IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMAN & THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 25TH SEPTEMBER 2008 / 3RD ASWINA 1930 WP(C).No. 24742 of 2008(U) PETITIONER: C.R.RADHAKRISHNAN NAIR DEPUTY DEVASWOM COMMISSIONER (INSPECTION) TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM BY ADV. SRI.D.SOMASUNDARAM RESPONDENTS: 1. THE TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY 2. THE DEVASWOM COMMISSIONER TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM. 3. SRI. SURESH JEEVAN, SECRETARY TRAVANCORE DEVASWOM BOARD NANTHANCODE, THIRUVANANTHAPURAM. 4. K.BALAGANGADHARAN, DY.DEVASWOM COMMISSIONER (AUDIT) TRAVANCORE DEVASWOM BOARD THIRUVANANTHAPURAM. R1 BY ADVS.M/S. SRI.E.K.MADHAVAN SRI.V.KRISHNA MENON SMT.P.VIJAYAMMA SMT.UMA GOPINATH SRI.DEVIDAS.U.K R2 BY ADV. SRI.D.SREEKUMAR ADV. SRI. NAGARAJ NARAYANAN, S.C. GOVT. PLEADER SRI. R. LAKSHMINARAYANAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 4.9.2008, THE COURT ON 25/09/2008, DELIVERED THE FOLLOWING: WP(C) 24742/2008 APPENDIX PETITIONER'S EXHIBITS: EXT.P1 A TRUE COPY OF THE RELEVANT PAGE OF HIGH POWER COMMISSION REPORT TOUCHING THE POST OF THIRUVABHARANAM COMMISSIONER. EXT.P2 A TRUE COPY OF THE ORDER OF THE RESPODNENT BOARD DATED 8.2.2008. EXT.P3 A TRUE COPY OF THE ORDER DATED 12.8.2008. EXT.P4 A TRUE COPY OF THE TRANSFER NORMS. EXT.P5 A TRUE COPY OF THE ORDER DATED 28.6.2008. EXT.P6 A TRUE COPY OF THE NOTE DATED 13.8.2008. EXT.P7 A TRUE COPY OF THE RECOMMENDATION OF THE DEVASWOM COMMISSIONER TO CANCEL THE PETITIONER'S TRASFER DATED 13.8.2008. EXT.P8 A TRUE COPY OF THE ORDER DATED 11.8.2008. EXT.P9 A TRUE COPY OF THE COMMUNICATION DATED 21.8.2008 OF THE ACCOUNTS OFFICER. EXT.P10 A TRUE COPY OF THE LETTER DATED 19.8.2008. EXT.P11 A TRUE COPY OF THE ORDER DATED 17.8.2008. EXT.P12 A TRUE COPY OF THE ORDER DATED 18.8.2008. EXT.P13 A TRUE COPY OF THE RELEVANT PORTION OF THE BYE-LAW. EXT.P14 A TRUE COPY OF THE PROCEEDINGS DATED 13.8.2008. EXT.15 A TRUE COPY OF THE PETITIONER'S SERVICE DETAILS OF THE PETITIONER AND 4TH RESPONDENT. EXT.16 A TRUE COPY OF THE ORDER OF THE PRESIDENT DATED 24.4.2008. RESPONDENTS' EXHIBITS: EXT.R1(a) TRUE COPY OF THE PROCEEDINGS OF THE BOARD DATED 13.8.2008. EXT.R1(b) TRUE COPY OF THE RELEVANT FORM SHOWING THE ASSUMPTION OF THE OFFICE BY THE 4TH RESPONDENT. WP(C) 24742/2008 :2: EXT.R1(c) TRUE COPY OF THE ORDER DATED 17.8.2008. EXT. R1(d) TRUE COPY OF THE ORDER DATED 18.82.008. EXTR1(e) TRUE COPY OF THE DECISION OF THE PRESIDENT AND MEMBER OF THE BOARD DATED 15.8.2008. EXT.R1(f) TRUE COPY OF THE NOTE DATED 19.8.2008 ISSUED BY THE DEVAWOM COMMISSIONER. EXT.R2(A) A TRUE COPY OF THE REPORT DATED 26.11.2007. // TRUE COPY // P.S. TO JUDGE. KNC/- P.R. RAMAN & T.R. RAMACHANDRAN NAIR, JJ. = = = = = = = = = = = = = = = = = = = = W.P.(C) NO. 24742 OF 2008 = = = = = = = = = = = = = = = = = = = DATED THIS, THE 25TH DAY OF SEPTEMBER, 2008. J U D G M E N T Raman, J. Petitioner, while working as Deputy Devaswom Commissioner (Inspection) in the Head Office of the Travancore Devaswom Board at Thiruvananthapuram, was transferred and posted as Deputy Devaswom Commissioner for Thiruvabharanam at Aramula, by Ext.P3 order passed by the Travancore Devaswom Board, which is challenged in this writ petition as arbitrary and actuated by malafides and not in the interest of the administration or exigency. By Ext. P3 order, a post of Deputy Devaswom Commissioner for Thiruvabharanam, at Aranmula, was restored by the Board, cancelling its earlier decision of shifting the Office of Deputy Devaswom Commissioner for Thiruvabharanam from Aranmula to Thiruvananthapuram. By the same proceedings Ext.P3, another officer Sri. K. Balagangadharan, who was the Acting Deputy Devaswom Commissioner (Audit) in the Internal Audit Wing was transferred and posted as Acting Deputy Devaswom Commissioner (Inspection) vice the petitioner WP(C) 24742/2008 :2: transferred. Petitioner was holding the post of Deputy Devaswom Commissioner (Inspection) only since 23.7. 2007 and this transfer was effected hardly within a year of such posting. According to the petitioner, since the normal tenure is three years, he is eligible to continue in the same post for two more years and this was ignored while effecting the transfer. Further, he has only two years to retire from service on superannuation and as per the approved guidelines an employee having only two years to retire shall not be transferred out of his home town and he being a resident of Poojappura at Thiruvananthapuram, the present transfer is against the approved guidelines in the matter of transfer also. The post of Thiruvabharanam Commissioner is taken as equivalent to the cadre of the Devaswom Commissioner. That post was upgraded considering the importance of the said post. 2. Petitioner has produced the relevant page of the report of the High Power Commission. According to the High Power Commission, Thiruvabharanam (temple jewellery and gold), which are very valuable, have not been inspected properly for decades together though there is a special officer for Thiruvabharanam. According to the Commission, the evidence taken points out the poor and unsatisfactory way in which the function is discharged by the then incumbent. Hence, it recommended WP(C) 24742/2008 :3: shifting of the Office of the Thiruvabharanam Commissioner to the headquarters of the Board, at Thiruvananthapuram, which was accepted by the Board and it is while implementing the recommendations contained in Ext.P1 that the Office of Thiruvabharanam Commissioner was shifted to Thiruvananthapuram. But according to the petitioner, the post of Finance and Accounts Officer was upgraded to the post of Devaswom Commissioner and down graded the post of Thiruvabharanam Commissioner to that of Deputy Devaswom Commissioner, as is evident from Ext.P2 dated 8.2.2008. While so, petitioner, who was working as Deputy Devaswom Commissioner (Inspection), was transferred to Aranmula as Deputy Devaswom Commissioner (Thiruvabharanam) as stated earlier. He submits that Ext.P3 is vitiated since the act of down grading the post of Thiruvabharanam Commissioner to the post of Deputy Devaswom Commissioner is a clear violation of the earlier order of this Court permitting upgradation of the post of Thiruvabharanam Commissioner as that of Devaswom Commissioner and that his transfer to Aranmula as per the impugned order is against the approved transfer guidelines and against the recommendations of the Devaswom Commissioner. According to him, one of the members of the Board himself has sought to review his transfer. Besides, such a request was made by the WP(C) 24742/2008 :4: Devaswom Commissioner also. A copy of the guidelines or norms for transfer is produced by the petitioner as Ext.P4. Reference is made to Clause 15 thereof and contends that under no circumstances an employee like the petitioner having only less than two years to retire shall be transferred out of his home town. It is his case that the Board has accepted that Clause 15 in Ext.P4 will apply even in the matter of transfer of Mel Sathi of Aranmula Devaswom, as is seen from Ext.P5 order dated 28.6.2008. Ext.P6 produced is a note submitted by Sri. Narayanan, a Member, to the Board requesting to review the petitioner's transfer. Ext.P7 is a recommendation made by the Devaswom Commissioner in this regard. According to the petitioner, after passing the order Ext.P3, when there was a forceful attempt to assume charge of the post which the petitioner holds, the Devaswom Commissioner issued an office order not to relieve the petitioner and further directed not to hand over charge to anybody. A true copy of the said order is produced as Ext.P8 in this writ petition. It is also stated that the petitioner's wife is suffering from Parkinson's disease and the petitioner's constant service is required for her daily needs. According to the petitioner, his service was required by the Devaswom Commissioner and found indispensable at the Commissionerate Office; but the recent drift and difference of opinion between the Board and the Devaswom WP(C) 24742/2008 :5: Commissioner has culminated in transferring the petitioner from his office so as to inactivate the Devaswom Commissioner and to make his appointment feeble and inept. 3. In the counter affidavit filed by the Secretary of the Devaswom Board, the allegations made in the writ petition is denied. It is stated that Ext.P5 proceedings of the Board in the case of a Melshanti was challenged before this Court and this Court set aside the said order and directed the Board to reconsider the issue after hearing the petitioner therein and in such circumstances, Ext.P5 is stated to be of no avail to the petitioner. It is also pointed out that the petitioner was working as Deputy Devaswom Commissioner (Inspection) from 23.7.2007. So however, he was working in different posts within the Thiruvananthapuram group or its vicinity. The details of the posting of the petitioner from 30.11.1990 till passing of Ext.P3 order are also given in para 5 of the counter affidavit. It is the further case of the Respondent Board that Ext.P4 guideline is issued only with respect of the temple employees and the petitioner being a senior Gazetted Officer in the rank of Deputy Devaswom Commissioner, he cannot contend that the said guidelines would be applicable to him. Even assuming without admitting that such guidelines are applicable, the Board is entitled to deviate from such guidelines and an order similar to Ext.P3 WP(C) 24742/2008 :6: could be issued, if need arises. It is also admitted that a post of Special Officer was created in the year 1982 for Thiruvabharanam in the rank of Devaswom Commissioner and later, the said post was renamed as Commissioner for Thiruvabharanam. The then Executive Officer, Sabarimala, who was in the grade of Deputy Devaswom Commissioner was due for promotion to the cadre of Commissioner, finding that his services as Executive Officer, Sabarimala would be more useful, the grade of Executive Officer, Sabarimala was upgraded to the rank of Devaswom Commissioner after downgrading the post of Commissioner for Thiruvabharanam to that of Thiruvabharanam Deputy Commissioner. Again, when Sri. A.C. Godavarma, who was working as Finance and Accounts Officer of the Board was due for promotion, the Board shifted the post of Commissioner for Thiruvabharanam to that of the Finance and Accounts Officer, as Sri. Godavarma had only about five months to retire and as his services as Finance and Accounts Officer was found to be very useful. Hence the Board has issued a proceeding dated 31.1.2008, as per which the post of Finance and Accounts Officer was upgraded to the cadre of Commissioner for Thiruvabharanam and Sri. A.C. Godavarma was allowed to continue in he said post. So however, the consequential order downgrading the post of Commissioner for Thiruvabharanam was not ordered in the order dated WP(C) 24742/2008 :7: 31.1.2008 and hence Ext.P2 proceedings was issued downgrading the post of Commissioner for Thiruvabharanam to Deputy Devaswom Commissioner for Thiruvabharanam. Being the appointing authority, the Board has the power to order upgrading or downgrading of a post or shifting of a post and hence there is no illegality or infirmity in Ext.P2 order. It is also submitted that the Board, by its order dated 12.5.2008, ordered to shift the Office of the Deputy Devaswom Commissioner for Thiruvabharanam to Thiruvananthapuram as suggested by the High Power Commission; but when steps were taken to implement the said decision, there was wide spread protest by the general public at Aranmula and hence the local MLA by his letter dated 16.5.2008 requested the Minister for Devaswom to interfere in the matter and to stay the decision of the Board for shifting the Office to Thiruvananthapuram. Subsequently, by order dated 12.8.2008 the said order had been cancelled. The posting of the petitioner as Deputy Devaswom Commissioner for Thiruvabharanam, at Aranmula was considering his capability and ability to perform in the said post as suggested by the High Power Commission. The allegation that the downgrading of the post of the Commissioner for Thiruvabharanam is in gross violation of the orders of this Court is denied. It is stated that Ext.P3 decision was taken by the Board and merely because one of the members of WP(C) 24742/2008 :8: the Board has disagreed with the said decision, it would not entail upon the petitioner to contend that he is not liable to be transferred. It is also stated that once the Board has issued an order, it is not open to the Devaswom Commissioner to have issued a note like Ext.P8 staying the order of the Board and such note issued by the Devaswom Commissioner cannot be acted upon since he is an officer under the Board who is liable to implement the decision of the board rather than staying the same. Though the Devaswom Commissioner had recommended upgradation of the office of the Deputy Devaswom Commissioner for Thiruvabharanam to the rank of Commissioner and the same be shifted to Thiruvananthapuram and one Sri. Thulaseedharan Thampi be posted as the Commissioner for Thiruvabharanam, as stated earlier, such transfer was cancelled as per proceedings dated 12.8.2008, in view of the public protest with respect to the shifting. Sri. Thampi was due for promotion to the rank of Commissioner and will retire on 28.2.2009 and he was promoted and posted as Finance and Accounts Officer as per order dated 12.8.2008 in the post held by Sri. A.C. Godavarma who retired on 30.6.2008. Subsequent to the passing of Ext.P3 the 4th respondent reported in the Office of the Devaswom Commissioner to assume charge as Deputy Devaswom Commissioner (Inspection). But since the petitioner did not hand over WP(C) 24742/2008 :9: charge to him in view of Ext.P8 order, the 4th respondent made a representation on 12.8.2008 to the Board and the Board, by proceedings dated 13.8.2008, directed the 4th respondent to report before the Deputy Devaswom Commissioner (Admn.) and assume charge forthwith. Ext.R1 (a) is the copy of said proceedings of the Board. Accordingly, the 4th respondent is stated to have assumed charge as evidenced by Ext.R1(b). But Ext.R1(b) is only a form and it does not in any manner show that the he had assumed Office at Aranmula. It is also stated that on 18.8.2008 petitioner was posted as Deputy Devaswom Commissioner, Thiruvananthapuram Group in compliance of the interim order passed by this Court; but the date is wrongly shown as 17.8.2008. Subsequently, a corrected order was also passed. Copies of these orders are produced as Exts.R1(c) and R1(d). 4. In the reply affidavit filed by the petitioner, it is averred that no meeting was convened by the Board and no resolution was passed and only orders are issued as that of the Board's order. The Secretary has suppressed many material facts and passing of such order is ab-initio void and is an overt act to interfere with the administration of justice. The Accounts Officer of the Board has given written remarks stating that the so called assumption of charge was illegal and contrary to the statutory prescription. WP(C) 24742/2008 :10: Ext.P9 is the copy of the said communication dated 21.8.2008, wherein it is pointed out by the Accounts Officer that the charge report is countersigned by the Deputy Devaswom Commissioner (Administration), which has no legal validity as the head of office of the Deputy Devaswom Commissioner (Inspection) is the Devaswom Commissioner and not the Deputy Devaswom Commissioner (Administration) since he is not the superior officer of the Deputy Devaswom Commissioner (Inspection). It is also stated in Ext.P9 that the direction issued by the Board in the proceedings dated 13.8.2008 and the countersignature of the Deputy Devaswom Commissioner (Administration) are against the provisions of the Kerala Financial Code and hence he is not in a position to accept the charge report countersigned by the Deputy Devaswom Commissioner (Administration). Ext.P9 is signed by the Devaswom Accounts Officer. It is also stated that the procedure prescribed in Article 81(A) of the Kerala Financial Code Volume 1 have to be observed in the matter of assumption of charge. If the charge reports cannot be co-jointly signed by the relieved and the relieving officer due to administrative difficulties, the couter signature of the superior authority should be incorporated in the charge report. In the absence of the counter signature of the Devaswom Commissioner, the charge report is not in accordance with law. Even WP(C) 24742/2008 :11: though, this Court directed, by an interim order, to identify a post for the petitioner at Thiruvananthapuram, the Board did not meet on 15th, 16th and 17th of August, 2008. One of the Board members, as per Ext.P10, has addressed a letter to the President of the Board taking strong exception to the arbitrary action of the Secretary in issuing orders. It is stated that the Secretary has concocted the document as though the Board has met on 17.8.2008 and resolved to pass an order transferring and posting the petitioner as Deputy Devaswom Commissioner, Thiruvananthapuram. On 18.8.2008, the Secretary has issued another order correcting the date and the copies of those orders are produced as Exts.P11 and P12 along with the reply affidavit. It is stated that as per the Bye-law, the relevant extract of which is produced as Ext.P13, for regulating the conduct of business at meetings of the Devaswom Board the transfer of officers of the rank of superintendents and above are Board papers and their disposal has to be done by the Board. The averment made in the counter affidavit that the petitioner was in the vicinity of Thiruvananthapuram group is denied and it is stated that he was outside Thiruvananthapuram and had held all responsible onerous positions without giving room for any complaint or allegation. It is reiterated that the transfer norms will apply to all employees. Further, it is pointed out that to favour an employee, the Board WP(C) 24742/2008 :12: used to upgrade post and used to down grade post so as to harass person happened to be persona non grata, which an arbitrary act according to the whims and fancies of the Board. It is stated that the post of Thiruvabharanam Commissioner is to be treated as equal to Devaswom Commissioner and the action of down grading the post and shifting it to Aranmula is done to transfer out the petitioner from Thiruvananthapuram, on a wrong notion that it is the petitioner lending support to the Devaswom Commissioner in his strong nature of functioning. The allegation that he has refused to hand over charge is also denied. He has placed reliance on the fact that the Board has issued orders transferring the petitioner and the 4th respondent on 12.8.2008 and documents have been created as though 4th respondent was relieved in the After Noon of 12.8.2008 itself . On the same day, the 4th respondent made a representation to the Board and on the next day the Board issued orders permitting assumption of charge. According to the petitioner, the undue haste done by the Board as revealed by the above facts is arbitrary. Ext.P15 service details is produced to show that the petitioner's entire service is not at Thiruvananthapuram alone. Ext.P16 is produced to show that the transfer norms is applicable to all types of employees. Ext.P16 is a note made by the President of the Travancore Devaswom Board to the Commissioner of the Board directing WP(C) 24742/2008 :13: to ensure the norms and rules are perfectly put to practice in the general transfer and postings of Gazetted and Non-Gazetted Officers under the Board and any violation detected during the scrutiny will be viewed seriously. Copy of this Note is also forwarded to the Secretary of the Board as also to the Superintendent of Police (V & S), Travancore Devaswom Board. 5. The second respondent, in a separate counter affidavit, has justified issuance of Ext.P8 order. According to him, he is the Chief Executive Officer of the Travancore Devaswom Board. He supports the case of the petitioner and according to him, the petitioner was highly knowledgeable of Devaswom matters and a man of impeccable integrity and he was assisting the High Power Commission. According to the second respondent, he has detailed the petitioner as his confidante in arresting the widely acknowledged 'drift' in the Devaswom Administration and found him to be quite useful in that regard. According to him, normally he should have been consulted before the petitioner was transferred. It is also averred that the petitioner is to retire within a period of two years and the accepted norms are against his transfer as it is out of station without any request. There is no complaint or disciplinary measure contemplated against him. Further he has also family problems and his moving out from WP(C) 24742/2008 :14: Thiruvananthapuram in the middle of the year will cause undue hardship to him. It is stated that though no personally not known to him, the 5th respondent is an efficient official and his predecessor has received a vigilance report on the 5th respondent, copy of which is produced as Ext.R2 (A). It is stated that the Secretary of the Board who is only in the cadre of Deputy Devaswom Commissioners is always attempting to over reach all his decisions which are taken in the better interest of the Devaswoms. His predecessor in Office has deposed before the High Power Commission that the post of Devaswom Commissioner has been reduced abysmally to a rubber stamp in the hands of the Board and it is necessary to define the powers of the Board. Many of the powers of the Devaswom Commissioner as the Chief Executive Officer have been slowly ad steadily snatched away by the Board through executive orders and circulars which cannot be done. 6. We have heard the arguments of the learned counsel appearing for the petitioner, the standing counsel for the Devaswom Board as also the learned counsel appearing on behalf of the second respondent. 7. Admittedly, the petitioner was working at Thiruvananthapuram as Deputy Devaswom Commissioner (Inspection), that he was posted in the said post only on 23.7.2007 and has hardly worked for one year in the said post and the normal tenure is for three years in the particular post, that he is WP(C) 24742/2008 :15: a resident of Poojappura, Thiruvananthapuram, that he has only less than two years to retire on superannuation, that he has got some serious family problems, that his wife is ailing and his son is studying in higher secondary class and the transfer is effected during the middle of the academic year after the admission in the school. As per Ext.P4 guidelines, an employee shall not be liable to be transferred from his home town when he has only two years of service left for retirement on superannuation, except on request or when there is a complaint against him. However, there is a dispute as to whether Ext.P4 guideline shall apply in the case of a Gazetted Officer. Though in the counter affidavit, it is averred that Ext.P4 is not applicable in the case of the petitioner, petitioner has produced Ext.P16 along with his reply affidavit which was issued by the President of the Devaswom Board, which spells out that the transfer norms and rules are to be strictly put into practice for the year 2008 and any violation will be viewed seriously. If so, it is rather difficult to accept the contention of the respondent that the transfer norms will not be applicable in the case of Gazetted Officers at least for the year 2008. It is true that deviation from the guidelines is possible, provided it is made in exigencies of administration or for other exceptional reasons. The fact that petitioner was transferred during the middle of the year, that he has only two years to retire and that there are WP(C) 24742/2008 :16: family difficulties also for him to move out from Thiruvananthapuram as recommended by his own superior, the Commissioner in his counter affidavit, amply shows that normally he would not have been transferred except on exigencies of such administration demands. It is not disputed that the petitioner has got an impeccable character and no complaint is made against him regarding his integrity or otherwise. The only reason advanced in the counter affidavit is that as though the respondent wanted to respect the recommendation of the High Power Commission to