Partly allowed

Ajith Kumar.S.K., v. Union of India

Kerala HC25 May 2022WP(C)/13372/2022

Case brief

AI extract

What is this about?

Petitioner, a CISF constable, sought exemption from transfer due to caring for a mother with severe Bipolar Affective Disorder. Court noted Respondents' failure to communicate a reasoned order despite prior undertaking and directed reconsideration with direction to keep transfer orders in abeyance.

What did the court decide?

Directing the second respondent to reconsider the representation, pass a reasoned order, and keep transfer and relief orders in abeyance until such time.

Ajith Kumar.S.K., Vs Union of India — Pension and Retirement Benefits | Kerala HC (2022)

¶1

IN THE HIGH COURT OF KERALA AT ERNAKULAM

¶2

PRESENT

¶3

THE HONOURABLE MR.JUSTICE V.G.ARUN

¶4

WEDNESDAY, THE 25TH DAY OF MAY 2022 / 4TH JYAISHTA, 1944
WP(C) NO. 13372 OF 2022

¶5

PETITIONER/S:

¶6

AJITH KUMAR.S.K.,
AGED 40 YEARS
CISF NO.004340429, CONSTABLE/GENERAL DUTY, CISF UNIT
FACT UDL., ERNAKULAM, RESIDING AT QUARTER NO.547/10,
FACT CD TOWNSHIP, AMBALAMEDU, AMBALAMEDU P.O.,
ERNAKULAM, KERALA, PIN-682 303.
BY ADVS.
T.SANJAY
SANIL KUMAR G.
RAVEENDRAN K.
MIDHUN R.

¶7

RESPONDENT/S:

¶8

1 UNION OF INDIA, REPRESENTED BY ITS SECRETARY, MINISTRY OF HOME AFFAIRS, NORTH BLOCK, NEW DELHI-110 001.

¶9

2 THE DIRECTOR GENERAL/CENTRAL INDUSTRIAL SECURITY FORCE CISF HQ, CGO COMPLEX, LODHI ROAD, NEW DELHI, PIN-110 003.

¶10

3 THE INSPECTOR GENERAL/CISF, SOUTH SECTOR HEAD QUARTERS, CHPT CAMPUS, CHENNAI, PIN600 013.

¶11

4 THE DEPUTY INSPECTOR GENERAL/CISF, CISF SOUTH ZONE HEAD QUARTERS, RAJAJI BHAVAN, BASANT NAGAR, CHENNAI, PIN-600 090.

¶12

5 THE SENIOR COMMANDANT, CISF UNIT FACT UDL, UDYOGAMANDAL, ELOOR, ERNAKULAM, KERALA-683 501. BY ADV MANU S., ASG OF INDIA

¶13

THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
25.05.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

¶14

WP(C) NO. 13372 OF 2022

¶15

¶16

JUDGMENT Dated this the 25^th day of May, 2022

¶17

The petitioner is a Constable/General Duty, working at CISF Unit FACT, Udyogamandal under the fifth respondent. The petitioner is issued with Ext. P3 order proposing to transfer him to the South East Sector. On receipt of Ext.P3, the petitioner submitted Ext.P4 representation, pointing out that his mother is affected with severe Bipolar Affective Disorder (BPAD) and the petitioner’s presence is essential to provide her with the required care and treatment. Pending Ext.P4 representation, the fifth respondent issued Ext.P5, directing all transferred personnel to be relieved on or before 30.04.2022. Hence the writ petition.

¶18

Learned Counsel for the petition referred to Ext.P6 Office Memorandum, as per which a Government employee, who is a care-giver of dependent daughter/ son/ parents/ spouse/ brother/ sister with Specified Disability, as certified by the certifying authority as the Person with Benchmark Disability as defined under Section 2(r) of the Rights of

¶19

¶20

WP(C) NO. 13372 OF 2022

¶21

Persons with Disabilities Act, 2016 can be exempted from the routine exercise of transfer/rotational transfer subject to the administrative constraints. The petitioner has produced Ext.P7 in evidence of the fact that his mother is a person with Benchmark Disability and petitioner is the care-giver.

¶22

The respondents contend that the petitioner has completed 21 years and 10 months of service in the Force and only spent only 7 years in units out of the home sector and has been in the home sector for 13 years and 11 months. The petitioner has entered into his third tenure of posting and as per the guidelines, he has to work six years in out of home sector. As such, he is liable to be transferred outside the home sector. The respondents have stated that while the petitioner was working at Manali, he was posted to BPCL, Cochin Unit in 2016 on his request. However, the petitioner represented that BPCL, Cochin is a polluted area and requested for change of posting. Conceding to his request, the petitioner was posted to Hyderabad. Surprisingly, the petitioner was unwilling to proceed to Hyderabad. Once

¶23

¶24

WP(C) NO. 13372 OF 2022

¶25

again taking a favourable view, the petitioner was transferred to FACT, Udyogamandal, Kochi on 16.03.2017. According to respondents, the petitioner comes up with one reason or the other, whenever he is served with orders of transfer. The evidence produced by the petitioner is not sufficient to prove, either the Benchmark Disability of his mother or that the petitioner is the main caregiver.

¶26

On 29.04.2022, this Court passed an order of status quo, after recording the submission of the learned CGC that the petitioner’s representation is being considered and orders will be communicated to him.

¶27

Learned Counsel for the petitioner submitted that, in spite of the submission, the order passed on the petitioner’s representation by the second respondent has not so far been communicated. Instead only Ext.P12 order of the fifth respondent is communicated. Therein it is stated that the second respondent has disposed of (considered and regretted) the representation dated 31.03.2022. Learned Counsel for the petitioner further submits that when this

¶28

¶29

WP(C) NO. 13372 OF 2022

¶30

Court the assured that orders will be passed by the competent authority and communicated to the petitioner, the second respondent is bound to pass a reasoned order and to communicate that order to the petitioner.

¶31

Learned CGC submitted that in Ext.P12 it is clearly stated that the petitioner’s representation was considered and rejected by the second respondent. His representation having been rejected, the petitioner’s remedy is to challenge that decision and the transfer order cannot not be kept on hold for that purpose.

¶32

Having undertaken to consider and pass orders on the petitioner’s representation and to communicate the decision, the respondents are bound to abide by the undertaking. Unfortunately, the respondents have not done so. In any view of the matter, Ext.P12 order issued by the fifth respondent, containing a cryptic statement that the petitioner’s representation was considered and regretted by the second respondent, does not satisfy the requirement of the competent authority passing and communicating its

¶33

¶34

WP(C) NO. 13372 OF 2022

¶35

decision. Ext.P12 does not even indicate whether the reasons stated by the petitioner for defying his transfer were taken into account by the competent authority. In such circumstances, there has to be a proper consideration of Ext.P4 representation.

¶36

The writ petition is hence disposed of directing the second respondent to reconsider EXt. P4 representation and to pass a reasoned order thereon, after referring to the documents produced by the petitioner, including the medical records of his mother. Till such time, Exts.P3 and P11 transferring and relieving the petitioner from his present station, shall be kept in abeyance.

Sd/-

V.G.ARUN

JUDGE

WP(C) NO. 13372 OF 2022

¶42

¶43

APPENDIX OF WP(C) 13372/2022

¶44

`PETITIO` `Exhibit`	`NER EXHI` `P1`	`BITS` `TRUE COPY OF` `MEDICAL BOOK` `BY THE RESPON` `TREATMENT AND`	`THE RELEVANT PAGES OF` `OF THE PETITIONER ISSUED` `DENTS SHOWING HIS MEDICAL` `CATEGORIZATION.`
`Exhibit`	`P2`	`TRUE COPY OF` `DATED 25.03.2` `MOTHER OF THE`	`THE TREATMENT CERTIFICATE` `022 IN RESPECT OF THE` `PETITIONER.`
`Exhibit`	`P3`	`TRUE COPY OF` `HEAD QUARTERS` `28.03.2022.`	`RELEVANT PAGES OF THE CISF` `SERVICE NO.211/2022 DATED`
`Exhibit`	`P4`	`TRUE COPY OF` `31.03.2022 SU` `ADDRESSED TO`	`THE REPRESENTATION DATED` `BMITTED BY THE PETITIONER` `THE 2ND RESPONDENT.`
`Exhibit`	`P5`	`TYPED COPY OF` `(424) DATED 3` `OFFICE OF THE`	`OFFICE MEMORANDUM NO.` `1.03.2022 ISSUED BY THE` `5TH RESPONDENT.`
`Exhibit`	`P6`	`TRUE COPY OF` `BEARING NO.F` `DATED THE 8TH`	`THE OFFICE MEMORANDUM` `NO.42011/3/2014-ESTT 9RES)` `OCTOBER 2018.`
`Exhibit`	`P7`	`TRUE COPY OF` `REGISTRATION` `3214/00000/22` `06.04.2022.`	`PERSON WITH DISABILITY` `BEARING ENROLMENT NUMBER` `04/0407511 DATED`
`Exhibit`	`P8`	`TRUE COPY OF` `BOARD ISSUED` `MENTAL HEALTH` `CENTRE,THIRUV` `06.04.2022.`	`INSTRUCTIONS FOR MEDICAL` `BY THE SUPERINTENDENT` `ANANATHAPURAM DATED`
`Exhibit`	`P9`	`TRUE COPY OF` `26/07/2021 IN` `THE PETITIONE` `AND COMMUNITY` `COCHIN DIVISI`	`THE OP TICKET DATED` `RESPECT OF THE MOTHER OF` `R FROM OCCUPATIONAL HEALTH` `SERVICE CENTRE FACT` `ON`
`Exhibit`	`P10`	`TRUE COPY OF` `DATED 06/05/2` `BOARD`	`THE DISABILITY CERTIFICATE` `022 ISSUED BY THE MEDICAL`
`Exhibit`	`P11`	`TRUE COPY OF` `17/05/2022 IS`	`THE MOVEMENT ORDER DATED` `SUED BY THE 5TH RESPONDENT`

¶45

WP(C) NO. 13372 OF 2022

¶46

8

¶47

Exhibit P12TRUE COPY OF THE ORDER BEARING NO. 750
DATED 17/05/2022 ISSUED BY TH 5TH
RESPONDENT

Ajith Kumar.S.K., v. Union of India

Case brief

What is this about?

What did the court decide?

Ajith Kumar.S.K., v. Union of India

Case brief

What is this about?

What did the court decide?

What the court decided

A compact analysis

Issues for consideration

Statutes considered

Parties & counsel

Coram

Case details

Similar cases

Sathian K.C, Vs State of Kerala

Vancheeswara Iyar @ Raja Vs P.v.Narayanaswamy

Vancheeswara Iyar Vs P.v.Narayanswamy

Vasudevan K R Vs State of Kerala

Sindhu Pramod Vs District Kudumbasree Mission Co-Ordinator

M/S.Himavarsha Kuries Private Limited (in Liquidation) Vs Lizy Jose