IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 29TH JULY 2011 / 7TH SRAVANA 1933 WP(C).No. 18603 of 2011(A) -------------------------- PETITIONER(S): --------------- SAHIDA BEGUM, AGED 54 YEARS, W/O.ZAKKARIA, CHUNDEKAATU HOUSE VELLANGALLOOR PO, PI 680 662 THRISSUR. (SUB REGISTRAR, REGISTRAR OFFICE, MATHILAKAM). BY ADV. SRI.BABU KARUKAPADATH SMT.M.A.VAHEEDA BABU SRI.JOJI PAUL SRI.P.G.PRAMOD RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENNTED BY ITS SECRETARY, REGISTRATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. REGISTRATION INSPECTOR GENERAL OFFICE OF THE REGISTRATION INSPECTOR GENERAL THIRUVANANTHAPURAM. 3. MARYKUTTY K, AGED 5O YEARS W/O.V.G.CLEETUS, VANCHIPURACKAL, MATHILAKAM PO, KODUNGALLUR. BY G.P.SRI.L.G.SURESH BABU FOR R1 & R2 ADV. SRI.MILLU DANDAPANI FOR R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/07/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 18603 of 2011(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: A TRUE COPY OF THE RELEVANT PORTION OF THE ORDER OF TRANSFER DATED 06/07/2011 ISSUED BY THE 2ND RESPONDENT, WHICH WAS RECEIVED BY THE PETITIONER ON 07/07/2011. EXT.P2: A TRUE COPY OF THE G.O(P) NO.12/04/P&ARD DATED 10/09/2004. RESPONDENTS' EXHIBITS: EXT.R3(a): PHOTOCOPY OF APPLICATION FOR GENERAL TRANSFER, DATED 22.12.2010, SUBMITTED BY THE 3RD RESPONDENT. EXT.R3(b): PHOTOCOPY OF MEMO NO.77/2011 DATED 8.7.2011 ISSUED TO THE 3RD RESPONDENT FROM THE OFFICE OF THE SUB REGISTRAR'S OFFICE, KALLETTUMKARA. EXT.R3(c): PHOTOCOPY OF THE MEDICAL CERTIFICATE THAT HAS BEEN ISSUED TO THE 3RD RESPONDENT DATED 11.7.2011 BY DR.K.SIVARAMAN, B.Sc., D.H.M.S., SREE VINAYAKA HOMOEOPATHIC CLINIC, EDAMUTTOM, THRISSUR. EXT.R3(d): PHOTOCOPY OF RELEVANT EXTRACT OF VOTER'S LIST PERTAINS TO KAIPPAMANGALAM CONSTITUENCY ASSEMBLY WHEREIN 3RD RESPONDENT'S NAME IS FIGURING. EXT.R3(e): PHOTOCOPY OF RELEVANT EXTRACT OF VOTER'S LIST PERTAINS TO KODUNGALLUR CONSTITUENCY WHEREIN PETITIONER'S NAME IS FIGURING. TKS // TRUE COPY // P.S. TO JUDGE C.T.RAVIKUMAR, J. ---------------------------- W.P.(C)No.18603 of 2011 ---------------------------- Dated 29th July, 2011 JUDGMENT The petitioner and the third respondent are Sub Registrars in the Registration Department. As per Ext.P1, the petitioner and the third respondent were given mutual transfer. The petitioner who is working in Sub Registry, Mathilakam is transferred and posted to Sub Registry, Kallettinkara and the third respondent who is working there is transferred and posted to Mathilakam, as per Ext.P1. It is challenging Ext.P1 to the extent it orders transfer of the petitioner and the third respondent in the aforesaid manner, that this writ petition has been filed. 2. The avowed purposes of transfer and postings made as per Ext.P1 are as follows:- (i) To give transfer and postings to senior Sub Registrars who had gone out of their home Districts pursuant to promotion effected on or after 31.3.2010, but could not be accommodated in home stations despite the availability of vacancies. (ii) To effect transfer of those who have completed three years' service in a particular station. (iii) To grant transfer to those who have submitted applications for transfer. Thus, obviously, the orders of transfer issued as per Ext.P1 are not WP(C).No.18603/2011 2 issued on public interest. The specific contention of the petitioner is that her case did not fall under any of the aforesaid three categories. Still, she has been chosen for transfer. According to the petitioner, the transfer is effected solely to accommodate the third respondent. It is also contended that the third respondent is not having any preferential right whatsoever, in the matter of transfer, in terms of the transfer norms. On the other hand, the petitioner is left with only less than two years to retire from service on superannuation. Therefore, it is contended that in terms of the transfer norms she is entitled to continue in the present station itself, which is her home station, till her retirement from service. The petitioner has also narrated the circumstances prevailing in her family to contend that her retention in the present station is inevitable. Her husband is a patient who requires assistance even to attend his daily needs and there is none at home to take care of him. Her daughter is married and settled outside India and her son is working in Tamil Nadu. 3. A counter affidavit has been filed in this writ petition by the third respondent and to which a reply affidavit has been filed by the petitioner. The third respondent has also filed an additional counter affidavit. The contention of the third respondent is that Kalletinkara, the station wherein she has been working is about 28 kms. away from her WP(C).No.18603/2011 3 home station and she is having only three years to retire from service on superannuation. It is specifically stated in her counter affidavit that it is only on her request that she has been transferred to Sub Registry, Mathilakam. The further contention is that in case the petitioner has any grievance against Ext.P1 she should have approached the Government raising such grievances instead of rushing to this Court. Yet another contention of the third respondent is that the petitioner could be accommodated at Vadakkumkara as a vacancy is likely to arise there on account of promotion of one Mr.Santhosh. No counter affidavit has been filed in this writ petition by the respondent authorities. 4. I have heard the learned counsel appearing for the petitioner, the learned Government Pleader and also the learned counsel for the third respondent. 5. Ext.P1, admittedly, is not an order of transfer issued on public interest. Its avowed purposes are stated in Ext.P1 itself. Going by Ext.P1, one of the purposes for effecting transfer and postings as per Ext.P1 is to give transfer and postings to senior Sub Registrars who had gone out of their home Districts pursuant to promotion granted to them on or after 31.3.2010. Further, it is stated that transfer of those who have completed three years' service in a particular station and those who have made WP(C).No.18603/2011 4 applications for transfer could not be considered and effected, earlier, on account of the general election to the Legislative Assembly. As already noticed hereinbefore, the third respondent is presently working in Kallettinkara which is only about 28 kms. away from her home station. According to her, she was given transfer to Sub Registry, Mathilakam, wherein the petitioner is working, on her request. Ext.R3 (a) is the application for transfer submitted by the third respondent. It would reveal that she joined at Sub Registry, Kallettinkara only on 10.9.2008. Thus, it is obvious that she had not completed three years of service in the said station at the time when she requested for transfer as per Ext.R3(a) dated 22.12.2010. The request of the third respondent for transfer would not fall under the first two purposes mentioned in Ext.P1. Her claim falls under the third category viz., transfer on request. Going by the transfer norms, a person who has yet to complete the normal tenure of three years at a particular station cannot, as a matter of right, claim for a transfer from the said station. As already noticed hereinbefore, the third respondent came to Kallettinkara only on 10.9.2008 and she submitted Ext.R3(a) application for transfer on 22.12.2010. Column No.5 in Ext.R3(a) application would reveal that the ground for seeking transfer was indicated by the third respondent as `home affairs'. Therefore, the third respondent cannot WP(C).No.18603/2011 5 contend that she requested for a transfer on medical grounds. The specific contention of the petitioner is that her claim did not fall under any of the three avowed purposes that constrained the second respondent to issue orders of transfer and postings as per Ext.P1. It is specifically stated that she has not requested for a transfer from Mathilakam. In fact, the specific contention of the petitioner is that since she is left with less than two years to retire from service on superannuation she is entitled to continue there till her retirement as it is her home station and place of choice. As already noticed, the third respondent is left with more than three years to retire from service on superannuation. Admittedly, a preference is provided in the matter of transfer based on date of retirement only to those who got less than two years service for superannuation. In the case of the petitioner, she is left with only less than two years of service. That apart, the petitioner joined the present station viz., the Sub Registry, Mathilakam only in June, 2009. Thus, it can be said that the petitioner who is having a preference in the matter of transfer on account of the fact that she is left with only less than two years to retire from service has been transferred out even much prior to the completion of the normal tenure of three years at Mathilakam and at the same time, the third respondent who is having more than three years to retire from service and yet to WP(C).No.18603/2011 6 complete three years at her present station has been given a transfer and posting on request. In the said circumstances, taking into account the very contention of the third respondent that the transfer was effected only on account of her request I have no hesitation to uphold the contention of the petitioner that she was transferred only to accommodate the third respondent. In this context, it is also relevant to note that respondents 1 and 2 have not filed counter affidavits explaining the circumstances that constrained mutual transfer of the petitioner and the third respondent. The circumstances as explained above compel me to come to the conclusion that the order of transfer has been effected not in the best interest of administration. When no public interest or administrative exigency exists, there is no reason for the second respondent to deviate from the norms and to effect the transfer of the petitioner who is on the verge of retirement solely to accommodate the third respondent on her mere request. In the absence of any explanation from respondents 1 and 2 the exercise of power of transfer, in the facts and circumstances, to the extent it pertains to the petitioner and the third respondent can only be construed as an arbitrary exercise of power. Transfer norms and guidelines have been issued by the Government mainly with a view to eliminate the element of arbitrariness and also to avoid exercise of WP(C).No.18603/2011 7 power of transfer by the transferring authority to accommodate favourites. There was no reason at all for the 2nd respondent to effect transfer of the petitioner and give undue preference to the request of the third respondent. In the said circumstances, the contention of the third respondent that the petitioner should be relegated to resort to the remedy available before the Government cannot be upheld especially taking into account the fact that respondents 1 and 2 have not filed any counter affidavit in this writ petition refuting the specific contentions raised by the petitioner and also explaining the circumstances that constrained the transfer of the petitioner and the third respondent. As already noticed hereinbefore, the specific contention of the petitioner is that going by the transfer norms she is entitled to continue in the present station itself till her retirement as she is left with only less than two years to retire from service on superannuation. The said contention has not been refuted by respondents 1 and 2 and, in fact, the third respondent also did not refute the said contention. Admittedly, the respondents did not have a case that the petitioner has been transferred out on account of any public interest or on any administrative reason. That apart, neither respondents 1 and 2 nor the third respondent got a case that the third respondent has any better claim for a transfer and posting that calls for a consideration by the first respondent. In short, WP(C).No.18603/2011 8 there was no reason to transfer the petitioner who is on the verge of retirement solely to accommodate the third respondent especially considering the fact the third respondent was working in an office which is just 28 kms. away from her home station. In the said circumstances, Ext.P1 to the extent it orders transfer and posting of the petitioner and the third respondent is liable to be interfered with as it is only a colourable exercise of power. As already noticed, it is a mutual transfer as far as the petitioner and third respondent are concerned. Therefore, interference with Ext.P1 will not cause any prejudice to the other transferees. Accordingly, Ext.P1 to the extent it orders mutual transfer of the petitioner and the third respondent is set aside. It will be open to the second respondent to give a suitable posting to the third respondent pursuant to this judgment. The writ petition is disposed of accordingly. Sd/- C.T.RAVIKUMAR Judge TKS