IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI THURSDAY, THE 29TH MAY 2008 / 8TH JYAISHTA 1930 WP(C).No. 13085 of 2008(G) -------------------------- PETITIONER: ------------ DR.V.CHITRA ASOK, MEDICAL OFFICER GOVERNMENT AYURVEDA DISPENSARY, KADAKAMPALLY THIRUVANANTHAPURAM BY ADV. SRI.S.EASWARAN SRI.P.MURALEEDHARAN (IRIMPANAM) RESPONDENTS: ------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY, HELATH AND FAMILY WELFARE GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 2. THE DIRECTOR OF INDIAN SYSTEMS OF MEDICINE, THIRUVANANTHAPURAM 3. THE DISTRICT MEDICAL OFFICER (ISM) THIRUVANANTHAPURAM 4. THE CORPORATION OF THIRUVANANTHAPURAM REPRESENTED BY ITS SECRETARY BY ADV. SRI.N.NANDAKUMARA MENON (SR.) FOR R.4 SRI.P.K.MANOJKUMAR GOVERNMENT PLEADER SRI. NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 29/05/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI,J. ------------------------- W.P ( C) No.13085 of 2008 -------------------------- Dated this the 29th May, 2008 J U D G M E N T The petitioner is a Medical Officer in the Department of Ayurveda. While serving at Kadakampally in Thiruvananthapuram District he was issued a show cause notice Exhibit-P3, by the 2nd respondent raising three allegations. It is firstly alleged that she was unauthorisedly absent on 28.3.2008. Secondly, it is alleged that the Pharmacist was permitted to go on leave, while petitioner was not present in the Hospital. Thirdly, it is alleged that the nominal register was caused to be written by the part-time sweeper. The petitioner submitted Exhibit-P4 explanation. Later by Exhibit-P5 order dated 7.4.2008 the second respondent directed that the petitioner be transferred from Kadakampally Government Ayurveda Dispensary to Government Ayurveda Dispensary, Puliyoor in Alappuzha District. The same has been challenged in this writ petition. W.P ( C) No.13085 of 2008 2 2. A detailed counter affidavit has been filed pointing out that several complaints have been received against the petitioner. Therefore, an enquiry is decided to be conducted. The transfer is not in the way of punishment. The petitioner cannot claim a right to be retained in Kadakampally. A reply affidavit has been filed by the petitioner. 3. I heard learned counsel for the petitioner and the learned senior Government Pleader Sri.Nandakumar. 4. Sri.Nandakumar submits that the order of transfer though refers to certain allegations, cannot be treated as punitive or otherwise as a punishment. He further submits that none of the grounds urged in the writ petition are sufficient to interfere with the order of transfer. He refers to the following decisions in support of the contentions.{1994 (1) KLT 326 in Dinamony Vs. Deputy Superintendent of Police, Kollam, 1997(1) KLT 779 in Rajarathna Naikkan Vs. Parameswara Kurup, 1999 (2) KLT 683 in Thresiamma Vs. Union of India and [2007 (4) ILR 399 in Philipose Abraham Vs. State of Kerala and others} 5. It is difficult to construe the order of transfer as punitive in character. W.P ( C) No.13085 of 2008 3 6. The observations made in the order of transfer need only be considered as a tentative expression of opinion by the Additional Director who is in charge of Director. 7. Further memo of charges has now been issued to the petitioner and the same will have to be proceeded with. It is clear that prejudice as such shall be caused to the petitioner merely by the reasons stated in the order of transfer. The transfer need only be considered as one issued on administrative exigencies. 8. Sri.Nandakumar, learned senior Government Pleader submits that petitioner has completed five years of service in the same station and in any way she is vulnerable to a transfer even going by the general guidelines. 8. Learned counsel for the petitioner Sri.Easwaran submits that even if that be so, the present order of transfer cannot be considered as one effected in the course of General Transfer nor have the choices of stations indicated by the petitioner ascertained as such. 9. There is force in the submission. But it does not mean if the transfer becomes illegal as such. In my view, the options if W.P ( C) No.13085 of 2008 4 any, indicated by the petitioner would nevertheless be considered by the Government. 10. Learned counsel for the petitioner further submits that in view of the interim order passed by this Court permitting the petitioner to continue in Kadakampally for a period of six weeks, on 11.4.2008 and she was asked to approach the Government against the order of transfer. The said interim order may be retained at least till the Government takes a decision on the petitioner’s representation. Learned Government Pleader objects this course of action and submits that the order passed by this Court was only an ad interim order and at any rate, the petitioner has completed five years of service in the Kadakampally going by the general guidelines she is vulnerable to a transfer. Having heard the submissions on both sides, the writ petition is disposed of in the following terms: i) Petitioner may move the 1st respondent by way of representation/appeal against Exhibits P1/P5 order by treating the same as the transfer effected under Exhibit P5 on administrative exigencies. In other W.P ( C) No.13085 of 2008 5 words, the order of transfer need not be treated as premature. Petitioner may indicate the places of choice for considering Exhibits P1 and P5, for the proposal on the part of the competent authority to transfer her from Kadakampally to Puliyoor in Alappuzha district. ii) Government shall after hearing the petitioner take a decision on the said representation within a period of one month from the date of receipt of the same. It is made clear that if the Government is not inclined to accept any of the options which the petitioner may indicate as places of posting instead of Kadakampalli in Trivandrum district then the petitioner shall not be subjected to further transfer over and above the transfer effected under Exhibits P1/P5. iii) I make it clear that the intention on the part of the 3rd respondent was only to shift the petitioner from Kadakampally in Trivandrum district to facilitate the enquiry which has been initiated against the petitioner. Then as far as possible petitioner may be W.P ( C) No.13085 of 2008 6 given posting in the place which she may indicate in her representation filed before the Government. In view of the fact that petitioner has already completed five years of service at Kadakampalli in Trivandrum District, I am not inclined to extent the ad interim order passed by this Court on 11.4.2008 till the disposal of the representation by the Government as indicated above. (V.GIRI, JUDGE) ma W.P ( C) No.13085 of 2008 7