Dismissed

Ouseph M.E v. Kerala Water Authority

Kerala HC5 Oct 2021WP(C)/18238/2021

Case brief

AI extract

What is this about?

The Kerala High Court dismissed a writ petition challenging a transfer order. The court held that there was no merit to interfere as no rule violation or malafide was established, relying on Supreme Court precedents that transfers are service incidents not subject to judicial review absent quota violation.

What did the court decide?

The writ petition was dismissed. The Water Authority was directed to regularize the respondent's absence in the stay period.

Ouseph M.E Vs Kerala Water Authority — Pension and Retirement Benefits | Kerala HC (2021)

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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 SUNIL THOMAS

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TUESDAY, THE 5^TH DAY OF OCTOBER 2021 / 13TH ASWINA, 1943

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WP(C) NO. 18238 OF 2021

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PETITIONER:

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OUSEPH M.E AGED 54 YEARS S/O.M.P.ESTHAPAN, MOOTHEDAN HOUSE, KOOVAPADY P.O., PERUMBAVOOR, ERNAKULAM DISTRICT-68354, ASST.EXECUTIVE ENGINEER, PUBLIC HEALTH SUB DIVISION, KERALA WATER AUTHORITY, PERUMBAVOOR, ERNAKULAM DISTRICT-683543. (UNDER ORDERS OF TRANSFER).

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

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RESPONDENT/S:

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1 KERALA WATER AUTHORITY REPRESENTED BY ITS MANAGING DIRECTOR, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.

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2 THE CHIEF ENGINEER HRD & GENERAL, KERALA WATER AUTHORITY, JALA BHAVAN, VELLAYAMBALAM, THIRUVANANTHAPURAM-695033.

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3 THE EXECUTIVE ENGINEER P.H.DIVISION, KERALA WATER AUTHORITY, ALUVA-680020.

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4 MOLLY VARGHESE, AGED 55 YEARS W/O.KUNJAPPAN, NEETINKARA, VELOOR, KARIMUGAL P.O., 682303, ERNAKULAM, WORKING AS ASST.EXECUTIVE ENGINEER, OFFICE OF CHIEF ENGINEER (NR) MALAPARAMPA, KOZHIKODE DISTRICT-673009. (UNDER ORDERS OF TRANSFER).

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

WPC No.18238/2021

VARUN C.VIJAY

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 30.09.2021, THE COURT ON 5/10/2021 DELIVERED THE FOLLOWING:

WPC No.18238/2021

JUDGMENT

The writ petitioner,who is an Assistant Executive Engineer in Kerala Water Authority, challenges the order passed by the second respondent transferring him from his present office at the Public Health Sub Division, Perumbavoor to Project Division Kannur, by Ext.P2 order of Transfer. The grievance of the petitioner is that, at the time of general transfer, he was not transferred, as evident from Ext.P1. However, in the midst of the year, he has been transferred to a distant place, to accommodate the 4^th respondent, who has been recently promoted as the Assistant Engineer. She is now proposed to be posted at Perumbavur where the petitioner is at present working. According to the petitioner, he is senior in service to the 4^th respondent and is to retire on 31/5/2024. His place of residence is at Ernakulam and had worked at various places in Idukki District in 1994 and thereafter, at Painavu in Idukki from 2007 to 2014. It was alleged that the transfer was in violation of all norms of procedure and was actuated by mala fides.

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At the time of admission, an interim stay of transfer was granted. The Water Authority and the 4^th respondent have appeared, contested the proceedings and filed separate counter affidavits.

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In the counter affidavit filed by the Water Authority, it was contended that transfer was effected in strict compliance with the Rules and that the 4^th respondent, had submitted a request for transfer to her native place raising

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WPC No.18238/2021

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health issues, as well as that she was due to retire within seven months in March 2022. It was also stated that the benefit of posting at Home Station is extended only to persons who have less than two years of service left. The petitioner is due to retire only in May 2024, and hence not entitled for the benefit. Further, fourth respondent being a lady, was accommodated near to her home station, as a part of the general policy of the Water Authority. However, the Assistant Executive Engineers are engaged in supervisory and managerial functions and considering their less number, strict adherence to norms may not always be possible, while allotting post to suitable incumbents. The petitioner has worked only in two adjoining districts.

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The 4^th respondent filed a detailed counter affidavit, wherein it was contended that Ext.P1 was not a general transfer order, but was only a promotion order. By virtue of Ext.P1, few persons were promoted as AEE and posted at different places. The petitioner, who belongs to Ernakulam District, was posted at Kozhikode. Hence, she submitted Ext.R4(a) representation pointing out that she has only seven months to retire and was suffering from various ailments. Long distant travel was not advisable to her. Her mother was also seriously laid up and hence she sought for posting at Perumbavur. This was considered and by Ext.P2 transfer order, she was posted at Perumbavur. She got relieved on 7/9/2021. In the meanwhile, the writ petition was filed and stay was obtained.

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The learned counsel for the petitioner strongly attributed mala fides , contending that the 4^th respondent was unduly favoured by giving her

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WPC No.18238/2021

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posting suitable and convenient, that too , within a short period of her promotion. The petitioner also claimed the benefit that he was due to retire in 2024. However, it is pertinent to note that he is not entitled to claim for home station or home district posting since he has more than two years of service left. On the other hand, the 4^th respondent has only seven months to retire. The Water Authority has given cogent reasons to explain why she was preferred as against the petitioner. No Rule violation is brought out except a vague allegation of mala fides. However, there is nothing on record to establish it.

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The learned counsel for the 4th respondent, to buttress his arguments, relied on the decision reported in Gujarat Electricity Board and Another v. Atmaram Sungomal Poshani (1989) 2 SCC 602), wherein it was held that transfer of an employee was an incident of service and employee has no right to insist that he/she should be posted at a particular place and further that transfer cannot be evaded merely on ground of pendency of representation and difficulties. In Union of India & Others v. S.L.Abbas (1993) 4 SCC 357), the Supreme Court had held that unless the transfer order is mala fide or made in violation of statutory Rule, provisions of Law, the court/Tribunal cannot interfere. The learned counsel also relied on the decision reported in State of M.P. & another v. S.S.Kourav & Others (1995) 3 SCC 270) to contend that the hardship caused to the employee due to the transfer cannot be a ground for judicial review of the transfer order.

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Having evaluated the entire facts in the above perspective, I find no

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WPC No.18238/2021

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reason to interfere in the transfer order. I find no merit in the writ petition and accordingly the writ petition is dismissed. Since the respondent was relived on 7/9/2021, the Water Authority shall take necessary steps to regularise her absence from duty from the period 7/9/2021 till date.

Sd/-

SUNIL THOMAS

Judge

dpk

WPC No.18238/2021

APPENDIX OF WP(C) 18238/2021

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PETITIONER EXHIBITS

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Exhibit P1 TRUE COPY OF ORDER NO.3568/E2(A)/2020/KWA DATED 03.08.2021 ISSUED BY 1ST RESPONDENT.

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Exhibit P2 TRUE COPY OF ORDER NO.3568/E2(A)/2020/KWA DATED 06.09.2021 ISSUED BY 2ND RESPONDENT.

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RESPONDENT EXHIBITS

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Exhibit R4(a) TRUE COPY OF THE REPORT OF TRANSFER OF CHARGE DATED 7.09.2021 Exhibit R4(b) TRUE COPY OF THE LETTER DATED 1.09.2021 SUBMITTED BY 4TH RESPONDENT TO THE CHIEF ENGINEER (HRD & GL) THIRUVANANTHAPURAM.

Ouseph M.E v. Kerala Water Authority

Case brief

What is this about?

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Ouseph M.E v. Kerala Water Authority

Case brief

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