IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN MONDAY, THE 18TH JANUARY 2010 / 28TH POUSHA 1931 WP(C).No. 15766 of 2009(M) -------------------------- PETITIONER(S): --------------- M.D. XAVIER, TRACTOR DRIVER, OFFICE OF ASSISTANT EXECUTIVE ENGINEER (AGRI) ERNAKULAM (UNDER ORDERS OF TRANSFER TO OFFICE OF ASSISTANT EXECUTIVE ENGINEER (AGRI) KASARAGOD. BY ADV. SMT.P.V.ASHA RESPONDENT(S): --------------- 1. DIRECTOR OF AGRICULTURE, THIRUVANANTHAPURAM. 2. SRI.K.M. JAMES, TRACTOR DRIVER, OFFICE OF ASSISTANT EXECUTIVE ENGINEER (AGRI) MALAMPUZHA, PALAKKAD (UNDER ORDER OF TRANSFER TO OFFICE OF ASSISTANT EXECUTIVE ENGINEER (AGRI), ERNAKULAM) 3. SRI.C. KESAVAN, TRACTOR DRIVER, OFFICE OF ASSISTANT EXECUTIVE ENGINEER (AGRI) KASARAGOD, (UNDER ORDER OF TRANSFER TO OFFICE OF ASSISTANT EXECUTIVE ENGINEER (AGRI), MALAMPUZHA, PALAKKAD. ADV. SRI.KURIAN JOSEPH (ARAKKUNNAM) FOR R2 SRI.P.R.RAJESH FOR R2 SRI.NAVEEN THOMAS FOR R2 GOVERNMENT PLEADER FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF ORDER NO.E2.127368/94 DTD.24.7.2000 OF FIRST RESPONDENT. EXT.P2 TRUE COPY OF ORDER NO.SH(1)9563/09 DTD.30.5.2009 ISSUED BY THE IST RESPONDENT. EXT.P3 TRUE COPY OF THE G.O.(P) NO.36/91/P&ARD DTD.2.12.1991. RESPONDENT'S EXHIBITS: EXT.R1(a) G.O.(P) NO.12/2004/P&ARD DTD.10.9.2004. TRUE COPY P.A.TO JUDGE css/ K.SURENDRA MOHAN, J. ---------------------------------------- W.P.(C)No.15766/2009 ----------------------------------------- Dated this the 18th day of January, 2010 JUDGMENT The petitioner has filed this Writ Petition challenging ext.P2 transfer order by which he has been transferred from the Office of the Assistant Executive Engineer (Agri), Ernakulam to the Office of the Assistant Executive Engineer (Agri), Dwaraka Nagar, Kasargode. The third respondent has been posted in his place at Ernakulam. According to the petitioner, the petitioner had been continuing in his present post based on a district wise selection for appointment in the Ernakulam District. According to him, therefore, he would be entitled to continue in the District without being subjected to transfer. The petitioner also contends that his transfer is violative of the guidelines for transfer as well as the judgment of this Court in W.P.(C) No.19477/2003. 2. The first respondent has filed a counter affidavit. In paragraph-2 of the counter affidavit, it is stated as follows: “Since there was no open vacancy in Ernakulam district for considering the request of 2nd W.P.(C)No.15766/2009 2 respondent the petitioner who is the only Tractor Driver working in the district and who had already completed more than 8 years service in Ernakulam district, and was transferred to Kasaragod district to accommodate the 2nd respondent”. 3. It has further been stated in paragraph-5 of the counter affidavit that the petitioner has been transferred out for considering the request of the second respondent purely on the basis of the guidelines issued by the Government. 4. The impugned order Ext.P2 shows that the transfers have been made pursuant to requests for transfer received from various persons. Therefore, it is for the purpose of granting the request of a person who had requested for transfer that the petitioner has been transferred. 5. The question as to whether the persons who have been appointed on the basis of district wise selection could be transferred out to create vacancies for accommodating others who have requested for transfer, was considered by this court in the judgment dated 16.11.2005 in W.P.(c) No.19477/2003. 6. After considering the rival contentions, this Court W.P.(C)No.15766/2009 3 has laid down that persons could not be transferred out to create vacancies for accommodating persons who have made requests for transfer. This Court had in W.P.(C) No.19477/2003 observed as follows: “The fact that the fourth respondent became eligible for inter district transfer does not mean that she is entitled for a transfer as of right. As rightly submitted by the counsel for the petitioner, eligibility cannot be equated to entitlement. Applications for inter district transfers have to be considered against 10% of the vacancies arising in the district to which the transfer is sought for. This evidently means that vacancies cannot be created so as to make it 10% by transferring district recruitees from their unit of appointment to another unit of appointment. Therefore, petitioner is right in contending that application filed by the fourth respondent for inter district transfer could have been considered only against an open vacancy arising in Kottayam District”. In view of the above proposition, the transfer of the petitioner cannot be sustained. 7. Therefore, Ext.P2 to the extent it seeks to transfer the petitioner from Ernakulam to Kasargode is set aside. The Writ Petition is allowed. No costs. K.SURENDRA MOHAN, Judge css/