Dr. K.B. Suresh, Judicial Member:
1. Original Application Nos.976/13 and 1197/13 are heard together. Original Application No. 976/13 relates to a transfer, on request, as provided in the declared policy and rules and O.A No. 1197/13 is for a change of home town. Both are filed by the same applicant, the same respondents and are interconnected, so they are taken together.
2. The question which would arise in this case is what is the relevance, validity, effect and impact of a policy if it is to be complied indiscriminatorily, arbitrarily and without any specified parameters of applications. The learned counsel for the respondents submits that the applicant had taken the benefit of a declared policy vide Annexure A-11 whereby the respondents had advised all its employees that should they elect to serve in a hard station, then after three years of service at a hard station, they will be expost-facto granted a choice station. That being so, it appears that the applicant had applied for a posting to Lakshadweep, which according to the respondents is a hard station. The applicant contends that due to the geographical location, terrain and lack of access in Lakshadweep during her service from 2004 to 2007, she had suffered four miscarriages and twice had to be evacuated to mainland for medical emergencies. She would thus say she had paid the price for her choice posting by her suffering in the service of the respondents.
3. Apparently her husband is running an upholstery business, along with a partner who is allegedly from the district of Kannur in Kerala, at a place called Kottayam, which is the home town of the applicant's husband. It seems that she had also elected to have Kottayam as her home town in the beginning of her service. She would say that later they decided to shift to Kannur and had purchased a parcel of property in Kannur. Ostensibly, for the expansion of her husband's business to that part of the State and therefore had applied for change of her hometown. But then, it ensues that apparently before this, an issue was taken up by the respondents that the choice posting sought for by the applicant is to Kottayam and even though initially it was allowed and she was transferred to Kottayam, in between the transfer order and her relief, it was found that she has given Kottayam as her hometown but she would say she had also asked for change of Home town to Kannur which is available to a government servant. Clubbing these two matters together, the respondents does not seem to have acceded to the request of the applicant, now illuminated in O.A No. 1197/13.
4. The respondents also concede that there is a vacancy available at Kottayam but would say that they have an avowed policy right from the beginning to the effect that nobody shall be appointed to her hometown. But the applicant's case is that once she had applied for change of her hometown and which is available to a government servant, no right accrued to the respondent or any government authority to question her choice of hometown. There cannot be any reason whereby any authority under the government can insist that a government servant's hometown must remain at one geographical location. It is squarely within the personal choice of the government servant to determine at least for one chance what his/her home town would be. That being so, the reluctance of the respondents enough to dis-allow her application seems to be strange.
5. The applicant had produced a list wherein she had pointed out about 105 persons who are in the service of the respondents and who are posted to their home towns vide Annexure A-17. Therefore, even though the policy of non-posting of a person to his home town remains on paper the practice available in the department is that it is not followed at all. Therefore, the validity of the policy proposal and its relevance for running in the department is a question to be answered by the respondents.
6. Article 13 of the Constitution of India provides that there shall not be any legal formation which shall suppress or be in derrogation of fundamental rights. As the applicant had complied with her requirement under service jurisdiction to get a choice posting as early as 2007 itself, it was fundamentally erroneous on the part of the respondents to deny her the same treatment as was given to 105 others. To this extent, the question of equal application of laws and equality of consideration guaranteed under Article 14 would be lost to her unless complied with. Therefore, the policy which is of no use as it is being consistently overlooked and transgressed cannot be brought into fusion as it is barred by Article 13.
7. The respondents did not deny that the applicant had suffered four miscarriages and had to be evacuated twice for medical emergencies during the course of her stay at Lakshadweep which is a hard station. Because of non implementation of the declared policy of choice posting available to a government servant after three years continuous service from 2007 and then onwards till now the fundamental right of right to dignified life also seems to be denied to her. If a choice posting can be allowed to 105 others, why it should be denied to the applicant is not certain even though she had already applied for change of her home town, if that is the issue but the respondents would say that for changing the home town something more other than purchase of a property for settling down at that place is required. The applicant would say that they do not own even one square inch of property in Kottayam. Therefore, the respondents would say that had the applicant actually settled down at Kannur and produced a ration card or other significant documentation showing change of residence, then they would have granted the change of home town. But then, nothing in the rules stipulate that before change of home town is indicated, actual residence at that particular place must take place and along with the change of domicile change must be effected in significant documentation to prove that point. Therefore, an apparent over-riding public interest seems to be singularly lacking and it appears that an unreasonable stand is being taken.
8. In Air India vs Nargesh Meerza reported in AIR 1981 SC 1829, the Air India and Indian Airlines regulation on the retirement on pregnancy bar of Airhostesses were struck down by the Hon'ble Apex Court as un-constitutional on the ground that the condition laid down were entirely un-reasonable and arbitrary. The similar seems to be the situation here also as after laying down a policy that applicant would be entitled to a choice posting, unless significant reasons exist as prevalent, the respondents could not have denied her a choice posting from 2007 onwards and have delayed it for the last 7 years.
9. There now seems to be a classification made between persons who according to the respondents are serving in a hometown but will be phased out in due course and the persons who would like to be posted to a home town or a former home town. In DS Nakara vs. Union of India reported in AIR 1983 SC 130, the Hon'ble Apex Court had considered the issue relating to wrong classification. The doctrine of arbitrariness and doctrine of classification was examined and held that there must be an intelligible differentia for the emergence of such classification and also it must have a rational nexus sought to be achieved by a statutory question. There can not be any reasonable attributes in the policy also in the light of the fact that a nurse being a very lower level employee, the serving in a home town will not cause any significant prejudice or even any prejudice at all to the institution if he or she served in a home town. But in this case this matter is further highlighted as the applicant is already under the stipulation of change of home town. This is concretised by the fact that this home town policy is not held applicable to 105 persons already posted at home town and they are continuing for years together. Therefore, the justification for bringing in the question of home town application for the applicant after having secured service from her in a hard station for 10 years now cannot be understood. In International Air Port Authority's case reported in RD Shetty vs Airport Authority reported in AIR 1979 SC 162 A the Hon'ble Apex Court held that the concept of equality is absolute on arbitrariness. In Maneka Gandhi Vs. Union of India reported in AIR 1978 SC 597, the Hon'ble Apex Court held that equality is the dynamic concept with many applications and dimensions and cannot be implemented within the traditional and doctrinarian approach. The principle of reasonableness which is legally as well as philosophically an essential element of equality and non-arbitrariness whereby Ariticle 14 like a brooding omnipresence. In EP Royappa vs State of Tamil Nadu reported in AIR 1974 SC 555, the Hon'ble Apex Court held that where an act is arbitrary, it is implicit in that it is unequal both according to the political logic and Constitutional law and therefore, violative of Article 14.
10. Article 335 of the Constitution of India provides for the right of the general public for fairness in governace as it controls even protective discrimination when the applicant is held against her will and against the notions of fair play at a hard station for 10 years now. In view of her physical conditions and the disappointments in her service, the service to be expected would be diminished. Therefore, the non implementation of Annexure A-9 the order dated 20.09.2013 is against the principles of justice enshrined in the Constitution of India for the benefit of the general public as well as the government servants. We hereby declare that the policy have to be read to understand that it may not have any further effect in view of the consistent and continuous transgress of the same by the concerned authority itself. The laws are meant to be universally and certainly applied and continuous transgression will destroy the matrix of fairness to be made available in a legal statute.
11. We allow this Original Application and the respondents are directed to implement the transfer order within one week from today.
12. The Original Application is allowed. No costs.