IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 4TH MARCH 2009 / 13TH PHALGUNA 1930 WP(C).No. 4787 of 2009(T) ---------------------------------- PETITIONER(S): ---------------------- P.K.RAMANI, LADY HEALTH SUPERVISOR, WAS WORKING AT P.H.CENTRE, KONNY:NOW TRANSFERRED TO P.H.CENTRE, VECHOOCHIRA. BY ADVS. MR.ANTONY SMT.LEELAMMA ANTONY RESPONDENT(S): ------------------------- 1. THE DISTRICT MEDICAL OFFICER(H), PATHANAMTHITTA. 2. THE DIRECTOR OF HEALTH SERVICE, THIRUVANANTHAPURAM. 3. LILLY DANIEL,LADY HEALTH SUPERVISOR, WAS WORKING AT P.H.CENTRE, VECHOOCHIRA, NOW TRANSFERRED TO P.H.CENTRE, KONNY. ADV. SRI.PHILIP M.VARUGHESE FOR R3 BY GOVERNMENT PLEADER MR.ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.4787/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.FWAS/94622/07/DHS DT. 29.1.08 OF THE ADDITIONAL DIRECTOR OF HEALTH SERVICES. P2:- COPY OF ORDER DT. 18.12.08 OF THE IST RESPONDENT. P3:- COPY OF THE RELIEVING ORDER DT. 24.12.08 OF THE SUPERINTENDENT OF PHC, VADEKKAD, ISSUED TO THE PETITIONER. P4:- COPY OF THE CIRCULAR DT. 21.1.09 ADDRESSED TO THE IST RESPONDENT BY DIRECTOR OF HEALTH SERVICES. P5:- COPY OF THE ORDER NO.A3-5592/08/DMO(H), PTA DT. 23.1.09 OF THE IST RESPONDENT. RESPONDENT'S EXHIBITS R1(a):- COPY OF THE GO(P) NO.12/04 P&ARD DT. 10.9.04. R1(b):- COPY OF THE ORDER DT. 26.5.08 OF THE 2ND RESPONDENT R1(c):- COPY OF THE ORDER NO.FWA A5-25775/08/DHS DT. 13.6.08 OF THE 2ND RESPONDENT. R1(d):- COPY OF THE RELIEVING ORDER DT. 10.2.09 OF THE PETITIONER. R1(e):- COPY OF THE JOINING REPORT SUBMITTED BY THE 3RD RESPONDENT. R3(a):- COPY OF THE RELIEVING ORDER NO.450/08/M.PI.CK/DT. 10.2.09. R3(b):- COPY OF THE HANDING OVER CHARGE TO THE APPELLANT/THIRD RESPONDENT IN THE ORIGINAL PETITION BY THE PETITIONER IN WPC. DT. 10.2.09. R3(c):- COPY OF THE REPRESENTATION DT. 20.8.08. TRUE COPY P.A. TO JUDGE tss T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4787/2009-T ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 4th day of March, 2009 J U D G M E N T The writ petition concerns the dispute raised by the petitioner as well as the third respondent for a posting in the Primary Health Centre, Konny. The challenge is against Ext.P5 order passed by the District Medical Officer, Pathanamthitta, whereby the third respondent is transferred from P.H.Centre Vechoochira to Konny and the petitioner is transferred from Konny to Vechoochira. 2. It is also specified in the order that the request of the petitioner for a posting in Konny will be considered after the retirement of the third respondent. 3. The short facts leading to the dispute are the following:- Both the petitioner and the third respondent entered service as Junior Public Health Nurses. The petitioner joined duty on 12/10/1981 and the third respondent on 07/01/1982. In the final seniority list of Lady Health Inspectors, the petitioner is ranked 51 and the third respondent is ranked 58. Therefore, the petitioner is senior to the third respondent. Presently they are working as Lady Health Supervisors, on promotion. W.P.(C) No.4787/2009-T -:2:- 4. The petitioner has been working in Thrissur District from the time of appointment. In 2008, she sought for a transfer to the District of her own choice being Pathanamthitta. She is a native of Konny. It is pointed out that as per Ext.P2 order dated 18/12/2008, the petitioner was posted in P.H.Centre, Konny. The posting was given as per the direction received from the Director of Health Services, which letter is referred to as item No.2 in Ext.P2. Thereafter, she joined in that station. The petitioner was replaced by the third respondent by Ext.P5 order. Two reasons have been pointed out therein. First one is that the third respondent is retiring on November, 2009 and the second one is that she is having seniority in that district than the petitioner. According to the petitioner both these are extraneous reasons and are unsupportable. The petitioner is relying on Ext.P4 Circular of the Director of Health Services to the effect that the transfers and postings will be suspended upto the General Transfer. The same is dated 21/01/2009. It is therefore, pointed out that the District Medical Officer could not have passed Ext.P5 order dated 23/01/2009, violating the orders passed by the Director of Health Services. 5. The petitioner also contends that she had been seeking for a transfer to a convenient place as she had undergone three major surgeries recently and she is physically weak and therefore an accommodation in her W.P.(C) No.4787/2009-T -:3:- native place alone will save her from misery. The place Vechoochira is more than 60 kms from Konny. The petitioner is due to retire from service on 31/12/2010. 6. In the counter affidavit filed by the third respondent it is averred that she was working in Idukki District, in P.H Centre Deviyar Colony (High Range) and she was promoted as Lady Health Supervisor and was posted to P.H.Centre, Upputhara, (High Range) Idukki District. She had been making request for transfer to Konni in Pathanamthitta District and she was transferred to Vechoochira in Pathanamthitta District as there was no vacancy at Konny. When an open vacancy arose at P.H Centre, Konny consequent on the retirement of one Smt.Leelamma on 30/08/2008, she filed a representation seeking for transfer in August 2008 and the same was recommended and sent to District Medical Officer, Pathanamthitta by the Medical Officer, P.H. Centre, Vechoochira. This is produced as Ext.R3 (c). 7. It is pointed out by the third respondet that the petitioner was posted at Konny over looking the claim of the third respondent for a posting in Konny. The third respondent has got a further contention that Ext.P1 is only a seniority list of Lady Health Inspectors and not the seniority list of Lady Health Supervisors and that she is having District wise seniority. She W.P.(C) No.4787/2009-T -:4:- also has her permanent residence at Konny. Her date of retirement is on 30/11/2009 whereas the petitioner is due to retire only on 31/12/2010. As per the existing guidelines preference will be given to persons who retire earliest. It is also averred that there arose an open vacancy of Lady Health Supervisor in P.H.Centre, Chathankary and the Director of Health Services as per order dated 05/12/2008, transferred and allotted the petitioner to Pathanamthitta District against the said vacancy. 8. In the counter affidavit filed by the first respondent, Ext.R1(a) guidelines have been produced and paragraph (13) therein is relied upon to show that employees who have only two years to retire may be posted to vacancies of their choice, giving preference to those who are due to retire earlier. It is pointed out that the third respondent had requested for a posting to Pathanamthitta District and, by Ext.R1(b) she was transferred from Upputhura in Idukki District to Pathanamthitta District. The third respondent was posted at Vechoochira as there was no vacancy at P.H Centre, Konny at that time. It is pointed out that the petitioner was posted at P.H. Centre, Konny as per Ext.P2 by an oversight. The third respondent was allotted to Pathanamthitta District earlier in the retirement vacancy which arose on 30/11/2008. According to Ext.R1(a) guidelines, the third respondent was entitled for posting in preference to the petitioner as she was W.P.(C) No.4787/2009-T -:5:- due to retire earlier than the petitioner. Ext.R1(c) is the order by which the petitioner is allotted to Pathanamthitta District. Accordingly, it is contended that the third respondent is more preferable for a posting in P.H.Centre Konny than the petitioner, and only a mistake has been corrected. 9. Clause 13 of Ext.R1(a) states 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. This is the clause relied upon by the first respondent to justify the transfer in favour of the third respondent. But as per clause 17, when there are a large number of applications for a particular station, the order of preference shall be as follows:- (a) Length of continuous service in the station at the time of his/her applying for transfer under consideration will be the criterion for transfer. (b) Employees who have put in longest period of service outside the particular station will be given first priority. It is therefore, contended that as the petitioner is having longest period of service outside the district as she was in Thrissur District, going by clause 17 of the guidelines, the petitioner should have been considered for a posting in Konny which was rightly done at that point of time. 10. The issue therefore is whether it is the petitioner or the third respondent who has got better preference in the matter. Both are relying W.P.(C) No.4787/2009-T -:6:- upon Ext.R1(a) guidelines. The respective factors have to be analysed by the Director of Health Services who is the Superior authority of the District Medical Officer. The learned counsel for the petitioner submits that going by Ext.P4 Circular no transfer orders should have been issued by the District Medical Officer ignoring the mandate of the said circular. 11. Whether it is clause 13 or it is clause 17 that applies to the factual situation is a matter for the Director of Health Services to decide. This Court will not be justified in entering upon a finding on that aspect, as the transfer is usually ordered after finding out the exigencies and after evaluating the claims of different claimants. Pursuant to the interim order passed by this Court, the petitioner has been retained in PH.Centre Konny but the third respondent has already joined there and is working now. 12. Therefore, the writ petition is disposed of in the following terms:- Respective claims of the parties will be gone into by the second respondent and appropriate orders will be passed within one month from the date of receipt of a copy of this judgment, in accordance with the guidelines in the matter and after considering the respective claims raised by the parties. The third respondent will be allowed to continue in PH Centre, Konny and the petitioner will join back at Vechoochira which will be W.P.(C) No.4787/2009-T -:7:- subject to the orders to be passed by the Director of Health Services. The petitioner had been allowed to join Konny pursuant to the interim order passed by this Court. Therefore, the period of her leave/absence will be regularised accordingly. No costs. (T.R. Ramachandran Nair, Judge.) ms