IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 31ST MARCH 2009 / 10TH CHAITHRA 1931 WP(C).No. 4251 of 2009(F) ------------------------- PETITIONER(S): --------------- 1. N.SARATHCHANDRAKUMAR .AGED 40 YEARS, S/O. R.NARAYANAPILLAI, NURSE, GOVERNMENT HOMEO HOSPITAL, THIRUVANANTHAPURAM, RESIDING AT MEKKUMKARA PUTHENVEEDU, PALODE -PACHA PO, THIRUVANANTHAPURAM. 2. V.M.ANIL KUMAR, AGED 40 YEARS, S/O.V.P.MONI, NURSE, GOVERNMENT HOMEO HOSPITAL THIRUVANANTHAPURAM, RESIDING AT GOKULAM, MEPPUKKADA, MALAYINKEEZHU PO,THIRUVANANTHAPURAM. BY ADV. SRI.K.RAMAKUMAR, SENIOR ADVOCATE SRI.T.RAMPRASAD UNNI SMT.SMITHA GEORGE RESPONDENT(S): --------------- 1. THE DIRECTOR, DEPARTMENT OF HOMEOPATHY,THIRUVANANTHAPURAM. 2. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY, GOVERNMENT SECRETARAIT, THIRUVANANTHAPURAM. 3. THE SUPERINTENDENT, GOVERNMENT HOMEO HOSPITAL, THIRUVANANTHAPURAM. 4. THE DISTRICT MEDICAL OFFICER, (HOMEO) KANNUR. 5. THE DISTRICT MEDICAL OFFICER, (HOMEO) KASARGOD. GOVERNMENT PLEADER, SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 4251 of 2009(F) APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE COMMUNICATION DATED 28/1/2009 ISSUED BY R1. EXT.P2 TRUE COPY OF THE ORDER NO.4637/EA3/2008/DH/L.DIS DATED 01/12/2008 ISSUED BY R1. EXT.P3 TRUE COPY OF THE ORDER NO.EA2/1269/09/DH, DATED 05/02/2009, ISSUED BY R1. EXT. OF RESPONDENT NO.1:- EXT.R1(a) LETTER OF THE SECRETARY, DISTRICT PANCHAYAT, THIRUVANANTHAPURAM DATED 02/12/2008. \\TRUE COPY// P.A.to Judge T.R. Ramachandran Nair, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.4251/2009-F ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 31st h day of March, 2009 J U D G M E N T The petitioners are aggrieved by the orders of transfer Ext.P3 by which they have been transferred to Kannur District Homoeo Hospital and Kanhangad Government Homoeo Hospital. The transfer is challenged on various grounds. 2. The relevant facts show that the first petitioner joined the Sree Pattamthanumpilla Memorial Government Homoeo Hospital on 16/05/2005 and the second petitioner on 01/07/2007. The petitioners have submitted their option at the time of General Transfer as per Ext.P1. Ext.P2 shows that the Director of Homoeopathy has initiated disciplinary action against them on the basis of certain allegations. It is alleged that the petitioners have been transferred as per Ext.P3 as a punitive measure and to harass them. 3. The respondents have filed a counter affidavit . It is pointed out that the order of transfer Ext.P3 has no connection with Ext.P2 order whereby disciplinary proceedings have been initiated against them. It is pointed out that the administrative exigencies and public interest prompted the authorities to pass an order like this (Ext.P3). It is pointed out that the W.P.(C) No.4251/2009 -:2:- order of transfer is based on an enquiry conducted by the District Medical Officer, (Homoeo), Thiruvananthapuram. The allegations against the petitioners revealed in the counter affidavit are that they are frequently unauthorisedly absent from duty by availing piecemeal leave which affects the smooth functioning of the hospital. They are insisting for night duty alone and remain alcoholic during duty hours and they are quarelling with other members of staff and are doing cable TV Net Working Business and real estate business etc. during day time. 4. It is pointed out that the District Panchayat has a role in the affairs of the hospital as the hospital has been transferred to the L.S.G.D and is now functioning under the District Panchayat. The District Panchayat has passed a resolution as Ext.R1(a) after noticing that the petitioners have not been attending duty during several days during August, September 2008. 5. The question is whether in the light of the above facts as revealed in the counter affidavit, the order of transfer could be said to be illegal. The learned Senior Counsel for the petitioners submitted that even if the averments in the counter affidavit are taken in the face value they are only on the realm of allegations and there is no substance in them and therefore, the transfer is clearly punitive and the petitioners who are working in a lower post could not subject to transfer like this by transferring them to the northern most district. W.P.(C) No.4251/2009 -:3:- 6. It is true that the power of transfer cannot be abused. But still in the light of the various considerations like administrative exigencies and public interest the employees could be transferred. The order of transfer is preceded by the enquiry of DMO (Homoeo) in the matter. District Panchayat who is now managing the affairs of the hospital have also passed Ext.R1(a) resolution in the matter and hence it cannot be said that the order has been passed arbitrarily and without any application of mind. 7. Therefore, the contention that the order of transfer is punitive cannot be sustained. The petitioners being employees under the respondents are bound by the norms of transfer, and the guidelines do not confer any vested right on them to work in a particular station. In a case like this where smooth functioning of the hospital is affected by the activities of the persons like the petitioners, the authorities are bound to rectify the same and take appropriate steps to streamline the functioning of the hospital. Taking an overall view of the matter, it cannot be said that Ext.P3 needs any interference at the hands of this Court in this proceeding. Therefore, the writ petition is dismissed. No costs. 8. After joining the station, if the petitioners, at a later point of time, seek for a transfer to any nearby district to Thiruvananthapuram, the same will be considered by the authorities. Since the disciplinary enquiry is ordered against the petitioners, their presence at the time of enquiry will be W.P.(C) No.4251/2009 -:4:- needed. Therefore, after the Enquiry Officer is appointed, it will be open to the petitioners to move for a re-posting as directed above. (T.R. Ramachandran Nair, Judge.) ms