IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 4TH FEBRUARY 2010 / 15TH MAGHA 1931 WP(C).No. 226 of 2010(C) ------------------------ PETITIONER(S): --------------- K.S.MUHAMMAD SHERIEF,SUB REGIONAL EMPLOYMENT OFFICER,SPECIAL EMPLOYMENT EXCHANGE FOR THE PHYSICALLY HANDICAPPED,KOLLAM RESIDING AT VALAYIL HOUSE,NEAR K P A C,KAYAMKULAM. BY ADVS. SRI.P.SREEKUMAR SRI.K.S.MANU (PUNUKKONNOOR) RESPONDENT(S): --------------- 1. STATE OF KERALA,REPRESENTED BY ITS SECRETARY TO LABOUR AND REHABILITATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF EMPLOYMENT OF TRAINING, THIRUVANANTHAPURAM. 3. JAYACHANDRAN NAIR,DISTRICT EMPLOYMENT, DISTRICT EMPLOYMENT EXCHANGE,KOLLAM. BY GOVT. PLEADER SMT. ANU SIVARAMAN - R1 AND R2 ADVS. SRI.K.JAJU BABU FOR R3 SMT.M.U.VIJAYALAKSHMI FOR R3 SRI.BRIJESH MOHAN FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/02/2010 ALONG WITH W.P.(C) NO. 3408/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO. 226/2010 APPENDIX PETITIONER'S EXHIBITS: Ext.P1: A true copy of the proposal dated 12.6.2009 submitted by the 2nd respondent. Ext.P2: A true copy of the information revealing the list of persons who had sought transfer to Kollam. Ext.P3: A true copy of the G.O.(Rt.) No. 1004/2009 issued by the 1st respondent. Ext.P4: A true copy of the request submitted by the wife of the 3rd respondent before the Hon'ble Minister. Ext.P5: A true copy of the G.O.(P) 12/04/P&ARD dated 10.9.2004. Ext.P6: A true copy of the request submitted before the Information Officer and the reply given to the same. Ext.P7: A true copy of the judgment dated 13.11.2009 in W.P.(C) No. 20595 of 2009. Ext.P8: A true copy of the objections submitted by the petitioner before the 1st respondent. Ext.P9: A true copy of the order dated 30.12.2009 issued by the 1st respondent. Ext.P10: True copies of some of the photographs. Ext.P11: A true copy of the communication dated 12.6.2009. Ext.P12: A true copy of the proceedings dated 25.1.2010 issued by the 2nd respondent. RESPONDENTS' EXHIBITS: Ext.R3(a): True copy of the representation submitted by the 3rd respondent with copies of enclosures 1 to 5 before the 1st respondent dated 5.12.09. Ext.R3(b): True copy of certificate dated 14.1.2010 issued to the petitioner by Sree Chitra Tirunal Institute for Medical Science and Technology, Trivandrum. Ext.R3(c): True copy of Medical Certificate dated 15.1.2010 issued to the petitioner by Dr. N. Syam, Senior Consultant Cardiologist. Ext.R3(d): True copy of Order No.11/40787/08/DE dated 31.12.2008 issued by the 2nd respondent. Ext.R3(e): True copy of Order No. K5/31894/09/DE/KDis. dated 26.11.09 issued by the 2nd respondent. Ext.R3(f): True copy of Order No.K5/31893/09/KDis. dated 31.12.09 issued by the 2nd respondent. C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C) NOS. 226 & 3408 OF 2010 -------------------------------------------- Dated this the 4th day of February, 2010 JUDGMENT The subject matters of these Writ Petitions are identical and hence they are heard together and are being disposed of by this common judgment. 2. The petitioners in both the Writ Petitions, challenge the posting granted to the third respondent, Sri. Jayachandran Nair on his promotion. to the post of Sub Regional Employment Officer, Kollam. For the sake of convenience, the facts and materials are referred to in the manner in which they are set out in W.P.(C) No.226 of 2010. Exts.P3 and P9 are the orders under challenge in W.P.(C) No.226 of 2010. The petitioner in W.P.(C) No.3408 of 2010 is also challenging the very same orders. 3. The petitioners in both the Writ Petitions are continuing in the post of Sub Regional Employment Officer which is in the cadre of W.P.(C) NOS.226 & 3408/2010 2 Divisional Employment Officer. The third respondent has been promoted and posted as Divisional Employment Officer, Kollam. The contention of the petitioner in W.P.(C) No.226 of 2010 is that going by the norms of transfer, a person on promotion will not be posted in a station after shifting an incumbent holding the concerned post in that station. In this case, what was done is exactly the same. In fact, the petitioner was due for promotion to the post of Deputy Director and, therefore, there was no justification for the respondents to transfer him solely for the purpose of accommodating the third respondent, on his promotion. According to the petitioner in W.P.(C) No. 3408 of 2010, he is having only less than one and a half years to retire and, therefore, going by the guidelines for transfer, he is entitled to get a transfer to his native place, viz., Kollam. He has already submitted an application for getting a posting as Divisional Employment Officer, Kollam as and when the petitioner in W.P.(C) No.226 of 2010 vacates the said post on his promotion. The grievance is that his request was not considered at all at the time when the third respondent was given a posting against the said post on his promotion. 4. Ext.P9 order was passed pursuant to the judgment of this Court in W.P.(C)No.20595 of 2009, which was filed by the petitioner in W.P.(C) W.P.(C) NOS.226 & 3408/2010 3 No.226 of 2010. Ext.P9 would reveal that in compliance with the directions contained in the said judgment, the representations submitted by the petitioner and the third respondent were considered by the first respondent. The contention of the petitioner before the first respondent was that the third respondent is not entitled to get a posting on his promotion on compassionate ground, as the grounds under which he claims such a posting do not fall under any of the categories mentioned in Ext.P5. That contention was duly considered by the first respondent, as is evident from Ext.P9. In this context, the contentions raised by the third respondent in his counter affidavit as reply to the averments made in the Writ Petition and the material produced along with it assume relevance. Ext.R3(a)series would go to show that on account of heart disease, the petitioner has been undergoing periodical check up in Sree Chitra Tirunal Institute for Medical Sciences and Technology, Thiruvananthapuram since 2001. The petitioners cannot be heard to contend that the third respondent has managed to get those documents only for the purpose of getting a transfer or posting. In this context, it is relevant to note that earlier as per Ext.R3(d), the second respondent considered the entitlement of the third respondent for an inter-district transfer on compassionate grounds and he was, accordingly, granted inter district transfer from W.P.(C) NOS.226 & 3408/2010 4 Wayanad to Kollam. Therefore, the said ground raised by the petitioners cannot be countenanced. 5. It is a settled position that a transfer order can be challenged only if it is issued in violation of the statutory rules or actuated by mala fides. A scanning of grounds A to F in W.P.(C) No. 226 of 2010 and grounds A to G in W.P.(C) No.3408 of 2010 do no give any reason for this Court to interfere with the transfer. To draw inference of mala fides, there should be firm foundation of facts. The mere expression that the transfer is vitiated by mala fides cannot be taken as a ground to interfere with the order of transfer as mala fides have to be pleaded and established. The fact that the third respondent is an office bearer of an association, having affiliation with a ruling party cannot be a reason to presume mala fides. Absolutely, no ground has been established in either of these Writ Petitions to interfere with the order of posting issued in favour of the third respondent as per Ext.P3 and confirmed as per Ext.P9. The long and short of the discussions above is that the Writ Petitions are devoid of any merit. Hence, the Writ Petitions are dismissed. However, it is made clear that this judgment shall not stand in the way of W.P.(C) NOS.226 & 3408/2010 5 the petitioner in W.P.(C) No.3408 of 2010 to pursue his claim for transfer during the General Transfer and in such eventuality, the first respondent will be free to consider the rival claims of the petitioner and the third respondent, in accordance with law. (C.T. RAVIKUMAR, JUDGE) sp/ W.P.(C) NOS.226 & 3408/2010 6 C.T. RAVIKUMAR, J. W.P.(C) NOS. 226 & 3408 OF 2010 JUDGMENT 4th February, 2010 W.P.(C) NOS.226 & 3408/2010 7