IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 18TH JUNE 2009 / 28TH JYAISHTA 1931 WP(C).No. 13212 of 2009(V) --------------------------------------- PETITIONER(S): ------------------------- N.S. NARAYANAN NAMPOOTHIRI, (MEL SANTHI), MANJU NIVAS, ALUMPEDIKA, PRAYAR, OACHIRA. BY ADV.MR.R.KRISHNA RAJ RESPONDENT(S): ------------------------- 1. TRAVANCORE DEVASWOM BOARD, REPRESENTED BY ITS SECRETARY, NANTHANKODU, THIRUVANANTHAPURAM. 2. ASST. DEVASWOM COMMISSIONER, KARUNAGAPPALLI. R1 & R2 BY MR.P.GOPAL, SC , TDB THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: tss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.13212 of 2009 -------------------------------------- Dated 18th June, 2009 JUDGMENT Heard Sri.R.Krishna Raj, the learned counsel appearing for the petitioner and Sri.P.Gopal, the learned Standing Counsel appearing for the Travancore Devaswom Board. 2. The petitioner is presently working as Santhi of Chanayikunnam Devaswom. He was formerly the Melsanthi of Padanayarkulangara Mahadeva temple. While so, during the year 2008, he applied for transfer and posting as Santhi either in Kamankulangara or in Kayamkulam Puthiyadom Devaswom or in Krishnapuram Devaswom. The Assistant Devaswom Commissioner, the transferring authority however transferred and posted him at Pavumba temple. The petitioner could not join duty at Pavumba for the reason that the order of transfer was modified by the Devaswom Commissioner on appeal by another Santhi. Thereupon, the petitioner was transferred and posted as Santhi in Kamankulangara temple. At that stage, the petitioner filed W.P.(C)No.16635 of 2008 in this Court challenging his transfer to Kamankulangara temple. By Ext.P1 judgment delivered on 5.6.2008, this Court held that the order transferring the petitioner from Padanayarkulangara temple to WP(C).No.13212/2009 2 Pavumba temple could not have been varied without notice to him. However, this Court directed the petitioner to file an appeal before the Travancore Devaswom Board challenging the order transferring him to Kamankulanga temple. He was also allowed to continue at Padanayarkulangara temple till the Board takes a decision on his appeal. 3. It is not in dispute that though the petitioner has filed an appeal, the Board has not taken a decision in the matter. However, the petitioner has not taken any action against the Board in not complying with the directions issued by this Court in Ext.P1 judgment. The pleadings however reveal that instead of moving this Court under the Contempt of Courts Act, for non compliance with Ext.P1 judgment, the petitioner moved the Assistant Devaswom Commissioner by submitting Ext.R2(a) representation wherein he expressed willingness to be posted as Santhi in Chanayikunnam Devaswom. In the said representation he also requested that as and when a vacancy arises in Kayamkulam Puthiyadom Devaswom, he may be transferred and posted in the said temple. On receipt of Ext.R2(a), the Assistant Devaswom Commissioner directed that the petitioner be posted as Santhi in Chanayikunnam Devaswom and Ext.R2(b) order was thereupon issued. The petitioner thereafter joined duty as Santhi in WP(C).No.13212/2009 3 Chanayikunnam Devaswom. The grievance now voiced by the petitioner is that though he has applied for transfer to Kamankulangara Devaswom or Kayamkulam Puthiyadom Devaswom or Krishnapuram Devaswom, while effecting general transfers for the year 2009-2010, the Assistant Devaswom Commissioner is not likely to consider his request. In this writ petition, based on that apprehension the petitioner seeks a writ in the nature of mandamus commanding the respondents to post him as Melsanthi at any major temple in Karunagappally sub group of temples considering his seniority and taking into account Ext.P1 judgment and his representation evidenced by Ext.P5. 4. The Assistant Devaswom Commissioner has filed a statement dated 30.5.2009 and an additional statement dated 11.6.2009. The petitioner has filed a reply affidavit dated 8.6.2009 stating that as the respondents have not implemented the directions issued by this Court in Ext.P1 judgment, he is entitled to get a posting at Kayamkulam Puthiyadom temple. The second respondent has in the additional statement stated that besides the petitioner other Santhis have also applied for transfer to Kayamkulam Puthiyadom temple and that the applications would be considered and a decision taken, while effecting general transfers for the year 2009-2010. It is also stated WP(C).No.13212/2009 4 that the petitioner's application for transfer will be considered in accordance with the guidelines governing transfer, a copy of which is on record as Ext.R2(c). 5. On going through the writ petition and after hearing the submissions made at the Bar by the learned counsel on either side, to me it appears that this writ petition is filed on the assumption that the petitioner's request for transfer and posting in any one of the three temples referred to by him in his application for transfer will not be considered. The respondents have stated that the petitioner has applied for transfer either to Kamankulangara temple or Kayamkulam Puthiyadom Devaswom or Krishnapuram Devaswom. The general transfer order for the year 2009-2010 is yet to be finalised. The attempt of the petitioner in my opinion appears to be to seek the intervention by this Court to secure a posting at Kayamkulam Puthiyadom Devaswom even before the Board takes a decision on his application. The Apex Court has in State of U.P. v. Gobardhan Lal ((2004) 11 SCC 402) held that the transferring authority is the best judge of the situation and that this Court exercising jurisdiction under Article 226 of the Constitution of India, cannot assess the niceties of the situation and the administrative exigencies and substitute its decision in the place of the decision of the transferring authority. What WP(C).No.13212/2009 5 the petitioner wants this Court to do in this writ petition is to act as the employer and transfer and post him as Melsanthi in Kayamkulam Puthiyadom Devaswom. In my opinion, that is primarily the function of the employer and if at all the employer does not favourably consider the petitioner's request, he can only challenge the same after the order of transfer is passed and that too only on the limited grounds set out by the Apex Court in Gobardhan Lal's case (supra). This writ petition is in my opinion, misconceived and an abuse of the process of court. If the petitioner has a grievance that Ext.P1 judgment has not been complied with, his remedy is to institute other appropriate proceedings and not to file a fresh writ petition. For the reasons stated above, I hold that there is no merit in this writ petition. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN Judge TKS