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Judgment
K.V. Eapen, Member A
This Original Application has been filed by the applicant seeking the following reliefs:
“(i) Direct the respondents 2 and 3 to retain the applicant in the present station at Kayamkulam.
(ii) Quash Annexure A1 as arbitrary and unwarranted and it is opposed to the mandate contained in Annexure A6
(iii) Quash Annexure A3 and A5 as arbitrary and opposed to the rudimentary principles of natural justice and hence opposed to Article 14 of the Constitution.
(iv) Direct the respondents 2 and 3 to disburse the salary of the applicant forthwith
and
(v) Award cost to the applicant. ”
The brief facts of the case are as follows:
The applicant is presently working in the CPCRI Kayamkulam Regional Station in the capacity of an Assistant. He is aged 58 years and is due for retirement on superannuation w.e.f 31.5.2024. The applicant submits that he has been ordered to be transferred to Vittal, in Karnataka as per Annexure A-1 order dated 26.11.2021. Further, he is being posted only for a period of one year and the reason for limiting this period of posting is also not specified anywhere. He had submitted Annexure A-2 representation against the transfer order but the same was rejected by Annexure A-3 order. Since the reasons for rejection were not mentioned in Annexure A-3, the applicant had again submitted a detailed representation as brought out at Annexure A4. He submits that on receipt of Annexure A-4, the 2nd respondent directed the 3rd respondent to treat him as relieved from the Kayamkulam station, vide Annexure A-5 order dated 30.12.2021. The applicant submits that his transfer is against the transfer norms and guidelines issued by the respondents at Annexure A-6. Annexure A6 states that an employee who has two years to retire shall not be transferred and that, the ailments of the employee or of his family members shall be a ground for compassionate retainment. Further, the applicant's pay for the month of December 2021 has also not disbursed. Besides the transfer guidelines, the applicant has also brought on record his personal difficulties as well. His wife had undergone a uterus operation in 2017 and because of complications, she also had to undergo another operation in 2019. True copies of the medical certificates are also produced as Annexures A-7 and A-8. Further, he submits that his wife has to undergo a third operation due to the complications as per the certificate produced as Annexure A-9. It is submitted that because of the applicant's transfer order, the operation date has been indefinitely deferred. The applicant's wife is the only daughter of her mother and the aged mother-in-law is also under their protection and care. The applicant submits that Annexures A3 and A-5 are unconstitutional and illegal and, hence, he has approached this Tribunal seeking the aforementioned relief.
Shri.R.Rajasekharan Pillai, learned counsel has appeared for the applicant. When the matter had come up for admission hearing on 7.1.2022, the prayer of the applicant for granting interim relief was denied. The matter was then posted for filing a short reply statement to 17.2.2022. The applicant challenged the denial of interim relief by the Tribunal before the Hon'ble High Court of Kerala. The Hon'ble High Court has passed the following directions on 12.01.2022:
“9. After hearing both sides, we note that the applicant (petitioner herein) has got a specific case that he has not been lawfully relieved from his present station at Kayamkulam in Kerala State in pursuance of the impugned Anx.A1 transfer order, etc. Be that as it may, we specifically taken note of the fact that no substitute has been ordered to be posted in the place of the petitioner at Kayamkulam and further that he has not so far joined the duty in the post at Vittal, Karnataka State, and that he has now entered on leave. Further we have also noted the fact that the respondents has taken a fair stand that they will immediately file reply affidavit in the main matter in the O.A, without any further delay. That being so, we are of the view that the Tribunal can ensure the early final disposal of the main matter in the O.A. As of now, no public purpose is subserved by permitting the present state of affairs to continue. The applicant (petitioner herein) has got a case that he has not been lawfully relieved from service in pursuance of the impugned transfer order. That apart, the fact of the matter appears to be that no substitute has been posted in his place at Kayamkulam and the applicant (petitioner herein) admittedly has entered on leave. That being so, no public purpose was mainly subserved by not permitting the petitioner to be retained in Kayamkulam at least on a provisional basis, so as to extract work from him, pending final disposal of the O.A, which could be ensured within a month or so.
In that view of the matter, without getting into the merits of the controversy in the main O.A and mainly to ensure preservation and protection of the subject matter of the lis, and also taking note of the fact that the applicant (petitioner herein) is now aged more than 57 years, etc. it is ordered in the interest of justice that the petitioner shall be temporarily retained in the post at Kayamkulam, Kerala State, pending final disposal of the main matter in the O.A. The 3rd respondent shall forthwith comply with the said interlocutory arrangement. Further, it is order in the interest of justice that the Tribunal will ensure to take all reasonable endeavours possible under the circumstances, to ensure the early consideration and facilitation of the final disposal of the main matter in the instant O.A No.7/2022 without much delay, preferably within a period of 6 weeks. The respondents will ensure that their reply statement in the O.A is filed within two weeks and the petitioner will thereupon file rejoinder, if any, thereto within one week, thereafter. The Registry of the Tribunal will ensure that the main matter in the O.A is posted before the Tribunal, within 4 weeks or so. ”
Adv. Mr.P.Santhosh Kumar appeared on behalf of the respondents and has filed detailed reply statement. It is submitted therein that the applicant joined the ICAR service on 22.11.1986 as LDC at ICAR-CPCRI, Kasaragod and subsequently transferred to ICAR-CPCRI Regional Station, Kayamkulam, Alappuzha District, Kerala on 3.10.1994 and since then, he is continuing at Kayamkulam, The respondents submit that this transfer is on public interest for manpower support for administrative works at CPCRI Vittal as there is excess manpower in administration at Kayamkulam. Further, the applicant is well versed in Administration work. They also submit that all ICAR employees are liable to be transferred to any part of India. The representation submitted by the applicant had been considered and the medical conditions of applicant's wife was not considered to be very serious in nature by the respondents.
I have heard both sides and perused the records filed in the O.A.
The counsel for the applicant has brought to the notice of this Tribunal the Transfer Guidelines at Annexure A-6 Item No.33 which states as follows:
“33. Request transfers on compassionate grounds may be considered on grounds of -
(i) Superannuation within 2 years
(ii) Working spouse
(iii) Serious/terminal disease and/or extraordinary disabilities of self/family members
(iv) Single/Widow lady official
(v) Education of children
(vi) Marriage of children”
The applicant submits that his case is squarely covered under the above guidelines. Further, he has also submitted Annexures A 8 and A-9 medical certificates to prove the serious nature of illness of his wife and that because of the complications, she has to undergo yet another surgery i.e, the third surgery. He submits that this has not been done so far because of this transfer and the respondents have not taken this aspect seriously.
Taking into consideration of all the above facts, the respondents are directed to once again reconsider the case of the applicant in relation to the order of transfer, after giving him an opportunity of personal hearing. They should also take into account the observations of the High Court of Kerala while doing so. They may take a decision in this regard within a period of 3 months from the date of receipt of a copy of this order taking into account the fact that the applicant has now only two years left for retirement. The applicant will not be relieved till the time a decision in this regard is taken by the respondents. They should also take a decision regarding the status of the applicant's service during the months of December 2021 and January 2022.
The Original Application is disposed of with directions as at above. No costs.