IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 13837 of 2010(D)
1. PRASANTH.R.S., MEDICAL OFFICER,
... Petitioner
Vs
1. DIRECTOR OF HOMOEOPATHY, OFFICE OF THE
... Respondent
2. SURESH BABU.M.K.
For Petitioner :SRI.N.SUGATHAN
For Respondent :DR.K.P.SATHEESAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :13/08/2010
O R D E R
ANTONY DOMINIC, J.
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WP(C) No.13837 of 2010 (D)
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Dated, this the 13th day of August, 2010
J U D G M E N T
Petitioner and the 2nd respondent are Homoeo Medical
Officers. In this writ petition, what is under challenge is Ext.P7
order dated 21/04/2010 to the extent the 2nd respondent is
transferred and posted to Chadayamangalam in Kollam District.
2. The petitioner joined service on 11/08/2000 and
thereupon, was posted to Chadayamangalam. He continued in that
Station till 26/05/2006 when he was transferred and posted to
Nagaroor in Thiruvananthapuram District. While continuing at
Nagaroor, claiming preference on the basis that he is a physically
handicapped person with 45% disability, the petitioner sought
transfer and posting at Chadayamangalam in Kollam District, it
being his Home District. In Ext.P5 draft list of transfers and
postings, the petitioner’s name was included at serial No.4 with a
proposal to post him at Chadayamangalam. In Ext.P5, the 2nd
respondent’s name was also included with a proposal to give him
posting at Thottapuzhassery in Pathanamthitta District. It would
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appear that the 2nd respondent who had made an application for
posting at Chadayamangalam, which being his 2nd choice, objected
to the proposal in Ext.P5 to the extent he was transferred and
posted to Pathanamthitta and the petitioner was posted to
Chadayamangalam. At that stage, he also had approached this
Court by filing WP(C) No.10839/2010, which was disposed of by
Ext.P6 judgment dated 06/04/2010 directing consideration of his
representation. Apparently in pursuance to the above, when Ext.P5
draft list was finalised as per Ext.P7, the 2nd respondent was ordered
to be posted at Chadayamangalam and the petitioner’s name does
not find a place in the order, which means that the petitioner is
allowed to continue at Nagaroor. It is in these circumstances, the
writ petition has been filed impuging Ext.P7 order to the extent the
2nd respondent is given posting at Chadayamangalam.
3. Main contention raised is that the petitioner is entitled to
have a preferential posting in view of the Government Orders
providing for preferences to physically handicapped persons. It is
also contended that in Ext.P6 judgment, this Court only directed
consideration of the representation made by the 2nd respondent,
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whereas in Ext.P7 order, the said direction to consider the
representation has been misinterpreted as a binding direction
requiring the authorities to give posting to the 2nd respondent as
sought for by him.
4. On the other hand, the 2nd respondent submits that he is
a native of Kollam District, and that on joining service, he was
posted to Kasaragod District, where he continued till 1999, when he
was transferred to Kollam District. It is stated that from Kollam
District, he was transferred to Palakkad District in 2002, where he
continued till 2004, when he was transferred again to Kasaragod
District. From there, in 2005, he was transferred to
Thiruvananthapuram District, where he continued till 2006, when he
was transferred to Vakkom. It is stated that it was while continuing
at Vakkom, in 2010 he applied for a transfer to Chadayamangalam,
and it was in pursuance to that application, he is ordered to be
posted by Ext.P7. Therefore, the endeavor of the learned counsel
for the 2nd respondent is that out of about 14 years of service,
except during the period 1999-2002, the remaining period the 2nd
respondent was outside Kollam District.
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5. Although it is true that in Ext.P6 judgment, this Court
only directed consideration of the representation made by the 2nd
respondent, a reading of Ext.P7 order of transfer would indicate that
the said direction was misunderstood and has been taken as a
binding direction requiring the authorities to post the 2nd
respondent at the place opted by him. The question is whether in
spite of the above, any injustice has been caused to the petitioner
in issuing Ext.P7 order warranting interference in a proceedings
under Article 226 of the Constitution of India. Facts show that the
petitioner who joined service on 11/08/2000 was posted at
Chadayamangalam, where he continued till 26/05/2006 when he
was posted at Nagaroor, a boarder town in Thiruvananthapuram
District, where he is continuing even now.
6. On the other hand, as far as the 2nd respondent is
concerned, except the 3 year period, i.e. 1999 – 2002, rest of the
whole period, he had service in far away Stations like Kasaragod and
Palakkad Districts, and is getting a Home Station posting only now.
Therefore, it cannot be said that by giving posting to the 2nd
respondent, any substantial injustice has been caused to the
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petitioner. In that view of the matter, I do not think that this Court
should interfere with Ext.P7 order of transfer, which has been issued
in the exigencies of service.
7. True, the petitioner pressed for a posting at
Chadayamangalam mainly relying on the concessions that are
extended to physically handicapped persons. Ext.P1 certificate
produced by the petitioner shows that he is a person with 45%
disability. Going by the affidavit in the writ petition, the petitioner is
a resident of Thiruvananthapuram District, and it is the specific case
of the 2nd respondent that since Government Orders permit
preferential posting only to Home District and as the petitioner’s
Home District is Thiruvananthapuram, he cannot claim preferential
posting at Chadayamangalam, which is within Kollam District. On
the other hand, the case of the petitioner is that initially his Home
District was Thiruvananthapuram, which was subsequently changed
to Kollam District, and therefore, he is entitled to the preference.
First of all, the Government Orders relied on by the petitioner
providing for preference are only administrative guidelines, and if
on exigencies of service and considering the requirements, the
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Government departs from the same for bonafide reasons, this Court
will not be interfered with such action of the Government. Here in
this case, I am not satisfied that there is any malafide exercise of
power, which alone justifies interference in a proceedings under
Article 226 of the Constitution of India.
The writ petition fails and is accordingly dismissed.
(ANTONY DOMINIC, JUDGE)
jg