IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 7TH DECEMBER 2009 / 16TH AGRAHAYANA 1931 WP(C).No. 15800 of 2009(T) -------------------------- PETITIONER(S): ------------------ HARISH NAMBOODIRI S/O. NARAYANAN NAMBOODIRI, AGED 30, THEKKINIYEDATH MANA, SRK NAGAR POST, OTTAPALAM-3. NOW RESIDING AT SRINIVAS, POONKUNNOM. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE RESPONDENT(S): -------------------- 1. COCHIN DEVASWOM BOARD, REP. BY ITS SECRETARY, TRISSUR. 2. SPECIAL DEVASWOM COMMISSIONER, COCHIN DEVASWOM BOARD, TRISSUR. 3. C.N.NARAYANAN NAMBOODIRI, VELAPPAYA SHIVA TEMPLE, TRISSUR. 4. M.K.RAMACHANDRAMENON, S/O.M.P.MENON, SINDOORAM, VELAPPAYA, THRISSUR 680 596. ADV. SRI.K.GOPALAKRISHNA KURUP,SC,COCHIN D.B FOR R1 & 2 SRI.K.JAJU BABU FOR R 4 SRI.S.RAMESH BABU FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.15800/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE ORDER DT 5.10.2007 OF 1ST RESPONDENT. EXT.P2: TRUE COPY OF JUDGMENT DT 19.10.2007 IN WPC NO.29775 OF 2007. EXT.P3: TRUE COPY OF PROCEEDINGS DATED 15.11.2007 OF 1ST RESPONDENT BOARD. EXT.P4: TRUE COPY OF ORDER DT 26.12.2007 OF DEVASWOM COMMISSIONER. EXT.P5: TRUE COPY OF ORDER DT 2.6.2009 OF 1ST RESPONDENT. EXT.P6: TRUE COPY OF NOTICE PUBLISHED BY WORSHIPPERS OF THE TEMPLE. EXTS. OF R4 EXT.R4(a): TRUE COPY OF ORDER DT 31.10.2001 OF THE 1ST RESPONDENT. EXT.R4(b): TRUE COPY OF RELEVANT EXTRACT OF PUBLISHED STATEMENT OF ACCOUNTS FOR THE YEAR 2003-04. EXT.R4(c): TRUE COPY OF RELEVANT EXTRACT OF PUBLISHED STATEMENT OF ACCOUNTS FOR THE YEAR 2004-05. EXT.R4(d): TRUE COPY OF RELEVANT EXTRACT OF PUBLISHED STATEMENT OF ACCOUNTS FOR THE YEAR 2005-06. EXT.R4(e): TRUE COPY OF RELEVANT EXTRACT OF PUBLISHED STATEMENT OF ACCOUNTS FOR THE YEAR 2006-07. EXT.R4(f): TRUE COPY OF ORDER DT 30.6.08 IN COMPLAINT NO.126 (91/08) OF OMBUDSMAN. EXT.R4(g): TRUE COPIES OF ENDORSEMENT FORWARDED BY THE SUPERINTENDENT OF POLICE ON 5.2.2009 ALONG WITH THE RECOMMENDATION OF THE DIRECTOR OF VIGILANCE DT 27.2.2009 AND THE GOVERNMENT DIRECTION DT 29.5.2009. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 15800 OF 2009 (T) ===================== Dated this the 7th day of December, 2009 J U D G M E N T Writ petition is filed challenging Ext.P5 order of transfer. 2. Petitioner and the 3rd respondent are Shanthis working under the 1st respondent Devaswom Board. It is stated that for the last several years, the 3rd respondent was working as Shanthi in the Velappaya Shiva Temple. While so, by Ext.P1 order dated 5/10/2007, the 1st respondent ordered transfer of the 3rd respondent from Velappaya Shiva Temple to Peruvanam Temple. That order was challenged by the 3rd respondent before this Court in WP(C) No.29775/07. The writ petition was disposed of by Ext.P2 judgment. In the said judgment, taking note of the submissions made by the counsel for the 3rd respondent about the developmental activities at the temple that were being carried on under the leadership of the 3rd respondent, this Court held that the desirability of continuance of the 3rd respondent at the Velappaya Shiva Temple is a matter for the Board to consider. 3. Accordingly, the matter was taken up with the Board, but however, the Board passed Ext.P3 order dated 15/11/2007 WPC 15800/09 :2 : rejecting the request made by the 3rd respondent against Ext.P1. Subsequently, Ext.P4 order was passed by the 1st respondent on 26/12/2007 by which the petitioner was transferred and was posted as Shanthi in the Velappaya Shiva Temple. Accordingly, the petitioner joined that post and started to discharge his duties. While he was continuing as such, by Ext.P5 order dated 2/6/09, the 3rd respondent was again posted as Shanthi at the Velappaya Shiva Temple and the petitioner was transferred and posted at the Pazhuvam Subramania Swami Temple. It is challenging Ext.P5 order, the writ petition is filed. 4. One of the contentions raised by the counsel for the petitioner is that Ext.P5 is vitiated for malafides. It is contended that the said order is also contrary to the guidelines issued by the Board which provide that transfer and posting can be ordered only after a person completes his tenure of three years at a station. Yet another contention raised is that there are several allegations of corruption against the 3rd respondent and that even the vigilance enquiry, the report of which is Ext.R4(g) substantiates his contention. According to the petitioner, for this reason also the 3rd respondent ought not to be posted at the WPC 15800/09 :3 : Velappaya Shiva Temple. 5. Respondents 1 to 3 have filed counter affidavits. According to the 1st respondent Devaswom Board, on 17/2/2009, the Secretary of the Board received a petition from the 3rd respondent stating that due to medical grounds, it was not possible for him to work in the temples away from his residence and that he sought a suitable posting to a temple near to his house. It is stated that the Secretary thereupon called for the remarks of the Trichur Group Assistant Commissioner. It is also stated that the Assistant Commissioner Trichur in his report dated 15/5/2009 forwarded the application of the 3rd respondent along with the medical certificate and that considering the same Ext.P5 order was issued posting the 3rd respondent to Velappaya Shiva Temple. 6. Para 9 of the counter affidavit of the 1st respondent reads as under: It is submitted that the petitioner herein is now transferred to a temple which is hardly 25 kilometres away from the Velappaya Temple and only 20 kilometres away from his place of residence. It may also be considered that the 3rd respondent is aged 60 and the petitioner is only 30 years old. It is also submitted that atpresent there is a vacancy in “Erattachira Temple”, Near Sakthan Thampuran Bus stand at Thrissur and the petitioner can be given a posting as Santhi in the said WPC 15800/09 :4 : temple. The said temple is only 2 Kms away from the present place of residence of the petitioner. In so far as the allegation of violation of guidelines is concerned, it is stated by the 1st respondent that though under the guidelines ordinarily transfer shall not be effected before completion of three years, still if the circumstances justify, the Board is well within its powers to order transfer even before a person completes 3 years. 7. In so far as the allegation of corruption against the 3rd respondent is concerned, standing counsel for the Board submits that allegations are not one of misappropriation. Counsel for the 3rd respondent also submitted that it was only on account of his ill health that he made an application for transfer and posting near to his residence. He also denies the allegations of corruption made against him. 8. The 4th respondent, who got himself impleaded in the writ petition has filed a counter affidavit mainly raising allegations of corruption against the 3rd respondent. He has also produced the vigilance report, which according to him show instances of corruption and recommendations against the 3rd respondent continuing in the temple in question. 9. In so far as Ext.P5 is concerned, as already stated, the WPC 15800/09 :5 : first ground urged is that it is vitiated for malafides. The allegation of malafide is one of serious nature and it is for the petitioner to raise specific pleas in this behalf and substantiate the contention and also implead the persons against whom such allegations of malafide are raised. In this writ petition, not only that there is no specific plea of malafides, but even the persons against whom such allegations are made are not impleaded in this writ petition. For this reason itself, I am not persuaded to take cognizance of the vague and general allegations of malafides raised at the Bar. 10. The next plea is that guidelines of transfer have been violated. True the guidelines provide that ordinarily a person cannot claim transfer before completing 3 years and an employee is not liable to be transferred before completing a tenure of three years. In this case, the petitioner has completed only 2 years at the time when Ext.P5 was issued. Therefore, going by the guidelines, it may be a case possible to say that the petitioner was transferred prematurely. But then, the guidelines only say that ordinarily a person shall not be transferred. This itself implies that taking into account administrative exigencies existing in the WPC 15800/09 :6 : organization, the Board is entitled to depart from the guidelines. Unless such exercise of power is proved to be arbitrary or malafide, this Court will not be justified in interfering with such legitimate exercise of power. In this case going by the uncontroverted averments in the counter affidavit of the Board, posting and transfer of the 3rd respondent was ordered by Ext.P5 taking into account the representation made by him accompanied by a medical certificate certifying his illness. In such a case, if the Board has, for bonafide reasons, exercised the power and in that process, if the guidelines have been departed from, this Court will not be justified in interfering with such an order. 11. The next allegation against the 3rd respondent is one of corruption. This allegation is raised entirely relying on Ext.R4(g), a report submitted by the Vigilance and Anti Corruption Bureau. Ext.R4(g) itself show that the said report has been forwarded by the Government to the Board and the Board has not taken any action thereon with notice to the 3rd respondent in pursuance thereof. The Board having not taken any action on this report, petitioner or the 4th respondent cannot now contend that Ext.P5 is vitiated for this reason. Therefore, it is for the Board to do what WPC 15800/09 :7 : they feel appropriate on Ext.R4(g) I do not find any ground to invalidate Ext.P5. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp