009. EXT.R2.B: COPY OF THE ORDER DTD. 03/02/2009. EXT.R2.C: COPY OF THE ORDER DTD. 16/02/2009. EXT.R2.D: COPY OF THE ORDER DTD. 17/02/2009. ANNEXURE R1.A: PROCEEDINGS NO.A1-7122/06, DTD. 17/02/2009 OF TAHSILDAR, PONNANI. //TRUE COPY// P.S. TO JUDGE. Prv. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5245 of 2009-A - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 3rd day of April, 2009. JUDGMENT The petitioner is aggrieved by the order of transfer, Ext.P1. As per Ext.P1 order, the petitioner and the third respondent have been mutually transferred. Accordingly, the petitioner has been posted as driver, Taluk Office, Perunthalmanna from Taluk Office, Ponnani. 2. Going by Ext.P1, there was a direction to relieve him with effect from the evening of 20.2.2009. But it is pointed out that the third respondent joined in the new station on 17.2.2009. 3. The petitioner’s service particulars show the following: He joined service on 2.1.2004 in the Collectorate, Malappuram and continued there till 30.10.2006. He was transferred to R.D.O. Office, Perinthalmanna on 1.11.2006 and remained there up to 31.3.2007. On 31.3.2007 he was transferred to Taluk Office, Perinthalmanna. He was again transferred to Taluk Office, Ponnani on 13.8.2007 and joined there on 21.8.2007. Therefore, even before completion of three years, again he has been transferred. 4. The third respondent is much junior to him. He had been working wpc 5245/2009 2 in the Taluk Office, Perinthalmanna for about nine months. The petitioner has clearly alleged in para 3 of the writ petition that he is a member of the Union, Joint Council and exerting political pressure, he has obtained the transfer. 5. The petitioner’s wife is a woman constable in Thrissur District, viz. in Kunnamkulam Police Station. His son is aged only 9 months and his mother is aged 70 years. They are residing in Kunnamkulam . His posting in Perinthalmanna will therefore cause inconvenience to him as he has to travel from Kunnamkulam to Perinthalmanna. 6. In spite of service of notice, the third respondent has not entered appearance and is not contesting the matter. On behalf of the first respondent, a statement has been filed and the second respondent has filed a counter affidavit also. 7. Heard learned counsel for the petitioner and the learned Govt. Pleader. 8. Learned counsel for the petitioner, Shri V.C. James contended that the transfer is ordered without any justification in an arbitrary and malafide manner. It is pointed out that the third respondent joined the transferred station even before the time stipulated in Ext.P1 was over, according to which he could have joined only on 20.2.2009. Before that, the petitioner wpc 5245/2009 3 was relieved on 17.2.2009. He was on leave on that day, as he had availed compensatory off on 14.2.2009 and 15.2.2009 and was on casual leave on 16.2.2009 and 17.2.2009. It is submitted that he is residing in Kunnamkulam along with his family and the present station is more inconvenient to him. He has not completed three years in the present station. Between 2006 to 2009 he was transferred four times and thus he had to shuttle between various stations in such a short duration. In the writ petition, it is further pointed out that there are 12 drivers in Revenue Department of Malappuram District, but no other drivers are transferred not more than once within that period. This is not denied in the counter affidavit. No complaints have been there against him. 9. In the counter affidavit reasons have been pointed out as a justification for transfer. It is averred that on 30.1.2009, the Tahsildar, Perinthalmanna and other officials were travelling in a departmental jeep driven by the third respondent for patrol duty to detect illicit transportation of river sand. They intercepted illegal transportation of river sand in a mini lorry bearing registration No.KL.10 U 5949. After chasing for some time, when the team reached near the vehicle the driver of the mini lorry took reverse and as such, the back side of the mini lorry hit on the front side of the departmental jeep driven by the third respondent and thereby the wpc 5245/2009 4 Tahsildar and others have sustained injuries and also caused damage to the vehicle. Ultimately, Crime No.99/2009 under various sections of I.P.C. and Section 3(2)(e) of the PDPP Act, 1984 and under Sections 20 and 21 of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 has been registered against five persons by the Malappuram Police. The accused have been arrested also. 10. In para 3 of the counter affidavit, it is stated that the third respondent who was driving the department jeep on that day, was made as a target by the culprits and considering these facts, the third respondent and the petitioner were transferred mutually as per Ext.P1 order dated 12.2.2009. It is further pointed out that the petitioner was on compensatory off on 14.2.2009 and 15.2.2009 and was on casual leave on 16/2/2009 and 17/2/2009 and the non-availability of the driver during these period has affected the field as well as the election related work of the Tahsildar and accordingly he was relieved. It is admitted in the counter affidavit that the third respondent assumed charge on 17.2.2009 and the petitioner was simultaneously relieved. Thus, it is contended that there is administrative exigency. 11. First of all, both the reasons cannot go together. Going by the main reason pointed out, the transfer is effected since the third respondent wpc 5245/2009 5 was made as a target by certain culprits. It is not at all a justifiable reason to transfer the petitioner herein. There is no such case for the third respondent also before this court. The counter affidavit shows that apart from the third respondent, the Tahsidlar, Perinthalmanna, Village Officer, Melatoor and three other office staff were in the jeep. It is not the case of the second respondent that all of them have been transferred, since after they detected illegal transportation of sand, they were made a target by the culprits. All these officials formed a squad and followed the mini lorry and the attempt by the culprits was to cause damage to the jeep. In that view of the matter, the assertion now made that since the third respondent was made a target by the culprits, he has been transferred, cannot at all be swallowed. The said incident has nothing to do with the transfer order issued in this case. The order of transfer is dated 12.2.2009. The incident is said to have happened on 30.1.2009. The accused were arrested on 31.1.2009 and on 1.2.2009. There is no averment as to the manner in which the third respondent was made a target by the culprits thereafter. No incidents or details of any threat even by any known means have been stated in para 3 of the counter affidavit. There is no case that the third respondent had sought a transfer on the basis of any such incident or threat. Thus, the said reason is found as a ruse to support the order of transfer. Going by Ext.P1 order of transfer, no wpc 5245/2009 6 reason is discernible from it. Thus, the reason now shown in the counter affidavit cannot be supported. 12. The next reason pointed out as administrative exigency is that the petitioner was on compensatory off on 14.2.2009 and 15.2.2009 and was on casual leave on 16.2.2009 and 17.2.2009. It is averred is that the non- availability of the driver during this period has affected the field as well as the election related work of Tahsildar. In fact, the order of transfer is dated 12.2.2009. The direction to relieve the third respondent (Ext.R2©) is dated 16.2.2009 following the order of transfer. Admittedly, the compensatory off and the casual leave taken by the petitioner was only after 12.2.2009. There is no averment that Ext.P1 order of transfer was communicated at any time prior to these dates to the petitioner. Therefore, clearly the justification for passing an order of transfer on 12.2.2009 cannot be the leave he has taken on subsequent dates since as on that date such grounds were not available. 13. Thus, it is a belated attempt made by the respondents to justify the order. Merely because a person had availed of leave, that cannot be a reason to justify the transfer. Transfer will be punitive in such circumstance. There is no case for the respondents that apart from the petitioner, no other driver was available while he was on leave. The leave was never cancelled and he was never issued any communication to rejoin wpc 5245/2009 7 and to attend the election related duties of the Tahsildar. How the said duties of the Tahsildar were affected by his absence, is not at all explained in the counter affidavit. In a case where a person working as driver is not available when he takes leave for urgent purposes, normally the concerned authority will be making alternative arrangements. Such procedures are well known. 14. It is well settled that even though transfer is an exigency of service, when the power is exercised in an arbitrary manner amounting to abuse of the power conferred on the authority, this court will be justified in interfering with it. When the reason shown is totally unsupportable and are not germane to the issue, the resultant order will fall to the ground as the action is arbitrary. An authority is expected to act fairly and reasonably and not arbitrarily and capriciously. The reasons pointed out in the counter affidavit and the statement are so unreal that the same are not convincing at all. 15. One of the points raised in the counter affidavit is that the petitioner’s permanent residence is at Arecode which is about 70 km. away from Ponnani and the present office is within 30 km. of his permanent residence. Learned counsel for the petitioner explained that he is residing with his family at Kunnamkulam in Trissur District and therefore Ponnani is wpc 5245/2009 8 near to his residence. The order of transfer is not issued in the light of any exigency in service or in public interest. The third respondent has not chosen to deny the averments in para 3 of the writ petition. 16. For all these reasons, the writ petition is allowed. Ext.P1 is quashed. The petitioner is accordingly entitled to continue in the Taluk Office, Ponnani and the third respondent will be transferred back to Perinthalmanna or any other suitable place. The petitioner will thus be allowed to join at Ponnani forthwith. (T.R. Ramachandran Nair, Judge.) kav/