Disposed

Manikandan v. Vs the Kerala State Financial Enterpirses Ltd.

Kerala HC26 Oct 2016WP(C)/27123/2016

Case brief

AI extract

What is this about?

The court disposed of writ petitions regarding unlawful transfer of part-time sweepers and last-grade employees. It directed the employer and State Government to examine if Government transfer norms should apply to contingent staff, considering livelihood issues and home district preferences.

What did the court decide?

Directing the Petitioner to submit a detailed representation regarding alleged norm violations and physical disability within two weeks for reconsideration by the competent authority, who must grant a

Manikandan v. Vs the Kerala State Financial… — Service and Employment | Kerala HC (2016)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT:

¶3

THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

¶4

WEDNESDAY, THE 26TH DAY OF OCTOBER 2016/4TH KARTHIKA, 1938

¶5

WP(C).No. 27123 of 2016 (M)

¶6

PETITIONER(S) :

¶7

MANIKANDAN V., CODE 7446, PART TIME SWEEPER, KSFE, KALLADIKODE BRANCH, (UNDER TRANSFER TO SREEKRISHNAPURAM BRANCH) RESIDING AT 'SUBHADRA', NEAR PHC, VRINDAVAN NAGAR, ENGINEERING COLLEGE P.O, AKATHETHARA, PALAKKAD 678 008.

¶8

BY ADVS. SMT.SREEDEVI KYLASANATH SMT.KAMALAKSHY KYLASANATH SRI.JOSELAL GEORGE SRI.ACHUTH KYLAS

¶9

RESPONDENT(S) :

¶10

1. THE KERALA STATE FINANCIAL ENTERPRISES LTD., REPRESENTED BY THE MANAGING DIRECTOR, REGISTERED OFFICE, BHADRATHA, THRISSUR 680 020.

¶11

2. THE MANAGING DIRECTOR, THE KERALA STATE FINANCIAL ENTERPRISES LTD., KSFE HEAD OFFICE, THRISSUR 680 001.

¶12

3. DEVAYANI.V.B, CODE 7454, PART TIME SWEEPER, KSFE, KALLADIKODE BRANCH, PALAKKAD 678 596.

¶13

*** ADDITIONAL R4 IMPLEADED**

¶14

4. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, TAXES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.

¶15

ADDITIONAL R4 IS SUOMOTU IMPLEADED AS PER ORDER DATED 26.10.2016.

¶16

R1 & R2 BY ADVS. SRI.M.GOPIKRISHNAN NAMBIAR SRI.P.GOPINATH SRI.P.BENNY THOMAS SRI.K.JOHN MATHAI SRI.JOSON MANAVALAN SRI.KURYAN THOMAS ADDL. R4 BY SR. GOVERNMENT PLEADER SRI. SAIGI JACOB PALATTY

¶17

THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 26-10-2016, ALONG WITH W.P(C).NO. 27179 OF 2016 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶18

WP(C).No. 27123 of 2016 (M)

¶19

APPENDIX

¶20

PETITIONER(S)' EXHIBITS :

¶21

EXHIBIT P1 TRUE COPY OF THE TRANSFER GUIDELINES OF WORKMEN IN KSFE.

¶22

EXHIBIT P2 TRUE COPY OF OFFICE ORDER NO. 4307/PTS DATED 04-08-2016 OF 2ND RESPONDENT TRANSFERRING PETITIONER FROM KALLADIKODE TO SREEKRISHNAPURAM UNDER THE GUISE OF REQUEST

¶23

EXHIBIT P3 TRUE COPY OF THE REPRESENTATION DATED 05-08-2016.

¶24

RESPONDENT(S)' EXHIBITS & ANNEXURES :

¶25

ANNEXURE R1(A): A TRUE COPY OF ORDER NO. 4307/PTS DATED 08.09.2016 ISSUED BY THE 2ND RESPONDENT.

//TRUE COPY//

P.S.TO JUDGE.

Msd.

ALEXANDER THOMAS, J.

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

W.P.(C).Nos. 27123, 27179, 29372, 29982 & 30132 of 2016

¶32

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

¶33

Dated this the 26^th day of October, 2016

¶34

J U D G M E N T

¶35

W.P.(C).No. 27123/2016:

¶36

The petitioner is a part time sweeper in the employment of the 1^st respondent Kerala State Financial Enterprises (KSFE). He is essentially aggrieved by the impugned Ext.P-3 transfer order dated 4.8.2016 [W.P.(C).No.27179/2016], whereby he has been ordered to be transferred as per serial No.45 thereof, from Kalladikkode to Sreekrishnapuram and in his place, contesting respondent No.3 has been ordered to be transferred as per serial No.14 thereof, from Ottapalam to Kalladikkode. It is averred that the petitioner has been posted at Kalladikkode hardly about 8 months back and that the impugned transfer is in gross violation of the provisions contained in Clause III(3), III(13), III(2) of Ext.P-1, etc. As per Clause III(3) of Ext.P-1 transfer norms, it has been stipulated that generally employees, who have completed 3 years of continuous service in a particular place/office are liable for transfer at any time and further

¶37

W.P.(C).27123/16 etc - : 2 :-

¶38

as per Clause III(13) it has been stipulated that ordinarily no employee will be transferred before 3 years of continuous service in an office. Further, as per Clause III(2) thereof, it has been clearly stipulated that as far as possible, the workmen should be given postings near to their place of residence, etc. It is also pointed out by Smt.Sreedevi Kylasanath, learned counsel appearing for the writ petitioner that as per the corresponding norms made by the State Government, no transfers or general transfers are envisaged for part time contingent employees, as they belong to the lowest rung in the hierarchy and transfer is envisaged only in rare and exceptional circumstances, on account of administrative grounds or exigencies of service, etc. In this regard, learned counsel would also take to the attention of this Court that Clause III(9) of Ext.P-1 norms and has stated that the said norms are applicable in the case of last grade employees also, which implies that but for that provision, the said transfer norms may not have been applicable to last grade employees and that therefore to subject part time contingent employees, who are even below the last grade employees, to the rigour of general transfer is unreasonable and improper and is also against the norms and rules followed by the State Government.

¶39

W.P.(C).27123/16 etc - : 3 :-

¶40

Further it is pointed out that as far as the situation of part time contingent employees including part time sweepers, and the last grade employees, the situation in the establishment of the 1^st respondent KSFE is not in any manner significantly or substantially different from the one that is available in Government service establishment and that therefore, to subject such low paid menial employees as part time sweepers, is unreasonable and arbitrary and

¶41

the power should be invoked only in rare cases, where there are administrative grounds and public interest and such other grounds and exigencies of service, really justifying the necessity of transferring of an individual part time sweeper, etc. Going by the subsequent developments in the matter, it is not necessary to deal with this contention in the present case, as it is common ground that, in the light of the interim order passed in this Writ Petition, the 1^st respondent employer has already granted a transfer to the petitioner from Sreekrishnapuram to Parali. To a specific query posed by the Court as to whether the petitioner has any further complaints or grievance in that regard, Smt.Sreedevi Kylasanath, learned counsel for the writ petitioner would fairly submit that this Court may close this Writ Petition recording the fact that the

¶42

W.P.(C).27123/16 etc - : 4 :-

¶43

petitioner has subsequently been transferred to Parali, in compliance with the order passed by this Court. Sri.Benny.P. Thomas, learned Standing Counsel for the respondent KSFE would also submit that the petitioner has already been granted transfer to Parali as per order proceedings dated 8.9.2016 passed by the 1^st respondent [produced as Ext.R-1(a)] in compliance with the order dated 2.9.2016. Smt.Sreedevi Kylasanath, learned counsel for the

¶44

writ petitioner would also submit that the grievances relating to issue of transfer of part time sweepers in the service of the 1^st respondent may be considered by this Court in connected W.P.(C). No. 27179/2016. In the light of these aspects, the above Writ Petition stands disposed of recording the submission of both sides that the petitioner has already been transferred to Parali on 8.9.2016.

¶45

W.P.(C).No. 27179/2016:

¶46

The present case is also one relating to transfer of a part time sweeper in the service of the 1^st respondent KSFE. The petitioner herein had joined in the present station (Kanjikkode) only on 31.10.2014. The petitioner has been ordered to be transferred from Kanjikkode to Nenmara as per serial No.47 of Ext.P-3 transfer

¶47

W.P.(C).27123/16 etc - : 5 :-

¶48

order dated 4.8.2016 and contesting respondent No.3 has been ordered to be transferred to the post held by the petitioner, as per serial No.76 thereof. This Court had passed the interim order dated 17.8.2016 directing that the respondent KSFE should consider the request of the petitioner for posting in any one of the available nearby vacancies, which is proximate and near to his residence at Kanjikkode. Now it is pointed out by the learned Standing Counsel

¶49

for the respondent KSFE that the petitioner has been ordered to be posted at Kollemkode. It is pointed out by the petitioner's counsel that the said station at Kollemkode is also more than 35 kilometers away from the petitioner's residence and that it causes great hardship and difficulties to the petitioner inasmuch he is physically a handicapped person suffering from 40% disability and that he has been continuing at Kanjikkode only since last one and a half years. It is pointed out that the petitioner is still continuing at Kanjikkode.

¶50

Smt.Sreedevi Kylasanath, learned counsel appearing for the writ petitioner would submit that the impugned transfer order at Ext.P-3 is in patent violation of many provisions contained in Ext.P-2 transfer norms, which are followed by the respondent KSFE. It is pointed out that as per Clause III(8)of Ext.P-2, it has been

¶51

W.P.(C).27123/16 etc - : 6 :-

¶52

stipulated that physically handicapped employees, intercaste married couple, scheduled castes, scheduled tribe candidate, etc. who are enumerated therein and such other categories of employees treated by the Government under special privileged category will be given postings, as far as possible, in the offices situated in their home districts/offices of their choice, irrespective of the general transfer norms. That as per Clause III(13) it has been provided that ordinarily no employee will be transferred before three years of continuous service in an office. Still further, the learned counsel would also place reliance on Clause III(2) of Ext.P-1, which stipulates as far as possible, workmen will be given postings near to their place of residence or near/or at their place of choice, etc. Apart from these contentions, Smt.Sreedevi Kylasanath, learned counsel for the writ petitioner would submit that as per the Governmental norms issued by the State Government regulating transfer of Government employees, it has been provided that generally there shall not be any transfer of part time contingent employees including part time sweepers and that they could be subjected to transfer only in rare and exceptional circumstances arising out of administrative grounds, public interest, exigencies of

¶53

W.P.(C).27123/16 etc - : 7 :-

¶54

service, etc. That even for last grade employees, it has been provided by the Government that such employees shall not be subjected to any general transfer and that as far as possible, they should be given transfer and postings to the home station/place of their choice. It is pointed out that the part time contingent employees including part time sweepers belong to lowest rung of the hierarchy and they are low paid menial employees, who work only on part time basis and that it would be highly unreasonable, unfair and unjust to subject part time contingent employees including part time sweepers to frequent general transfers, as they would face very many difficulties and hardships including economic difficulties, if they are constrained to work far away stations or preferred stations. The learned counsel would also point out that vast majority of part time sweepers are women and that, going by the terms and conditions in the employment, the part time sweepers are employed only on a part time basis and not on full time basis and there is no prohibition in their taking up other employment on part time basis outside their office hours. That part time sweepers get only a comparatively low pay and ordinarily many a time they get other part time employment outside their office hours, mainly

¶55

W.P.(C).27123/16 etc - : 8 :-

¶56

through social contacts and acquaintances, which are gathered through social interactions and such part time private employment that they could secure, would be altogether lost, if they are posted to a different station, which is not very proximate to their home stations and it will be very difficult for them to seek other private part time employment in the new distant station as it will take at least quite some time for them to gather necessary social contacts so as to get any avenues of such part time private work. That this is a hard reality of the day and this Court as a Constitutional Court of Record should take cognizance of this social reality and should approach the problem from a humane perspective taking into account the right to livelihood issues of such part time sweepers and the matter should not be viewed merely from the prism of hyper technical perspective of a transfer issue. In the light of these submissions made by Smt.Sreedevi Kylasanath, learned counsel for the petitioner, this Court had earlier requested the learned Government Pleader to get instructions as to the corresponding norms being followed in Government service.

¶57

The learned Senior Government Pleader has filed a counter affidavit dated 28.9.2016 on behalf of the State

¶58

W.P.(C).27123/16 etc - : 9 :-

¶59

Government authorities concerned in connected W.P.(C). No.29372/2016. Though the said Writ Petition is in relation to transfer of a last grade employee, the said affidavit filed by the Government deals with the transfer norms enunciated by the Government, not only for last grade employees, but also for part time contingent employees including part time sweepers. It has been stated in para 5 thereof that as per para No.10 of G.O(P). No.12/04/P&ARD dated 10.9.2014, the State Government have issued guidelines for Minimum Tenure Policy for Government Employees of the State and Clause 10 of the said G.O. provides that “ Last grade employees shall be posted in their native districts or districts of their choice. There will be no general transfers for Last Grade employees ”. Further it is stated in the said affidavit that general transfer in respect of part time contingent employees are not mentioned in the said G.O(P). dated 10.9.2014 and that there is no general transfer for part time contingent employees including part time sweepers. However, it is further pointed out in the said affidavit that based on the special rules for part time contingent employees, transfer on request of the part time contingent employees could be considered and further that a member of the part time contingent establishment may be

¶60

W.P.(C).27123/16 etc - : 10 :-

¶61

transferred, on administrative necessity from jurisdiction of one appointing authority to that of another appointing authority and that such transfer shall be made by the authority to which appointing authorities administratively subordinate, etc.

¶62

To a specific query, as to whether there are any provisions envisaged in the Memorandum of Association and Articles of Association of the 1^st respondent company, which envisage issuance of Governmental directions, which are binding on the said Government company, the learned Standing Counsel for the respondent KSFE and the learned Senior Government Pleader appearing for the State Government would point out that Clause 30 of the registered Memorandum of Articles of Association of the respondent KSFE envisages that the Government approval should be obtained for regulating conditions of service of employees and further that the Government is also empowered to issue directives to the company on policy aspects and such directions issued by the Government are binding on the Government company, etc.

¶63

True that some of the submissions made by the learned counsel appearing for the petitioner have bearing on the livelihood of part time sweepers. However, the matter essentially is in the

¶64

W.P.(C).27123/16 etc - : 11 :-

¶65

realm of policy of the State Government and the respondent Government company, and it may not be proper for this Court at this stage to adjudicate on such issues as a court of first instance. At the same time, this Court cannot shrik totally from its responsibility by altogether eschewing such aspects from consideration of this matter. These are matters which are essentially within the province of the policy domain of the State Government and the respondent Government company. But at the same time, the Governmental authorities could be requested to have a look at the matter to examine as to whether any changes in the transfer guidelines are required and if the Government considers that the transfer norms applicable for part time contingent employees in the Government establishments could also be appropriately considered for its application to the respondent KSFE, those aspects could be considered by the State Government and the respondent company in an appropriate manner. Accordingly, the competent authorities of the State Government and the respondent KSFE will examine the issue as to whether, the transfer norms, which are applicable to the part time contingent establishment in Government service, could be appropriately considered for its application to the respondent

¶66

W.P.(C).27123/16 etc - : 12 :-

¶67

company. The respondent KSFE will ascertain the considered views of the competent authority of the Government in this regard. It is pointed out that the administrative department concerned, which is having control and supervision over the respondent company, is the Government in the Taxes Department. The competent Department of the Government, which has issued the transfer norms for Government, is the Personnel & Administrative Reforms Department

¶68

of the Government of Kerala. On the KSFE approaching the competent authority of the State Government in the Taxes Department for ascertaining their views, the said Government Department would examine the norms that are applicable in Government service for part time contingent employees including part time sweepers and may convey their views and guidelines to the respondent KSFE in the matter, as to whether or not the Governmental norms for part time contingent employees including part time sweepers could be appropriately applied to the establishment of the respondent KSFE. Even if the option for general transfer is to be retained, it should also be specifically considered whether the transfer of the part time sweepers should be limited to stations, which are within 15-20 kms. from the home

¶69

W.P.(C).27123/16 etc - : 13 :-

¶70

station/residence, etc. The process in this regard should be completed within 6 weeks from the date of receipt of a certified copy of this judgment. It is pointed out by the learned Standing Counsel for the respondent KSFE that the unit of appointment of part time contingent employees in the respondent KSFE is on the basis of the district concerned and that they are not transferred outside the district and that one part time sweeper is posted for a

¶71

branch and that there could be cases where 3 or 4 incumbents would be there, who hail from the very same locality/area concerned and it may not be possible to accommodate all of them in one branch. These specific peculiarities in the respondent establishment should be clearly pointed out by the 1^st respondent while addressing the State Government for their views so that the consideration as directed above should be by taking into account the limitations and peculiarities of the system of employment in the respondent KSFE, so that the divergence if any, from the scenario in the Government establishment, should also be taken into account while the Government takes a look at the matter. In this regard Smt.Sreedevi Kylasanath, learned counsel for the petitioner would point out that Clause III(3) of Ext.P-1 envisages priority, if there are more

¶72

W.P.(C).27123/16 etc - : 14 :-

¶73

claimants than the posts for which they seek posting. The examination of the Government on all these issues may be by taking into account all the relevant aspects of the matter as may be pointed out by the 1^st respondent so that a modulated approach is taken to enable the Government to take a decision as to whether or not, the Governmental norms could be appropriately applied in the establishment of the 1^st respondent in a manner taking into account the limitations and peculiarities in the actual functioning of the establishment of the respondent KSFE, etc. On this basis, the competent authority of the KSFE may examine the considered views of the State Government in the matter and may take necessary action in the matter and take a final call on the issue as to whether or not the Government norms are to be appropriately applied to them so as to alleviate the difficulties of part time contingent employees including part time sweepers, etc. The State Government should convey its views within 2 months from the date of receipt of copy of this judgment. The process in this regard may be appropriately concluded by the 1^st respondent KSFE within a further period of 6 weeks from the date of receipt of the communication from the Government regarding their views.

¶74

W.P.(C).27123/16 etc - : 15 :-

¶75

As regards the individual grievance of the petitioner, it is ordered that it is for the petitioner to submit a detailed representation regarding the aspects based on the alleged violation of the norms and about the details of the petitioner's physical disability and the petitioner may seek that he may be permitted to be continued in the present station at Kanjikkode or to any available vacancy, which is in a station quite proximate to the petitioner's residence, etc. If such a representation is filed, the competent authority of the respondent KSFE will reconsider the matter and take a decision in the matter. The representation as directed above should be submitted within 2 weeks from the date of receipt of the certified copy of this judgment. Thereafter the competent authority of the respondent will grant a reasonable opportunity of being heard to the petitioner and will take a decision thereafter. It is hoped and expected that the competent authority of the 1^st respondent will take into account the fact that the petitioner is a physically disabled employee and appropriate orders would be passed taking into account all the relevant aspects of the matter including the various submissions now advanced by the learned counsel appearing for the writ petitioner.

¶76

W.P.(C).27123/16 etc - : 16 :-

¶77

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

¶78

W.P.(C).Nos. 29372/2016, 29982/2016 & 30132/2016:

¶79

The petitioners herein are last grade employees under the service of the 1^st respondent KSFE. The 1^st petitioner has been serving in the present station at Thrissur since the last one and a half years, and the 2^nd petitioner has been posted at Ullikkal, Kannur district with effect from April, 2015 onwards. As per Ext.P-2 transfer order dated 1.9.2016, the 1^st petitioner has been now transferred from Thrissur head office to Thiruvilwamala, which is 65 kilometers away and and the 2^nd petitioner has been transferred from Ullikkal to Karthikapuram, which is stated to be 85 kilometers away. They would contend that the impugned transfer orders have been issued in blatant violation of the provisions contained in Ext.P-1 transfer norms, more particularly Clauses III(2), III(3) and III (13). It is pointed out that as per Clause III(2), it has been stipulated that as far as possible workmen should be given postings near to their place of residence or near/or at their place of choice and as per Clause III(3), generally workmen, who have completed 3 years of continuous service in a particular place/office are considered for

¶80

W.P.(C).27123/16 etc - : 17 :-

¶81

transfer. As per Clause III(13) thereof, it has been clearly stipulated therein that ordinarily no employee will be transferred before 3 years of continuous service in an office. The petitioners would point out that large number of vacancies are available nearby to the present station itself and that even if the respondent authority had insisted for their transfer, they could have been conveniently posted to any such nearby vacancies so as to minimise the hardships and difficulties caused to them. It is pointed out that in Thrissur, vacancies of last grade servants are available in Thrissur Main Branch, Thrissur Evening Branch, Ayyanthol Branch, Thrissur Medical College Branch, Pattikkadu Branch, etc.

¶82

In W.P.(C).No. 29982/2016, the petitioner has been posted in the present station at Cheranallur, Ernakulam district, since July, 2013 onwards and as per Ext.P-1 the petitioner has been ordered to be transferred from Cheranallur to Mulanthuruthy, which is stated to be 30 kilometers away. It is further pointed out that the specific ground stated in the impugned transfer order as can be seen from serial No.220 thereof, that the said transfer has been effected on the basis of the “request of the petitioner”. It is averred that the petitioner has never made such a request and that the

¶83

W.P.(C).27123/16 etc - : 18 :-

¶84

foundation of the transfer order itself is vitiated. It is also averred that the petitioner is suffering serial ailments like cardiological problems, surgical problems, eye ailments, etc. as discernible from Exts.P-2, P-3, P-4 and P-8, which are medical certificates issued by the doctors concerned. It is also averred that other vacancies are available even in Cheranallur, Varappuzha, Vaduthala new branch, Palarivattom, Kaloor, Kalamassery, Special Deputy Tahsildar's office, Ernakulam, Kacheripady, Ernakulam Main Branch, Alangad Branch, Kakkanadu, DH Road Branch, Ernakulam, etc., and that even if the respondent authorities were insisting for the petitioner's transfer, the petitioner could have been conveniently accommodated and posting in any such available vacancy, etc. It is further pointed out that 3 incumbents mentioned in Ground “H” of the W.P.(C). have completed about 5 years in their present stations and yet they are not being transferred out, whereas the petitioner, who has completed hardly 3 years of posting at the present station, has been picked up, to suffer the transfer, it is alleged. The petitioner herein also would contend that there is blatant violation of the aforementioned provisions in transfer norms governing the field.

¶85

As far as the petitioner in W.P.(C).No.30132/2016 is

¶86

W.P.(C).27123/16 etc - : 19 :-

¶87

concerned, it is pointed out that he has been serving in the present station at Thripunithura from January, 2015 onwards. It is also pointed out that vacancies of last grade servants are available at Thripunithura and other nearby places and that additional vacancies are available at Thripunithura Evening Branch and other nearby stations. The petitioner would also contend that there has been great violation of the aforementioned provisions contained in the transfer norms governing the field.

¶88

The respondent KSFE has filed statements in all these matters relating to transfer of last grade servants. In W.P.(C).No. 29372/ 2016, it has been stated in para 7 of that said the statement that the 1^st petitioner had joined the service on 16.1.2016 and through out his service, he has been posted only in Thrissur district and that during the past 8 out of the 10 years, the petitioner has been working in the Thrissur head office, etc. That the 2^nd petitioner also joined service on January, 2006 and has been continuing at Kannur district all through out, etc. It is pointed out in para 4 of the statement filed by the respondent in W.P.(C).No. 29982/2016 that the petitioner had joined the service of the respondent in July, 1995 at Kalamassery branch and that he was

¶89

W.P.(C).27123/16 etc - : 20 :-

¶90

transferred to Cheranallur in January, 1997 and he was again posted to Kalamassery in June, 2000, and subsequently transferred to Cheranallur branch in June 2002. Thereafter, he was posted to Kacherippady branch, Ernakulam in June, 2003 and again transferred to Cheranallur in January 2009 and that it was only on his request that he was posted to Karunagapply branch, Kollam district in September 2010 and he was further posted to East Kallada branch, Kollam district, only on his request in March 2011. It is thereafter that he was transferred to Cheranallur branch in June, 2013, from where he was transferred to Mulamthuruthy.

¶91

In para 4 of the statement filed by the respondent in W.P. (C).No. 30132/2016, it has been stated that the petitioner therein joined service in January, 2006 as part time sweeper in Mulamthuruthy branch and in May 2012, he was promoted as office attendant and posted in the same branch and he continued in Mulamthuruthy branch, till he was posted to Thripunithura evening branch in January 2015, where he has been continuing until the issuance of the impugned transfer order.

¶92

Sri.Sreedevi Kylasanath, Sri.N.Unnikrishnan and Sri.C.P.Udayabhanu, the learned Advocates appearing in these 3 Writ

¶93

W.P.(C).27123/16 etc - : 21 :-

¶94

Petitions, have also submitted that the respondent company is a Government company and that as per the norms enunciated by the State Government, last grade employees in Government service are not liable for any general transfer and that they are transferred only in rare and exceptional circumstances, in cases arising out of administrative grounds, etc.

¶95

The Government has been impleaded as respondent in one of the W.P.(C)s., viz., W.P.(C).No.29372/2016, wherein the State Government has filed a counter affidavit through the learned Senior Government Pleader and it has been submitted in para 5 thereof that as per G.O(P). 12/04/P&ARD dated 10.9.2004 the Government have issued guidelines for Minimum Tenure Policy for Government Employees of the State and as per Clause 10 of the said guidelines, it has been stipulated that “ Last Grade employees shall be posted in their native districts or districts of their choice. There will be no general transfers for Last Grade employees ” etc. As noted earlier by this Court in the judgment in W.P.(C).No. 27179/2016, the learned Standing Counsel for the respondent KSFE and the learned Senior Government Pleader have submitted before this Court that the respondent KSFE is a Government company and that as per the registered Articles of

¶96

W.P.(C).27123/16 etc - : 22 :-

¶97

Association of the said Government company, the conditions of service of the employees of the company could be regulated only with the approval of the State Government and further that the Government is empowered to issue necessary guidelines and directives in the matter of policy matters, in which case such directives are binding on the company, etc. In the judgment rendered by this Court in W.P.(C).No. 27179/2016, this Court, while dealing with the issues of transfer and postings of part time contingent employees in the service of the respondent KSFE, had directed that the respondent State Government and the respondent KSFE may examine the issues as to whether the norms in Government service applicable for its part time contingent employees could be appropriately considered for application as far as the issues of transfer and postings of part time contingent employees in the respondent KSFE also and that the respondent KSFE may consult with the State Government for ascertaining their considered views so as to have a serious examination of the matter. It was also pointed out therein that those aspects may be appropriately considered by taking into account the special nature of the functioning and employment structure in the respondent

¶98

W.P.(C).27123/16 etc - : 23 :-

¶99

KSFE, etc.

¶100

As already held by this Court in W.P.(C).No.27179/2016, these matters are essentially in the realm of policy and it is for the competent authorities of the State and the respondent KSFE to have serious look at the matter and take appropriate decision in the matter. In this regard Sri.Benny.P.Thomas, learned Standing Counsel for the respondent KSFE would also submit that the unit of appointment of last grade servants in Government service is only the district concerned, whereas the unit of appointment of last grade servants in the respondent KSFE is the State and not a district and that ordinarily last grade employees in respondent KSFE are transferred only within the district of their choice, to the extent possible. It is also pointed out that in many a case the number of claimants seeking posting in a given branch or station or locality or area will be much more than the number of sanctioned post available to accommodate such clams. The learned Advocates appearing for the writ petitioners point out that a scheme of priority for accommodating such rival claims has already been envisaged, as can be seen from Clause III(3) of the transfer norms. Further the learned Advocates appearing for the petitioners would submit that

¶101

W.P.(C).27123/16 etc - : 24 :-

¶102

nothing prevents the respondent KSFE from granting an option to various last grade servants concerned to opt for their home district and choice stations and also to consider the accommodation of such claims by taking recourse to the criteria as in Clause III(3) so that there is a reasonable and transparent criteria adopted for transfer and posting of last grade servants to their respective choice home district and home stations concerned and that even there are claimants who cannot be accommodated in their preferred home district or home stations, such claims could easily be considered by adopting the Government norms, whereby ordinarily, persons with the maximum “outside service” could be considered for transfer and posting in preference to those who have longer home station posting. Moreover, it is pointed out by the petitioners that large number of vacancies are available for accommodating the claims of the last grade servants and in spite of availability of such vacancies, employees like the petitioners who are the last grade servants, have been transferred to very long distance by invoking the power to effect general transfer of last grade servants, etc. These are aspects, which should bestow the anxious consideration of the respondent company and respondent State Government. The petitioners in this

¶103

W.P.(C).27123/16 etc - : 25 :-

¶104

regard would also point out that Clause III(9) of the transfer norms, which envisages that though those transfer norms are applicable in the case of last grade employees also, as far as possible, they should be posted in the offices situated in their home districts, subject to availability to vacancies, etc. It is pointed out that the administrative department concerned in the Government as far as the respondent company is concerned, is the Government in the Taxes Department. The respondent company will ascertain the views of the respondent State Government and point out the peculiarities in the functioning and employment structure of the respondent KSFE and the present manner and method of effecting general transfer of last grade employees in the respondent company and may thus ascertain the views of the State Government as to the desirability or otherwise of appropriately applying the norms in Government service as far as transfer and posting of last grade servants are concerned. The consultation process in this regard as between the respondent company and the State Government should be completed within a period of 2 months from the date of production of a certified copy of this judgment and thereafter the respondent company will take into account such views of the State

¶105

W.P.(C).27123/16 etc - : 26 :-

¶106

Government and take an appropriate decision in the matter within a period of 6 weeks thereafter, preferably well before the next general transfers are taken up for consideration. It is made clear that the abovesaid observations and orders made by this Court are only to the extent of calling upon the respondent State Government and the respondent KSFE in having a serious look at the matter and to take a decision in the matter, taking into account considered views of the State Government.

¶107

Further it is also ordered that the pending representations of the petitioners regarding the requests that they should be retained in the present stations or be accommodated in nearby available vacancies, etc. should be taken up for consideration of the 1^st respondent KSFE without any further delay. The petitioners will also be at liberty to submit necessary fresh representations or supplemental representations within a period of 2 weeks from the date of issuance of the certified copy of this judgment. The competent authority of the respondent KSFE will grant reasonable opportunity of being heard to the petitioners, either in person or through their authorised representative, if any. The individual pleas of all the petitioners regarding various aspects

¶108

W.P.(C).27123/16 etc - : 27 :-

¶109

of the matters will be taken into consideration. It should also be ascertained as to whether the vacancies pointed out by the petitioners are available. The specific case put forward by the petitioner in W.P.(C).No. 29982/ 2016 that he has already undergone an angioplasty, as evident from Ext.P-2 and various other ailments suffered by him should be specifically adverted to. It will be open to the petitioner to submit any other medical

¶110

certificates to also evidence that he has actually undergone angioplasty, etc. These crucial matters should also be sympathetically borne in mind by the competent authority while taking the decision in the matter. If actually vacancies are indeed available as pointed out and asserted by the petitioners, then the competent authority of the respondent KSFE shall consider the request of the petitioners sympathetically so that their grievances are redressed in a fair, reasonable, and just manner, so as not to drive these incumbents from further litigations.

¶111

With these observations and directions, the Writ Petitions (Civil) stand finally disposed of.

¶112

sdk+

¶113

Sd/ALEXANDER THOMAS, JUDGE

¶114

///True Copy///

¶115

P.S. to Judge

¶116

W.P.(C).27123/16 etc - : 28 :-

Manikandan v. Vs the Kerala State Financial Enterpirses Ltd.

Case brief

What is this about?

What did the court decide?

Manikandan v. Vs the Kerala State Financial Enterpirses Ltd.

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

Auto Gas Energy India Limited Vs Union of India

Dincy Davis Vs the State of Kerala

M.R.Sasidharan Vs State of Kerala

Thayath Parakke Mariyam Vs the District Collector, Kannur

Jessy v. Cherian Vs P.Ushadevi

T.Rakhesh Vs C.P.Ramaraja Prema Prasad