IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 20595 of 2009(T)
1. K.S.MUHAMMAD SHERIEF,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. THE DIRECTOR OF EMPLOYMENT AND
3. JAYACHANDRAN NAIR,
For Petitioner :SRI.P.SREEKUMAR
For Respondent :SRI.V.N.ACHUTHA KURUP (SR.)
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :13/11/2009
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 20595 OF 2009 (T)
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Dated this the 13th day of November, 2009
J U D G M E N T
Petitioner is a Sub Regional Employment Officer, Special
Employment Exchange for the Physically Handicapped, Kollam. In
this writ petition, he is challenging Ext.P1 order by which the 3rd
respondent was promoted and posted in his place.
2. The 3rd respondent was working as District
Employment Officer, Wynad. By Ext.R3(g) order dated
31/12/2008, on the ground that he is undergoing treatment for
brain stroke, he was transferred and posted as District
Employment Officer, Kollam. Thereafter, by Ext.P1 order dated
17/7/09, the 3rd respondent was promoted to the cadre of
Divisional Employment Officer and was posted as Sub Regional
Employment Officer, Special Employment Exchange for Physically
Handicapped, Kollam. By this order, petitioner who was holding
the post at Kollam, has been transferred and posted as State
Vocational Guidance Officer, Directorate of Employment,
Trivandrum. The pleadings show that it was on compassionate
grounds that the 3rd respondent was posted at Kollam.
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3. Counter affidavit filed by the 1st respondent and the 3rd
respondent states that because of the illness, the certificate of
which is Ext.R1(a) and Ext.R3(b), the 3rd respondent’s wife
submitted Ext.R3(e) representation to the Minister for Labour
requesting to retain him at Kollam. Both the 1st respondent and
the 3rd respondent states that it was on account of the illness as
stated in the representation and as certified in the medical
certificates referred to above that the 3rd respondent was posted.
4. However, petitioner relies on Ext.P3. Ext.P3 is a
request made by one Advocate K.Vinu, invoking the provisions of
the Right to Information Act. By this request, among others, he
sought information as to whether the 3rd respondent had availed
of any medical leave during the last two years since January 2007
and whether any medical reimbursement was accepted by him
during the last two years including his period of service at Wynad.
Answer to this was given on 9/9/09 and to both the questions, the
answer is in the negative.
5. From this, what emerges is that if as stated by the 3rd
respondent, he was such a seriously ailing person, it is quite
unnatural that he would not have availed of medical leave on
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even a single day in the previous two years. It is also against
normal human conduct that he would not have availed of the
benefit of medical reimbursement.
6. Learned Senior counsel for the 3rd respondent states
that since he was transferred from Wynad to Kollam by Ext.R3(g)
on compassionate ground, Government was fully conscious of his
medical condition and it was therefore that the Government acted
upon the representation enclosing the medical certificate.
However, going by the counter affidavit filed by the Government,
the only material available before the Government was Ext.R1(a),
the medical certificate produced by the 3rd respondent’s wife
along with Ext.R3(e) representation made by her to the Minister
for Labour. In the light of the information that has been disclosed
as per Ext.P3, in my view, the matter needs to be reconsidered
and the 1st respondent should enquire into the acceptability of the
case of sickness claimed by the 3rd respondent.
7. Therefore, I dispose of this writ petition with the
following directions:
(1) That the 1st respondent shall reconsider the claim of
the 3rd respondent for posting at Kollam duly adverting to the
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medical records of the 3rd respondent, and on such examination, if
the 1st respondent is satisfied that the 3rd respondent deserves to
be given compassionate posting as per the guidelines, it will be
open to the 1st respondent to post the 3rd respondent at Kollam as
ordered in Ext.P1.
(2) Until orders are passed as above, implementation of
Ext.P1 will be deferred.
(3) It will be open to the parties to make their
representations to the 1st respondent and the 1st respondent shall
consider the matter as above and pass fresh orders, as
expeditiously as possible, at any rate within 4 weeks of
production of a copy of this judgment.
ANTONY DOMINIC, JUDGE
Rp