VASU Vs. HIGH COURT OF KERALA

JUDGEMENT

(1.) Petitioner is a Confidential Assistant in the Sub Court, Tirur since 19-6-1974. In this Original Petition, the attack is against Exts. P7, P8 and P10. By Ext. P6 dated 8-2-1988, second respondent transferred the petitioner to Ponnani and posted in his place the third respondent at Tirur. The third respondent approached this Court on the administrative side. Ext. P6 was set aside by Ext. P7 proceedings dated 27-6-1988. - It was observed therein that the request of the petitioner for transfer to Ponnani was rejected by the High Court by order dated 29-10-1987 and so Ext. P6 order passed by the second respondent dated 8-2-1988 was uncalled for and not passed on sufficient grounds to shift the third respondent, who is admittedly senior to the petitioner, from Ponnani to Tirur. Ext. P7 was given effect to by the second respondent, by Ext. P8 dated 1-7-1988. Thereafter, the petitioner filed Ext. P9 before the High Court to review Ext. P7 order. By Ext. P 10 order dated 14-9-1988, the High Court declined to review Ext. P7 order to retransfer the petitioner again to Ponnani. It was held that the matter was considered in detail and there is no sufficient justification to review the earlier order, evidenced by Ext. P7. The challenge is against Ext. P7 dated 27-6-1988, the consequential order (Ext. P8) dated 1-7-1988 and the order passed on review (Ext. P10) dated 14-9-1988.

(2.) I heard counsel for the petitioner, Mr. K. Ramakumar. Two points were urged to assail Exts. P7, P8 and P10. Firstly, it was contended that in rendering Ext. P7 in the appeal filed by the third respondent, the first respondent has acted against the principles of natural justice in that the petitioner was not heard. Secondly, it was contended that Exts. P7 and P10 militate against the guidelines or norms laid down in Ext. P2, G. O. (P) No. 2/87/P; ARD dated 1-6-1917, and particularly clause No. 10 therein. I am of the view that both these pleas are without substance.

(3.) Ext. P7 discloses that as late as 29-10-1987 petitioner's request for transfer to Ponnani was rejected by the High Court. But, within a short time, on 8-2-1988, by Ext. P6, the second respondent ordered the transfer of the petitioner to Ponnani by shifting the third respondent, who is admittedly senior to the petitioner, from Ponnani to Tirur. This was done without any sufficient ground by the second respondent in Ext. P6. It is evident that the second respondent ordered the transfer of the petitioner to Ponnani as also the transfer of the third respondent to Tirur based only on the basis of the representations filed by the petitioner and the third respondent. They were not heard. Ext. P6 was set aside, by Ext. P7, by the first respondent accepting the appeal petition filed by the third respondent. Ext. P7 order so passed is attacked as violative of the principles of natural justice. There is no force in this plea. Transfer is an incidence of service and the employee has no legal right in this behalf. (See - Babu v. State of Kerala - 1988 (2) KLT 258 -D. B). The word 'natural justice' is not capable of static or precise definition. It cannot be imprisoned in the strait jacket of a cast iron formula. It only means "fairness" in action. It will vary with varying situations. It is common knowledge that in administration, the persons concerned will necessarily have to attend to a variety of matters. It will be unreal and impractical to expect a rigid adherence to a fixed formula in all situations. Exigencies of administration will require elasticity and free play in the joints. This is all, the more so, in matters relating to 'transfers'. Greater latitude will have to be allowed to the administration in such matters than in other cases. "Policy decisions", decisions on ground of "expediency" etc., in the overall interest of the administration cannot be excluded. Viewed in such background, the court may not, in all cases, be in a position to effectively evaluate and come to grips with particular problems or situations facing the administration and to arrive at a satisfactory solution. Except in cases where the power is exercised "mala fide" or otherwise "abused" or in similar grave cases, judicial wisdom will deter interference. And in the final analysis, in the light of imponderables, the court will be extremely circumspect and will act, with restraint and may not entertain hairsplitting or technical arguments to scan the decision, as in other 'administrative' orders or decisions. And, so considered, in matters of transfer, natural justice, in the sense that the party must be heard or must have an opportunity to represent, need not be observed since the employee has no legal right in that behalf. The rules of natural justice applicable in other situations cannot be applied in the case of transfers. Ext. P7 discloses that in passing Ext. P7, the High Court "fairly" considered apart from the appeal petition of the third respondent, all relevant records which unmistakably demonstrate that the second respondent acted illegally in passing Ext. P6. I do not think that, in the circumstances, there is any infirmity or irregularity in Ext. P7. If Ext. P7 in not open to challenge, Ext. P8 is also unchallengeable.