NIRMALANANDAN Vs. DIVAKARAN

JUDGEMENT

(1.) This is a case in which the appellant who is admittedly much junior to the first respondent in the cadre of Professor Grade II in Vedantu in the Government Sanskrit College is aggrieved by the order made by the learned single Judge allowing O. P. No. 5381/88. The first respondent was transferred by the Government by its order Ext. P1 dated 9-6-1988 from Tripunithura to Trivandrum and the appellant was transferred from Trivandrum to Tripunithura. Shortly thereafter on the representation of the appellant the said order was modified by Ext. R3 (h) dated 4-7-1988 retransferring the appellant to Trivandrum and the first respondent to Tripunithura. The first respondent challenged this action of the Government contending that there was absolutely no justification for reversing the order of transfer made in his favour within less than a months' time. The appellant as also the State Government; respondent No. 2, justified this action contending that the appellant who belongs to Ezhava community having married a Brahmin lady is not liable for transfer having regard to the guidelines laid down by the Government as per Exts. R3 (a) to R3 (e). The positive stand taken on behalf of the State Government is that the appellant having undergone an intercaste marriage has acquired immunity in the matter of transfer under the aforesaid orders of the Government and that therefore they committed a mistake when they passed Ext. P1 order transferring the appellant from Trivandrum to Tripunithura. The moment they realised this mistake, it is their case that they corrected the same by issuing Ext. R3(h) order. The learned single Judge has held that Exts. R3 (a) to R3 (e) contain only guidelines in the matter of transfer and they do not fetter the right of the Government to effect transfers in public, interest at variance with these guidelines. The learned single Judge has also pointed out that it is a generally accepted principle that it would not be in public interest to allow a particular Government servant to continue in the same place for a long number of years and that therefore in such circumstances the State Government will be acting fairly and reasonably in transferring a person who has undergone an intercaste marriage. As the State Government has made the impugned order Ext. R3(b) with a misconception in regard to the scope and ambit of their power the learned single Judge quashed the said order holding that the order has been passed without taking into consideration relevant considerations and on a consideration of wholly non existent and irrelevant considerations. The learned single Judge has directed that the earlier order Ext. P1 shall stand and that the transferring authority may consider the question of transferring the appellant's wife who is also working as a Lecturer in Sanskrit in one of the Government Colleges at Trivandrum to a station to which the appellant has been transferred and if it is not possible, to a nearby station. The learned single Judge has quashed Ext. R3(b) and directed implementation of Ext. P1. It is the said judgment that is challenged by the appellant in this appeal.

(2.) The principal contention of Sri. Rajamony, learned counsel for the appellant, is that the guidelines issued by the State Government as per Ext. R3 (a) to R3 (e) in the matter of transfer are binding on the State Government and if any transfer is effected in violation of those guidelines the aggrieved party is entitled to challenge the order of transfer effected in contravention of the same. As the guideline according to the appellant's counsel requires that those who have undergone intercaste marriage are not liable for transfer, the order transferring the appellant in violation of those guidelines being illegal and invalid, the State Government was entitled to correct that mistake and pass the right order as per Ext. R3 (h). It was maintained that the guidelines give a right to those who have undergone intercaste marriage not to be transferred. It is necessary to point out that this court has ruled in 1988 (2) KLT 258 between Babu and State of Kerala that transfer is an incidence of service and the Government servant has no legal right in this behalf. It his been further held that guidelines for transfer are not statutory and are only meant for the guidance of the transferring authority. It is also pointed out that the guidelines issued by the Government from time to time in the matter of transfer are not exhaustive and it is open to effect transfers taking into consideration circumstances not covered by the guidelines, as in administration variety of situations not contemplated by the guidelines may arise which have to be taken into account. The appellant cannot therefore successfully contend that he has acquired immunity from transfer on the strength of the guidelines of the Government in this behalf. The view taken by this court in Babu's case is fully in accordance with what has been laid down by the Supreme Court in AIR 1986 SC 1955 between B. Varada Rao and State of Karnataka and others affirming the decision of the High Court of Karnataka in ILR (1986) Karnataka 2135. The Supreme Court has observed in Para.4 as follows:

(3.) Apart from the f that the guidelines relied upon by the learned counsel for the appellant are not enforceable, it has to be pointed out that the very same guidelines, particularly the one contained in Para.19 of Ext. R3 (e) states that the guidelines/principles shall not apply to transfers necessary in public interest. The guidelines themselves therefore make it clear that if transfers are required to be made to subserve public interest, none of the guidelines in the matter of transfers shall come in the way of effecting such transfers. Hence if public interest justifies a transfer, the same can certainly be effected in respect of Government servants who have undergone intercaste marriage within the four corners of the guidelines themselves. But unfortunately the State Government has misunderstood the legal scope and effect of the guidelines issued by it and wrongly assumed that its rights are fettered in the matter of effecting transfer in public interest, of a person who has undergone an intercaste marriage. The stand taken in Para.5 of the counter affidavit illustrates this question very eloquently which reads: