IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 15038 of 2009(Y) ---------------------------------------- PETITIONER(S): ------------------------ SHEEBA FRANCIS,AGED 43 YEARS, W/O.K.M.LAWRENCE,C2,K.S.E.B.QUARTERS, KALAMASSERY,WORKING AS ASST.ENGINEER, OFFICE OF THE SUPERINTENDING ENGINEER, HARBOUR ENGINEERING CENTRAL OFFICE,ERNAKULAM. BY ADVS.MR.A.X.VARGHESE, MR.A.V.JOJO. RESPONDENT(S): --------------------------- 1. CHIEF ENGINEER,HARBOUR ENGINEERING DEPARTMENT,THIRUVANANTHAPURAM. 2. M.REMADEVI,ASSISTANT ENGINEER, OFFICE OF EXECUTIVE ENGINEER, HARBOUR ENGINEERING DIVISION, MALAPPURAM. R1 BY SR. GOVERNMENT PLEADER SMT. ANU SIVARAMAN R2 BY ADVS. SMT.SALLY THOMAS CHACKO, MR.P.T.THOMAS. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 12/06/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.15038 of 2009 -------------------------------------- Dated 12th June, 2009 JUDGMENT Heard Sri.A.X.Varghese, the learned counsel appearing for the petitioner, Smt.Anu Sivaraman, the learned Government Pleader appearing for the first respondent and Smt.Sally Thomas Chacko, the learned counsel appearing for the second respondent. 2. The petitioner, who is an Assistant Engineer in the Harbour Engineering Department has filed this writ petition challenging Ext.P2 order transferring her from the office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam to the office of the Executive Engineer, Harbour Engineering Division, Ernakulam. By Ext.P2, the second respondent was transferred from the office of the Executive Engineer, Harbour Engineering Division, Malappuram and posted as the petitioner's substitute in the office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam. The petitioner is a resident of Kalamassery. Her husband is employed in the Kerala State Electricity Board at Ernakulam. The petitioner states that she and her husband were both employed at Kozhikode and on her request she was transferred by Ext.P1 order dated 9.4.2008 from Kozhikode and posted as Assistant Engineer in WP(C).No.15038/2009 2 the office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam. She states that her husband was also given a transfer and both of them are now working in Ernakulam. The petitioner contends that the second respondent who was working as First Grade Overseer in the office of the Executive Engineer, Harbour Engineering Division, Munambam was promoted as Assistant Engineer and posted in the office of the Executive Engineer, Harbour Engineering Division, Malappuram at Ponnani only in November, 2008 and therefore she is not entitled to be transferred and posted at Ernakulam within a short span of seven months. The petitioner also states that as the second respondent is residing at Thrissur, it will be more advantageous to her if she is transferred and posted at Munambam. 3. The second respondent has filed a counter affidavit pointing out that she is an asthma patient, that she lost her son aged 25 years in February, 2009, that thereafter her health deteriorated and that on sympathetic considerations she was transferred and posted in the office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam which is situated close to the Ernakulam North Railway Station. She has stated that though she is permanently residing at Thrissur, as Thrissur and Ernakulam are well connected by rail, she can travel daily from Thrissur to Ernakulam WP(C).No.15038/2009 3 and back and that she was posted at Ernakulam taking into account her illness and also the fact that she lost her son aged 25 years in February, 2009. The second respondent has also stated that she is an asthma patient and on account of her ill-health she cannot properly attend to the large scale construction work going on at Munambam. 4. The learned Government Pleader appearing for the first respondent submitted that the second respondent was transferred and posted in the office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam taking note of the fact that she is suffering from acute bronchial asthma and had lost her son aged 25 years in February, 2009. He also submitted that the petitioner was transferred and posted as Assistant Engineer in the office of the Executive Engineer, Harbour Engineering Division, Ernakulam at Munambam in view of her experience in handling construction works. The petitioner has filed a reply affidavit and produced along with it Ext.P4 letter dated 1.6.2009 sent by the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam to contend that the Superintending Engineer has recommended the petitioner's continued presence at Ernakulam. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Shorn of details, the petitioner's contention is that instead of posting her at Munambam, WP(C).No.15038/2009 4 the second respondent ought to have been posted at Munambam. The Apex Court has in State of U.P. v. Gobardhan Lal ((2004) 11 SCC 402) held that an order of transfer can be interfered with only if it is one passed by an incompetent authority or in violation of a statutory rule or is proved to be vitiated by mala fides. The petitioner has no case that Ext.P2 order is one passed by an incompetent authority. She has also no case that the order of transfer has been passed in violation of any statutory rule. Though the petitioner has stated that the order of transfer is vitiated by mala fides, no material has been produced to establish the said contention. The Apex Court has in the aforesaid decision held that allegations of mala fides must be based on concrete materials which inspire confidence in the court. In the instant case, apart from vaguely alleging that the order of transfer is mala fide, the petitioner has not produced any cogent material to enable this Court to hold that the order of transfer is mala fide. Further, it has come out from the pleadings that the petitioner is residing at Kalamassery. By Ext.P2 the petitioner has been transferred from the Office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam which is situated close to the Ernakulam North Railway Station to the Office of the Executive Engineer, Harbour Engineering Division, Ernakulam at Munambam. The transfer of the petitioner is from Ernakulam to Munambam which WP(C).No.15038/2009 5 is approximately 25 Kms. away from Ernakulam via Vypeen. Therefore, it cannot be said that the transfer of the petitioner would cause serious inconvenience to her. On the other hand, the second respondent is an asthma patient who recently lost her son. If for that reason, the Chief Engineer took a sympathetic view and transferred and posted her in the office of the Superintending Engineer, Harbour Engineering Central Circle, Ernakulam in the place of the petitioner, it cannot be said that the order of transfer has been passed for extraneous reasons. Further, the stand taken by the first respondent is that the petitioner's services are required at Munambam, where large scale construction work is going on. In these circumstances, I find no merit in the challenge to Ext.P2. The writ petition fails and is accordingly dismissed. No costs. P.N.RAVINDRAN Judge TKS