Remanded

Saraswathy Prabha a. v. Kerala State Electricity Board

Kerala HC29 Aug 2016WP(C)/23621/2016

Case brief

AI extract

What is this about?

A Civil Engineer posted to a remote generation station challenged her transfer to a distant office, arguing lack of equitable protection compared to Electrical Engineers. The High Court remitted the matter for fresh consideration, setting aside the orders to the extent they affected the petitioner.

What did the court decide?

Impugned orders set aside to the extent affecting the petitioner; matter remitted to Chief Engineer (HRM) for consideration afresh.

Saraswathy Prabha a. Vs Kerala State… — Pension and Retirement Benefits | Kerala HC (2016)

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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 ALEXANDER THOMAS

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MONDAY, THE 29TH DAY OF AUGUST 2016/7TH BHADRA, 1938

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WP(C).No. 23621 of 2016 (C)

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PETITIONER(S):

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SARASWATHY PRABHA A., ASSISTANT EXECUTIVE ENGINEER (CIVIL), KERALA STATE ELECTRICITY BOARD LTD., ATHIRAPPILLY HYDRO ELECTRIC PROJECT, KANNANKUZHI, VETTILAPARA (PO), CHALAKUDY, PIN- 680 721, THRISSUR DISTRICT.

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BY ADVS.SRI.ELVIN PETER P.J.,

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SRI.T.G.SUNIL (PRANAVAM), SRI.K.R.GANESH.

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RESPONDENT(S):

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1. KERALA STATE ELECTRICITY BOARD, REPRESENTED BY ITS CHAIRMAN & MANAGING DIRECTOR, VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.

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2. THE SECRETARY, KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.

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3. THE CHIEF ENGINEER (HRM), KERALA STATE ELECTRICITY BOARD LTD., VAIDYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM- 695 004.

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4. PAULSON T.T., R & DS SUB DIVISION, KERALA STATE ELECTRICITY BOARD LTD., KALLARKUTTY, VIA ADIMALY, IDUKKI DISTRICT-685 562.

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5. HARSHAN P.B., ASSISTANT EXECUTIVE ENGINEER, RMU SUB DIVISION (ELECTRICAL), PORINGALKUTH, PIN- 686 670.

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R1 TO R3 BY ADV. SRI.K.S.ANIL, SC.

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THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-08-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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rs.

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WP(C).No. 23621 of 2016 (C)

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APPENDIX

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PETITIONER'S EXHIBITS:-

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EXHIBIT P1 TRUE COPY OF THE ORDER DATED 02.03.1993 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P2 TRUE COPY OF THE ORDER DATED 06.03.1993 ISSUED BY THE CHIEF ENGINEER (CIVIL) THRISSUR.

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EXHIBIT P3 TRUE COPY OF THE ORDER DATED 22.02.1997 ISSUED BY THE CHIEF ENGINEER (CIVIL, GENERAL & DESIGNS), KSE BOARD, TRIVANDRUM.

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EXHIBIT P4 TRUE COPY OF THE ORDER DATED 02.07.2015 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P5 TRUE COPY OF THE ORDER DATED 17.11.2015 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P6 TRUE COPY OF THE BOARD ORDER DATED 30.05.2013.

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EXHIBIT P7 TRUE COPY OF THE APPLICATION FOR GENERAL TRANSFER SUBMITTED BY THE PETITIONER FOR THE YEAR 2016.

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EXHIBIT P8 TRUE COPY OF THE ORDER DATED 12.07.2016 ISSUED BY THE 3RD RESPONDENT .

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EXHIBIT P9 TRUE COPY OF THE TRANSFER ORDER DATED 13.07.2016 ISSUED BY THE 3RD RESPONDENT.

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EXHIBIT P10 TRUE COPY OF THE DISTRICT-WISE PROVISIONAL SENIORITY LIST OF ASSISTANT EXECUTIVE ENGINEER (CIVIL) ISSUED BY THE DEPUTY CHIEF ENGINEER (HRM-1).

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RESPONDENT'S EXHIBITS:-

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EXT.R3A COPY OF THE SENIORITY LIST.

//TRUE COPY//

P.S. TO JUDGE

rs.

ALEXANDER THOMAS, J.

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W.P.(C).No. 23621 of 2016

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==================

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Dated this the 29^th day of August, 2016 J U D G M E N T

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The petitioner, who is holding the post of Assistant Executive Engineer (Civil) in the service of the Kerala State Electricity Board, is aggrieved by the impugned Ext.P-8 dated 12.7.2016 and Ext.P-9 proceedings dated 13.7.2016 (transfer proceedings), whereby the petitioner has been ordered to be transferred and posted from her present station at Athirappilly Hydro Electrical Project, Thrissur, to the office of the Chief Engineer, Civil Design & Consultancy, Kozhikode, as per serial No.15 of Ext.P-8 and contesting respondent No.5 has been ordered to be transferred and posted in the post held by the petitioner at Athirappilly, as per serial No.2 of of Ext.P-9. The petitioner is a lady now aged 49 years and it is averred that her elder child (daughter) is studying in the Government Engineering College, Thrissur, and younger child (son) is studying in Plus Two course and that if she is transferred to Kozhikode, it will cause serious prejudice to her in the smooth

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W.P.(C).23621/16 - : 2 :-

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running of her domestic affairs, etc. The sheet anchor of the petitioner's defence is that the impugned transfer order is against the substance and spirit of Clause 7(vii)(d) of Ext.P-6 transfer norms, more particularly sub clause (d) thereof, which reads as follows:

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vii. Posting of Electrical Engineers to and from Generating Stations may be done on the following guidelines:

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a....

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d. Engineers posted to Generating Stations shall invariably be transferred back to the plains on completion of 2 years of service if they request for a transfer. As far as possible attempts will be made to post to their place of choice, subject to general guidelines.”

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It is pointed out that the petitioner has been working in

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the present station at Athirappilly Hydro Electrical Project from 11.1.2016 and that the said station is a generation section, which

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is situated in a rather remote and inaccessible place. It is also averred that prior to that, the petitioner was posted at Poringalkuthu, which is a generation station, with effect from 18.8.2012 as evident from serial No.2 of Ext.R-3(a). It is pointed out that Poringalkuthu Generation Station is situated in a remote

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W.P.(C).23621/16 - : 3 :-

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and inaccessible station and that since the petitioner has been working in Generation Stations since 18.8.2012 upto now, she is entitled at least to protection from transfer to distant places like Kozhikode, even though she is not now claiming the preferential right of posting to a station nearby her station, etc. It is in the light of these facts and circumstances that the petitioner has filed the

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instant Writ Petition (Civil) with the following prayers:

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“(i) To issue a Writ of Certiorari, or any other appropriate writ, order or direction calling for the records leading to Ext.P-8 transfer order and quash the same to the extent of transferring the petitioner from Athirappilly HEP office to the Office of the Chief Engineer, Civil Design and Consultancy (North), Kozhikode and posting the 4^th respondent to the office of Athirappilly HEP;

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(ii) To issue a Writ of Certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P-9 transfer order and quash the same to the extent of posting the 5^th respondent to the office of Athirappilly HEP;

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(iii) To issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents 1 to 3 to allow the petitioner to continue in service as Assistant Executive Engineer at Athirappilly H.E. Project Office.”

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When the matter had come up for consideration on

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15.7.2016, this Court had ordered that the operation and implementation of Exts.P-8 and P-9 transfer proceedings shall be

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kept in abeyance to the limited extent it affects the petitioner and that consequentially the petitioner shall be allowed to continue in the present station in Hydro Electrical Project, HED, Athirappilly,

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W.P.(C).23621/16 - : 4 :-

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Thrissur district.

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The 3^rd respondent Chief Engineer has filed a counter affidavit dated 1.8.2016 in the matter. Essentially it is contended that Clause 7(vii)(d) of Ext.P-6 transfer norms is not applicable to incumbents like the petitioner, who is a Civil Engineer, and it is only applicable to personnel who are working as Electrical Engineers as can be seen from a reading of sub clause (vii) of Clause 7 of Ext.P-6 transfer norms. It is further pointed out that as per Ext.R-3(a) station seniority list, the petitioner is serial No.2 thereof and as per serial No.1. That Smt.K.C.Seena, who is Sl No.(1) of Ext.R-3(a) was entitled for protection from transfer on medical grounds and so the petitioner, who is Sl.No.(2) of Ext.R-3(a) had to be transferred out to accommodate a valid request of R-4.

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The petitioner has filed a reply affidavit dated 28.8.2016 in this case rebutting the pleas in the counter affidavit. Therein the petitioner has mainly relied on Ext.P-10 station seniority list issued in the previous year (2015) and it is contended that the petitioner's name is not shown in the station seniority list for Thrissur district in Ext.P-10, but that name of contesting respondent No.5 (Sri.Harshan.P.B.) is seen shown as serial No.2 thereof. But that

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W.P.(C).23621/16 - : 5 :-

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conspicuously the name of R-5 (Sri.Harshan.P.B.) is not shown in Ext.R-3(a), even though it is stated in Ext.P-10 that he has service in Thrissur district from 9.4.2012 and that therefore he is having longer station seniority in Thrissur district than the petitioner.

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Heard Sri.P.J.Elvin Peter, learned counsel appearing for the petitioner and Sri.K.S.Anil, learned Standing Counsel for the Kerala State Electricity Board appearing for official respondents 1 to 3. Though notice had been duly served on contesting respondent Nos.4 and 5, they have not chosen to enter appearance in this case. From a reading of Exts.P-4, P-8 and P-9 it can be seen that though R-4 (Sri.Paulson.T.T) was initially ordered to be the substitute of the petitioner in Ext.P-8 as per serial No.9 thereof, later the same was revised as per Ext.P-9, whereby R-4 (Sri.Paulson.T.T) was ordered to be posted to Poringalkuthu and R-5 (Sri.Harshan.P.B.) was ordered to be transferred and posted from Poringalkuthu to Athirappilly in the post held by the petitioner. Therefore, it appears that R-4 may not be necessary party and that he may not have interest in contesting this litigation. Though R-5 will be directly affected by the prayers in this Writ Petition, he has not chosen to enter appearance and contest this case in spite of

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W.P.(C).23621/16 - : 6 :-

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service of notice.

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From a consideration of the rival pleas, it can be seen that the main contention raised by official respondents 1 to 3 is that the protection conferred as per Clause 7(vii)(d) of Ext.P-6 norms is only in respect of Electrical Engineers and not for other incumbents like the petitioner, who is working as Civil Engineer. It is to be noted that the main contention raised by the petitioner is not to get the benefit of any preferential transfer and posting to the place of her choice, but is only that she should not be made to suffer more by transferring her from Athirappilly, which is generation station in Thrissur, to is a distant place in Kozhikode. Prima facie, this Court is of the opinion that the substance and spirit of Clause 7(vii)(d) of Ext.P-6 is that incumbents who are working in generation stations, which are situated in remote and inaccessible or arduous stations, should be given some sort of protection so that the difficulties and arduous nature of such postings are adequately respected while considering the issue of transfer and posting. It is also not in dispute that the petitioner was initially working Poringalkuthu since 18.8.2012 onwards and she was posted to Athirappilly on 11.1.2016. It is also not in dispute that both Poringalkuthu and

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W.P.(C).23621/16 - : 7 :-

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Athirappilly are generation stations which are situated in remote and inaccessible places that cause lot of difficulties and hardships to incumbents who are constrained to be posted there. Therefore, this Court is of the prima facie opinion that even if the request of the petitioner, who is a Civil Engineer, is not acceded on the basis of Clause 7(vii)(d) of Ext.P-6, at least some consideration should be afforded while deciding whether such an incumbent like the petitioner should be transferred to a far off place. Moreover, Clause 3 of Ext.P-6 also stipulates that normally an officer shall not be transferred before completing three years continuous service in a station, and that petitioner was posted at Athirappilly only on 11.1.2016. Moreover, a comparison of Ext.R-3(a) and Ext.P-10 would show that the petitioner was not included in the station seniority list in Ext.P-10, whereas R-5 was included as serial No.2 in Ext.P-10, and that the petitioner has now been included as serial No.2 of Ext.R-3(a), whereas R-5 is not seen included in Ext.R-3(a). In Ext.P-10 issued in 2015 it is stated that R-5 has station seniority in Thrissur district from 9.4.2012 whereas in Ext.R-3(a), it is shown that the petitioner's station seniority in Thrissur is only from 18.8.2012. The reasons as to why R-5's name is excluded from

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W.P.(C).23621/16 - : 8 :-

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Ext.R-3(a) is not now known to the court. The aspect that the petitioner is a lady now aged 49 with two children, who are attending their educational courses from her residential house in Thrissur, should also be taken note of by the competent authority among the respondents. From a perusal of the pleadings and materials on record, it is seen that adequate consideration has not been given to all the abovesaid aspects.

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Accordingly, the matter is remitted to the 3^rd respondent Chief Engineer, (Human Resources Management) for consideration of the matter afresh. The petitioner may file necessary representation in this regard detailing out all her submissions and contentions and copy of the said representation should be submitted before the 3^rd respondent within a period of 10 days from the date of receipt of the certified copy of this judgment and copy of this judgment should also be furnished along with the said representation. Thereafter, the 3^rd respondent shall afford a reasonable opportunity to the petitioner and R-5 and any other affected party, if necessary, and will render a decision on the abovesaid aspects without much delay, at any rate, within a period of 2 weeks from the date on which the parties are heard by the 3^rd respondent. To facilitate

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W.P.(C).23621/16 - : 9 :-

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consideration of the matter afresh on merits, it is ordered that the impugned orders to the limited extent it affects the transfer of the petitioner is set aside. The proceedings reflecting decision so taken by the 3^rd respondent as directed above, shall be communicated to the petitioner, R-5, etc. without much delay.

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With these observations and directions, the aforecaptioned Writ Petition (Civil) stands finally disposed of.

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sdk+

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Sd/ALEXANDER THOMAS, JUDGE

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///True Copy///

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P.S. to Judge

Saraswathy Prabha a. v. Kerala State Electricity Board

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Saraswathy Prabha a. v. Kerala State Electricity Board

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