High Court Kerala High Court

Bindu.K.S. vs The State Of Kerala on 23 September, 2008

Kerala High Court
Bindu.K.S. vs The State Of Kerala on 23 September, 2008
       

  

  

 
 
  IN THE HIGH COURT OF KERALA AT ERNAKULAM

WP(C).No. 20143 of 2008(W)


1. BINDU.K.S., OPHTHALMIC ASST.GRADE-I,
                      ...  Petitioner

                        Vs



1. THE STATE OF  KERALA, REPRESENTED BY
                       ...       Respondent

2. THE DIRECTOR OF HEALTH SERVICES,

3. THE ADDITIONAL DIRECTOR OF HEALTH

4. BINDHU T.S.,

                For Petitioner  :SRI.T.RAJASEKHARAN NAIR

                For Respondent  :SRI.RAM MOHAN.G.

The Hon'ble MR. Justice P.N.RAVINDRAN

 Dated :23/09/2008

 O R D E R
                              P.N.Ravindran, J.
                       =====================
                        W.P(C).No.20143 of 2008
                       =====================

              Dated this the 23rd day of September, 2008.

                               JUDGMENT

The petitioner challenges Ext.P3 order of transfer passed by the

Additional Director of Health Services and Ext.P7 order passed by the

Director of Health Services on appeal. By Ext.P3, the petitioner was

transferred from the Primary Health Centre, Konny to the Taluk Head

Quarters Hospital, Chalakkudy. By Ext.P3, the fourth respondent was

transferred from the Taluk Head Quarters Hospital, Chittoor and posted

at Primary Health Centre, Oachira. Aggrieved by Ext.P3, the petitioner

filed Ext.P5 representation before the Secretary to Government, Health &

Family Welfare Department. The petitioner thereafter filed W.P(C)

No.16651 of 2008 in this Court. By Ext.P6 judgment delivered on

4.6.2008, this Court while declining to interfere with Ext.P3, directed the

first respondent – State of Kerala to make over Ext.P5 representation to

the Director of Health Services and further directed the Director of Health

Services to consider the same and take a decision thereon. Pursuant to

Ext.P6 judgment, the Director of Health Services considered the request

made by the petitioner in Ext.P5 and by Ext.P7 letter dated 17.6.2008,

informed the petitioner that her appeal against the order of transfer

lacks merit. The second respondent has in Ext.P7 stated that as the

petitioner has completed 3 = years of service at Konny, she is liable to be

WP(C) 20143/08 -: 2 :-

transferred out and that the substitute posted at Konny in her place (who

is not a party to this Writ Petition) had served for 4 = years in Kumily

which is a remote area and was entitled to be posted at the Primacy

Health Centre, Konny. The second respondent has further stated that

the stations which the petitioner had opted in Ext.P1 application for

transfer were filled up by her seniors and there is no vacancy to

accommodate the petitioner in her parent district, namely, Kollam. The

petitioner contends that the fourth respondent who is posted at the

Primacy Health Centre, Oachira entered service only in the year 2004 and

is junior to the petitioner and that the Director of Health Services has not

applied his mind to the said aspect of the matter and brushed aside her

contentions on the erroneous assumption that the fourth respondent is

senior to the petitioner in service. Smt. Anu Sivaraman. the learned

Government Pleader appearing for the official respondents contends that

as the petitioner is liable to be transferred out to Konny, she cannot

claim a posting at Kollam District itself and that the vacancies in the

stations which the petitioner had opted were filled up by posting persons

who are senior to the petitioner. In the statement filed on behalf of

respondents 2 and 3 also a similar contention is raised. The fourth

respondent has filed a counter affidavit contending that she is a native of

Neyyattinkara Taluk in Thiruvananthapuram District and that she was

given a posting at Oachira taking note of her past service in northern

Districts including tribal areas.

WP(C) 20143/08 -: 3 :-

2. I have considered the submissions made at the Bar by the

learned counsel on either side. This Court has in Ext.P6 judgment held

that the order of transfer evidenced by Ext.P3 does not merit

interference. This Court had in Ext.P6 judgment only directed the second

respondent to consider the representation made by the petitioner

against Ext.P3 order of transfer and to take a decision thereon. The

second respondent has pursuant to the direction issued by this Court in

Ext.P6 judgment, considered the petitioner’s grievance and informed her

that her request for cancellation of the transfer evidenced by Ext.P3

cannot be considered at present. The Apex Court has in State of U.P.

and others v. Gobardhan Lal – (2004) 11 S.C.C. 402 held that an order of

transfer cannot be lightly interfered with and that the guidelines

governing transfer do not confer any enforceable right on the employee.

It was further held that an order of transfer can be interfered wirh only if

it is passed by an incompetent authority or is passed in violation of any

statutory rule or is vitiated by malafides. In the instant case, the

petitioner has not been able to show that the order of transfer evidenced

by Ext.P3 was passed by an incompetent authority or that it is passed in

violation of any statutory rule. The petitioner has also not pleaded or

proved that the order of transfer is vitiated by malafides.

3. In these circumstances, I find no merit in the challenge to

Exts.P3 and P7. The Writ Petition accordingly fails and it is dismissed. I

make it clear that this will not stand in the way of the official

WP(C) 20143/08 -: 4 :-

respondents from considering the case of the petitioner for a posting at

another station, if vacancy arises later.

P.N.Ravindran,
Judge.

ess 24/9