Disposed

M.E. Ouseph v. Kerala Water Authority

Kerala HC11 Oct 2021WA/1299/2021

Case brief

AI extract

What is this about?

The High Court, in appeal, modified a single judge's dismissal of a writ petition. It directed the competent authority to re-examine the transfer order regarding difficult postings and retirement vacancies, ensuring the appellant is accommodated in Ernakulam District without affecting other incumbents.

What did the court decide?

The appellant must join the new station. The respondents must re-examine the transfer, considering the appellant's claims about difficult postings and other incumbents' lengths of service, and ensure

M.E. Ouseph Vs Kerala Water Authority — Service and Employment | Kerala HC (2021)

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W.A. No.1299 of 2021 1

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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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THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

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MONDAY, THE 11^TH DAY OF OCTOBER 2021 / 19TH ASWINA, 1943

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WA NO. 1299 OF 2021

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AGAINST THE JUDGMENT DATED 5.10.2021 IN WP(C) 18238/2021 OF

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LEARNED SINGLE JUDGE

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APPELLANT/PETITIONER:

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OUSEPH M.E., AGED 54 YEARS, S/O.M.P.ESTHAPAN, MOOTHEDAN HOUSE, KOOVAPADY P.O., PERUMBAVOOR, ERNAKULAM DISTRICT -683 544, ASST.EXECUTIVE ENGINEER,PUBLIC HEALTH SUB DIVISION, KERALA WATER AUTHORITY, PERUMBAVOOR, MERNAKULAM DISTRICT-683 543 (UNDER ORDERS OF TRANSFER)

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BY ADVS. GEORGE MATHEW M.D.SASIKUMARAN SUNIL KUMAR A.G GEORGE K.V. STEPHY K REGI MATHEW K.T. DIPU JAMES PRAVEEN S.

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RESPONDENTS/RESPONDENTS:

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1 KERALA WATER AUTHORITY, REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695 033.

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W.A. No.1299 of 2021 2

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2 THE CHIEF ENGINEER, HRD & GENERAL,KERALA WATER AUTHORITY, JALA BHAVAN,VELLAYAMBALAM,THIRUVANANTHAPURAM-695 033.

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3 THE EXECUTIVE ENGINEER, P.H.DIVISION,KERALA WATER AUTHORITY, ALUVA-680 020. 4 MOLLY VARGHESE, AGED 55 YEARS,W//O.KUNJAPPAN,NEETINKARA,VELOOR, KARIMUGAL P.O.-682 303,ERNAKULAM,WORKING AS ASST.EXECUTIVE ENGINEER, OFFICE OF CHIEF ENGINEER (NR) MALAPARAMPA,KOZHIKODE DISTRICT-673 009. (UNDER ORDER OF TRANSFER).

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BY ADV SHRI.P.BENJAMIN PAUL, SC, KERALA WATER AUTHORITY

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THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 11.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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W.A. No.1299 of 2021 3

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ALEXANDER THOMAS & VIJU ABRAHAM, JJ.

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

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W.A. No.1299 of 2021

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[Arising out of the impugned judgment dated 5.10.2021 in W.P.(C) No.18238 of 2021 of learned Single Judge]

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========================================= Dated this the 11^th day of October, 2021

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JUDGMENT

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Alexander Thomas, J.

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Being aggrieved by the impugned Ext.P2 order dated 6.9.2021 issued by the 2^nd respondent Chief Engineer, HRD & General, Kerala Water Authority to the extent it has ordered transfer of the appellant as serial No.5 thereof, from the present station at Public Health Sub division, Perumbavoor, Ernakulam District to the Project Division at Kannur in the existing vacancy and the consequential transfer of posting given in favour of the respondent No.4 (Smt.Moly Varghese) as serial No.4 of Ext.P2, where she has been transferred from the present station at Kozhikode to the post and station till now held by the appellant at Perumbavoor as above. The appellant/petitioner had approached this Court by filing the afore captioned W.P.(C) No.18238 of 2021, with the following prayers [see page No.30 of the paper book of the W.P.(C)]:

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“(i) Call for the records which lead to the issuance of Ext.P2 to the extent it affects petitioner and to issue a writ in the nature of certiorari or any other appropriate writ, order or direction, quashing the same to the extent it transfers petitioner;

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(ii) to issue a writ in the nature of mandamous or any other appropriate writ, order or directing the respondents 1 to 3 to pass orders permitting petitioner to continue as Assistant Executive Engineer in P.H.Sub Division, Kerala Water Authority, Perumbavoor;

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(iii) to grant such other reliefs and costs as this Hon'ble Court may deem fit and proper to grant in the nature and in the facts and circumstances of the case.

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The learned single judge after hearing both sides has dismissed the above W.P.(C) as per the impugned judgment rendered on 5.10.2021, holding that there are no extra ordinary grounds to interfere with the said transfer issued against the petitioner in Ext.P2, inasmuch as the petitioner has already completed more than 2 1/2 years at Ernakulam and considering a lady who has been promoted to the present post of Asst. Executive Engineer and who is to retire from service shortly on 31.3.2022 etc.

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Being aggrieved by the said impugned judgment rendered by the

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learned single judge dismissing the writ petition, the appellant has filed intra court appeal under Section 5 (i) of the Kerala High Court Act.

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Heard Sri.George Mathew, learned counsel appearing for the

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W.A. No.1299 of 2021 5

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petitioner, appellant in W.A and petitioner in W.P.(C), Sri.P.Benjamin Paul, the learned Standing Counsel appearing for the Kerala Water Authority, appearing for the respondents in W.A/respondents in W.P.(C).

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When the above appeal had come up for consideration on 7.10.2021, this court ordered that Sri.P.Benjamin Paul, the learned Standing Counsel for Kerala Water Authority will get specific instruction from R2 as to the correctness of the factual submission made by the appellant in ground No.C of the memorandum of writ appeal that the nine incumbents mentioned therein have completed more than four to five years in Ernakulam District and still they are allowed to continue in Ernakulam and that any one of them ought to have been transferred in the place of the appellant to Kannur, if the plea of R4 were to be accommodated etc. and also as to whether the appellant could be accommodated in a retirement vacancy more particularly, the retirement vacancy that is likely to arise on 31.3.2022 due to the retirement of R4 herein on that date.

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Today when the matter has taken up for consideration, Sri.P.Benjamin Paul, the learned Standing Counsel for the Kerala Water Authority appearing for the respondents in the Writ Appeal would submit

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on the basis of instructions of the 2nd respondent that, the incumbents in serial numbers 1 to 4 mentioned in ground No.C of the appeal memorandum have been posted in the present stations in Ernakulam only in October 2020 onwards and that serial Nos.5, 6 and 7 and 8 thereof have been posted in the present station in Ernakulam District only from July 2019 onwards and further serial No.9 thereof on Smt. V.Preethy has been posted in the present Station at Ernakulam District from 2016 onwards and that she has been allowed to continue there only since she is a lady employee who is to retire from service on 31.3.2022.

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Per contra, Sri.George Mathew, learned counsel appearing for the appellant/petitioner would submit that the above said factual instructions conveyed by the official respondents does not accurately reflect the full and correct factual picture and that, it is reliably learnt that most of the eight incumbents from serial Nos.1 to 8 were transferred from stations in Ernakulam District to other stations in Ernakulam District, and it is so happens that the aforesaid posting dates mentioned above only reflects the last posting made to the current station in Ernakulam District and as a matter of fact, many of the incumbents have completed about 3 to 5 years in

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W.A. No.1299 of 2021 7

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Ernakulam District itself. After hearing both sides, we are of the view that we need not adjudicate the correctness or otherwise of these submissions. The main ground for the impugned transfer at Ext.P2 is that the 4th respondent is a lady employee who has been promoted recently to the post of Asst. Executive Engineer and she is to retire from service on 31.3.2022 and it is on this ground that she has been posted at Perumbavoor and the appellant has been transferred from there to Kannur etc.

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Sri. George Mathew, learned counsel appearing for the appellant would strongly urge that the appellant has been posted in remote and difficult stations like Idukki District for quite a long time and whereas most of the other incumbents mentioned in Ground B, have all enjoyed convenient postings and that this Court may interfere in the matter.

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After hearing both sides, we are not inclined to hold that the view taken by the learned Single Judge that the impugned judgment rendered on 5.10.2021 dismissing the above W.P.(C), is grossly illegal or perverse. After all, the impugned order is a transfer proceedings and it is

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trite that matters in relation to transfer in service jurisprudence is essentially a matter which lie within the province of incidents of service and

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unless the transfer norms are covered by statutory rules or such statutory norms, the aggrieved person may not have legally justiciable ground to establish that he has a statutory right which is to be enforced through public law remedy etc. Of course, if the transfer proceedings is vitiated by a gross unfairness and unreasonableness or on account of strong and persistent violation of the transfer guidelines followed by the authority concerned, if not as if the power of judicial review cannot be invoked etc. However, in the facts of this case, we feel that the view taken by the learned Single Judge is a reasonably possible view and therefore, the same may not be amenable for interdiction at the hands of this appellate court, in view of the well known principles limiting discretion for appellate interference in such matters.

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However, that does not mean that it is the end of the road for the appellant. The matter would lie within the province of the competent authority like the 2nd respondent who will have to seriously bestow their attention, as to whether the transfer norms have been seriously violated and the claims of the petitioner that he has been posted in difficult stations and that the other incumbents have been continuing to enjoy convenient postings etc., should be seriously re-looked by the 2nd respondent. For that

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purpose the appellant may file a detailed representation in the matter, for ventilating his grievances and pinpointing the factual aspects including those based on ground B of the Writ Appeal or any other valid grounds, within ten days along with a certified copy of this judgment, and on receipt of such representation, the 2nd respondent will immediately examine the correctness of those aspects, and may afford a reasonable opportunity of being heard to the appellant either in person or through his authorised representatives/authorised counsel of his choice and may ascertain as to whether the other incumbents concerned have been allowed to continue in Ernakulam District for more than 3 to 5 years etc., and may consider seriously as to whether petitioner could be accommodated in one such station in Ernakulam District. However, if for any valid reason it is found not to be feasible then certainly the 2nd respondent will bestow his anxious consideration and may ensure that the appellant may be posted to Ernakulam District either in the vacancy that may be caused on account of the retirement of the 4th respondent or that of Serial No.9 mentioned in Ground No.C, viz., Smt.V.Preethi or any other incumbent concerned on 31.3.2022, so that, none of the incumbents may be affected by any such

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transfer and posting that may be given to accommodate the claims of the writ appellant. We make it clear that the appellant and the 4th respondent will have to join their respective stations, in pursuance to the impugned transfer order as per Ext.P2 proceedings etc. The directions and orders of the learned Single Judge as per the impugned judgment in the above W.P. (C), will stand modified and substituted as above.

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With these observations and directions, the above Writ Appeal, will stand finally disposed of.

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sd/-

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ALEXANDER THOMAS, JUDGE

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sd/- VIJU ABRAHAM, JUDGE

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M.E. Ouseph v. Kerala Water Authority

Case brief

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M.E. Ouseph v. Kerala Water Authority

Case brief

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