Allowed

Mohammed Rafi M.K v. Kerala Water Authority

Kerala HC9 Oct 2012WP(C)/22068/2012

Case brief

AI extract

What is this about?

A writ petition challenging a transfer of a probationer pump operator from Mavoor to Kondotty before completing minimum tenure was allowed. The Kerala High Court set aside the order noting lack of administrative exigency and failure to show an existing vacancy for the second respondent.

What did the court decide?

The transfer order dated 20.09.2012 is set aside insofar as it relates to the petitioner; Petitioner is retained at Mavoor.

Mohammed Rafi M.K Vs Kerala Water Authority — Pension and Retirement Benefits | Kerala HC (2012)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

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TUESDAY, THE 9TH DAY OF OCTOBER 2012/17TH ASWINA 1934

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WP(C).No. 22068 of 2012 (G)

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PETITIONER(S):

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MOHAMMED RAFI M.K, AGED 31 YEARS S/O.ALI.M.K. PUMP OPERATOR, KERALA WATER AUTHORITY HEAD WORKS SECTION MAVOOR, KOZHIKODE RESIDING AT VADAKKEDATH PURAYIL, P.O. PERINGOLAM KUNNAMANGALAM, KOZHIKODE, DISTRICT-673571.

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BY ADVS.SRI.P.K.RAMKUMAR

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SMT.ANITHA MENON

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RESPONDENT(S):

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1. KERALA WATER AUTHORITY REP.BY ITS MANAGING DIRECTOR, JALA BHAVAN VELLAYAMBALAM, THIRUVANATHAPURAM-695001.

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2. MEHABOOB.K. PUMP OPERATOR, HEAD WORKS, SECTION P.O.MAVOOR KOZHIKODE DISTRICT, PIN-673661.

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3. DEPUTY CHIEF ENGINEER(GENERAL), KERALA WATER AUTHORITY JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695001.

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R1,R3 BY ADV. SRI.GEORGE MATHEW, SC, KERALA WATER AUTHORITY

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THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 09-10-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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WPC NO.22068/2012

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APPENDIX

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PETITIONER(S) EXHIBITS

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EXT.P1	TRUE COPY OF THE DECLARATION OF PROBATION ORDER CONCERNING THE PETITIONER'S SERVICE DT.10.7.12.
EXT.P2	TRUE COPY OF THE TRANSFER APPLIED BY THE PETITIONER DURING THE YEAR 2010 DT.28.05.10.
EXT.P3	TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER DT.22.9.12.

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RESPONDENTS' EXHIBITS

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R1(A)	COPY OF REPRESENTATION DATED 13.09.2012
R1(C)	COPY OF THE ORDER NO.KWA/JB/E5-3384/2010 DATED 20.09.2012
	// TRUE COPY //
	P.A. TO JUDGE

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P.R.RAMACHANDRA MENON, J.

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W.P.(c) No. 22068 OF 2012

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Dated this the 9^th day of October , 2012

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JUDGMENT

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The petitioner, who was working as an Operator under the respondent Water Authority in the Head Works Section, Mavoor from 1.7.2010 onwards has been caused to be transferred to Kondotty in Malappuram district, which forms the subject matter of challenge in this writ petition.

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The case of the petitioner is that, he has not completed three years to have the minimum tenure in the station. On 20.09.2012, he was on leave and on 22.09.2012, the petitioner was given to understand by the concerned Assistant Engineer over telephone that the petitioner stood relieved from the office pursuant to the transfer and in his place second respondent has been brought in, which made the petitioner to approach this Court by filing the present writ petition, challenging the course and proceedings pursued by the respondents on many a ground.

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Despite the completion of service of notice, the second

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W.P.(C)No.22068/2012

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respondent has not chosen to turn up before this Court. Respondents 1 and 3/Water Authority have filed a counter affidavit pointing out the sequence of events mainly contending that the second respondent is a physically handicapped man, who is having a certified disability to an extent of 40%, as borne by Ext.R1(b). The said respondent had preferred Ext.R1(a) application dated 13/09/2012 seeking for a transfer to the P.H.Section at Mavoor. It was after considering the same, that the petitioner was sought to be shifted, accommodating the second respondent in his place and bringing the petitioner from Mavoor to Malappuram vide Ext.R1(a) order dated 20.09.2012. The learned counsel for the Water Authority submits that the course and events were let known to the petitioner then and there and it was after coming across the position that the petitioner proceeded on leave and has approached this Court, which hence is liable to be deprecated. The insinuation made from the part of the Water Authority is sought to be rebutted by the petitioner by filing a reply affidavit.

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Heard both the sides in detail.

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Admittedly, there is no case for the respondents/ Water

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W.P.(C)No.22068/2012

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Authority that Ext.R1(c) transfer order has been passed pursuant to any 'administrative exigency'. This is more so, when no such public interest or administrative exigency is even referred to in Ext.R1(c) order dated 20/09/2012. It has been categorically asserted by the third respondent in paragraph 3 of the counter affidavit, that it was after considering the grievance projected by the second respondent vide Ext.R1(a) representation in respect of disability and such other circumstance, that his case was considered and it was in order to accommodate him in Mavoor Section, that the petitioner came to be transferred to Kondotty, vide Ext.R1(c).

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This Court finds that the averment made by the petitioner that the petitioner is still to complete the minimum tenure of three years at Mavorr is not rebutted anywhere in the counter affidavit filed by respondents 1 and 3. That apart, the only request made by the second respondent vide Ext.R1(a) dated 13/09/2012 was to give him a posting in the Head Works Section at Mavoor in the next arising vacancy. There is no case for the respondents/Water Authority that any vacancy was existing or any such vacancy had arisen after 13/09/2012.

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W.P.(C)No.22068/2012

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Admittedly, the posting given to the second respondent is by causing the petitioner to be shifted from Mavoor, which course ought not to have been pursued by respondent 1 and 3, more so, when there was no such claim even for the second respondent. This Court finds it difficult to sustain the impugned order. Order NoKWA/JB/E.5-3384/10 dated 20/09/2012, a copy of which is produced as Ext.R1(c) along with the counter affidavit filed by respondents 1 and 3, is held as unsustainable and it is set aside accordingly, in so far as it relates to the transfer of the petitioner. Petitioner shall be retained at Mavoor for the time being. This however will not bar the way of respondents 1 and 3 in considering the claim of the second respondent for the next arising vacancy as sought for vide Ext.R1(a) or by giving such a posting to him against any such vacancy resulted pursuant to shifting of the persons concerned, who are liable to be shifted, in accordance with the guidelines, in connection with the general transfer.

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Writ petition is allowed. No cost.

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P.R.RAMACHANDRA MENON

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JUDGE

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sv.

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W.P.(C)No.22068/2012 5

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W.P.(C)No.22068/2012 6

Mohammed Rafi M.K v. Kerala Water Authority

Case brief

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Mohammed Rafi M.K v. Kerala Water Authority

Case brief

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