Remanded

Jaison Peter v. Kerala State Electricity Board

Kerala HC8 Aug 2016WP(C)/23707/2016

Case brief

AI extract

What is this about?

The Court held that a transfer dispute involving conflicting claims for medical protection by three incumbents requires resolution by the administrative authority, not judicial review, due to complex factual rivalries.

What did the court decide?

Directions issued to the transferring authority to consider all rival claims, hear the parties, and take a fresh decision on the transfers within a specified timeframe.

Jaison Peter Vs Kerala State Electricity Board — Service and Employment | 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 8TH DAY OF AUGUST 2016/17TH SRAVANA, 1938 WP(C).No. 23707 of 2016 (K) ----------------------------

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PETITIONER(S): -------------

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JAISON PETER ASSISTANT ACCOUNTS OFFICER, KERALA STATE ELECTRICITY BOARD LTD., REGIONAL AUDIT OFFICE, ERNAKULAM-682 018.

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BY ADVS.SRI.ELVIN PETER P.J. 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 BHAVAN, PATTOM, THIRUVANANTHAPURAM- 695 004.

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2. KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, 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. SRI. MOHAMMEDALI M.K. ASSISTANT ACCOUNTS OFFICER, KERALA STATE ELECTRICITY BOARD LTD., ERNAKULAM-682 018.

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WP(C).No. 23707 of 2016 (K)

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5. SMT. MINI M.G. ASSISTANT ACCOUNTS OFFICER, KERALA STATE ELECTRICITY BOARD LTD., ERNAKULAM-682 018.

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R1 TO R3 BY SRI.K.S.ANIL, SC, KSEB R4 BY ADVS. SRI.S.KANNAN SMT.S.SIMY R5 BY ADVS. SRI.SANTHOSH MATHEW SRI.SATHISH NINAN SRI.ARUN THOMAS SRI.JENNIS STEPHEN SRI.ALPHIN ANTONY SRI.VIJAY V. PAUL

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

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WP(C).No. 23707 of 2016 (K)

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APPENDIX

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PETITIONER(S)' EXHIBITS

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---------- EXT. P1:	------------- TRUE COPY OF BOARD ORDER DATED 30.5.2013 ISSUED BY THE 2ND RESPONDENT.
EXT. P2:	TRUE COPY OF THE MEDICAL CERTIFICATE ISSUED BY THE MEDICAL BOARD, GENERAL HOSPITAL, ERNAKULAM TO THE PETITIONER
EXT. P3:	TRUE COPY OF APPLICATION FOR GENERAL TRANSFER SUBMITTED BY THE PETITIONER.
EXT. P4:	TRUE COPY OF THE MINUTES OF THE MEETING OF THE 3RD RESPONDENT WITH THE REPRESENTATIVES OF ALL THE RECOGNIZED UNIONS OF THE BOARD WAS CONVENED ON 23.06.2016.
EXT. P5:	TRUE COPY OF ORDER DATED 6.1.2006 ISSUED BY THE CHIEF ENGINEER (HRM)
EXT. P6:	TRUE COPY OF ORDER DATED 14.7.2016 ISSUED BY THE CHIEF ENGINEER (HRM)
RESPONDENT	(S)' EXHIBITS :
---------- EXT.R5(1):	------------- COPY OF THE MEDICAL CERTIFICATE DT 15/7/2016 ISSUED BY THE R.M.O., GENERAL HOSPITAL, ERNAKULAM IN FAVOUR OF THE R5.
EXT.R5(2):	COPY OF THE FITNESS CERTIFICATE DT 18/7/2016 ISSUED BY THE R.M.O., GENERAL HOSPITAL, ERNAKULAM IN FAVOUR OF THE R5.
EXT.R5(3):	COPY OF THE MEDICAL CERTIFICATE DT 21/3/2016 ISSUED BYTHE R.M.O., GENERAL HOSPITAL, ERNAKULAM INF AVOUR OF THE R5.
EXT.R5(4):	COPY OF APPLICATION SUBMITTED BY THE R5 FOR PROTECTION FROM GENERAL TRANSFER IN MARCH, 2016.
EXT.R5(5):	COPY OF THE COMMUNICATION DT 13/4/2016 SENT BY THE DEPUTY CHIEF ENGINEER, KSEB LTD., ELECTRICAL CIRCLE, ERNAKULAMT O THE CHIEF ENGINEER (HRM), KSEB LTD.
EXT.R5(6):	COPY OF THE COMMUNICATION DT 20/7/2016 SENT BY THE DEPUTY CHIEF ENGINEER, KSEB LTD., ELECTRICAL CIRCLE, ENRKULAM TO THE CHIEF ENGINEER(HRM), KSEB LTD. //TRUE COPY//

P.S.TO JUDGE

ALEXANDER THOMAS, J.

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W.P.(C).No.23707 of 2016

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

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Dated this the 8^th day of August, 2016

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J U D G M E N T

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The petitioner, who is presenting holding the post of Assistant Accounts Officer in the service of the 1^st respondent Kerala State Electricity Board, is aggrieved by the impugned Ext.P-6 transfer order dated 14.7.2016, whereby the 3^rd respondent-Chief Engineer (Human Resources Management), Kerala State Electricity Board, has ordered to transfer him as per serial No.7 thereof, from his present station at Regional Audit Office (RAO), Ernakulam, to the Regional Audit Office, Vadakara, Kozhikode district. According to the petitioner, he is entitled for protection from the impugned transfer based on Clause 6(ii) of Ext.P-1 transfer norms dated 30.5.2013, which reads as follows:

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“6. Protection from transfer will be permitted in the following cases:

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(i) .....

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(ii) Handicapped officers and officers who have suffered permanent partial disablement due to accidents/who suffer from severe illness will be given protection from transfer”

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W.P.(C).23707/16 - : 2 :-

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It is the projected case of the petitioner that the contesting respondent No.4 was earlier holding the lower category post of Senior Superintendent and he was ordered to be promoted to the higher category post of Assistant Accounts Officer as per serial No.17 of Ext.P-5 promotion order dated 14.7.2016 and that prior to his promotion, he was working as Senior Superintendent in the Transmission Stores, Angamaly, Ernakulam District, and that going by the accepted practice in such matters, a person getting a fresh promotion to a higher category post is ordinarily to be posted in the available open vacancies and not by disturbing other existing senior incumbents, etc. The contention of the petitioner is that in order to avoid the perception of any such allegation, the authorities concerned had decided to transfer Smt.M.G.Mini., contesting respondent No.5 from her present station at Electrical Circle, Ernakulam, to the Regional Audit Office, Ernakulam, as per serial No.16 of Ext.P-6, so as to create an open vacancy there and then to post contesting respondent No.4 as per serial No.17 of Ext.P-5 promotion proceedings, to post him as Assistant Accounts Officer at the Electrical Circle, Ernakulam, which was till then held by the contesting respondent No.5 and it is contended that it is for this

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W.P.(C).23707/16 - : 3 :-

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purpose alone, the petitioner has been disturbed from his present posting at Regional Accounts Officer, Ernakulam, thereby as per serial No.7 of Ext.P-6, the petitioner has been transferred from his present station at Regional Audit Office, Ernakulam, to the Regional Audit Office, Vadakara, Kozhikode district, and contesting respondent No.5 has been transferred and posted at serial No.16 of Ext.P-6 from Electrical Circle, Ernakulam, to RAO, Ernakulam, which is to the post held by the petitioner.

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It is the further case of the petitioner that he had submitted Ext.P-3 application on 8.4.2016 along with Ext.P-2 medical certificate claiming the benefit of protection from transfer as per Clause 6(ii) of Ext.P-1 transfer norms and that as per Ext.P-4 proceedings dated 23.6.2016 the Board authorities concerned had recommended as follows:

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“TRANSFER PROTECTON.

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xxx xxx xxx

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Considering the opinions of all the associations, it is decided that the names of officers who have applied for transfer protection will be published in Board's official website. A committee consisting of CE (HRM), Dy. CE(HRM-I) and Administrative Officer will verify the protection requests and they will decide the eligibility for transfer protection.

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a. Administrative Protection

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xxx xxx xxx

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W.P.(C).23707/16 - : 4 :-

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b. Medical Protection.

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Medical Protection requests will be considered according to existing guidelines. All medical certificates of cancer treatment will be considered as genuine.”

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According to the petitioner, the impugned transfer order is improper and unreasonable, as it is in violation of the above said protection clause as well as the recommendations made in Ext.P-4 and further that the present move to create an inter se posting between the petitioner and the contesting respondent 4 & 5 is only for the purpose projecting a case as if the contesting respondent No.4 consequent to his promotion has been posted only in an open vacancy, whereas, in fact it is not, etc. It is in the light of these facts and circumstances, the petitioner has filed the aforecaptioned

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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-5 and set aside the same to the extent its gives a posting to the 4^th respondent on promotion as Asst. Accounts Officer to Electrical Circle, Ernakulam;

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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-6 and quash the same to the extent it transfers the petitioner from RAO, Ernakulam to RAO, Vadakara and gives a posting to the 5^th respondent to RAO, Ernakulam;

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(iii) To declare that the petitioner is entitled for protection from transfer in the light of Ext.P-1 norms and Ext.P-5 decision of the 3^rd respondent;

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(iv) To issue a writ of mandamus or any other appropriate writ,

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W.P.(C).23707/16 - : 5 :-

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order or direction, directing the 3^rd respondent to allow the petitioner to continue in RAO, Ernakulam.”

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This Court had passed an interim order dated 15.7.2016 in this Writ Petition, when the matter was admitted and it was also inter alia directed that further operation and implementation of the impugned Ext.P-6 transfer proceedings as per serial No.7 thereof, shall be kept in abeyance to the limited extent it affects the petitioner and that the petitioner will be allowed to continue in the present station, at RAO, Ernakulam for a period of 4 weeks. Notices were issued to the respondents, who were directed to file their pleadings on record. Later at the request of contesting respondent No.5, this Court had modified the interim order dated 26.7.2016, making it clear that the respondent Board authorities concerned should ensure that the pay and allowances of all the 3 incumbents in this case should not in any way be detrimentally affected during the pendency of this Writ Petition.

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Now the official respondents 1 to 3 have filed their counter affidavit dated 4.8.2016, which has been Bench marked today. So also, contesting respondent Nos.4 and 5 have submitted separate pleadings through their learned Advocates concerned. Contesting respondent No.4 would specifically contend that the

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W.P.(C).23707/16 - : 6 :-

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petitioner is not entitled for the benefit the protection of transfer as per Clause 6(ii) of Ext.P-2 transfer norms in the light of the Note appended thereunder and would contend that the petitioner is not eligible to claim any such benefit. Contesting respondent No.5 has also inter alia claimed the benefit of clause 6(ii) for protection from transfer by placing reliance on Ext.R-5(2) medical certificate, etc. and that she has submitted Ext.R-5(4) for protection from transfer.

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This Court is not proposing to enter into the details of such controversy as, in the considered opinion of this Court, the matter requires a remit to the competent authority, viz., the 3^rd respondent, for consideration of the rival claims of these 3 incumbents and to take a fair and proper decision in the matter.

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As indicated supra, this Court is not dealing with in detail the rival submissions in the pleadings of these parties, more particularly, in view of the manner in which the Writ Petition is proposed to be disposed of. This is so done, keeping in view the aspect that it relates to a transfer order and also taking into account the fact that the prolongation in the final disposal of this matter may create problems regarding the inter se postings of these three incumbents, more particularly, in the light of the aspects already

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W.P.(C).23707/16 - : 7 :-

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dealt with by this Court in the interim order dated 26.7.2016.

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Heard Sri.P.J.Elvin Peter, learned counsel for the petitioner, Sri.K.S.Anil, learned Standing Counsel for the Kerala State Electricity Board appearing for respondent 1 to 3, Sri.S.Kannan, learned counsel appearing for the contesting respondent No.4 and Sri.Santhosh Mathew, learned counsel appearing for contesting respondent No.5.

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Taking into account the facts and circumstances projected in the pleadings in this case as well as the materials on record, this Court is of the considered opinion that these are matters, which are to be eminently agitated before the transferring authority concerned (respondent No.3) instead of this Court exercising powers of judicial review, especially in a matter when the challenge is made for the first time. Accordingly, this Court proposes that the petitioner, contesting respondent No.4 and contesting respondent No.5 may submit their requisite representations in aid of their respective submissions and contentions before the 3^rd respondent Chief Engineer (Human Resources Management), who shall decide the same without further delay after hearing those parties concerned. In order to ensure that

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W.P.(C).23707/16 - : 8 :-

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not much time is lost by way of issuing notice of hearing and the appearance of the parties, etc. following directions are issued:

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(i) The Standing Counsel for the respondent Kerala State Electricity Board shall forward a certified copy of this judgment along with the pleadings of all the parties in the writ petitioner and the interim others passed by this Court on 14.7.2016 and dated 26.7.2016, to the 3^rd respondentChief Engineer (Human Resources Management), KSEB, Thiruvananthapuram, through their liaison wing at Ernakulam or any other effective manner as deemed fit and proper so that all the relevant papers are made available before the 3^rd respondent within 2 days from today.

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(ii) The petitioner, contesting respondent No.4 and contesting respondent No.5 will submit their requisite representations in aid of their respective submissions and contentions along with a certified copy of this judgment and also copies of the pleadings, etc. and those parties will personally appear before the 3^rd respondent Chief Engineer on 12.8.2016 (Friday) before 11 a.m. and thereupon, the 3^rd respondent will afford a reasonable opportunity of being heard to all those parties either in person or through their authorised representative, if any, and as far as possible, the process of hearing should be concluded on the same day.

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(iii) The 3^rd respondent thereafter will advert to all these rival aspects of the matter and consider the pleas of the petitioner and contesting respondent Nos.4 & 5 and take a considered decision on the matter afresh, untramelled by the view already reflected in the impugned Exts.P-5 and P-6, and the decision in this regard shall be issued in a formal proceedings and communicated to all those parties concerned as well as their controlling officers at least by 16.8.2016 or immediately thereafter. The 3^rd respondent will take a fair and just decision in the matter after examining the grievances of all the parties so that there is no scope for any further complaint.

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(iv) Until the decision is taken and communicated to the parties, the interim

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W.P.(C).23707/16 - : 9 :-

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orders dated 15.7.2016 and interim order dated 26.7.2016 as stated above, will continue to be in force.

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With these observations and directions, the Writ Petition (Civil)

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stands finally disposed of.

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Sd/-

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sdk+ ALEXANDER THOMAS, JUDGE ///True Copy///

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P.S. to Judge

Jaison Peter v. Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

Jaison Peter v. Kerala State Electricity Board

Case brief

What is this about?

What did the court decide?

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