IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 26TH AUGUST 2009 / 4TH BHADRA 1931 WP(C).No. 15018 of 2009(V) --------------------------------------- PETITIONER(S): ------------------------ M.M.NOORJAHAN,SENIOR SUPERINTENDENT, INDUSTRIAL TRAINING INSTITUTE, KALAMASSERY,ERNAKULAM DISTRICT. BY ADV. MR.ELVIN PETER P.J. RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT, LABOUR AND REHABILITATION DEPARTMENT, GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM. 2. THE DIRECTOR OF TRAINING, INDUSTRIAL TRAINING DEPARTMENT, THIRUVANANTHAPURAM. 3. SRI.BABU PETER,SENIOR SUPERINTENDENT, INDUSTRIAL TRAINING INSTITUTE,CHENGANNUR. 4. THE PRINCIPAL,INDUSTRIAL TRAINING INSTITUTE,KALAMASSERY,ERNAKULAM DISTRICT. BY SR.GOVERNMENT PLEADER MR.P.NANDAKUMAR MR.K.RAVEENDRAN MR.ANIL KUMAR M.SIVARAMAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.15018/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE MEDICAL CERTIFICTE ISSUED BY DR.K.A.HAMZA, CARDIOLOGIST. P2:- COPY OF THE ORDER DTD. 27.5.09 ISSUED BY THE 2ND RESPONDENT. P3:- COPY OF THE ORDER G.O. DTD. 10.9.04 ISSUED BY THE GOVERNMENT. R3(a):- COPY OF THE OBJECTION BY SUB TREASURY OFFICER, ALUVA. TRUE COPY P.A. TO JUDGE tss P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 15018 OF 2009 -------------------------- Dated this the 26th day of August, 2009 J U D G M E N T Heard Sri. Elvin Peter P.J., the learned counsel appearing for the petitioner, Sri. P.Nandakumar, the learned Senior Government Pleader appearing for respondents 1, 2 and 4 and Sri. K.Raveendran, the learned counsel appearing for the third respondent. 2. The petitioner, a senior Superintendent working in the Industrial Training Institute, Kalamassery in Ernakulam District has filed this writ petition challenging Ext.P2 order passed by the Director of Training transferring her to Industrial Training Institute, Chengannur. By the very same order, the third respondent, who was then working in the Industrial Training Institute at Chengannur, was transferred and posted as the petitioner’s substitute at Kalamassery. The petitioner submits that she was transferred and posted at Kalamassery only on 17.9.2007 while she was working at Kozhikode and as she has not completed three years at Kalamassery, she is not due for transfer. The petitioner also W.P.(C) No. 15018/09 2 submits that since her husband is a BSNL employee stationed at Kodungallur in terms of para 16 of Ext.P3 guidelines, she is entitled to be retained at Kalamassery itself. She also submits that though she had requested for a transfer to Mala, the said request was rejected on the ground that she has not completed three years of service at Kalamassery and is therefore not due for transfer. It is petitioner’s contention that the reason put forward for not granting her request for transfer to Mala was not considered when she was transferred to Chengannur. 3. The third respondent has filed a counter affidavit wherein it is stated that his wife is an employee of the Rubber Board stationed at Ernakulam, that he had completed three years at Chengannur and was therefore due for transfer and was rightly transferred to Kalamassery based on the option exercised by him. It is also stated that the petitioner had served for nearly twenty years out of her total service of twenty seven years in Thrissur district itself and that the third respondent has served outside his home district for nearly eighteen years and six months. 4. The learned Senior Government Pleader appearing for the W.P.(C) No. 15018/09 3 official respondents submits that the mere fact that the petitioner has not completed three years at Kalamassery cannot stand in the way of the petitioner being transferred to accommodate an eligible incumbent and that the petitioner did not bring to the notice of the Director of Training the fact that her husband is a BSNL employee stationed at Kodungallur. He submits that the reasons set out to deny the petitioner’s transfer to Mala, as requested by her, cannot be a reason to deny the request of another employee. The learned Senior Government Pleader submits that the guidelines do not confer any enforcible right on Government servants and that the petitioner cannot legitimate by complain about her transfer from Kalamassery. He also submitted that before this writ petition was filed, the petitioner had filed a representation before the Director of Training seeking cancellation of the order of transfer and the Director of Training had rejected the said request on the ground that if the petitioner is aggrieved by the order of transfer, she should move the higher authorities. The said decision was communicated to the petitioner by Ext.P4 letter dated 3.6.2009. 5. I have considered the submissions made at the Bar by the W.P.(C) No. 15018/09 4 learned counsel appearing on either side. It is evident from the pleadings and materials on record that when Ext.P2 order was passed transferring the petitioner to Chengannur and the third respondent to Kalamassery, the Director of Training was unaware of the fact that petitioner’s husband is an employee of BSNL stationed at Kodungallur. Therefore when he ordered petitioner’s transfer to accommodate the third respondent, he was unaware of the fact that the petitioner is also entitled to the benefit of para 16 of Ext.P3 guidelines. When both the petitioner as well as the third respondent are thus entitled to the benefit of para 16 of Ext.P3 guidelines, the person entitled to be retained in the station where his or her spouse is working should have been determined in accordance with Rule 17 of Ext.P3. That has not been done in the case on hand. By virtue of the interim order passed by this Court, the petitioner had been retained at Kalamassery. In my opinion on the fact situation it would not be proper for this Court to go into the rival contentions and to decide who should be posted at Kalamassery and who should be transferred to Chengannur. The Government is in my opinion the best judge of the situation. The Government can ascertain whether W.P.(C) No. 15018/09 5 vacancies are available elsewhere against which the petitioner or the third respondent can be accommodated. It can also accommodate them in other stations by transferring out other Senior Superintendents. If open vacancies exist and junior Superintendents are due for promotion in Ernakulam District, the Government can accommodate the petitioner and the third respondent in such open vacancies and effect promotions to fill up the posts vacated by the petitioner and the third respondent. In view of the fact that the petitioner had moved the Director of Training instead of moving the Government, the Government could not undertake this exercise till date. In such circumstances, I dispose of this writ petition with the following directions: The petitioner shall within 10 days from the date of receipt of a copy of this judgment file an appropriate representation before the Secretary to Government, Labour and Rehabilitation Department, setting out her claims with documents in support of her contentions. The Secretary to Government shall within one month thereafter hear the petitioner and the third respondent in person or through their authorised representative and take a decision thereon applying the W.P.(C) No. 15018/09 6 guidelines governing the transfer and posting of Government servants. The Government shall after orders are passed as directed above, communicate copies thereof to the petitioner and the third respondent. Till then, without prejudice to his contentions having regard to the fact that this Court had by an interim order directed the petitioner to be retained at Kalamassery, the third respondent shall be accommodated at Chengannur. Needless to say, arrears of salary and allowances that the third respondent is entitled to, shall be disbursed to him by treating him as in service at Chengannur. P.N.RAVINDRAN, JUDGE vps