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