Moosakoya, N. vs State of Kerala and Others

C.S. Rajan, J.—The Petitioner is working as a Deputy Director of Public Relations Department, Kozhikode. As per Ext. P-3 order dated 29th June 1996 he was appointed as Secretary, Kerala Press Academy on deputation under the usual terms and conditions of deputation, but without deputation allowance. In the resultant vacancy of Deputy Director the third Respondent was promoted and posted in the vacancy at Kozhikode. The Petitioner challenges Ext. P-2 order mainly on three grounds. (1) The order of deputation is bad because his willingness was not sought before passing of Ext. P-2 order; (2) The deputation, being a transfer is opposed to Clause 5 of Ext. P-3 guidelines because the Petitioner is due to retire within two years; and (3) The order of deputation is intended to benefit the third Respondent to get promotion by creating a vacancy of Deputy Director.

A statement has been filed on behalf of the first Respondent in which it is stated that the post of Secretary, Kerala Press Academy has been lying vacant for a long period and that the Petitioner, who is an experienced person was chosen to man the post and there is no intention to favour the third Respondent or anybody. It is also stated that the third Respondent, being the junior most cannot be deputed to the post of Secretary. The third Respondent has filed a counter-affidavit denying the allegation that the order of deputation has been made in order to suit the convenience of the third Respondent.

In order to test the legality of Ext. P-2 order it is necessary to examine the provisions governing the deputation contained in the Kerala Service Rules and in the General Rules. Rule 140 of Part I, K.S.R. reads as follows:

(a) No officer may be transferred to foreign service against his will:

Provided that this sub-rule shall not apply to the transfer of an officer to the service of a body, incorporated or not, which is wholly of substantially owned or controlled by the Government.

(b) A transfer to foreign service requires the sanction of the Government.

No officer shall normally be allowed to remain on deputation to foreign service for more than five years continuously. Provisions of Rule 24 will apply to an officer who continues in foreign service for more than five years at a time.

Though it was argued by learned Counsel for the Petitioner that he could not be transferred to foreign service against his will, the proviso to the above rule takes away the benefit conferred on a person because the proviso specifically states that the sub-rule shall not apply to the transfer of an officer to the service of a body, incorporated or not, which is wholly or substantially owned of controlled by the Government. The Kerala Press Academy is a body which is either substantially owned or controlled by the Government. It is a body registered under the Travancore-Gochin Literary, Scientific and Charitable Societies Registration Act (T.C. Act of 1955). The Petitioner has produced Ext. P-4 constitution and byelaws of the Kerala Press Academy. The provisions contained therein will clearly show that it is a body wholly controlled by the Government. Therefore the Petitioner cannot seek protection under Rule 140(a) of Part I, K.S.R.

Rule 9-B of the General Rules deals with the deputation of officers. The above rule enables the Government to depute/transfer officers from one service to Anr. or from one department to Anr. or to send or to take any officers from other Governments or statutory bodies. The only rider is that it must be in public interest and for reasons to be recorded in writing. The Kerala Press Academy is not a statutory body, but only a Society registered under the relevant Act. Therefore, I am of opinion that Rule 9-B is also not applicable to the Petitioner''s case.

The learned Counsel argued that the deputation is also a recognised mode of transfer and the guidelines which governs transfer of Government servants evidenced by Ext. P-3 must be followed by the Government. In order to support to the above point learned Counsel for the Petitioner submitted the rulings of this Court as well as the Supreme Court in the following cases: Damodaran v. State of Kerala 1982 KLT S.N. 25, Director, Telecommunications v. Sukumaran 1984 KLT 476 Dr. Sethumadhavan v. State of Kerala ILR 1991 Ker 656; Director of School Education Madras and Ors. v. O. Karuppa Thevan and Ors. 1994 (Supp.) (2) S.C.C. 333 and E.P. Royappa Vs. State of Tamil Nadu and Another, According to the learned Counsel for the Petitioner, Ext. P-2 order of deputation which is in reality a transfer is arbitrary, discriminatory and opposed to the guidelines contained in Ext. P-3. Therefore, it was argued that Ext. P-2 order is liable to be interfered at the hands of this Court. But it is difficult to accept the above contentions put forward by the learned Counsel for the Petitioner in view of two judgments of the Division Bench of this Court reported in Babu v. State of Kerala 1988 (2) KLT 258 and State of Kerala v. Rajan 1989 (2) KLT 666. In the above two decisions this Court held that transfers are effected in respect of transferable posts in the exigencies of service. A Government servant who occupies a transferable post has no right to insist that he should be continued in a particular place or that he should be transferred to a particular place of his choice. There is no condition of service implied or expressed in this behalf and that is a matter entirely of administrative discretion to be exercised in the larger interest of administration. Even though the State Government enunciated guidelines in the matter of effecting transfers in deviation from those guidelines it does not amount to violation of any conditions of service.

It was argued on behalf of the Petitioner that there is absolutely no administrative exigency or public interest in deputing the Petitioner to the service of the Kerala Press Academy as Secretary. But the stand of the Government is that the post of Secretary of the Kerala Press Academy has been lying vacant for a long period. The service of an experienced person like the Petitioner is essential for the smooth functioning of the Academy. The third Respondent being the junior most cannot be deputed to the post of Secretary. In view of these statements made by the Government, I am not persuaded to hold that there is no public interest in ordering the deputation of the Petitioner to the Kerala Press Academy. The allegation of mala fides leveled against the third Respondent by the Petitioner has been stoutly denied as baseless by the third Respondent in his counter affidavit. In view of that, it is difficult to hold that Ext. P-2 order is passed mala fide.

Now it is quite settled law that an order of transfer can be interfered by this Court only if the order of transfer is vitiated by mala fide, or was passed for extraneous or irrelevant considerations or was passed without any authority of law. None of these grounds exists in this case so as to compel this Court to interfere with Ext. P-2 order.

At the same time I am constrained to hold that the stipulation in Ext. P-2 that the Petitioner''s deputation is without deputation allowance is illegal and bad in law. Note 3 to Rule 144 of part I, K.S.R. states that in all cases of foreign service where the Headquarters of the officer is located within Kerala, deputation allowance shall be granted at the rate of 10 per cent of the basic pay of the officer concerned. This mandatory provision cannot be done away with by the Government while passing an order like Ext. P-2. Therefore, while sustaining validity of Ext. P-2 order I declare that the Petitioner is entitled to the deputation allowance as contained in Note 3 to Rule 144 of Part I, K.S.R.

The Original Petition is disposed of as indicated above without any order as to costs.