IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH FEBRUARY 2011 / 19TH MAGHA 1932 WP(C).No. 14772 of 2009(N) -------------------------------------- PETITIONER(S): ---------------------- OMANA ABRAHAM K., CONFIDENTIAL ASSISTANT MEDICAL COLLEGE, KOTTAYAM (UNDER ORDERS OF TRANSFER TO MEDICAL COLLEGE, KOZHIKODE). BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. SENIOR ADMINISTRATIVE OFFICER, DIRECTORATE OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 4. SULOCHANA. K., CONFIDENTIAL ASSISTANT MEDICAL COLLEGE, KOZHIKODE, (UNDER ORDERS OF TRANSFER TO MEDICAL COLLEGE, KOTTAYAM.) R1 TO R3 BY GOVT. PLEADER MR.ANTONY MUKKATH. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/02/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: rs WP(C) NO. 14772/2009-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE FILE NO.KII(1) 892/90 DATED 12/09/1994 OF DISTRICT OFFICER, KPSC. EXT.P2: COPY OF THE FILE NO.KII(1) 892/90 DATED 17/02/1995 OF DISTRICT OFFICER, KPSC. EXT.P3: COPY OF THE ORDER NO.E1-5479/95/DME DATED 19/06/1995 OF THE ADMINISTRATIVE OFFICER. EXT.P4: COPY OF THE LIST OF GENERAL TRANSFER PROPOSAL FOR 2009. EXT.P5: COPY OF THE ORDER NO.E5/6457/09/DME DATED 19/05/2009. EXT.P6: COPY OF THE G.O.(RT)NO.504/2005/F & WD DATED 21/02/2005. EXT.P7: COPY OF THE G.O.(P) 36/91/P&ARD DATED 02/12/1991. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs S. SIRI JAGAN, J. - - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 14772 of 2009 - - - - - - - - - - - - - - - - - - - - - - - Dated this the 8th day of February, 2011 J U D G M E N T The counsel for the petitioner submits that the issue involved in this writ petition is squarely covered by the decision of this court in W.P. (C) No.19477/2003 and connected cases which reads as follows: “Petitioner is Selection Grade Confidential Assistant. He is working as such in the Medical College, Kottayam. He was promoted as Selection Grade Confidential Assistant with effect from 25.11.1998, as per the order of the 2nd respondent issued on 28.3.2001. Initially, appointment of the petitioner was as Confidential Assistant Grade II, on the advice of the District Recruitment Board of the Kerala Public Service Commission. 2. The Directorate of Medical Education was formed in the year 1983. Kerala Medical College (Ministerial and Technical) Staff Integration Rules, 1985 were issued by the Govt, as per G.O.(P) No. 14/85/HD, dated 14.01.1985. The said Rules cane into force on 10.05.1983. All the administrative staff borne on the cadre of the State Medical Colleges and the Directorate of the Medical Education except Administrative Officer and Finance Officer of the Directorate of Medical Education and Administrative Officer of the State Medical Colleges were formed into a single unit for the purposes of seniority, promotion and other service matters. All the technical staff such as Laboratory Technicians, Laboratory Assistants, Junior Laboratory Assistants, etc. who were borne on the cadre of the State Medical College Subordinate Service were also brought under the purview of integration and they form a single unit for the purpose of seniority, promotion and other service matters. 3. There are four grades in the category of Confidential Assistants, namely, Confidential Assistant Grade II, Grade I, Senior Grade and Selection Grade. Confidential Assistant Grade II gets promotion to the next higher grade in accordance with the ratio prescribed for the aforesaid four W.P.(C)No. 14772 of 2009 -2- grades and according to the seniority of the incumbent in the respective grade. Petitioner submits that Confidential Assistants do not come within the purview of the aforesaid Rules of 1985 because the Technical and Ministerial Staff referred to in the said Rules do not take in Confidential Assistants, that Confidential Assistants were recruited under the District Recruitment Scheme, that the said method of recruitment is followed even after the formation of the Directorate of Medical Education in 1983, that Confidential Assistants belong to a pool of Government officers, and that ultimately power of general control over these officers is traceable to the Commissioner of Land Revenue, Thiruvananthapuram who is the competent authority to refix the cadre strength of Confidential Assistants as also to nominate them for promotion to higher grades. According to the petitioner the Directorate of Medical Education only gives effect to the orders of the Commissioner of Land Revenue. Referring to proceedings No. LR(N) 2-25846/99(ii), dated 11.01.2001 of the Commissioner of Land Revenue, Thiruvananthapuram, petitioner states that he was nominated for promotion as Selection Grade Confidential Assistant with effect from 25.11.1998 as per the said order. It was in the light of order dated 11.01.2001 of the Commissioner of Land Revenue, the Administrative Officer in the Directorate of Medical Education issued order dated 28.3.2001 promoting the petitioner as Selection Grade Confidential Assistant on the scale of pay of Rs. 6675-10550 with effect from 25.11.1998. Petitioner asserts that the post of Confidential Assistant (Sel Grade) is borne on the Land Revenue Unit. 4. Petitioner does not question the disciplinary power of the 2nd respondent-Director over Confidential Assistants like the petitioner who are nominated to the Directorate of Medical Education nor the power of the 2nd respondent to effect transfers and postings of Confidential Assistants. But his specific case is that the said power of transfer can be exercised only to effect transfers and postings of Confidential Assistants within the respective districts in which the Confidential Assistants were initially recruited. 5. The grievance of the petitioner is that a district recruitee like him has been transferred to another district in order to extend a favour to the fourth respondent whose desire it has been to get inter district transfer from Alappuzha to Kottayam. Ext.P2 proceedings dated 18.6.2003 issued by the Administrative Officer, Directorate of Medical Education, Thiruvananthapuram fulfils the above desire of the 4th respondent by displacing the petitioner from his district. Ext. P2 is attacked as volatile of Government orders governing inter W.P.(C)No. 14772 of 2009 -3- district transfers as also one vitiated by malafides. Petitioner belongs to the gazetted cadre and transfer of a person in the gazetted rank for the purpose of granting inter district transfer to an officer belonging to the non-gazetted cadre is ex facie illegal, contends the petitioner. It is also contended that the impugned transfer is sought to be effected not at all in public interest or administrative exigency. If administrative exigency was given due priority, petitioner ought not to have been chosen for a transfer from Kottayam to Alappuzha. Exts.P8 to P11 certificates issued by the Principals of Medical Colleges under whom he had worked and also by the Professor and Head of Nephrology, Medical College, Kottayam have been referred to by the learned counsel in this connection. 5. Contention of the respondents is that the fourth respondent was granted a transfer based on the principles of justice and equity. Petitioner had completed 28 years of service in Kottayam District. Hence he was transferred to another district. 7. On a consideration of the contentions raised by the counsel for the petitioner, counsel for the fourth respondent and the Government Pleader for respondents 1 to 3, I find it hard to sustain Ext.P2 order. Respondent No.4, admittedly, is a district-wise recruitee to the post of Confidential Assistant Grade II (see paragraph 8 of the counter affidavit of the fourth respondent). She was advised for appointment in Alappuzha District as Confidential Assistant Grade II and has been continuing as such until Ext. P2 order was passed. As admitted by the fourth respondent, she filed an application for inter district transfer from Alappuzha Medical College to Kottayam Medical College as soon as she completed five years of service in Alappuzha District. Infact, she had filed an earlier application which was rejected in the year 2000 for the reason that she had not completed five years in Alappuzha District. These facts give a clear idea about the unit of appointment of the Confidential Assistants. 8. Pleadings of the parties as well as documents placed on record indubitably establish that petitioner and fourth respondent are district recruitees. The unit of appointment of the petitioner is Kottayam and that of the fourth respondent is Alappuzha. Request made by the fourth respondent for inter district transfer cannot be dealt with disregarding or contravening the principles laid down in the relevant orders issued by the government governing inter district and inter unit transfers. The minimum period of five years laid down in the Government Orders is to make an inter district recruitee who wants to get transfer from one district to another eligible to W.P.(C)No. 14772 of 2009 -4- apply for inter district transfer. It cannot be made use of to transfer out another district recruitee from his district to another in order to create vacancy for the applicant. The fact that the fourth respondent became eligible for inter district transfer does not mean that she is entitled for a transfer as of right. As rightly submitted by the counsel for the petitioner, eligibility cannot be equated to entitlement. Applications for inter district transfers have to be considered against 10% of the vacancies arising in the district to which the transfer is sought for. This evidently means that vacancies cannot be created so as to make it 10% by transferring district recruitees from their unit of appointment to another unit of appointment. Therefore, petitioner is right in contending that application filed by the fourth respondent for inter district transfer could have been considered only against an open vacancy arising in Kottayam District. 9. Under exceptional circumstances an officer working in his unit of appointment can be transferred to another unit without loss of seniority, if such a transfer becomes essential in public interest or in the exigencies of service. In the case on hand, it is admitted position that Ext. P2 order was issued only to allow the request made by the fourth respondent and for her convenience only. In the light of this glaring piece of evidence, respondents cannot be heard to say that the transfer of the petitioner was necessary in public interest. 10. Respondent No.3 who was the immediate superior officer and controlling officer had informed the second respondent that transfer of the petitioner will cause administrative inconvenience. Respondent No.3 had specifically made a recommendation to the second respondent that the petitioner may be retained in Kottayam Medical College. In matters of transfers and postings, the opinion expressed by the immediate superior who is the direct beneficiary of the service rendered by his subordinate officer cannot be brushed aside as irrelevant. Petitioner takes strong exception to the stand taken by the Deputy Secretary who had sworn to the additional counter affidavit stating inter alia that the recommendation of the third respondent was made to suit his own convenience. Though Ext. P2 ex facie shows that the petitioner was transferred only to suit the convenience of the fourth respondent, the counter affidavit filed on behalf of respondents 1 and 2 have made an attempt to make it appear that transfer of the petitioner was ordered on administrative grounds. Such a contradictory stand taken by the respondents is liable to be rejected as lacking in good faith. Petitioner has furnished details of officers, members of the Ministerial staff etc, who are working in the Medical College, Kottayam for fairly long period W.P.(C)No. 14772 of 2009 -5- of time. He has also sworn to the fact that none appointed on district wise basis has been transferred out from Kottayam District except on the basis of request made by the incumbents concerned in that behalf. The above averments of the petitioner stand uncontroverted. Petitioner is therefore justified in attacking Ext P2 as the outcome of an illegal and arbitrary exercise of power. I hold that the impugned order is liable to be set aside. Accordingly Ext.P2 is quashed and the original petition is allowed. WP(C) Nos. 21016/2003 and 15423/2005 11. These writ petitions are filed by the fourth respondent in WP(C) 19477/2003 which I have allowed as above. Respondent No.4 in the above two writ petitions is the petitioner in WP(C) 19477/2003. Infact, these writ petitions are the off shoot of WP(C) 19477/2003, the interim orders passed in WP(C) 19477/2003 and the orders consequent thereto. In view of the finding that the order dated 18/06/2003 issued by the Administrative officer, Directorate of Medical Education, Thiruvananthapuram is liable to be quashed, reliefs prayed for by the petitioner in these writ petitions cannot be granted. In the result, these writ petitions are dismissed. It is, however, made clear that the application of the fourth respondent in WP (C) 19477/2003 shall be considered as and when vacancies for inter district transfer will arise in future in Kottayam District.” The learned Government Pleader agrees that the issue is so covered. Accordingly this writ petition is disposed of in terms of the said judgment. Sd/- S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/