IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 14889 of 2009(E)
1. DR.SOBHA RAMANARAYANAN,
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. DIRECTORATE OF MEDICAL EDUCATION,
3. DR.RENUKA, AGED ABOUT 50 YEARS,
4. DR.RAJU JACOB,
5. DR.GIRIJA MANY V.K.,
For Petitioner :SRI.SHAJI P.CHALY
For Respondent :SRI.R.T.PRADEEP
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :10/07/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.14889/2009-E
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Dated this the 10th day of July, 2009
J U D G M E N T
The petitioner is aggrieved by the order of transfer Ext.P1 issued by
the first respondent whereby the petitioner is transferred from Medical
College, Thiruvananthapuram to Medical College, Alappuzha in the
existing vacancy of Professor and the third respondent is transferred to the
post occupied by the petitioner and consequently, respondent Nos.4 and 5
are transferred to Medical College, Kottayam and Medical College, Thrissur
in the vacancies of respondent Nos.3 and 4 respectively. Mainly, it is
contended by the learned counsel for the petitioner that the petitioner is due
to retire from service on 05/11/2010 and therefore, the petitioner has got
only less than two years of service before retirement. As per the norms
fixed for transfer, a doctor who has got only two years for retirement is to be
retained in the same place in preference to those candidates who have got
more years of service. Date of birth of the third respondent is May, 1960
and she is due to retire in the year 2015.
2. It is also pointed out that in the draft proposal issued for
transfer, namely, Ext.P2, the petitioner was not proposed to be transferred.
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Against column (3) containing the name of the third respondent, it is
recorded that the petitioner is having less than two years for retirement from
service and the third respondent may be transferred to Medical College,
Alappuzha in the open vacancy. It is pointed out that the order of transfer
therefore, is against the draft proposal also. Ext.P3 seems to be the
representation submitted by the petitioner staking out her claim. The
petitioner has given in detail in paragraph (3) of the writ petition the various
spells under which she had been working in different Medical Colleges.
Prior to the present transfer, she was given a posting in Alappuzha Medical
College from 27/04/2009 to 28/04/2009, in the light of the inspection
conducted by the M.C.I team.
3. This Court by interim order dated 29/05/2009 stayed the order
of transfer of the petitioner which was being continued from time to time.
The third respondent has filed a detailed counter affidavit opposing the
prayers of the petitioner.
4. Heard the learned counsel for the petitioner, the learned counsel
for the third respondent and the learned Government Pleader. Along with
the reply affidavit, petitioner has produced Ext.P5 [G.O.(MS).
No.109/87/H&FWD, dated 28/05/1987] wherein, going by paragraph (3),
Medical Officers who have only two years to retire from service on
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superannuation will not normally be disturbed by transfer and will, as far as
possible, be posted to institutions of their choice, preference being given to
those who retire earlier.
5. Paragraph (18) of the above G.O is also relied upon in support
of the plea of the petitioner, which is as follows:-
If there are more than one applicant for transfer to
a particular post first preference for posting will be given
to the person who has only two years to retire, then to the
person who has worked the least period in the institution
asked, for and then according to seniority.
6. Reliance is placed on paragraph (13) of Ext.P6 to show that
employees who have only two years to retire may be posted to vacancies in
stations of their choice, giving preference to those who are due to retire
earlier. The petitioner has also produced G.O.(Rt).No.504/2005H.&FWD,
dated 21/02/2005 as Ext.P7 and relied on paragraph (1) therein to show that
the guidelines issued as per G.O 10/09/2004 namely, Ext.P6 as well as
Ext.P5 are in force subject to the modification made in the said Government
Order.
7. Mainly it is contended by the learned counsel for the petitioner
that since the petitioner is having only less than two years to retire from
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service, the third respondent who is junior ought not have been preferred to
replace the petitioner, especially when in the draft proposal the third
respondent was proposed to be transferred to Medical College, Alappuzha
and the petitioner was not proposed to be transferred.
8. The learned counsel for the third respondent submitted that the
third respondent has got more out station service than the petitioner and
immediately after the draft proposal was published as per Ext.P2, the third
respondent submitted an objection as she did not require a transfer to
Alappuzha. Thiruvananthapuram is her home station. The third respondent
has also filed an additional counter affidavit producing Ext.R3(c), G.O.(Rt).
No.3291/2008/H&FWD, dated 04/10/2008, passed by the Government
pursuant to judgment in W.P.(C).No.15711/2008 dated 17/07/2008, of this
Court in relation to a dispute regarding transfer between two other parties.
The third respondent also relies upon the fact that her husband is working in
Thiruvananthapuram District as the Superintendent of Taluk Head Quarters
Hospital, Neyyattinkara.
9. The issue is whether the petitioner or the third respondent
should be preferred. Obviously, when Ext.P2 was published, the name of
the petitioner was not shown as there was no proposal to transfer the
petitioner. Specifically against the name of the third respondent it is
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recorded that there is no open vacancy at Medical College,
Thiruvananthapuram since the petitioner is having less than two years
service to retire and therefore, the third respondent may be transferred to
Medical College, Alappuzha. The petitioner was therefore entitled to
believe that, there is no proposal to transfer her. But when the order of
transfer was issued, the said proposal was varied and the petitioner was
transferred to Alappuzha Medical College. If a revised proposal for transfer
was published or communicated, the petitioner could have submitted her
objection. Such an opportunity was not given, which vitiates the order
itself. Therefore, it is obvious that the respective claims of the parties with
reference to the guidelines have not been considered by the Government
and the petitioner could not therefore stake out her claim to be retained in
Thiruvananthapuram by relying upon the various clauses in the respective
Government Orders. The order of transfer is silent on the aspects pointed
out by the respective parties to claim preference.
10. In that view of the matter, the issue will have to be
reconsidered by the Government with notice to the petitioner and the third
respondent. Ext.P1, as far as it transfers the third respondent to Medical
College, Thiruvananthapuram in the place of the petitioner, is set aside to
enable the first respondent to consider the matter afresh. Transfers ordered
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in respect of other persons mentioned therein will remain in force. The first
respondent will pass appropriate orders within a period of six weeks from
the date of production of a copy of this judgment. The petitioner and the
third respondent will be allowed to produce Government Orders, if any,
they rely upon and if they choose to file any representation, they can file the
same within a period of three weeks from today. The writ petition is
disposed of as above. No costs.
(T.R. Ramachandran Nair, Judge.)
ms