IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 13TH DECEMBER 2011 / 22ND AGRAHAYANA 1933 WP(C).No. 24905 of 2011(K) -------------------------------- PETITIONER: -------------- DR.V.K.CHELLAMMA, PROFFESSOR, DEPARTMENT OF OBSTETRICS & GYNAECOLOGY, MEDICAL COLLEGE, KOZHIKODE. BY ADVS. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH RESPONDENTS: ------------------ 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. DR.N.UMADEVI, PROFESSOR, DEPARTMENT OF OBSTRETRICS & GYNAECOLOGY, MEDICAL COLLEGE, KOZHIKODE. BY ADVS. SRI.E.K.NANDAKUMAR FOR R3 SRI.K.JOHN MATHAI FOR R3 SRI.P.BENNY THOMAS FOR R3 SRI.P.GOPINATH FOR R3 SRI.P.G.JAYASHANKAR FOR R3 SRI. M.A. FAYAZ, SR. GOVERNMENT PLEADER FOR R1 & R2. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.24905/2011 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF RELEVANT PAGE OF SSLC BOOK OF PETITIONER. EXT. P2 : COPY OF DEATH CERTIFICATE OF HUSBAND OF PETITIONER. EXT. P3 : COPY OF G.O. DTD. 21.2.05 ISSUED BY GOVT. EXT. P4 : COPY OF G.O. DTD. 19.5.08 ISSUED BY GOVT. EXT. P5 : COPY OF ORDER DTD. 2.7.09 ISSUED BY R1. EXT. P6 : COPY OF G.O. DTD. 5.8.09 ISSUED BY GOVT. EXT. P7 : COPY OF REPRESENTATION DTD. 27.3.08 FILED BY PETITIONER BEFORE R1. EXT. P8 : COPY OF REPRESENTATION DTD. 2.6.08 FILED BY PETITITIONER BEFORE R1. EXT. P9 : COPY OF REPRESENTATION DTD. 3.7.08 FILED BY PETITIONER BEFORE R1. EXT. P10 : COPY OF REPRESENTATION DTD. 15.5.09 FILED BY PETITIONER BEFORE R1. EXT. P11 : COPY OF REPRESENTATION DTD. 23.7.09 FILED BY PETITIONER BEFORE R1. EXT. P12 : COPY OF JUDGMENT DTD. 19.8.09 IN WP(C) 23704/09 OF THIS COURT. EXT. P13 : COPY OF G.O. DTD. 5.1.10 ISSUED BY GOVT. EXT. P14 : COPY OF REPRESENTATION DTD. 11.6.10 FILED BY PETITIONER BEFORE R1. EXT. P15 : COPY OF JUDGMENT DTD. 17.6.10 IN WP(C) 18701/10 OF THIS COURT. EXT. P16 : COPY OF G.O. DTD. 1.2.11 ISSUED BY R1. EXT. P17 : COPY OF REPRESENTATION DTD. 8.7.11 SUBMITTED BY PETITIONER BEFORE R1. WP(C).No.24905/2011 EXT. P18 : COPY OF G.O. DTD. 3.9.11 ISSUED BY R1. EXT. P19 : COPY OF ORDER DTD. 22.5.10 ISSUED BY KERALA UNIVERSITY OF HEALTH & ALLIED SCIENCES. EXT. P20 : COPY OF ORDER DTD. 20.9.11 ISSUED BY PRINCIPAL, MEDICAL COLLEGE, KOZHIKODE. EXT. P21 : COPY OF ORDER DTD. 21.11.11 ISSUED BY PRINCIPAL, MEDICAL COLLEGE, KOZHIKODE. EXT. P22 : COPY OF CERTIFICATE ISSUED TO PETITIONER BY FEDERATION OF OBSTETICS & GYNECOLOGICAL SOCIETIES OF INDIA. EXT. P23 : COPY OF ENQUIRY REPORT DTD. 30.9.11. 3RD RESPONDENT'S EXHIBITS: EXT. R3(a) : COPY OF ORDER No.G.O.(Rt) 1882/07/H&FWD DTD. 29.5.07. EXT. R3(b) : COPY OF ORDER No.E1/6709/07/MCC DTD. 1.6.07. EXT. R3(c) : COPY OF PROCEEDINGS OF PRINCIPAL VIDE ORDER No.E1/11522/07/MCC DTD. 30.4.08. EXT. R3(d) : COPY OF INFORMATION FROM UNIVERSITY OF CALICUT RECEIVED ON 29.10.11. EXT. R3(e) : COPY OF CERTIFICATE FROM SUPERINTENDENT OF INSTITUTE OF MOTHER AND CHILD HEALTH, GOVT. MEDICAL COLLEGE, CALICUT DTD. 10.11.11. EXT. R3(f) : COPY OF TRANSFER GUIDELINES FIXED BY GOVT, VIDE G.O.(MS) 57/11/H&FWD DTD. 2.2.11. EXT. R3(g) : COPY OF COMPLAINT FILED BY NISHAD AGAINST PETITIONER DTD. NIL. EXT. R3(h) : COPY OF ORDER No.M-5250/11/IMCH DTD. 28.9.11 ISSUED BY SUPERINTENDENT OF INSTITUTE OF MOTHER AND CHILD HEALTH, GOVT. MEDICAL COLLEGE, CALICUT. // True Copy // P.A. to Judge. smp T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.24905 OF 2011 --------------------------------------- Dated this the 13th day of December, 2011. J U D G M E N T The challenge is against Ext.P18 order passed by the Government whereby the working arrangement made by an earlier order is cancelled on the plea that her service is necessary in the parent Department. The circumstances under which the petitioner has filed this writ petition are the following: 2. The petitioner was working in the Government Medical College, Kozhikode as Associate Professor in the Department of Obstetrics and Gynecology. She was granted promotion as Professor as per Ext.P4 order dated 19.05.2008. The petitioner is serial No.(vii) there. On promotion, she was posted at Medical College, Alappuzha with effect from 01.07.2008 in the arising vacancy due to the retirement of one Dr.Sheelamoni. The petitioner thereafter made a request for retention in the Medical W.P.(C) No.24905/2011 2 College, Kozhikode itself. It is pointed out that the petitioner is a Scheduled Caste and her husband is no more. 3. The Government passed an order as per Ext.P5 dated 02.07.2009. A reading of Ext.P5 will show that there was no open vacancy in the Department of Obstetrics and Gynecology in the Medical College, Kozhikode and she was allowed to continue in the Department of Nephrology in a vacant post. Thereafter, the said order was modified and the petitioner was shifted to the vacant post of Professor in the Department of Surgical Gastro Entrology in the Medical College, Kozhikode. 4. The petitioner has been moving the authorities for getting the charge of independent unit and for a posting in the parent department and the said request was directed to be considered by this Court by Ext.P12 judgment. Thereafter, Ext.P13 order was passed by the Government whereby the request of the petitioner for a regular posting in the Department of Obstetrics & Gynecology in the Medical College, Kozhikode was rejected. The petitioner again approached this Court by filing W.P.(C) No. 18701/2010. Therein, this Court directed the W.P.(C) No.24905/2011 3 Government to consider Ext.P14 representation and finally, the Government passed Ext.P16 order which is strongly relied upon by the petitioner in this writ petition. 5. In Ext.P16, the Government was of the view that the transfer of the senior faculties at the fag end of the academic year will affect the academic standards of the students. Moreover, the Director of Medical Education had invited applications for general transfer 2011 and hence it was ordered that the request of the petitioner for a regular posting can be considered at the time of general transfer 2011. Finally, the Government ordered that the Principal, Medical College, Kozhikode will spare an independent unit in Obstetrics & Gynecology Department by replacing the junior most Associate Professor who is holding an independent unit in the said Department. Thereafter, the petitioner forwarded Ext.P17 representation to give her a regular posting in the parent department of O & G in the Kozhikode Medical College by creating adequate vacancy as per the Government Order noted therein. In Ext.P18, the working arrangement given is cancelled W.P.(C) No.24905/2011 4 with immediate effect to ensure the smooth functioning of the Medical Colleges in the State. 6. Learned counsel for the petitioner invited my attention to the offer made by the Government in Ext.P16 that her request will be considered during general transfer 2011. It is pointed out that instead of considering the said request, by Ext.P18, the working arrangement itself is cancelled which cannot be justified. 7. The 3rd respondent herein is working as Professor and Head of the Department. The details of the applications of the petitioner, if any, during general transfer and the general transfer order issued by the Government in respect of various Departments including the Department concerned are not placed for perusal. Learned Government Pleader explained that in the light of the fact that in Alappuzha Medical College, the service of the persons like the petitioner is required, the working arrangement made is cancelled and Ext.P18 is not a transfer order as such. 8. A reading of the counter affidavit filed by the 1st respondent shows that various reasons have been pointed out W.P.(C) No.24905/2011 5 therein to cancel the accommodation. The Government has explained the background under which Ext.P16 order was passed. It is mentioned therein that the transfer of senior faculties at the fag end of the academic year will affect the academic standards of the students and by that time, the Director of Medical Education has notified application for general transfer in the year 2011. With regard to the plea raised by the petitioner herein, it is averred in paragraph 8 that the petitioner has not worked even a single day in T.D. Medical College, Alappuzha after her promotion as Professor in the Department. At present, there is no vacancy of Professor in the Obstetrics & Gynecology Department in the Medical College, Kozhikode for giving a posting to the petitioner. It is also mentioned that the petitioner is not possessing the qualifying outstation service and hence her request was not considered for general transfer for the year 2011 and Ext.P18 is not a transfer order. 9. The vacancy and staff position in the Government T.D.Medical College, Alappuzha in Obstetrics & Gynecology Department have been explained in paragraph 9 of the counter W.P.(C) No.24905/2011 6 affidavit. It is averred that in the T.D.Medical College, Alappuzha, there is acute shortage of faculties in the Department of Obstetrics & Gynecology. It is also mentioned that another doctor one Smt.K.P.Vasanthakumari, Associate Professor of O&G Department, Government Medical College, Kozhikode on accommodation as Associate Professor of Physiology in the Government T.D. Medical College, Alappuzha is transferred and posted in the Government T.D. Medical College, Alappuzha in the existing vacancy. 10. The only question is whether Ext.P18 suffers from any infirmities as pointed out by the learned counsel for the petitioner. It is pointed out that in Ext.P16, the Government has taken the view that her claim for a regular posting could be considered at the time of general transfer 2011. But it cannot be taken as an offer to give her a posting in the Medical College, Kozhikode. The Government is only of the view that her application will be considered in terms of the guidelines at the time of general transfer. Evidently, the petitioner is a beneficiary of Ext.P16 whereby the accommodation granted to her has not W.P.(C) No.24905/2011 7 been disturbed and she was granted the charge of an independent unit also after finding that a transfer during the middle of the academic year will be causing hardship to her. 11. Ext.P18 cannot be termed as an order of transfer. The same only cancels the accommodation given to the petitioner earlier and it can be seen that it is a composite order in respect of doctors working in the Department. What is projected in Ext.P18 as a reason for cancellation is that the Government wants to ensure the smooth functioning of the Medical Colleges in the State. By no stretch of imagination, it can be stated that the reason stated is so unreasonable warranting interference by this Court. Therefore, the plea raised by the Government in the counter affidavit that persons like the petitioner are required in the Alappuzha Medical College is justified on the basis of the detailed facts and the vacancy position explained in the counter affidavit. In that view of the matter, Ext.P18 do not call for any interference. The non consideration of the application for general transfer is not a matter to be considered by this Court in this writ W.P.(C) No.24905/2011 8 petition. I am not therefore considering the respective claims of the petitioner or the 3rd respondent or anybody else in the matter. It is made clear that the petitioner can file an appropriate application for a transfer during coming general transfer if she requires the same and the dismissal of the writ petition will not stand in the way of prosecuting the same. This writ petition is dismissed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp