IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR THURSDAY, THE 21ST JANUARY 2010 / 1ST MAGHA 1931 WA.No. 570 of 2009() -------------------- AGAINST THE JUDGEMENT IN WPC.23593/2008 Dated 25/11/2008 .................... APPELLANT(S): RESPONDENTS IN WPC -------------------------------- 1. THE DIRECTOR OF HEALTH SERVICES, TRIVANDRUM. 2. THE DISTRICT MEDICAL OFFICER, KOLLAM. 3. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, HEALTH & FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, TRIVANDRUM. BY GOVERNMENT PLEADER SMT.SMITHA SUKUMAR. RESPONDENT(S): PETITIONER IN THE WPC ------------------------------------ MARY SHEEBA.E.I, STAFF NURSE, NEW MEDICAL COLLEGE HOSPITAL, KOZHIKODE RESIDING AT ST.MARY'S HOUSE, MANAPOIKA, PADAPPAKARA P.O., KOLLAM-691 503. ADV. SRI.K.MOHANAKANNAN SMT.A.R.PRAVITHA THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 21.01.2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.570 of 2009 ---------------------------------------------- Dated 21st January, 2010. J U D G M E N T Balakrishnan Nair, J. The respondents in the writ petition are the appellants. The respondent herein was the writ petitioner. The respondent is a Staff Nurse working in the Medical College, Kozhikode. She joined service as Staff Nurse on 7.5.2003. She gave birth to two girl children, on 21.5.2005. There was no-one to look after her children in Kozhikode and they were left in her house, at Kollam. There was also no-one to properly take care of the children. Therefore, her husband submitted Ext.P1 representation dated 7.10.2006, praying for granting inter-district transfer to her to Kollam. This Court, by Ext.P2 judgment dated 9.8.2007, directed the Director of Health Services, to consider Ext.P1. As permitted in Ext.P2, the appellant submitted a supplementary representation also, on 20.8.2007, for the consideration of the Director of Health Services, as per Ext.P3. But, Exts.P1 and P3 were rejected by Ext.P4 order dated 14.9.2007. Ext.P7 is the Government Order, containing the norms governing inter-district transfer. WA NO.570/09 2 2. Challenging Ext.P4, another writ petition was filed by the appellant before this Court. This Court, disposed of the said writ petition, by Ext.P8 judgment dated 25.10.2007, directing the Government to take a decision on her claim. The Government, by Ext.P9 order dated 27.2.2008, rejected her application for transfer. The rule that, an appointee to a district on the advice of the Public Service Commission, cannot seek transfer to another district within five years, stood in her way of getting transfer. Now that she has completed five years, by Ext.P11 dated 16.5.2008, she again requested for inter-district transfer. Thereafter, she filed another writ petition before this Court, challenging Ext.P9. The said writ petition was disposed of by Ext.P13 judgment dated 9.6.2008, directing the Government to consider Ext.P11. The Government again considered Ext.P11 and rejected the same, by Ext.P15 communication dated 8.7.2008. The present writ petition was filed challenging Ext.P15, and seeking consequential reliefs. 3. The respondent contended that, in the light of the materials obtained by her under the Right to Information Act, vacancies are available in Kollam District. Hitherto, her WA NO.570/09 3 applications were rejected for the reason of non-completion of five years, or absence of vacancies. Now, in Ext.P15, it is stated that there are eight others who are seniors to her, awaiting transfer to Kollam District. Therefore, on that ground, her claim was rejected. The same is unsustainable in law, it is submitted. The ground taken in Ext.P15 is a new ground, which was never raised earlier, it is submitted. Therefore, the respondent/writ petitioner prayed for quashing Ext.P15. 4. The respondents/appellants filed a counter affidavit, resisting the prayers in the writ petition. The learned Single Judge called for the applications stated to have been filed by eight others, and found that the applications were filed by them, later in point of time, when compared to that of the respondent/writ petitioner. Therefore, the learned Single Judge took the view that, denial of transfer to the writ petitioner was unjustified and therefore, allowed the writ petition, directing the respondents to transfer her to Kollam District and accommodate her in the vacancy, which was kept reserved pursuant to the orders of this Court, issued earlier. Aggrieved, the respondents have preferred this Writ Appeal. WA NO.570/09 4 5. According to the appellants, limited vacancies alone are available in the inter-district transfer quota, in Kollam District, and there are several seniors waiting in the queue, for transfer. Therefore, the respondent cannot be preferred, only for the reason that she has chosen to submit the application, earlier in point of time. The learned counsel for the respondent, supported the judgment under appeal, and brought to our notice that the appellants never had a case that there were other better claimants than her, for transfer. This is a new ground, taken for the first time, and therefore, it has to be discarded, it is submitted. So, the learned counsel prayed for sustaining the judgment under appeal. 6. Only limited vacancies arising in a year, are set apart for inter-district transfer. After the respondent has completed five years service, she became eligible to apply for the same, and she submitted Ext.P11 application dated 16.5.2008. But, when the case of inter-district transfer was taken up by the competent authority, it was noticed that there were eight other staff Nurses, who were seniors to the respondent, seeking transfer to Kollam. Therefore, her application was rejected. We find WA NO.570/09 5 nothing irregular or irrational about it. The contention that no such ground was taken earlier, is attractive at the first blush, but at the closer scrutiny, it can be seen that the same is plainly untenable. Earlier, the respondent was never eligible for transfer, as she had not completed five years of service. Therefore, it was not necessary to consider her claim on merits, and her applications were being rejected at the threshold. Now that the respondent became eligible to apply for transfer, her application was considered on merits, and it was found that there were other applicants also, who are seniors to her. The view taken by the learned Single Judge that, because of the respondent/writ petitioner had applied for inter-district transfer earlier than others, she may be preferred, is plainly untenable. As per the norms governing transfer in Government Departments, the applications for transfer during April-May, have to be submitted in February. Those applications are processed and dealt with, in accordance with the norms. The applicant cannot claim any preference, on the ground that he happened to submit the application earlier. The basis for grant of request for transfer, is seniority. The said norm is a sound and valid norm. The same cannot be substituted WA NO.570/09 6 by a new norm like the date of submission of the application. We also notice that every year, the applications for transfer are processed and lists are prepared. As directed by this Court, the appellants have filed a statement. It is seen from the statement that, as per the list prepared on 23.5.2009, there are 58 applicants awaiting for transfer to Kollam. The rank of the respondent in that list is 37. It means, there are 36 seniors to the respondent, awaiting transfer to Kollam. If the judgment of the learned Single Judge is sustained, the respondent will steal a march over 36 applicants, who are seniors to her. In view of the above position, the judgment of the learned Single Judge cannot be sustained. Accordingly, the Writ Appeal is allowed. The judgment under appeal is reversed and the writ petition is dismissed. K.BALAKRISHNAN NAIR, JUDGE. C.T.RAVIKUMAR, JUDGE. tgs K.BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ---------------------------------------------- W.A. No.570 of 2009 ---------------------------------------------- J U D G M E N T Dated 21st January, 2010.