High Court Has Power To Prescribe Conditions For Inter-District Transfers Of Employees In Administrative Side Of Judiciary: Kerala High Court

The Kerala High Court recently held that High Court has the power to prescribe conditions for inter district transfers of employees in the administrative side of the judiciary. The Court observed that this power is derived from Article 235 of the Constitution which grants the High Court the power to exercise complete administrative control over the subordinate courts.

A single bench of Justice N Nagaresh observed,

“The courts are institutions or an organism where all the limbs complete the whole system of courts. When the constitutional provision is of such wide amplitude to cover both the courts and persons belonging to the judicial office, there would be no reason to exclude the other limbs of the courts, namely, administrative functionaries and ministerial staff of its establishment from the scope of control. Such control is exclusive in nature, comprehensive in extent and effective in operation.”

The Court in this case upheld an Office Memorandum issued by the Registrar General of the High Court, which stated that for applying for inter-district transfers completion of five years in the category to which transfer is sought is mandatory. The Court held that the High Court is competent to stipulate conditions for inter-district transfers without contravening the Last Grade Service Special Rules, 1966.

“Article 235 of the Constitution provides for power of the High Court to exercise complete administrative control over the subordinate courts. This control extends to all functionaries attached to the subordinate courts including the ministerial staff and servants in the establishment of the subordinate courts.”

The Court was hearing a writ petition filed by a Process Server in Sub Court, Tirur, who had sought for a direction to the Registrar General of the High Court and the District Judiciary to consider his transfer application without insisting on completion of five years in the category to which transfer was sought by him. It was the petitioner’s case that the Deputy Registrar was insisting on reverting Process Servers to the entry cadre of Office Attendant Grade-II for Inter-District Transfer, which was contrary to government orders already issued.

The petitioner challenged the Office Memorandum which states that applicants for Inter-District Transfers need to satisfy qualifying service in the concerned post for the five-year rule to apply. This means that the petitioner needs to complete five years of service as Process Server, for his application for Inter-District Transfer to be considered. The petitioner submitted that he had rendered five years of service as a Last Grade Service Employee and argued that he was governed by Last Grade Service Special Rules, 1966. Under Rule 17(d) of the Special Rules there was no minimum period of service to apply for Inter-District transfer, he contended. The memorandum was challenged by the petitioner, contending that it was violative of the Special Rules.

The petitioner relied on a government order relating to Inter-District transfers of employees issued in 1991, by the State Personnel and Administrative Reforms Department, which does not stipulate that five years of service should be in the particular cadre to which transfer is sought by the applicant. The Petitioner also relied on a communication from the Additional Chief Secretary to the Government, to contend that there was no rule requiring reversion to the entry cadre for the purpose of inter district / departmental transfer. The said communication stated that as per the provisions of Rule 17(d) of the Special Rules, an employee working in a promoted post could be granted Inter-District Transfer to another unit in the same Department on completing five years of service in the District of recruitment without being reverted to the entry cadre.

The petitioner argued that the direction in the Office Memorandum regarding qualifying service is contrary to the Special Rules and aforementioned Government Orders.

However, the Court held that the memorandum has been issued by the High Court taking into consideration the provisions pertaining to appointments, promotions and transfer in the Special Rules. The Court held that the High Court is competent to stipulate conditions for inter-district transfers without contravening the Special Rules. In this regard the Court held that the High Court had the support of Article 235 of the Constitution.

However, the petitioner also relied on a judgment of the Court dated 07.03.2022 which granted transfers to similarly situated people without insisting on the five year tenure in the same category to which transfer is sought. The petitioner contented that he would be governed by the said judgment because at the time of his application, the said judgement was in force and the Official Memorandum was issued only later on 05.08.2022. The Court agreed with this contention and allowed the writ petition by directing the respondents to consider the petitioner’s application for transfer based on the findings in the said judgment and not with regard to the office memorandum.

“As a general principle, application for transfer is to be considered on the basis of existing rules prevalent on the date of consideration of the application. The petitioners in Ext.P6 judgment also were working as Process Servers in Malappuram District, where the petitioner is working. The petitioner's application was pending when applications of those petitioners were under process. Therefore, non-consideration of the petitioner's application in the light of Ext.P6 judgment and rejection the petitioner's application on the basis of subsequently issued Ext.P8 Official Memorandum would infringe Articles 14 and 16 of the Constitution of India.”

Case Title: Ratheesh Dasan V. State Of Kerala

Citation: 2023 LiveLaw (Ker) 226

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