IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 3RD DECEMBER 2010 / 12TH AGRAHAYANA 1932 WP(C).No. 13482 of 2010(I) --------------------------------- PETITIONER(S): ------------------- N.P.SATHEESH, METER READER (UNDER ORDERS OF TRANSFER), KERALA WATER AUTHORITY, P.H.SUB DIVISION, THALASSERY. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): -------------------- 1. KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 2. DEPUTY CHIEF ENGINEER (GENERAL) KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALABHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM. 3. ASST. EXECUTIVE ENGINEER, KERALA WATER AUTHORITY, P.H. SUB DIVISION, THALASSERY. 4. SRI.C.ARAVINDAKSHAN, METER READER, KERALA WATER AUTHORITY, P.H.SUB DIVISION, THALASSERY. R1 TO R3 BY ADV. SRI.C.UNNIKRISHNAN, SC, KWA R4 BY ADVS. SRI.A.K.ABDUL AZEEZ SRI.MOHAMMED RAVOOF THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs/ WP(C).No. 13482/2010 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPRESENTATION DATED 10/12/2009 SUBMITTED TO THE 2ND RESPONDENT. P2: COPY OF THE ORDER NO.KWA/JB/E5-4168/1996/VOL.V DATED 09/04/2010 ISSUED BY THE 2ND RESPONDENT. P3: COPY OF THE RELIEVING ORDER DATED 12/03/2010 ISSUED BY ASST. EXECUTIVE ENGINEER P.H. SUB DIVISION PIRAVOM. P4: COPY OF THE ERRATUM DATED 13/04/2010 ISSUED BY THE 2ND RESPONDENT. P5: COPY OF THE DISCHARGE SUMMARY DATED 14/01/2009 ISSUED BY THE PARIYAMA MEDICAL COLLEGE HOSPITAL. P6: COPY OF THE DISABILITY CERTIFICATE DATED 06/06/2001 ISSUED BY THE GENERAL HOSPITAL ERNAKULAM. P7: COPY OF THE G.O.(P)NO.12/04 P & ARD DATED 10/09/2004 WHICH IS FOLLOWED BY THE KERALA WATER AUTHORITY IN REGARD TO THE TRANSFER OF ITS EMPLOYEES. P8: COPY OF THE CIRCULAR DATED 10/03/1983 ISSUED BY THE GENERAL ADMINISTRATION DEPARTMENT OF THE GOVERNMENT OF KERALA AND FOLLOWED BY THE KERALA WATER AUTHORITY AS GUIDELINE FOR TRANSFER OF HANDICAPPED EMPLOYEES. P9: COPY OF THE ORDER NO.KWA/HO/E5-4168/96 (VOL.V) DATED 22/04/2010 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE svs/ T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.13482/2010-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 3rd day of December, 2010 J U D G M E N T Aggrieved by the repeated orders of transfer, the petitioner has filed this writ petition. The petitioner entered service as Peon on 05/04/1988. On promotion as Meter Reader, he was posted at P.H.Sub Division, Piravom in Ernakulam District and was continuing there for last more than 11 years. The petitioner had been representing the second respondent to post him in the native district, namely, Kannur and, ultimately, when a retirement vacancy arose in P.H Sub Division, Thalassery, he made a representation pointing out the same. Ext.P1 is the copy of the said representation. It is the case of the petitioner that he has a family consisting of aged mother, wife and two children. It is also averred that the 82 year old mother is suffering from cardiac problems. Finally, his prayers were answered and, when general transfer was effected, he was transferred to P.H Sub Division, Thalassery in the retirement vacancy. Thereafter, he W.P.(C). No.13482/2010 -:2:- got relieved from Piravom which is evidenced from Ext.P3 and, joined at Thalassery on 13/04/2010. 2. But later by Ext.P4 order, which is styled as 'Erratum', the place of posting of the petitioner was shown as P.H Sub Division, Kasargod and the fourth respondent has been posted at P.H Sub Division, Thalassery in the retirement vacancy. It is pointed out that the fourth respondent, on his promotion from the post of Peon as Meter Reader, was actually transferred to Kasargod, in the vacancy in which the petitioner has been posted as per Ext.P4, as is evident from Ext.P2 order itself. The petitioner then joined at Kasargod. This writ petition was filed on 20/04/2010. According to the petitioner, after the filing of the writ petition, again he was transferred back to P.H.Division, Piravom as per Ext.P9 order without any justification. It is alleged that it is only to harass him for filing this writ petition. He had not made any request for a transfer back to Piravom. W.P.(C). No.13482/2010 -:3:- 3. It is also his case that he is a physically handicapped person and, Ext.P6 is the copy of the disability certificate. Ext.P7 is the copy of the General Guidelines prescribed for transfer. The guidelines, according to the petitioner, in paragraph (4) entitles an employee for transfer back to the home district at any time when vacancy arises and, 3 years duty/service is not applicable in such cases. It is also pointed out that going by Ext.P8, physically handicapped employees are also entitled for suitable posting, conveniently, in their respective Districts. 4. The fourth respondent has filed a counter affidavit. The fourth respondent has also pleaded that he had been in Kannur for the past 6 years and, by Ext.P2 order, he was promoted as Meter reader and was posted to P.H Sub Division, Kasargod from where Shri Pushpan P., was transferred to P.H.Sub Division, Thalassery. The fourth respondent had made a request for a posting back to his native place pointing out that his mother is a visually handicapped and needs constant attention; there is no person to look after W.P.(C). No.13482/2010 -:4:- her and the children are not grown up. It is pointed out that he may have to travel 100 kms every day to Kasargod and he is also having various physical problems. It is therefore pointed out that order Ext.P4 actually came as a boon to him and, he has no role in transferring the petitioner either for a posting of himself in Thalassery or in the subsequent order whereby the petitioner was transferred to Piravom itself. 5. The Water Authority and respondents 2 and 3 have not filed any counter affidavit for explaining any reasons for these transfers. The circumstances, as evident from the pleadings, show that the petitioner on his promotion as Meter Reader was posted at P.H Sub Division, Piravom and had continued there for a period of 11 years. His native district is Kannur and finally, he got a transfer in a retirement vacancy. The fourth respondent is also a native of Kannur. He was working as Peon in P.H Division, Kannur and he is transferred on promotion as Meter Reader to P.H.Sub Division, Kasargod. Therefore, normally, a person who W.P.(C). No.13482/2010 -:5:- is on promotion will have to join the place as allotted by the authorities concerned. Herein, the petitioner's transfer to Thalassery was based on his request. It is averred that every year he had been making representations in the matter. The fourth respondent, being a junior in service had to join in a vacancy where he is posted as per Ext.P2. Even though he is also incapacitated, he could not have claimed a particular station since he was on promotion when another senior claimant is there. The persons normally on promotion will not have a choice of a particular station. They will be posted in open vacancies alone. Even going by Ext.P7 guidelines, mainly Clause 19, vacancies to be filled up by promotion shall be filled up first by transferring employees to existing vacancies. Therefore, the claims for transfer by persons like the petitioner to a particular vacancy will get precedence and it can be seen that his representation was answered giving him a posting in Kannur District. W.P.(C). No.13482/2010 -:6:- 6. The learned counsel for the fourth respondent submitted that it may be difficult for him to travel through out to Kasargod, especially, because of the situations in the family and therefore, he may have to be accommodated in a suitable vacancy in Kannur District itself. The learned counsel for the fourth respondent invited my attention to Ground 'A', wherein it is pointed out that two vacancies arose at P.H Sub Division, Thalassery, one consequent on the transfer of Shri Abdul Hameed and another a retirement vacancy. In the absence of a counter affidavit by the Water Authority, it could not be ascertained whether other vacancies are existing for accommodating both of them. But still, in the light of the circumstances pointed out, as far as the fourth respondent is concerned, it is upto the Water Authority to find out suitable vacancy to accommodate the fourth respondent also, in view of the fact that the petitioner will have to be posted back to Thalassery in implementation of Ext.P2 order. W.P.(C). No.13482/2010 -:7:- 7. It is not clear as to how Ext.P4 order is issued as 'Erratum'. Ext.P2 is a comprehensive order passed by the competent authority having the powers to order transfers and postings as well as promotion of employees. Therefore, it cannot be said that the posting given in Ext.P2 by way of transfer to petitioner and by promotion to the fourth respondent are 'errors' to be corrected by issuing an erratum. Places of postings may not be typographical errors. The frequent transfers of the petitioner can only be termed as an abuse of powers of transfer. That the power of transfer is grossly abused is clear from Ext.P9 order by which the petitioner is transferred again to Piravom where he had been continuing for more than 11 years. Date of the said order is 22/04/2010. The petitioner filed this writ petition on 20/04/2010. No reasons have been stated in Ext.P9 for supporting the order of transfer. Therefore, it can only be presumed that the order was issued, as pointed out by the learned counsel for the petitioner, to inconvenience him again since he has chosen to challenge Ext.P4, herein. W.P.(C). No.13482/2010 -:8:- 8. It is well settled by various decisions of this Court that even though transfer is an incidence in service, when the order is issued in abuse of the power of transfer, the same is a matter for consideration by this Court as the resultant order will only be arbitrary which may amount to violation of Article 14 of the Constitution of India. In that view of the matter, Exts.P4 and P9 orders cannot at all be supported in the light of the facts pleaded by the petitioner in the writ petition which are not controverted by the Water Authority. 9. Therefore, the writ petition is allowed. Exts.P4 and P9 as far as it concerns the transfers of the petitioner to Kasargod and Piravom are quashed. The petitioner will be allowed to re-join in P.H. Sub Division, Thalassery as ordered in Ext.P2. 10. This will result in displacement of the fourth respondent. The competent authority will consider whether the fourth respondent could be retained either in the same office if another vacancy exists there after the petitioner rejoins or in any nearby office W.P.(C). No.13482/2010 -:9:- and appropriate orders in that regard will also be passed, expeditiously. The second respondent will pass appropriate orders transferring the petitioner to P.H. Sub Division, Thalassery within ten days from the date of production of a copy of this Judgment. No costs. (T.R. Ramachandran Nair, Judge.) ms