Full Judgment
HON'BLE Mr. GEORGE PARACKEN, JUDICIAL MEMBER
The applicant is aggrieved by the Annexure A-1 order dated 17.12.2009 transferring him from LPWD Division, Amini to LPWD Division, Kalpeni vice Shri. Arun Jadav, Executive Engineer (regular) who has been transferred from LPWD Division, Kalpeni to LBDB, Kavarathi on deputation basis under F.R.110 against an existing vacancy and Shri. N. Nandakumaran, the 4th respondent, Executive Engineer (ad hoc basis) working at LPWD, Circle Office, Kavarathi to LPWD Division, Amini vice the applicant.
2. The contention of the applicant in this O.A is that the order has been issued with malafide intention. He has submitted that his children are studying in schools in Amini. The eldest one, a girl child, is in Class XI and is looking forward for the Board Exams in March. Others are studying in VIII and II Standards respectively. According to him, it is not possible to shift the family at this point of time and the respondents could have avoided the mid academic year transfer. The applicant has, therefore, made the Annexure A-6 representation dated 21.12.2009 to the Administrator by fax stating the aforesaid facts and requesting the authorities to consider his request for retaining him at Amini until the school exams of his ward are over in March 2010. In this regard, learned Senior counsel for the applicant relied upon the Apex Court judgment in Director of School Education, Madras and others Vs. O. Karuppa Thevan and another [1994 Supp. (2) SCC 666] in which it has been held that if the exigencies of the service are not urgent, the fact that the children of an employee are studying should be given due weightage. The short judgment is reproduced as under :-
"1. Leave granted. Heard both counsel.
2. The tribunal has erred in law in holding that the respondent employee ought to have been heard before transfer. No law requires an employee to be heard before his transfer when the authorities make the transfer for the exigencies of administration. However, the learned counsel for the respondent, contended that in view of the fact that respondent's children are studying in school, the transfer should not have been effected during mid-academic term. Although there is no such rule, we are of the view that in effecting transfer, the fact that the children of an employee are studying should be given due weight, if the exigencies of the service are not urgent. The learned counsel appearing for the appellant was unable to point out that there was such urgency in the present case that the employee could not have been accommodated till the end of the current academic year. We, therefore, while setting aside the impugned order of the Tribunal, direct that the appellant should not effect the transfer till the end of the current academic year. The appeal is allowed accordingly with no order as to costs."
3. Shri. S. Radhakrishnan, counsel for the respondents, on instructions from the Department submitted that Shri. N. Nandakumaran, the 4th respondent, has already joined duty at the new place of posting on 21.12.2009. He has also submitted that the reason for transferring the applicant was that he was inefficient in handling the work at Amini. When the financial year was coming to an end, it was noticed that the work entrusted to him has not been proportionately completed. Therefore, the department was in urgent need of an efficient person to be posted in his place so that the work can be completed in time. It is for this reason that the 4th respondent, Shri. N. Nandakumaran, Executive Engineer, has been posted in his place. He has also submitted that Shri. Arun Jadav, Executive Engineer, has been transferred from LPWD Division, Kalpeni to LBDB, Kavarathi because of his medical problems.
4. I have heard Shri. M.R. Rajendran Nair, Senior counsel along with the learned counsel Shri. M.R. Hariraj for the applicant and learned counsel Shri. S. Radhakrishnan for the respondents. Learned Senior counsel wanted this Tribunal to issue an interim direction to the respondents staying the operation of Annexure A-1 order in the cases of the applicant and the 4th respondent till the disposal of this O.A. However, since the 4th respondent has already joined duty on 21.12.2009 in the place of the applicant and the applicant has got the joining time to join duty at the new place of posting, he submitted that he will be satisfied if a direction is given to the 2nd respondent, namely, the Administrator, to dispose of the Annexure A-6 representation dated 21.12.2009 within a short period.
5. In view of the above position, I dispose of this O.A with a direction to the 2nd respondent to consider the Annexure A-6 representation of the applicant and dispose of it with a reasoned and speaking order within a period of two weeks from the date of receipt of a copy of this order. There shall be no order as to costs.