Allowed

Principal Secretary to Government, v. Xavier K.K.

Kerala HC15 Oct 2020OP(KAT)/296/2020

Case brief

AI extract

What is this about?

This Original Petition contested the Kerala Administrative Tribunal's order quashing a government officer's transfer to New Delhi for want of following transfer guidelines. The High Court allowed the petition, holding that transfer guidelines are directory, not mandatory, and the Government is free to utilise officer services in exigencies absent malafides.

What did the court decide?

The order dated 24.8.2020 in O.A.No.1036/2020 of the Kerala Administrative Tribunal was set aside. The respondent was granted three weeks to join duty in New Delhi.

Principal Secretary to Government, Vs Xavier K.K. — Service and Employment | Kerala HC (2020)

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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 A.M.SHAFFIQUE

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THE HONOURABLE MR. JUSTICE GOPINATH P.

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THURSDAY, THE 15TH DAY OF OCTOBER 2020 / 23RD ASWINA, 1942

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OP(KAT).No.296 OF 2020

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AGAINST THE ORDER/JUDGMENT IN OA 1036/2020 DATED 24-08-2020 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM

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PETITIONER/S:

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1 PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN695 001.

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2 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT. LAW DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN- 695 001.

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SRI.ANTONY MUKKATH- SR. GOVERNMENT PLEADER

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RESPONDENTS:

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XAVIER K.K.,AGED 52 YEARS S/O.KURIAPPAN, UNDER SECRETARY, LAW DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PRENTLY WORKING ON OTHER DUTY AS LAW OFFICER, URBAN AFFAIRS DEPARTMENT, SWARAJ BUILDING, NANTHANCODE, THIRUVANANTHAPURAM, PIN-695 003, RESIDING OF VAZHAPPILLY HOUSE, SANTHI LANE, PIPELINE ROAD, ALUVA, ERNAKULAM683 106. R1 BY ADV. SRI.C.S.AJITH PRAKASH R1 BY ADV. SRI.T.K.DEVARAJAN R1 BY ADV. SMT.T.N.SREEKALA R1 BY ADV. SHRI.BABU M. R1 BY ADV. SMT.ANCY THANKACHAN R1 BY ADV. SHRI.NIDHIN RAJ VETTIKKADAN R1 BY ADV. SRI.HAARIS MOOSA

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OTHER PRESENT:

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 09-10-2020, THE COURT ON 15-10-2020 DELIVERED THE FOLLOWING:

O.P.(KAT)No.296/2020

JUDGMENT

Dated this the 15^th day of October 2020

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Gopinath, J.

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The State of Kerala and its officers have filed this Original Petition (KAT) challenging the order of the Kerala Administrative Tribunal in O.A.No.1036/2020. Through that order, the Tribunal had quashed an order by which the 1st respondent/applicant before the Tribunal had been transferred, to the Law Wing, Office of the Resident Commissioner, Government of Kerala, New Delhi.

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The Tribunal proceeded on the basis that the procedure prescribed by G.O (Ms) No. 65/2002/GAD dated 26-03-2002 (referred to as Annexure A-8 in the order of the Tribunal - Annexure A-3 in O.A 1036/2020) had not been followed. It also held that the General Transfer Guidelines set out in G.O (P) No. 3/2017/GAD dated 25-022017 (referred to as Annexure A-9 in the order of the Tribunal - Annexure A-4 in O.A 1036/2020) were not followed. The Tribunal held that there were no justifiable reasons for the transfer. It also held that the request of the 1st respondent for deputation to the Kerala Head Load Workers Welfare Board was rejected without reason and that the

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O.P.(KAT)No.296/2020

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1st respondent was transferred only to accommodate the present 2nd respondent who was the 4th respondent before the Tribunal. The Tribunal went on to hold that the order transferring the 1st respondent to New Delhi was not a mere departure from the Transfer Guidelines but in complete disregard and violation of it.

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We have heard Sri. Antony Mukkath, the Learned Senior Government Pleader for the petitioners and Sri. Ajith Prakash, the Learned Counsel appearing for the 1st respondent. The Government Pleader would submit that the Tribunal went wrong in law in relying on G.O (Ms) No. 65/2002/GAD dated 26-03-2002 as those instructions are not applicable in the case on hand. He contends that the Transfer Guidelines are not enforceable and that the Tribunal went wrong in interfering with an order of transfer for the reasons that it did. On the other hand, the Learned counsel for the 1st respondent vehemently contends that the Tribunal had concluded rightly and that we must not interfere with the order of the Tribunal in exercise of our jurisdiction under Article 227 of the Constitution of India. He would also place reliance on the documents produced in this Court along with I.A 1/2020 in the above O.P (KAT) to contend that the request of the Urban affairs department to retain the 1st respondent had been ignored and that his request for deputation had been unjustly denied as is evident from Annexure A-3 produced along with I.A 1/2020.

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We have considered the submissions of both sides. While

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O.P.(KAT)No.296/2020

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deciding O.P (KAT) 295/2020 arising from O.A 1035/2020 (which was decided along with O.A 1036/2020 out of which this O.P (KAT) arises) we have held as follows:-

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“Having considered the contentions raised by both side and having perused the order of the Tribunal, we are of the opinion that the Tribunal has misdirected itself in law by interfering with the order of transfer on the ground that it is in violation of guidelines and further that it is in violation of the stipulation in clause 6(2) of Annexure-A8 that officers to be posted to man various posts under the Resident Commissioner would be transferred only after obtaining willingness as provided in Annexure-A8. Firstly, as held by the Division Bench of this Court in O.P.(KAT)No.411/2019, an officer cannot have any choice in the matter of his posting on promotion. The Government is free to utilise services of its officers wherever it is required in the exigencies of service. In this case, it is specifically pointed out that litigations in which State of Kerala or its officers are parties being conducted in various Courts and Tribunals in New Delhi including Supreme Court of India are coordinated by the Law Wing working out of the office of the Resident Commissioner at New Delhi. It is also stated before us that the applicant is a very competent officer and services of such a person are required to man such a sensitive post. That being the situation, we cannot hold that the guidelines had been violated in any manner in transferring the applicant to New Delhi, on promotion. Even if it were in violation of the guidelines, we cannot, in the absence of any malafides being substantiated, interfere with the order of transfer on a ground that it is against the transfer guidelines. Then the only question is whether clause 6(2) of Annexure-A8 requires that consent of the officer must be obtained before he is transferred and posted in New Delhi. We find force in the submission of the learned

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O.P.(KAT)No.296/2020

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Senior Government Pleader that a reading of Annexure-A8 only shows that in respect of all officers to be posted to the office of the Resident Commissioner, a panel of willing candidates, will be prepared and the transfer will normally be effected from that list. Though the learned counsel for the applicant would vehemently contend that Annexure-A8 applies to the Law Wing, we are unable to accept this contention in view of the fact that the Law Wing is treated as separate and distinct from the office and establishment of the Resident Commissioner and is directly administered by the Law Secretary. That apart, even if we were to hold that Annexure-A8 applies to the Law Wing, and even if we were to hold that the stipulation therein has been violated, we feel that in cases of transfer such instructions/guidelines can only be treated as directory and not mandatory in any sense of the term. Even in the face of such stipulations as in Annexure-A8, the Government may, for good and sufficient reason and in the public interest, transfer an officer even without obtaining his willingness. The powers of Courts and Tribunals adjudicating upon the correctness or otherwise of orders of transfer made by a competent authority fall in a very narrow compass and clearly, orders of transfer will be interfered with only if there are malafides or other legal infirmities of a serious nature which would warrant the interference with such an order.”

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The contentions raised in this O.P (KAT) are in essence identical to those raised in OP (KAT) 295/2020. Practically the only factual difference is the fact that the respondent in OP (KAT) 295/2020 was transferred, on promotion while that is not the situation in this case. The additional contentions raised in this O.P (KAT) are regarding the denial of the request for deputation and the allegation that the 1st respondent was transferred to

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O.P.(KAT)No.296/2020

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accommodate the 2nd respondent. The denial of the request for deputation is not a matter which is directly connected with the present transfer order. Deputation can be granted or requested for only if the lending authority and the authority to whom services are being lent agree for the same. The 1st respondent has no legal right to demand that he must be granted deputation. The allegation that the 1st respondent was transferred only to accommodate the 2nd respondent also does not appeal to us for we have no material to hold that the decision to transfer the 1st respondent was a product of malice. Nothing turns on the request made by the Urban Affairs Department to retain the 1st respondent. As we have held in O.P (KAT) 295/2020 the Government is free to utilise services of its officers wherever it is required in the exigencies of service.

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For the reasons indicated hereinabove and for the reasons set out in our Judgment in O.P (KAT) 295/2020, this Original Petition (KAT) will stand allowed by setting aside the order dated 24.8.2020 in O.A.No.1036/2020 on the file of the Kerala Administrative Tribunal. However, in the facts and circumstances of this case, we grant to the 1st respondent/applicant before the Tribunal a period of three weeks from today to report for duty at New Delhi. We direct that if, the respondent/applicant before the Tribunal joins duty at New Delhi within the aforesaid period of three weeks, his entire service up to the date of joining duty shall be treated as regular for all purposes. We also make it

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O.P.(KAT)No.296/2020

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clear that this judgment will not stand in the way of the 1st respondent from pursuing his request for deputation, in accordance with law or in filing a representation seeking a re-consideration of the orders of transfer. However, it is made clear that the filing of any request/representaion will be no ground for the 1^st respondent to seek for continuation in the present post till such request/representation is considered by the competent authority.

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Sd/-

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A.M. SHAFFIQUE JUDGE

Sd/-

GOPINATH P.

JUDGE

acd

O.P.(KAT)No.296/2020

APPENDIX

PETITIONER'S/S EXHIBITS:

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EXHIBIT P1	TRUE COPY OF O.A NO. 1036/2020 ALONG WITH ANNEXURES
ANNEXURE A1	TRUE COPY OF THE G.O(RT) NO. 7168/2019/GAD DATED 18-12-2019.
ANNEXURE A2	TRUE COPY OF THE G.O(RT) NO. 2143/2020/GAD DATED 29-06-2020
ANNEXURE A3	TRUE COPY OF THE G.O(MS) NO. 65/2002/GAD DATED 26-03-2002 ALONG WITH TYPED COPY
ANNEXURE A4	TRUE COPY OF THE G.O(P) NO. 3/2017/GAD DATED 25-02-2017
ANNEXURE A5	TRUE COPY OF REPRESENTATION DATED 17-06-2020 SUBMITTED BY THE FIRST RESPONDENT BEFORE THE FIRST PETITIONER
ANNEXURE A6	TRUE COPY OF THE INTERIM ORDER DATED 23-06-2020 IN O.A NO. 907/2020 OF THE KERALA ADMINISTRATIVE TRIBUNALQ
ANNEXURE A7	TRUE COPY OF THE LETTER NO. 1526/ADMIN 1(1) 2020/LAW DATED 26-06-2020OF THE SECOND PETITIONER.
EXHIBIT P2	TRUE COPY OF THE MISCELLANEOUS APPLICATION NO. 977/2020 FOR VACATING THE INTERIM ORDER DATED 01-07-2020
EXHIBIT P3	TRUE COPY OF THE REPLY STATEMENT FILED BY THE SECOND PETITIONER ALONG WITH ANNEXURES.
ANNEXURE R2 (A)	TRUE COPY OF THE G.O(MS) NO 6/96/GAD DATED 06- 01-1996
ANNEXURE R2(B)	TRUE COPY OF THE G.O(RT) NO. 27/2017/WRD DATED 15-05-2017
ANNEXURE R2(C)	TRUE COPY OF THE G.O(RT) NO. 2674/2017/GAD DATED 28-04-2017
EXHIBIT P4	TRUE COPY OF THE MISCELLANEOUS APPLICATION NO. 975/2020 FOR VACATING THE INTERIM ORDER DATED 01-07-2020
EXHIBIT P5	TRUE COPY OF THE REPLY STATEMENT FILED BY THE FOURTH RESPONDENT ALONG WITH ANNEXURES.
ANNEXURE R4(A)	TRUE COPY OF THE RELIEVING ORDER NO.

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O.P.(KAT)No.296/2020

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	01/2020/DLSA DATED 30-06-2020 OF THE CHAIRMAN, DISTRICT LEGAL SERVICES AUTHORITY, PATHANAMTHITTA.
ANNEXURE R4(B)	TRUE COPY OF THE REPORT OF TRANSFER OF CHARGES
ANNEXURE R4(C)	TRUE COPY OF THE REQUEST SUBMITTED BY THE APPLICANT ON 01-07-2020 BEFORE THE 3RD PETITIONER.
ANNEXURE R4(D)	TRUE COPY OF THE REQUEST SUBMITTED BY THE FIRST RESPONDENT BEFORE THE SECOND PETITIONER.
EXHIBIT P6	TRUE COPY OF THE REJOINDER FILED BY THE PETITIONER ON 03-08-2020
ANNEXURE A8	TRUE COPY OF THE CIRCULAR NO. 5/POL4/2017/GAD DATED 17-03-2017 OF THE GOVERNMENT OF KERALA ALONG WITH TYPED COPY
EXHIBIT P7	TRUE COPY OF THE ADDITIONAL REPLY STATEMENT FILED BY THE SECOND ON ALONG WITH ANNEXURE
ANNEXURE R2(D)	TRUE COPY OF THE LETTER NO. 2470/RCR/RC2/2017 DATED 24-07-2020
EXHIBIT P8	TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST PETITIONER BEFORE THE TRIBUNAL ALONG WITH ANNEXURES
ANNEXURE R1(A)	TRUE COPY OF THE G.O(MS) NO. 406/91/GAD DATED 04-12-1991
ANNEXURE R1(B)	TRUE COPY OF THE G.O(MS)( NO. 417/91/GAD DATED 16-12-1991
EXHIBIT P9	TRUE COPY OF THE SECOND REJOINDER FILED BY THE PETITIONER ON 17-08-2020
EXHIBIT P10	TRUE COPY OF THE FINAL ORDER OF THE TRIBUNAL DATED 24-08-2020 IN O.A 1036/2020
ANNEXURE A1	A TRUE COPY OF THE LETTER NO. CA 22/20 ISSUED BY OFFICE OF THE DIRECTOR OF URBAN AFFAIRS DATED 18/09/2020.
ANNEXURE A2	A TRUE COPY OF THE PROCEEDINGS OF THE URBAN AFFAIRS DIRECTOR DATED 25/09/2020.
ANNEXURE A3	A TRUE COPY OF THE PROCEEDINGS IN THE NOTE FILE NO.1526/ADMN. 1(1)/2020/LAW DEALING WITH THE DEPUTATION OF THE PETITIONER FROM LAW DEPARTMENT.

Principal Secretary to Government, v. Xavier K.K.

Case brief

What is this about?

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Principal Secretary to Government, v. Xavier K.K.

Case brief

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