IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 16TH JUNE 2011 / 26TH JYAISHTA 1933 WP(C).No. 7650 of 2011(E) ------------------------- PETITIONER(S): --------------- USHAKUMARY R., JR. PUBLIC HEALTH NURSE GRADE-I, P.H.CENTRE, PALAKUZHA, ERNAKULAM. BY ADV. SRI.GIGIMON ISSAC SRI.A.K.JAYAPRAKASH SRI.BABY THOMAS RESPONDENT(S): --------------- 1. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695 001. 2. THE DISTRICT MEDICAL OFFICER OF HEALTH, ERNAKULAM-682 011. 3. SMT. SOBHANA JACOB, P.H.CENTRE, PAMPAKUDA, ERNAKULAM-686 667. GOVT. PLEADER SHRI.SANDESH RAJA SRI.E.K.NANDAKUMAR FOR R2 SRI.A.K.JAYASANKAR NAMBIAR FOR R2 SRI.K.JOHN MATHAI FOR R2 SRI.P.BENNY THOMAS FOR R2 SRI.P.GOPINATH FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 7650/11. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.7.12.10 OF THE ADDITIONAL DIRECTOR OF HEALTH SERVICE. P2. COPY OF THE ORDER OF THE DMO DTD.13.12.10. P3. COPY OF THE APPEAL DTD.22.1.01. P4. COPY OF THE ORDER OF R2 DTD.22.2.11. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P.(C).No. 7650 of 2011 ================== Dated this the 16th day of June, 2011 J U D G M E N T The petitioner was appointed as Junior Public Health Nurse Grade II pursuant to selection by the Public Service Commisison for Thrissur district. The same is a district-wise selection. After putting in 16 years of service, she became entitled to promotion as Junior Public Health Nurse Grade I. She was given promotion and was transfered to Ernakulam district. At that time, there was a vacancy at Palakuzha Public Health Centre and by, Ext.P2 order dated 13.12.2010, the petitioner was promoted and posted at Palakuzha in Public Health Centre in Ernakulam district. After 38 days, the petitioner was transferred to Mudakuzha, which is 60 kms. away from her home and the 3rd respondent, who was working at Pambakuda, was transferred in the place of the petitioner. The petitioner has filed this writ petition challenging that order. The petitioner submits that the petitioner has already been posted in an open vacancy at Palakuzha on promotion and there is no reason to disturb her posting for accommodating anybodyelse. The petitioner would also contend that if, as per the norms, the 3rd respondent was to be accommodated in another place than Pambakuda, any of the other persons, who are continuing beyond 3 years could have been transferred to accommodate the 3rd respondent, for which, it was not necessary to disturb the petitioner. In the reply affidavit filed, the petitioner has stated that one Mani, who w.p.c.7650/11 2 is serial No.422 in the due promotion list, was continuing in Palakuzha for more than 3 yeas and, therefore, that person could have very well been displaced to accommodate the 3rd respondent as per the norms themselves. The petitioner, therefore, seeks the following reliefs: “i) Issue a Writ of Certiorari or any other appropriate writ, order or direction directing the 1st respondent to recall Exhibit P4 order. ii) Issue a Writ of Certiorari or any other appropriate writ, order or direction directing the 1st respondent to stop all further proceedings pursuant to Exhibit p4 order.” 2. At the time of admission, I have granted the following interim order; “There would be an interim order directing respondents 1 and 2 to permit the petitioner to continue at Palakuzha in accordance with Ext.P2 notwithstanding Ext.P4 transfer order, if necessary, by re- transferring the 3rd respondent.” 3. Respondents 2 and 3 have filed counter affidavits. Both of them contend that as is clear from Ext.P2 posting order, the petitioner's posting at Palakuzha was subject to review during general transfers 2011. According to them, during the general transfers, the claims of all persons, who were due for transfer, were duly considered and the decision to make the transfers was made considering the case of all. They would contend that in the absence of any mala fides alleged, there is nothing wrong in the transfer and, therefore, this Court shall not interfere with Ext.P4 transfer order. 4. I have considered the rival contentions in detail. 5. It is not disputed before me that the petitioner was a w.p.c.7650/11 3 Junior Public Health Nurse Grade II in Thrissur district and she had worked there for 16 years before she was posted at Palakuzha on promotion. It is also not disputed that the petitioner's native place is near Palakuzha. Although in Ext.P2 posting order it is stated that the same is subject to review during general transfers 2011, there should be very strong reason in accordance with the norms for disturbing the petitioner from Palakuzha. Therefore, only if all things considered and only if it was absolutely necessary to replace the petitioner, to satisfy the norms, the petitioner could have been transferred from Palakuzha, meaning thereby, that there is no other person having longer service than the petitioner in Palakuzha. I cannot envisage a situation where in Palakuzha there are no Junior Public Health Nurses having more than 38 days of service. In fact, the petitioner has specifically stated in her reply affidavit that one Mani, who is serial No.422 in the due promotion list for Grade II, is working at Palakuzha for more than 3 years. If that be so, that person could have been transferred to accommodate the 3rd respondent in accordance with the norms and there is absolutely no necessity for transferring the petitioner. I am satisfied that the transfer of the petitioner from Palakuzha is clearly against not only the norms but also natural justice. Just like the 3rd respondent the petitioner has also every right to come to her native place after 16 years of service in another district. Therefore, the transfer of the petitioner from Palakuzha as per Ext.P4 is hereby w.p.c.7650/11 4 quashed. The petitioner shall be allowed to continue at Palakuzha until she becomes due for transfer in accordance with the norms again. 6. But I feel that I should also safeguard the interest of the 3rd respondent. It appears that the some rearrangement of transfers would have to be made to accommodate the 3rd respondent at a suitable place. In the above circumstances, I direct the 2nd respondent- District Medical Officer, Ernakulam, to consider the rearrangement to be made to retain the petitioner at Palakuzha so that another person, who, in accordance with the norms, has already completed 3 years of service can be shifted to accommodate the 3rd respondent in accordance with the norms. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within one month from the date of receipt of a certified copy of this judgment. Before passing orders, other persons who may have to be shifted to implement the above directions, should also be afforded an opportunity of being heard. Till such time, if the 3rd respondent has not been relieved from Palakuzha, she shall be allowed to continue there. The writ petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge