IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 13TH AUGUST 2010 / 22ND SRAVANA 1932 WP(C).No. 13837 of 2010(D) ----------------------------------------- PETITIONER(S): -------------------------- PRASANTH.R.S., MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, NAGAROOR, TRIVANDRUM. BY ADV. SRI.N.SUGATHAN RESPONDENT(S): --------------------------- 1. DIRECTOR OF HOMOEOPATHY, OFFICE OF THE DIRECTOR OF HOMOEOPATHY, EAST FORT TRIVANDRUM. 2. SURESH BABU.M.K. MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, VAKKOM, TRIVANDRUM. R1 BY SR. GOVERNMENT PLEADER SRI. P.NANDAKUMAR R2 BY ADVS. DR.K.P.SATHEESAN, SRI.K.K.GOPINATHAN NAIR, SRI.M.R.JAYAPRASAD, SRI.P.MOHANDAS (ERNAKULAM), SRI.MATHEW SUNNY. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 13/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.13837/2010 D APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE CERTIFICATE ISSUED BY THE MEDICAL BOARD. P2: COPY OF THE GUIDELINE ISSUED BY THE GOVERNMENT. P3: COPY OF THE ORDER DTD. 3/09/77. P4: COPY OF THE ORDER DTD. 10/03/87. P5: COPY OF THE RELEVANT EXTRACT OF THE PRELIMINARY LIST PUBLISHED ON 20/03/2010. P6: COPY OF THE JUDGMENT DTD. 6/04/2010 IN WP(C) NO.10839/2010. P7: COPY OF THE RELEVANT EXTRACT OF THE ORDER DTD. 21/04/2010 OF THE FIRST RESPONDENT. P8: COPY OF THE PETITION FILED BY THE PETITIONER DTD. 23/04/2010. P9: COPY OF OWNERSHIP CERTIFICATE DTD. 23/08/2007 ISSUED BY THE GRAMA PANCHAYAT, CHADAYAMANGALAM. P10: COPY OF IDENTITY CARD DTD. 15/02/2008 ISSUED BY THE ELECTION COMMISSION OF INDIA. P11: COPY OF G.O.(P) NO.22/2009/P&ARD DTD. 30/12/2009. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss ANTONY DOMINIC, J. ------------------ WP(C) No.13837 of 2010 (D) -------------------------- 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 WP(C) No.13837/2010 -2- 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, WP(C) No.13837/2010 -3- 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. WP(C) No.13837/2010 -4- 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 WP(C) No.13837/2010 -5- 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 WP(C) No.13837/2010 -6- 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