IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.K.ABDUL REHIM TUESDAY, THE 15TH NOVEMBER 2011 / 24TH KARTHIKA 1933 WP(C).No. 29415 of 2011(B) ---------------------------------------- PETITIONER(S): ----------------------- DR.B.RAJMOHAN, MEDICAL CONSULTANT (O&G), 93/1, "KRISHNA KRIPA", AISWARIA GARDENS, KOORKKANCHERRY P.O., THRISSUR. (UNDER ORDER OF TRANSFER). BY ADVS. SRI.N.RAGHURAJ, SMT.K.AMMINIKUTTY. RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELAFARE (A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM - 695 001. 3. THE SUPERINTENDENT, DISTRICT HOSPITAL, THRISSUR - 680 001. 4. DR.P.P.RAMESH KUMAR, MEDICAL CONSULTANT (O&G), DISTRICT HOSPITAL, THRISSUR - 680 001. R1 TO R3 BY GOVERNMENT PLEADER SMT. RANI DIOTHIMA R4 BY ADVS. SRI.MOHAN C.MENON, SRI.T.M.KOCHUNNI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.29415/2011 B APPENDIX PETITIONER'S EXHIBITS: EXHIBIT-P1. TRUE PHOTOCOPY OF THE OPTION SUBMITTED BY THE PETITIONER. EXHIBIT-P2. TRUE PHOTOCOPY OF THE GOVT.ORDER GO(MS) NO.356/2010/H&FWD DATED 06.06.2010. EXHIBIT-P2(a). TRUE PHOTOCOPY OF SENIORITY LIST. EXHIBIT-P3. TRUE PHOTOCOPY OF REPRESENTATION DATED 31.07.2011. EXHIBIT-P4. TRUE PHOTOCOPY OF THE COVERING LETTER DTD.4.08.2011. EXHIBIT-P5. TRUE PHOTOCOPY OF THE GO(Rt) NO.3789/H&FWD DATED 28.10.2011. EXHIBIT-P6. TRUE PHOTOCOPY OF THE REPRESENTATION DATED 08.05.2011. EXHIBIT-P6(a). TRUE PHOTOCOPY OF THE REPRESENTATION DATED 18.05.2011. EXHIBIT-P7. TRUE PHOTOCOPY OF THE JUDGEMENT DATED 28.6.2011 IN W.P.(C)NO.17313/2011. RESPONDENTS' EXHIBITS: R4A: COPY OF THE GOVERNMENT ORDER (MS) 109/87/H&PWD DTD. 28/05/1987. R4B: COPY OF THE G.O.(P) 15/89/P&ARD DTD. 22/05/89. R4C: COPY OF THE G.O.(RT) 3326/2011/H&FWD DTD. 23/09/2011. R4D: COPY OF THE REPRESENTATION DTD. 3/10/2011 SUBMITTED BY 4TH RESPONDENT TO THE 1ST RESPONDENT. /TRUE COPY/ P.A.TO JUDGE Kss C.K. ABDUL REHIM,J. ------------------------------------------------- W.P.(c) No.29415 OF 2011 ------------------------------------------------- DATED THIS THE 15th DAY OF NOVEMBER, 2011 J U D G M E N T The petitioner is working as Medical Consultant in the specialty of 'Obstetrics and Gynecology (O&G)' at District Hospital, Thrissur. He is challenging Ext.P5 order through which he is transfered to the Taluk Headquarters Hospital, Chalakudy. Inter alia the petitioner is seeking direction to transfer him back to the District Hospital, Thrissur. 2. Petitioner joined in service as Assistant Surgeon on 30-09-1991 and got promotion to the post of Civil Surgeon on 19-08-2006. While working as Civil Surgeon in the District Hospital, Government introduced specialty cadre in the Department of Health Service. The cadre of Civil Surgeon was re-named as Medical Consultant. On the basis of the option submitted the petitioner had chosen the specialty of O&G. ExhibitP2 and P2 (a) is the provisional list of seniority in the cadre of Medical Consultants. The petitioner was re-designated and allowed to continue at the W.P.(c) No.29415/2011 -2- District Hospital, Thrissur as Medical Consultant from May 2011 onwards. 3. There were three units of O&G in the District Hospital, under three Medical consultants. Two of them were seniors in service to the petitioner, as per Ext.P2. One such Medical Consultant, Dr. Shobana V.S., who is Sl. No.16 in Ext.P2 (a) list retired from service on 31-03-3011. One Dr. Lekha K., who is Sl. No.85 in Ext.P2 (a) was appointed against her vacancy, during May 2011. It is stated that the 4th respondent herein who is Sl. No.71 in Ext.P2 (a), who was working in Taluk Headquarters Hospital, Chalakudy raised a claim for transfer to the said post in preference to Dr. Lekha K., since he is senior. He submitted Ext.P6 and P6 (a) representations to the 1st respondent in this regard. Since such representations were not considered, he approached this Court in W.P (c) No.17313/2011. In Ext.P7 judgment this court directed the 1st respondent to consider and pass orders on Exts.P2 and P3, after affording an opportunity of hearing to the W.P.(c) No.29415/2011 -3- 4th respondent as well as to Dr. Lekha K., within a time frame. Exhibit P7 judgment was passed by this Court on 28- 06-2011. According to the 4th respondent it was communicated to the 1st respondent on 16-07-2011. But the 1st respondent had issued an order on 23-09-2011 (Ext.R4 (c) through which Dr. Lakha K. was transferred from District Hospital, Thrissur to Taluk Headquarters Hospital, Irinjalakuda and another person, Dr. Leena James who was working at Taluk Headquarters Hospital, Irinjalakuda was transferred to the District Hospital, Thrissur. It is evident from Ext.R4 (c) that the said transfer was effected on the basis of representation submitted by Dr. Leena James on 27-05-2011. 4. Subsequently, in compliance of Ext.P7 judgment, Ext.P5 impugned order of transfer was issued. From Ext.P5 it is evident that, at the time of formulating specialty cadre, there were options submitted by the petitioner and Dr. Lekha K. to the post at District Hospital, Thrissur. But with respect to vacancy which arose on 01-04-2011 consequent W.P.(c) No.29415/2011 -4- to retirement of Dr. Shobana V.S, Dr. Lekha K. was appointed. The 1st respondent further found that the 4th respondent is rank No.71, whereas Dr. Lekha K. is only rank No.85. Therefore the 4th respondent was having preferential claim for transfer. On finding that Dr. Lekha K. has already been transferred to Taluk Headquarters Hospital, Irinjalakuda, the 4th respondent was given posting at the District Hospital, Thrissur by transferring the petitioner on mutual basis. 5. Contention of the petitioner is that the rival claim between the 4th respondent and Dr. Lekha K. was only for the retirement vacancy which arose on 01-04-2011. For settling the dispute the petitioner should not have been transferred, is the contention. In Ext.P5 no specific reason is stated as to why the petitioner is transferred. Further, it is pointed out that, the entire situation has resulted due to Ext.R4 (c) order, which was issued ignoring Ext.P7 judgment Since the transfer of the petitioner is not under any exigency of service or is not by way of general transfer, W.P.(c) No.29415/2011 -5- the petitioner is challenging the same as totally unreasonable, irregular and arbitrary. It is also pointed out that there was no claim made by the 4th respondent to the post the petitioner at District Hospital, Thrissur. 6. The 4th respondent, per contra, contended that Ext.P2 does not prescribes norms with respect to transfer, but only prescribes seniority and criteria in allowing options in the specialty cadre. It is also contended that the petitioner was continuing in the District Hospital, Thrissur for the last so many years and there is nothing wrong in transferring him from that station, considering the general norms of transfer. However, it is fairly conceded that the 4th respondent never made any claim to the post in which the petitioner was working. 7. Learned Government Pleader appearing on behalf of respondents 1 to 2 also contended that the petitioner is a person continuing in the post for so many years and he is not entitled to challenge the order of transfer which is made in the exigency of service. W.P.(c) No.29415/2011 -6- 8. Considering the rival contentions, the question posed for consideration is as to whether there was any exigency of service which warranted transfer of the petitioner. It is evident from Ext.P5 that the transfer of the petitioner was made in order to accommodate the 4th respondent at District Hospital, Thrissur. But at the same time, it is evident that the claim of the 4th respondent was only to a retirement vacancy arose due to the retirement of Dr. Shobana V.S., on 01-04-2011, and the dispute was on the basis that Dr. Lakha K. who is his junior was given posting, ignoring his preferential claim. Under such circumstances whether it was justified to transfer the petitioner from the post, against which there was no claim either by the 4th respondent or by Dr. Lakha K. In other words, whether it was justified to disturb the petitioner in order to resolve the dispute inter alia between the 4th respondent and Dr. Lekha K. Further, it is also worthy to note that, transfer of the petitioner was necessitated only due to circumstances under which Ext.R4 (c) order was W.P.(c) No.29415/2011 -7- issued while the dispute between the 4th respondent and Dr. Lekha K. was pending and at a time when the specific direction in Ext.P7 judgment pending consdieration. 9. But while considering the issues as narrated above, I am of the opinion that it may not be proper to quash Ext.P5 by this court. But a re-consideration of the issue at the hands of the 1st respondent with due attention to the claims of different persons, will meet the ends of justice. This is especially because of the fact that Ext.P5 order had already taken effect and the petitioner as well as the 4th respondent had assumed charge at the place to which they were transferred. It is also necessary to look into Exts.P3 and P3 (a) requests made by the petitioner for exclusion from outside camp duties and VIP duties on health reasons, while re-considering the entire issue. 10. Under the above mentioned circumstances the writ petition is disposed of directing the 1st respondent to reconsider Ext.P5 as well as Ext.R4 (c) and to take a fresh decision, after affording reasonable opportunity of hearing W.P.(c) No.29415/2011 -8- to the petitioner, the 4th respondent and other parties who are likely to be affected. The needful in this regard shall be done as early as possible at any rate within a period of one month from the date of receipt of a copy of this judgment. Sd/- C.K. ABDUL REHIM, JUDGE. AMG True copy P.A to Judge