IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 9TH AUGUST 2011 / 18TH SRAVANA 1933 WP(C).No. 19802 of 2011(A) ---------------------------------------- PETITIONER(S): ------------------------ BOBAN K.JOHN, SENIOR SUPERINTENDENT, DISTRICT ANIMAL HUSBANDRY OFFICE, ERNAKULAM. BY ADVS. SRI.M.P.ASHOK KUMAR, SRI.S.N.SREEKANTH. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REP. BY SECRETARY TO GOVT., AGRICULTURAL (ANIMAL HUSBANDRY (E) DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF ANIMAL HUSBANDRY, VIKAS BHAVAN, THIRUVANANTHAPURAM - 695 001. 3. K.BEENA, SENIOR SUPERINTENDENT, DISTRICT ANIMAL HUSBANDRY OFFICE, PATHANAMTHITTA - 689 645. R1 & R2 BY GOVERNMENT PLEADER SMT. SMITHA SUKUMAR R3 BY ADVS. SRI.V.E.ABDUL GAFOOR, SRI.A.MOHAMMED SAVAD. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.9802/2011 A APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE TRANSFER ORDER NO.D1.5661/2010/ESTT DTD. 3/06/2010 ISSUED BY THE 2ND RESPONDENT. P2: COPY OF THE JUDGMENT IN WP(C) NO.11302/2011 DTD. 7/04/2011 OF THE HON'BLE HIGH COURT OF KERALA. P3: COPY OF THE ORDER DTD. 14/07/2011 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R3(A): COPY OF THE ORDER NO.D1 20395/08/ESTT. DTD. 13/11/2008 ISSUED BY THE 2ND RESPONDENT. R3(B): COPY OF THE ORDER NO.D1 20395/08/ESTT DTD. 08/01/2009 ISSUED BY THE 2ND RESPONDENT. R3(C): COPY OF THE APPLICATION SUBMITTED IN THE PRESCRIBED FORM TO THE 2ND RESPONDENT. R4(D): COPY OF THE COVERING LETTER NO.B3 175/2010 DTD. 18/01/2010 ADDRESSED TO THE 2ND RESPONDENT. /TRUE COPY/ P.S.TO JUDGE Kss C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.19802 of 2011 ---------------------------- Dated 9th August, 2011 JUDGMENT The petitioner is presently working as Senior Superintendent in the District Animal Husbandry Office, Ernakulam. He joined the office pursuant to his promotion to the post of Senior Superintendent only on 5.6.2010. The third respondent was promoted from the post of Junior Superintendent as Senior Superintendent as per Ext.R3(a) dated 13.11.2008 and thereupon, she was given a posting at Kasaragode. Subsequently, the third respondent was transferred as per Ext.R3(b) dated 8.1.2009 to Pathanamthitta District. While continuing as Senior Superintendent in Pathanamthitta District the third respondent submitted Ext.R3(c) application for transfer to the District Animal Husbandry Office, Ernakulam. Thereafter, she approached this Court by filing W.P.(C)No.11302 of 2011. The said writ petition was disposed of at the admission stage itself without issuing notice to the third respondent viz., the petitioner herein, as per Ext.P2 judgment. As per Ext.P2 judgment, this Court directed the first respondent therein viz., the first respondent herein, to consider Ext.P8 representation therein and pass appropriate orders after affording an opportunity of being heard to the petitioner and also to the 3rd respondent. It is subsequent WP(C).No.19802/2011 2 to the said order that the impugned order Ext.P3 was passed on 14.7.2011. As per Ext.P3 the first respondent virtually, ordered for a mutual transfer of the petitioner and the third respondent. It is assailing the said order that this writ petition has been filed. 2. Respondents 1 and 3 have filed separate counter affidavits in this writ petition. Along with the counter affidavit the third respondent has produced the application submitted for transfer to Ernakulam District as Ext.R3(c). I will refer to the same a little later. The respondents raised contentions in support of Ext.P3. In Ext.P3 it has been stated that the Government have considered all the facts and materials made available by the Director of Animal Husbandry and took a decision to accommodate the third respondent considering the fact that she is a woman having health problems. It is further stated therein that the petitioner herein would be given a posting in District Animal Husbandry Office, Kottayam as and when vacancy arises in Kottayam District. It is thus obvious from Ext.P3 that it is such a consideration that culminated in Ext.P3. The learned counsel appearing for the petitioner drew my attention to column No.13 in Ext.R3(c) application for transfer submitted by the 3rd respondent. It is evident from column No.13 that the third respondent did not state any special reason for transfer. Ext.P3 did not WP(C).No.19802/2011 3 reveal production of any medical certificate before the first respondent to claim transfer citing health problems. In such circumstances, it is not known as to how such an opinion was formed by the first respondent regarding the health condition of the 3rd respondent. The learned counsel for the petitioner also invited my attention to the transfer norms contained in G.O.(P)12/04/P&ARD dated 10.9.2004. As per Ext.P3 the Director of Animal Husbandry reported that a vacancy of Senior Superintendent would arise in Kottayam District consequent on the promotion of Shri.P.J.Varkey as Administrative Assistant when Sri.S.Ullas Kumar, Administrative Assistant go on deputation to the Kerala Cashew Workers Welfare Fund Board. Evidently, the petitioner joined in the present place pursuant to his promotion only on 5.6.2010. In the circumstances, it is contended by the petitioner that he should not have transferred out solely to accommodate the 3rd respondent and on occurrence of vacancy, as has been stated above, the 3rd respondent could have been accommodated against the said vacancy as and when it occurs. 3. The learned counsel for the third respondent submitted that the third respondent is due to retire on 31.3.2013. Considering the fact that the third respondent is a woman who is due to retire on WP(C).No.19802/2011 4 31.3.2013 Ext.P3 shall not be interfered with. Before transferring out an employee to accommodate another employee the transferring authority has to consider all relevant aspects. At any rate, the first endeavour is to accommodate such an employee without disturbing another employee, especially during the midst of an year. Normally, when such a possibility is available in near future another employee would not be disturbed. Admittedly, the 3rd respondent had submitted Ext.R3(c) application for a posting during general transfer, on 6.1.2010. At that point of time, she could not have claimed any preference citing impending retirement as such a preference is permissible only in the case of those employees who are left with only two years for retirement from service on superannuation. On 6.1.2010 the petitioner was left with more than two years service. In Ext.P2 judgment it is stated thus:- “She requested the 1 st respondent for a posting in Ernakulam District during general transfer in 2010, in view of the medical condition of the petitioner.” (emphasis supplied) However, Ext.R3(c) application for transfer submitted by the 3rd respondent on 6.1.2010 would reveal that it was not on medical grounds that transfer to District Animal Husbandry Office, Ernakulam was requested. Evidently, this Court has not directed the first respondent for WP(C).No.19802/2011 5 granting any preference to the 3rd respondent ignoring the norms or to create a vacancy by transferring the petitioner without considering the merits of their rival claims. It is precisely for such consideration that this Court directed the first respondent to afford an opportunity of being heard to the petitioner and the 3rd respondent. According to the petitioner, he joined as Senior Superintendent in District Animal Husbandry Office, Ernakulam only on 5.6.2010 and the 3rd respondent obtained transfer from Kasaragod and joined at Pathanamthitta only on 15.1.2009. Whether an applicant who was not eligible for any preferential treatment on the relevant date during the general transfer could make any such preferential claim immediately after the general transfer through another representation and sought for a suitable posting by transferring another employee who is not liable to be transferred in the ordinary course, that too during the middle of an academic year ? All these matters should have been considered by the first respondent before effecting a mutual transfer as regards the petitioner and the 3rd respondent. After a careful consideration of the contentions raised by both sides and also a scanning of Ext.P3, the impugned order, I am of the view that it requires a reconsideration. To enable the 2nd respondent to WP(C).No.19802/2011 6 pass such an order Ext.P3 is set aside. When this matter came up for admission on 20.7.2011 this Court passed an interim order to the effect that in case the petitioner has not been relieved pursuant to Ext.P3 he shall be permitted to continue in the District Animal Husbandry Office, Ernakulam. Admittedly, on the strength of the said interim order that has been extended from time to time the petitioner is continuing there and the third respondent is yet to be relieved from the District Animal Husbandry Office, Pathanamthitta. In the said circumstances, the first respondent shall take expeditious decision in this matter, at any rate, within three weeks from the date of receipt of a copy of this judgment. It is made clear that this judgment shall not stand in the way of respondents 1 and 2 to issue appropriate posting to the petitioner against any other vacancy available in the District Animal Husbandry Office, Kottayam. Sd/- C.T.RAVIKUMAR Judge TKS