IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 25TH AUGUST 2009 / 3RD BHADRA 1931 WP(C).No. 22013 of 2009(V) -------------------------- PETITIONER(S): --------------- BALAN C., WARDER, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM, HAVING RESIDENCE AT KAIPPADAMKUNNU VEEDU, KAKKAVAYAL P.O., WAYNAD. BY ADV. SRI.BIJU BALAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, HOME DEPARTMENT, GOVERNMENT SECRETARIAT THIRUVANANTHAPURAM. 2. THE ADDITIONAL DIRECTOR GENERAL OF POLICE (PRISONS), PRISONS HEAD QUARTERS, POOJAPPURA, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA, THIRUVANANTHAPURAM. BY SPL.GOVT. PLEADER SRI.P. SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 25/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N.RAVINDRAN, J. --------------------------- W.P.(C) No. 22013 OF 2009 -------------------------- Dated this the 25th day of August, 2009 J U D G M E N T Heard Sri. Biju Balakrishnan, the learned counsel appearing for the petitioner and Sri. P.Santhosh Kumar, the learned Special Government Pleader appearing for the respondents. 2. The petitioner was appointed as Warder in the Jail Department on 30.9.2002. He was appointed in Thiruvananthapuram District. Shortly thereafter, he filed Ext.P1 representation before the Additional Director General of Police (Prisons) seeking inter district transfer either to the Kannur district or to Wayanad district. The petitioner belongs to Wayanad district. The said request was made with reference to Ext.P2 Government order dated 11.7.1988 which gives certain directions in the matter of transfer and posting of persons belonging to the Scheduled Castes and Scheduled Tribes. The petitioner did not pursue Ext.P1 thereafter. Later, on noticing that similar request made by other persons were expeditiously granted by Exts.P6, P7 and P8 orders, the petitioner has moved the Government by submitting Ext.P10 W.P.(C) No. 22013/09 2 representation. In this writ petition, the petitioner inter alia seeks a direction to the Government to consider the request made by him in Ext.P10 and pass orders thereon within a time limit to be fixed by this Court. The petitioner also prays for a writ in the nature of mandamus commanding the respondents to transfer him with retrospective effect to his native district having regard to Exts.P6, P7 and P8 orders whereby the applications made by the beneficiaries thereof were expeditiously disposed of. In other words, the petitioner seeks transfer to Wayanad district with retrospective effect from a date immediately following the receipt of Ext.P1. 3. When this writ petition came up for admission on 4.8.2009, the learned Special Government Pleader was requested to ascertain and submit whether the petitioner, a member of a Scheduled Tribe Community, who belongs to Wayanad district, can be accommodated in Wayanad district. Today, when the case came up for further hearing, the learned Special government Pleader appearing for the respondents on instructions submitted that the Government are willing to accommodate the petitioner in Vaithiry Sub Jail, though no vacancies exist, by transferring out an incumbent. He also submitted W.P.(C) No. 22013/09 3 that such transfer can only be with prospective effect. This submission was not acceptable to the learned counsel appearing for the petitioner who contended that in the light of Exts. P6 to P8 orders, the petitioner is entitled to have the request made by him in Ext.P1 application granted. Since Ext.P1 was filed immediately after Exts.P6 to P8 orders were passed, he is entitled to be transferred to Wayanad district with retrospective effect, it is contended. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. In my opinion, the petitioner cannot at this distance of time seek a transfer to Wayanad district with retrospective effect. What the petitioner is asking for is to put the clock back. The petitioner did not move this Court earlier seeking expeditious orders on Ex.P1. He waited for nearly six years for filing this writ petition. The offer now made by the Government to transfer him with prospective effect is not acceptable to the petitioner. He will accept it only with a rider that such transfer should be with retrospective effect, which is an impossibility. Even though promotions can be made with retrospective effect, a transfer cannot be made with retrospective effect. The petitioner has not been able W.P.(C) No. 22013/09 4 to bring to my notice any Government order transferring persons to another district with retrospective effect. I am therefore of the considered opinion that the petitioner cannot be given retrospective transfer to Wayanad district. However, the entitlement of the petitioner for transfer to Wayanad district is a matter which the Government will have to consider in the first instance. I accordingly dispose of this writ petition with a direction to the Government to consider the request made by the petitioner in Ext.P10 to transfer him to Wayanad district. This shall be done within a period of two months from the date on which the petitioner produces a certified copy of the judgment before the Secretary to Government, Department of Home Affairs. It is clarified that the petitioner will not be entitled to retrospective transfer and that if transfer is granted, it will have only prospective effect. P.N.RAVINDRAN, JUDGE vps W.P.(C) No. 22013/09 5