Allowed

S.Chandrasekharan Potty v. the Travancore Devaswom Board

Kerala HC5 Jul 2017WA/1220/2017

Case brief

AI extract

What is this about?

The High Court set aside the Board's orders denying an employee's transfer by mistake. The court reinstated the original transfer order favoring the appellant, holding that service seniority (not station seniority) was the relevant criterion since the appellant had completed three years at his station.

What did the court decide?

The impugned orders setting aside the transfer are set aside; the original transfer order dated 6.8.2015 is reinstated with immediate effect.

S.Chandrasekharan Potty Vs the Travancore Devaswom Board — Service and Employment | Kerala HC (2017)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT:

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THE HONOURABLE THE CHIEF JUSTICE MR.NAVANITI PRASAD SINGH &

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THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V

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WEDNESDAY, THE 5TH DAY OF JULY 2017/14TH ASHADHA, 1939

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WA.No. 1220 of 2017 () IN WP(C).23428/2016

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-------------------------------------------AGAINST THE JUDGMENT IN WP(C) 23428/2016 of HIGH COURT OF KERALA DATED 08-03-2017

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APPELLANT/PETITIONER:

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S.CHANDRASEKHARAN POTTY, AGED 54 YEARS, S/O. N.SEETHARAMAN POTTY, WORKING AS "MELSANTHI", ERUTHAVOOR DEVASWOM, NEYYATTINKARA GROUP, TRAVANCORE DEVASWOM BOARD, RESIDING AT 'RAM NIVAS', VENGANOOR THERUVU, PALLICHAL P.O., THIRUVANANTHAPURAM-695 020.

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BY ADVS.SRI.V.AJAKUMAR SRI.T.M.CHANDRAN

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RESPONDENTS/RESPONDENTS:

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1. THE TRAVANCORE DEVASWOM BOARD REPRESENTED BY THE SECRETARY TO THE DEVASWOM BOARD, DEVASWOM BOARD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM.

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2. THE SECRETARY TRAVANCORE DEVASWOM BOARD, DEVASWOM BOARD OFFICE, NANTHANCODE, THIRUVANANTHAPURAM-695 023.

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3. THE DEVASWOM COMMISSIONER DEVASWOM COMMISSIONER OFFICE, TRAVANCORE DEVASWOM BOARD OFFICE, NANTHANCODE,

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THIRUVANANTHAPURAM-695 023.

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4. THE ASSISTANT DEVASWOM COMMISSIONER THE ASSISTANT DEVASWOM COMMISSIONER'S OFFICE, TRAVANCORE DEVASWOM, NEYYATTINKARA-695 121, THIRUVANANTHAPURAM DISTRICT.

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5. V.PADMAKUMAR

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'MELSANTHI', NEYYATTINKARA SREEKRISHNASWAMY TEMPLE, NEYYATTINKARA DEVASWOM, NEYYATTINKARA-695 121, THIRUVANANTHAPURAM DISTRICT.

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R1 TO R4 BY SRI.T.K.AJITH KUMAR, SC R5 BY SRI.PHILIP T.VARGHESE

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 05-072017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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VPS

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NAVANITI PRASAD SINGH, C.J. & RAJA VIJAYARAGHAVAN V., J.

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W.A. No.1220 OF 2017

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--------------------------------------------------Dated this the 5^th day of July, 2017

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JUDGMENTxxx

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Navaniti Prasad Singh, C.J.

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The appellant is aggrieved by the judgment and order dated 8.3.2017 of the learned single Judge in W.P.(C) No.23428 of 2016.

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We have heard the learned counsel for the appellant, who was the unsuccessful writ petitioner, the learned standing counsel for the Travancore Devaswom Board and the learned counsel appearing for the 5^th respondent Sri.V.Padmakumar and with their consent, we are disposing of this matter at this stage itself.

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The facts are not in dispute. The appellant/writ petitioner joined the service of the Travancore Devaswom Board (hereinafter referred to as 'the Board' for brevity) on 24.2.1979, whereas the 5^th respondent joined the service of the Board on 22.8.1991. Thus, the appellant/writ petitioner is higher in service seniority to that of the 5^th respondent, which is not in dispute. The 5^th respondent

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W.A.1220/2017 2

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joined Parasala Devaswom on 26.6.2011 whereas the appellant/writ petitioner joined the Thrikulangara Devaswom, Neyyattinkara Group on 18.6.2012. These dates are not in dispute. The matter relates to an intra-group transfer on the request of a person. There are no statutory rules or circulars issued by the Board in respect of transfers, the relevant are Exts.P1, P2 and P3 transfer rules which are produced in the writ

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petition. The relevant would be Clause 4 of Ext.P2.

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“4) The existing rule that the general transfer of employees who have not completed three years of service, except as part of disciplinary action/request of the employee, shall not be effected should be strictly complied with. While reckoning the station seniority, service of more than three years in the same Devaswom shall be considered as three years and transfer shall be effected.”

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While the matter of general transfer of Devaswom employees was

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being considered by the Board, the appellant/writ petitioner sought transfer on completion of 3 years of service to Neyyattinkara. The 5^th respondent also sought for transfer. The Board considered the matter and by Ext.P4 order dated 3.8.2015, issued the transfer order rejecting the request of the 5^th respondent and allowing the request of the appellant/writ petitioner, treating him as senior in service, which pre-supposes that the Board considered that both the appellant/writ petitioner and the 5^th respondent had served at

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W.A.1220/2017 3

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their respective stations for 3 or more years. Consequently, Ext.P5 order dated 6.8.2015 was issued. The appellant/writ petitioner was transferred to Neyyattinkara whereas the 5^th respondent was transferred to Alatharakkal.

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It appears that the 5^th respondent being aggrieved by rejection of his claim to be transferred to Neyyattinkara, submitted a review petition to the Board. The Board took into consideration the review petition of the 5^th respondent and passed Ext.P7 order dated 7.9.2015 holding that considering the station seniority criteria, the 5^th respondent be transferred to Neyyattinkara. The appellant is aggrieved by Ext.P7 order upholding the contention of the 5^th respondent.

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As the appellant/writ petitioner was not heard, he filed W.P.(C) 9822 of 2016, which was allowed by order dated 15.3.2016 directing the Board to reconsider the matter after hearing the appellant/writ petitioner. After hearing the parties again the order as contained in Ext.P7 is reaffirmed by Ext.P11 order.

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In Ext.P11 order of the Board produced in the writ petition it is stated that the station seniority of the appellant/writ petitioner is 2

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W.A.1220/2017 4

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years and 11 months. We may note that this is the solitary consideration for denying the transfer to the appellant/writ petitioner. Originally he was considered as having served in the group for more than 3 years. Hence, considering the service seniority he was transferred.

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We may add that in the statement filed by the Board, which is on record, the Board had taken the stand that as per clause 10 of Ext.P1 it is clearly stated that the station seniority is to be calculated till the time of making application for transfer. We have

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seen the English translation of clause 10 of Ext.P1 in the writ petition, which is quoted herein:

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“10) (A) In case of more than one application for inter-group transfer, the transfer shall be made on the basis of their continuous service in the group.

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(B) In case of more than one application for transfer to one Devaswom, priority may be given to those who have not worked in the said Devaswom.”

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By no stretch of imagination we can infer that this is what has been stated in the statement. Learned standing counsel appearing for the Board as well as the learned counsel for the 5^th respondent then drew our attention to clause 7 of Ext.P3 in the writ petition to justify that statement. We hereunder quote clause 7 of Ext.P3.

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W.A.1220/2017

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“7) Action should be taken to implement the transfers on 1/6/2015. Transfers within groups shall be effected by the Assistant Devaswom Commissioner and inter-group transfers shall be effected by the Devaswom Commissioner.”

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10.This again does not refer to what has been stated in the statement. The learned counsel for the appellant/writ petitioner draws attention of this Court to the fact that the appellant/writ petitioner had joined the station on 18.6.2012. He was transferred on 3.8.2015. Thus, he had spent more than 3 years at that station. If that be so, then in terms of clause 4 quoted above, it would be service seniority which would be important. That, in fact, is the manner in which the Board rightly understood the matter when it issued Ext.P4 transfer order initially.

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11.Having considered the matter, we are of the view that the submissions made on behalf of the appellant/writ petitioner are correct. From the dates and the manner in which the pleadings have been made, as indicated above, it is clear that the Board had no doubt of what they did by Ext.P4. It is only on subsequent persuasion that they were made to change their decision and sought to justify the same with reference to various clauses of the circulars, none of which are relevant.

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W.A.1220/2017

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12.Thus, we have no option but to hold that the order rescinding the transfer of the appellant/writ petitioner by Ext.P7, as affirmed by Ext.P11, cannot be sustained. They are accordingly set aside. The transfer order as contained in Exts.P4 and Ext.P5 in the writ petition are reinstated with immediate effect. The Board would be well advised to give effect to the said order and our order immediately, especially, in view of the fact that the appellant/writ petitioner is to superannuate on 31.7.2017.

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The appeal is accordingly allowed. The judgment of the learned single Judge is accordingly set aside.

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NAVANITI PRASAD SINGH, CHIEF JUSTICE

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RAJA VIJAYARAGHAVAN V., JUDGE

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vps

S.Chandrasekharan Potty v. the Travancore Devaswom Board

Case brief

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What did the court decide?

S.Chandrasekharan Potty v. the Travancore Devaswom Board

Case brief

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