Allowed

K.I.Xavier v. Kerala Khadi & Village Industries Board

Kerala HC11 Dec 2012WP(C)/22799/2012

Case brief

AI extract

What is this about?

The High Court allowed a writ petition filed by an Assistant Registrar challenged his transfer from Palakkad to Malappuram and denial of tenancy benefits under a Government Order. Setting aside impugned orders, the Court directed the Board to repost him at Palakkad due to his son's disability and admitted absence of other claimants.

What did the court decide?

Petitioner reposted as Assistant Registrar at Palakkad; Orders directing transfer and charge discharge set aside.

K.I.Xavier Vs Kerala Khadi & Village… — Pension and Retirement Benefits | Kerala HC (2012)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON

¶4

TUESDAY, THE 11TH DAY OF DECEMBER 2012/20TH AGRAHAYANA 1934

¶5

WP(C).No. 22799 of 2012 (Y)

¶6

PETITIONER :

¶7

K.I.XAVIER, AGED 52 YEARS,ASSISTANT REGISTRAR DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE MALAPPURAM DISTRICT.

¶8

BY ADV. SRI.K.P.HARISH

¶9

RESPONDENTS :

¶10

1. KERALA KHADI & VILLAGE INDUSTRIES BOARD THIRUVANANTHAPURAM-695 001 REPRESENTED BY ITS SECRETARY.

¶11

2. THE PROJECT OFFICER, DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, MALAPPURAM. 676 505

¶12

3. G.S. SREEKUMARAN NAIR S/O. SREEDHARAN NAIR, NANDANAM, ARA.2601 EAST THOPPIL ROAD, ANAYARA P.O. THIRUVANANTHAPURAM-29 THE SECRETARY KERALA KHADI & VILLAGE INDUSTRIES BOARD VANCHIYOOR P.O., THIRUVANANTHAPURAM.

¶13

4. C.SUDHAKARAN, ASSISTANT REGISTRAR DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE MALAPPURAM.

¶14

5. THE PROJECT OFFICER, DISTRICT DHADI AND VILLAGE INDUSTRIES OFFICE, PALAKKAD.

¶15

R1TO R3 BY ADV. SRI.R.S.HARI KUMAR ,SC,KERALA KHADI AND VILLAGE INDUSTRIES BOARD

¶16

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 11-12-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶17

¶18

WP(C).No. 22799 of 2012 (Y)

¶19

APPENDIX

¶20

PETITIONER'S EXHIBITS :

¶21

EXHIBIT-P1 - A TRUE COPY OF THE PROCEEDINGS NO.KB 1448/2012(E1(A)-1 DATED 15-2-2012

¶22

EXHIBIT-P2 - A TRUE COPY OF THE ORDER NO.1537/2012(E1(A) DATED 25-5-2012

¶23

EXHIBIT-P3 - A TRUE COPY OF THE DISABILITY CERTIFICATE DATED 20-10-2010 ISSUED BY THE MEDICAL BOARD OF DISTRICT HOSPITAL, PALAKKAD.

¶24

EXHIBIT-P4 - A TRUE COPY OF THE JUDGMENT DATED 20-6-2012 IN WPC. NO.14341 OF 2012 OF THIS HON'BLE COURT.

¶25

EXHIBIT-P5 - A TRUE COPY OF THE PROCEEDINGS NO. KB 6140/2012/E1(A) DATED 17-72012 OF THE 3RD RESPONDENT SECRETARY.

¶26

EXHIBIT-P6 - A TRUE COPY OF THE PROCEEDINGS NO. KB 6140/2012/E1(A) DATED 10-82012 OF THE 3RD RESPONDENT SECRETARY.

¶27

EXHIBIT-P7 - A TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE IN FORM 7 OF KERALA FINANCIAL CODE OF THE PROJECT OFFICER, PALAKKAD

¶28

EXHIBIT-P8 - THE TRUE COPY OF THE EXISTING STAFF PATTERN APPROVED BY THE KERALA KHADI AND VILLAGE INDUSTRIES BOARD IN ITS MEETING ON 30-5-2007 (RESOLUTION NO.012).

¶29

EXHIBIT-P9 - A TRUE COPY OF THE TRANSFER NORMS PREVAILING IN THE BOARD

¶30

EXHIBIT-P10 - A TRUE COPY OF THE GOVERNMENT ORDER DATED 28-6-2011.

¶31

EXHIBIT-P11- COPY OF THE MEMO NO.B/912/2008/EST DT 15/10/2012 ISSUED BY THE SECOND RESPONDENT.

¶32

EXHIBIT-P12- COPY OF THE JOINING REPORT DT 25/10/2012 OF THE PROJECT OFFICER DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE, PALAKKAD.

¶33

RESPONDENT'S EXHIBITS : NIL.

//TRUE COPY//

P.A. TO JUDGE

P.R. RAMACHANDRA MENON, J.

¶38

W.P. © No.22799 OF 2012

¶39

Dated this the 11^th December, 2012

¶40

J U D G M E N T

¶41

Transfer of the petitioner, who is working as Assistant Registrar of the respondent Board in Palakkad District to Malappuram, inspite of non-availability of a sanctioned post there and absence of any request/claim for anybody to have a posting at Palakkad is under challenge. Denial of the benefit flowing from Ext.P10 Government Order, whereby 'fixity to tenure' has been given in the case of persons having children suffering from Cerebral Palsy and such other psychic ailments ( unless there is a request) also forms the subject matter for consideration in this writ petition.

¶42

The sequence of events as narrated in the writ petition

¶43

shows that the petitioner, while working in the capacity as above, came to be transferred as per Ext. P1 order dated 15.02.2012 from Palakkad to Malappuram; simultaneously shifting the 4^th

¶44

¶45

W.P. © No.22799 OF 2012

¶46

respondent herein from Malappuram to Palakkad, to occupy the seat to be vacated by the petitioner. This however was not implemented and later, as per Ext.P2 proceedings of General Transfer dated 25.05.2012, exactly similar transfer and postings were ordered between the petitioner and the 4^th respondent. Met with the situation, the petitioner filed a representation before the concerned authority and sought for the benefit of Ext.P10 Government Order, seeking to permit the petitioner to continue at Palakkad, in view of serious ailments of the petitioner's son aged 18 years and suffering from 65% of the disability in respect of 'Cerebral Palsy' as certified by the Medical Board. Simultaneously, the petitioner also approached this Court by filing W.P.(C) No.14341 of 2012, which was disposed of as per Ext.P4 judgment, directing the respondent Board to consider the representation preferred by the petitioner and pass appropriate orders.

¶47

Pursuant to the above verdict though the matter was considered, the claim came to be rejected as per Ext.P5 order dated 17.07.2012. Thereafter, the petitioner was served with

¶48

¶49

Ext.P6 order dated 10.08.2012, whereby the petitioner was ordered to move out from Palakkad, after handing over the charge to the person named therein. As there was no other alternative, the petitioner was compelled to join duty at Malappuram, but no charge was handed over to the petitioner as Assistant Registrar; more so when the 4^th respondent was still continuing at Malappuram. The petitioner was given to understand that there was no sanctioned post at Malappuram, which is more discernible from Ext.P8, showing the total sanctioned strength of 10 Assistant Registrars distributed in various districts, which does not take in Malappuram. As a matter of fact, the 4^th respondent was earlier given a posting at Malappuram only to suit to his convenience with reference to his native place, allegedly on work arrangement basis. It was in the said circumstance, that the petitioner sought for a reposting at Palakkad, in conformity with the transfer norms (Ext.P9), Clause (1) of which categorically stipulates that transfer of an employee can be effected only without causing any increase to the staff strength.

¶50

¶51

¶52

When the matter came up for consideration before this

¶53

Court, an interim order of 'status quo' was passed on 01.11.2012. But by this time, the Project Officer at Malappuram had relieved the 4^th respondent from duty vide Ext.P11 memo dated 15.10.2012 and he joined duty at Palakkad on 25.10.2012. This made the petitioner to cause the writ petition to be amended, incorporating necessary pleadings and prayers. The petitioner seeks to set aside Exts.P6 and P11 and also seeks for a posting back to Palakkad district.

¶54

Despite completion of service of notice, no counter affidavit has been filed by the 4^th respondent and it appears that he is not much interested to have had a posting at Palakkad and that he may be more happy to have continued at Malappuram.

¶55

The respondent Board has filed a counter affidavit conceding that there is 'no sanctioned post' of Assistant Registrar at Malappuram and admitting that Mr. Sudharkaran (4^th respondent) was continuing at Malappuram on work arrangement basis. Transfer of the petitioner from Palakkad to Malappuram is also sought to be justified, stating that the petitioner has been

¶56

¶57

¶58

continuing at Palakkad for nearly '8' years and that, he is liable to be transferred out. Nothing is stated with reference to the scope, applicability and the disputed claim, if any, in relation to the benefits flowing from Ext.P10 Government Order.

¶59

True, the petitioner has been continuing at Palakkad for nearly 8 years. But the question is whether he should be transferred out or could be permitted to continue at Palakkad in view of particular type of ailment of his son, as certified by the Medical Board vide Ext.P3.

¶60

The problem which is being faced by persons like the petitioner had attracted the attention of the Government, who chose it appropriate to rise to the occasion and issued Ext. P10 Government Order dated 28.06.2011, whereby it has been stipulated that the persons who are having children suffering from psychic disorders like 'Cerebral Palsy', shall not be disturbed at least for a period of 5 years; simultaneously making it clear that they should be forced out, only if it is necessitated by virtue of better claims/requests made by other eligible hands to have a posting in the particular station.

¶61

¶62

¶63

There is no case for the respondent Board that the 4^th

¶64

respondent is having any such claim to have a posting in Palakkad district. There is no case that anybody else has come up before the Board, seeking to have such a posting at Palakkad. If this be the position, what made the Board to shift the petitioner from Palakkad to Malappuram is not properly explained from the part of the Board. In other words, why the petitioner should not be permitted to be continued at Palakkad till a better claimant comes in view of contents of Ext.P10, is not made out.

¶65

As mentioned above, the 4^th respondent, despite completion of service, has not chosen to appear before this Court to contest the matter and it has to be reasonably presumed that he is having absolutely no grievance whatsoever with regard to granting of the reliefs to the petitioner, as sought for.

¶66

In the above circumstance, Exts.P6 and P11, to the extent they stand detrimental to the rights and interests of the petitioner in relation to Ext.P10, are set aside. There will be a direction to the respondent Board to repost the petitioner as

¶67

¶68

¶69

Assistant Registrar at Palakkad; simultaneously accommodating the 4^th respondent herein at such other appropriate place. It is also open for the Board to accommodate the 4^th respondent at Malappuram itself, in view of the alleged exigency of service or work arrangement, if it is actually required and permissible, in accordance with the relevant norms.

¶70

The writ petition is allowed. No cost.

¶71

P.R. RAMACHANDRA MENON, JUDGE.

¶72

K.I.Xavier v. Kerala Khadi & Village Industries Board

Case brief

What is this about?

What did the court decide?

K.I.Xavier v. Kerala Khadi & Village Industries Board

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Parties & counsel

Coram

Case details

Similar cases

Y.Vijayan Vs State of Kerala

T.C.Jose Vs Kerala State Electricity Board

Abey Daniel Vs Regional Deputy Director

V.Subramaniam Potti Vs Devaswom Board Commissioner

Binitha Chandran Vs Kreala Public Service Commission

Francis Joseph Maliyekkal Vs Kerala Water Authority