IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 12426 of 2010(C) ---------------------------------- PETITIONER(S): ------------------- S.MARY JUDITH, JUNIOR LAB ASSISTANT, DEPARTMENT OF BIO CHEMISTRY, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. SRI.P.CHANDRASEKHAR RESPONDENT(S): -------------------- 1. THE STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF HEALTH, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. MADHUSOODANAN G., JUNIOR LAB ASSISTANT, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM. R1 BY GOVT.PLEADER SRI.T.K.ARAVINDKUMAR BABU R2 BY GOVT. PLEADER SRI.S.SANILKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/10/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: SVS/ WP(C).No. 12426/2010(C) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF CERTIFICATE DATED 03/01/2002 ISSUED BY THE CHAIRMAN, MEDICAL BOARD & SUPERINTENDENT OF MEDICAL COLLEGE HOSPITAL, TRIVANDRUM. P2: COPY OF CERTIFICATE DATED 25/09/1993 OF TAHSILDAR, THIRUVANANTHAPURAM. P3: COPY OF GOVERNMENT CIRCULAR NO.130558/SDI/82/GAD DATED 10/03/1983. P4: COPY OF G.O.(P)NO.22/92/P&ARD DATED 18/04/1992. P5: COPY OF G.O.(P)NO.12/04/P&ARD DATED 10/09/2004. P6: COPY OF GOVERNMENT LETTER NO.22630/B2/2009/H&FWD DATED 24/08/2009. P7: COPY OF G.O.(P)NO.22/2009/P&ARD DATED 30/12/2009. P8: COPY OF ORDER NO.E4-6274/2009/DME DATED 28/05/2009 OF THE 2ND RESPONDENT. P9: COPY OF LIST DATED 01/03/2010 OF JUNIOR LAB ASSISTANTS PROPOSED TO BE TRANSFERRED BY WAY OF GENERAL TRANSFER FOR 2010. P10: COPY OF REPRESENTATION OF THE PETITIONER DATED 20/01/2010 BEFORE THE 2ND RESPONDENT. P11: COPY OF ORDER NO.E4/4286/10/DME DATED 29/03/2010 OF THE 2ND RESPONDENT. P12: COPY OF ORDER NO.EN3/7403/2010/MCT DATED 03/04/2010 OF THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS NIL /TRUE COPY/ P.A. TO JUDGE SVS/ T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.12426/2010-C ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 19th day of October, 2010 J U D G M E N T The petitioner who is working as Junior Lab Assistant in the Department of Bio-Chemistry in the Medical College, Thiruvananthapuram is aggrieved by her transfer to Medical College, Alappuzha as per Exts.P11 and P12. 2. The petitioner is physically handicapped and is married to Shri K.S.Prasannan and they are an inter caste married couple. The case of the petitioner is that being a physically handicapped and inter caste married employee, the petitioner is protected from transfer from one station to another. Reliance is placed on Ext.P3 Circular and paragraph (11) of the General Guidelines for transfer of Government employees. Ext.P4 is the Government Order fixing priority among different categories of employees where Physically Handicapped is item No.2 and inter caste married is item No.3. Ext.P5 is also another Government Order granting protection to Physically Handicapped employees from transfer out of their home station. Later by Ext.P6, the Government clarified that preferential categories shall have to quit the station on completion of 5 years when an eligible claimant puts in a claim for posting in that particular station. Ext.P7 is a copy of W.P.(C). No.12426/2010 -:2:- the Government Order dated 30/12/2009 where also preference granted to Physically Handicapped and inter caste married employees is retained. 3. Earlier, the petitioner was transferred to Medical College, Thrissur, which was cancelled. Going by the list Ext.P9, the third respondent was proposed to be transferred in the place of the petitioner. It is pointed out that he is not entitled for any preference as he is not a Physically Handicapped person. The petitioner filed Ext.P10 representation. However, the petitioner was ordered to be transferred as per Ext.P11 and Ext.P12 is the relieving order. 4. The petitioner also contends that there are sufficient vacant posts in the Thiruvananthapuram Medical College and, therefore, transfer of the petitioner is not required to accommodate the third respondent. 5. The second respondent has filed a counter affidavit justifying the order of transfer. It is pointed out that the petitioner has completed more than nine years of service in the present station since 2001 and, there is no bar for transferring a person in the preferential category after a period of five years. The relevant aspect that the petitioner is included in the preferential category is pointed out in the counter affidavit also. It W.P.(C). No.12426/2010 -:3:- is further pointed out that persons in the preferential category who have completed five years and above in a particular station will have to quit the station for an eligible claimant. 6. The third respondent has not chosen to appear and oppose the prayers of the petitioner inspite of service of notice. 7. Circulars and Government Orders have provided preferential categories and it cannot be denied that Physically Handicapped person will be entitled for retention in a particular station in terms of Circulars and Norms of transfer. The petitioner and her husband belong to two communities and, therefore, the petitioner is also entitled for the benefit applicable for inter caste married people. It is true that the protection is for a period of five years and thereafter the person can be transferred out to accommodate an eligible claimant. There is a dispute whether the eligible claimant means the person who is having superior claim under the preferential category itself. The same is not clear from the Government Orders. Learned Government Pleader placed for perusal a Government letter dated 22/05/2010 addressed to the Director of Medical Education, where it is mentioned that a person in the preferential category who has completed five years can W.P.(C). No.12426/2010 -:4:- be transferred out if another claimant from the same category or a person who has completed 3 years applies for transfer. There is nothing to show that the third respondent applied for transfer to Thiruvananthapuram which is required to replace persons like the petitioner going by Ext.P6. Whatever that be, in the light of the assertion made by the petitioner that there are sufficient number of vacancies in Thiruvananthapuram itself to accommodate the third respondent, the petitioner will file appropriate representation in addition to Ext.P10 along with a copy of this Judgment before the Director of Medical Education. All aspects will be considered by the Director of Medical Education and appropriate orders will be passed on the request of petitioner to retain her in Thiruvananthapuram. Appropriate orders will be passed within a period of six weeks from the date of receipt of a copy of this Judgment. Till then, the interim order passed by this Court will continue. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms