IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 6TH AUGUST 2010 / 15TH SRAVANA 1932 WP(C).No. 19260 of 2010(F) -------------------------- PETITIONER(S): --------------- N.NIZARUDDIN, FORESTER, CENTRAL NURSERY KULATHUPUZHA, THENMALA DIVISION, SOUTHERN CIRCLE, KOLLAM. BY ADV. SRI.V.K.SATHYANATHAN SRI.K.V.ANIL KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESNTED BY ITS SECRETARY, MINISTRY OF FOREST AND WILD LIFE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695039. 2. THE CONSERVATOR OF FORESTS, SOUTHERN CIRCLE, VANASREE COMPLEX, KOLLAM - 691001. 3. THE DIVISIONAL FOREST OFFICER, THENMALA DIVISION, THENMALA KOLLAM - 691308. 4. SHRI.S.FASLUDDIN, FORESTER, (TERRITORIAL DIVISION), FOREST RANGE OFFICE, THIRUVANANTHPAURAM DIVISION,KULATHUPUZHA, KOLLAM - 691310. ADV. SRI.B.KRISHNA MANI FOR R4 GOVERNMENT PLEADER ANTONY DOMINIC FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:\ APPENDIX Ext.P1. True copy of the Medical Case summary and discharge certificate. Ext.P2. S.O.No.2/2008 dated 10.1.2008 Ext.P3. Medical certificate dated 14.5.2009 Ext.P4. Order No.23/2010 dated 19.6.2010. // true copy// P.S to Judge. ANTONY DOMINIC, J. -------------------------------------------------- W.P.(C) NO.19260 OF 2010(F) -------------------------------------------------- Dated this the 6th day of August, 2010 J U D G M E N T Prayer sought in the writ petition is to quash Ext.P4 order to the extent it affects the petitioner. Petitioner also seeks a declaration that he is entitled to continue at the Central Nursery, Kulathupupzha. 2. Petitioner is a Forester. According to the petitioner, he is suffering from chronic migraine and that on his request, by Ext.P2 order dated 10.1.2008, he was transferred and posted to Central Nursery, Kulathupuzha under Thenmala Division, on health grounds. While continuing at the Central Nursery, on 19.6.2010, Ext.P4 order was issued, posting the 4th respondent to the Thenmala Division. Ext.P4 carries an endorsement of the Conservator of Forests to consider the 4th respondent, against the post held by the petitioner. Thereupon apprehending that in implementation of Ext.P4 order, he will be transferred out the petitioner has filed this writ petition and obtained an interim order of stay by order dated 22.6.2010. WPC.No.19260 /2010 :2 : 3. The first contention raised by the counsel for the petitioner is that he having been transferred as per Ext.P2 order on health grounds, ought not have been disturbed. It is also contended that as per the guidelines issued, an officer is entitled to have a minimum tenure of 3 years. Counsel contended that Ext.P4 order dated 19.6.2010was issued on the basis of a representation dated 19.6.2010, made by the 4th to the respondent, and that there was no reason to have ordered that the 4th respondent be accommodated against the post held by the petitioner. 4. Third respondent has filed a counter affidavit. According to the 3rd respondent petitioner is now posted as Forestor in the Central Nursery, Kulathupuzha where the annual target production is as high as 20,000,00 seedling. The duty of the Forester is the supervision of the works in the Nursery which includes long hours standing in the sunlight. It is stated that the Central Nursery has one Range Officer, one Forester and two Forest Guards as staff. In the nature of the activities in the Nursery, transfer and postings are normally ordered after seedling production is completed. It is stated that the petitioner WPC.No.19260 /2010 :3 : has already completed two and a half years service in the Nursery and it was therefore that the 3rd respondent made the endorsement as contained in Ext.P4. According to the 3rd respondent, considering the physical condition of the petitioner, he can be given a posting at Neduvannor Kadavu Check Post which is hardly 2 Kms from the Central Nursery, Kulathupuzha, where petitioner can work without exposure to sunlight. There is also statement that in view of the physical conditions of the petitioner, he is not in a position to efficiently discharge the duties in the Nursery. 5. Admittedly, petitioner is holding a transferable post. Therefore, respondents are competent to order transfer and posting and this court can interfere with an order of transfer only in a case where the transfer order is is vitiated for arbitrariness or mala fides. In this case, one of the contentions raised by the petitioner is by relying on the Government Order providing that an officer in normal circumstances can have a tenure of 3 years in one station. This Government Order, at best, has the force of a guideline and if in the exigencies of service, Government departed from the guidelines and orders transfer of a WPC.No.19260 /2010 :4 : Government servant, that will not give raise to a cause of action to seek redressal in a proceedings under Article 226 of the Constitution of India. Petitioner who challenged Ext.P4 has already completed two and a half years in the Nursery. 6. By Ext.P4 the respondent has ordered the posting of the 4th respondent to Thenmala Divison with a further direction to consider the 4th respondent against the post held by the petitioner. It is on record that, with the transfer of the petitioner, on expiry of the seedling season, except one guard, rest of the officers had already been transferred. If that be so, I cannot find fault with the respondents, if the petitioner is ordered to be shifted out of the Nursery. That apart, the respondents themselves have agreed to accommodate the petitioner in a check post, the location of which is only 2 Kms away from the Nursery where the petitioner is presently posted. This shows that no prejudice has been caused to him. It is also the case of the respondents that on account of the physical ailments of the petitioner he was not discharging the duties to their satisfaction and that even in spite of the physical problems, it will be possible for the petitioner to efficiently discharge the duties in the check WPC.No.19260 /2010 :5 : post. Such being the facts available, I am not persuaded to accept the plea of the counsel for the petitioner that the transfer of the petitioner ordered by Ext.P4 is vitiated by any arbitrariness or mala fides justifying interference by this court. Writ Petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/