IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 10TH JULY 2009 / 19TH ASHADHA 1931 WP(C).No. 14889 of 2009(E) -------------------------------------- PETITIONER: ------------------- DR.SOBHA RAMANARAYANAN, W/O.DR.P.V.RAMANARAYANAN, AGED 53 YEARS, PROFESSOR OF ANATOMY, MEDICAL COLLEGE, THIRUVANANTHAPURAM. BY ADV. MR.S.P.CHALY. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, HEALTH, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTORATE OF MEDICAL EDUCATION, MEDICAL, COLLEGE P.O., THIRUVANANTHAPURAM, REPRESENTED BY ITS DIRECTOR. 3. DR.RENUKA, AGED ABOUT 50 YEARS, PROFESSOR IN ANATOMY, MEDICAL COLLEGE, KOTTAYAM. 4. DR.RAJU JACOB, PROFESSOR IN ANATOMY, MEDICAL COLLEGE, TRICHUR. 5. DR.GIRIJA MANY V.K., PROFESSOR, MEDICAL COLLEGE P.O., KOZHIKODE. R1 & R2 BY GOVT. PLEADER SMT. T.B. REMANI, R3 BY ADV. MR.R.T.PRADEEP, MR.V.VIJULAL. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/07/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.14889/2009-E: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE TRANSFER ORDER DT. 27/05/2009. EXT.P.1.A: COPY OF THE ELECTION IDENTITY CARD OF THE PETITIONER. EXT.P.2: COPY OF THE DRAFT PROPOSAL ISSUED FOR THE TRANSFER DURING THE YEAR 2009 DTD. 26/03/09. EXT.P.3: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER TO THE R.2. EXT.P.4: COPY OF THE REJOINING ORDER DTD. 02/05/09 OF THE PETITIONER. EXT.P.5: COPY OF THE GOVERNMENT ORDER DTD. 28/05/1987. EXT.P.6: COPY OF THE GOVERNMENT ORDER DTD. 10/09/2004. EXT.P.7: COPY OF THE GOVERNMENTORDER DTD. 21/02/05. RESPONDENTS' EXHIBITS: EXT.R3.A: COPY OF THE OBJECTION DTD. 26/03/2009 TO EXT.P.2 DRAFT PROPOSAL OF TRANSFER. EXT.R3.B: COPY OF THE MEDICAL CERTIFICATE DT. 13/06/09. EXT.R3.C: COPY OF THE G.O.(RT).NO.3291/2008 DTD. 04/10/2008. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.14889/2009-E ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of July, 2009 J U D G M E N T The petitioner is aggrieved by the order of transfer Ext.P1 issued by the first respondent whereby the petitioner is transferred from Medical College, Thiruvananthapuram to Medical College, Alappuzha in the existing vacancy of Professor and the third respondent is transferred to the post occupied by the petitioner and consequently, respondent Nos.4 and 5 are transferred to Medical College, Kottayam and Medical College, Thrissur in the vacancies of respondent Nos.3 and 4 respectively. Mainly, it is contended by the learned counsel for the petitioner that the petitioner is due to retire from service on 05/11/2010 and therefore, the petitioner has got only less than two years of service before retirement. As per the norms fixed for transfer, a doctor who has got only two years for retirement is to be retained in the same place in preference to those candidates who have got more years of service. Date of birth of the third respondent is May, 1960 and she is due to retire in the year 2015. 2. It is also pointed out that in the draft proposal issued for transfer, namely, Ext.P2, the petitioner was not proposed to be transferred. W.P.(C). No.14889/2009 -:2:- Against column (3) containing the name of the third respondent, it is recorded that the petitioner is having less than two years for retirement from service and the third respondent may be transferred to Medical College, Alappuzha in the open vacancy. It is pointed out that the order of transfer therefore, is against the draft proposal also. Ext.P3 seems to be the representation submitted by the petitioner staking out her claim. The petitioner has given in detail in paragraph (3) of the writ petition the various spells under which she had been working in different Medical Colleges. Prior to the present transfer, she was given a posting in Alappuzha Medical College from 27/04/2009 to 28/04/2009, in the light of the inspection conducted by the M.C.I team. 3. This Court by interim order dated 29/05/2009 stayed the order of transfer of the petitioner which was being continued from time to time. The third respondent has filed a detailed counter affidavit opposing the prayers of the petitioner. 4. Heard the learned counsel for the petitioner, the learned counsel for the third respondent and the learned Government Pleader. Along with the reply affidavit, petitioner has produced Ext.P5 [G.O.(MS). No.109/87/H&FWD, dated 28/05/1987] wherein, going by paragraph (3), Medical Officers who have only two years to retire from service on W.P.(C). No.14889/2009 -:3:- superannuation will not normally be disturbed by transfer and will, as far as possible, be posted to institutions of their choice, preference being given to those who retire earlier. 5. Paragraph (18) of the above G.O is also relied upon in support of the plea of the petitioner, which is as follows:- If there are more than one applicant for transfer to a particular post first preference for posting will be given to the person who has only two years to retire, then to the person who has worked the least period in the institution asked, for and then according to seniority. 6. Reliance is placed on paragraph (13) of Ext.P6 to show that employees who have only two years to retire may be posted to vacancies in stations of their choice, giving preference to those who are due to retire earlier. The petitioner has also produced G.O.(Rt).No.504/2005H.&FWD, dated 21/02/2005 as Ext.P7 and relied on paragraph (1) therein to show that the guidelines issued as per G.O 10/09/2004 namely, Ext.P6 as well as Ext.P5 are in force subject to the modification made in the said Government Order. 7. Mainly it is contended by the learned counsel for the petitioner that since the petitioner is having only less than two years to retire from W.P.(C). No.14889/2009 -:4:- service, the third respondent who is junior ought not have been preferred to replace the petitioner, especially when in the draft proposal the third respondent was proposed to be transferred to Medical College, Alappuzha and the petitioner was not proposed to be transferred. 8. The learned counsel for the third respondent submitted that the third respondent has got more out station service than the petitioner and immediately after the draft proposal was published as per Ext.P2, the third respondent submitted an objection as she did not require a transfer to Alappuzha. Thiruvananthapuram is her home station. The third respondent has also filed an additional counter affidavit producing Ext.R3(c), G.O.(Rt). No.3291/2008/H&FWD, dated 04/10/2008, passed by the Government pursuant to judgment in W.P.(C).No.15711/2008 dated 17/07/2008, of this Court in relation to a dispute regarding transfer between two other parties. The third respondent also relies upon the fact that her husband is working in Thiruvananthapuram District as the Superintendent of Taluk Head Quarters Hospital, Neyyattinkara. 9. The issue is whether the petitioner or the third respondent should be preferred. Obviously, when Ext.P2 was published, the name of the petitioner was not shown as there was no proposal to transfer the petitioner. Specifically against the name of the third respondent it is W.P.(C). No.14889/2009 -:5:- recorded that there is no open vacancy at Medical College, Thiruvananthapuram since the petitioner is having less than two years service to retire and therefore, the third respondent may be transferred to Medical College, Alappuzha. The petitioner was therefore entitled to believe that, there is no proposal to transfer her. But when the order of transfer was issued, the said proposal was varied and the petitioner was transferred to Alappuzha Medical College. If a revised proposal for transfer was published or communicated, the petitioner could have submitted her objection. Such an opportunity was not given, which vitiates the order itself. Therefore, it is obvious that the respective claims of the parties with reference to the guidelines have not been considered by the Government and the petitioner could not therefore stake out her claim to be retained in Thiruvananthapuram by relying upon the various clauses in the respective Government Orders. The order of transfer is silent on the aspects pointed out by the respective parties to claim preference. 10. In that view of the matter, the issue will have to be reconsidered by the Government with notice to the petitioner and the third respondent. Ext.P1, as far as it transfers the third respondent to Medical College, Thiruvananthapuram in the place of the petitioner, is set aside to enable the first respondent to consider the matter afresh. Transfers ordered W.P.(C). No.14889/2009 -:6:- in respect of other persons mentioned therein will remain in force. The first respondent will pass appropriate orders within a period of six weeks from the date of production of a copy of this judgment. The petitioner and the third respondent will be allowed to produce Government Orders, if any, they rely upon and if they choose to file any representation, they can file the same within a period of three weeks from today. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms