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. 14130 of 2009(I) ------------------------------------- PETITIONER: ------------------- DR.G.MALLIKA BHAI,ASSOCIATE PROFESSOR, DEPARTMENT OF COMMUNITY MEDICINE,MEDICAL COLLEGE, THRISSUR. BY ADV. MR.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. STATE OF KERALA,REPRESETNED BY THE SECRETARY TO GOVERNMENT,HEALTH AND FAMILY WELFARE DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, THIRUVANANTHAPURAM. 3. DR.INDU.P.S, ASSOCIATE PROFESSOR, DEPARTMENT OF COMMUNITY MEDICINE, MEDICAL COLLEGE, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. K. RAMESH, R3 BY ADVS. SMT.S.KARTHIKA, MR.M.S.UNNIKRISHNAN, MR.M.R.ANISON, SMT.K.P.GEETHA MANI. 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.14130/2009-I: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE MEDICAL CERTIFICATE DT. 23/09/2008 ISSUED BY DR. DILIP.M. EXT.P.2: COPY OF THE TREATMENT CERTIFICATE ISSUED BY DR. ABDUL GAFOOR. EXT.P.3: COPY OF THE REPRESENTATION DT. 23/01/2009 SUBMITTED BY THE PETITIONER BEFORE THE R.1. EXT.P.4: COPY OF THE ORDER, G.O. DTD. 21/02/2005 ISSUED BY THE GOVERNMENT. EXT.P.5: COPY OF THE ORDER, G.O. DTD. 10/09/2004 ISSUED BY THE GOVERNMENT. EXT.P.6: COPY OF THE ORDER DTD. 12/05/2009 ISSUED BY THE R.1. TRANSFERRING THE PETITIONER TO MEDICAL COLLEGE, THRISSUR. EXT.P.7: COPY OF THE ORDER DTD. 14/05/2009 ISSUED BY THE R.2. EXT.P.8: COPY OF THE DRAFT LIST OF DOCTORS TO BE TRANSFERRED. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.14130/2009-I ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 10th day of July, 2009 J U D G M E N T The petitioner is working as Associate Professor in the Department of Community Medicine. She was working as such in the Medical College, Thiruvananthapuram. Her date of birth is 12/11/1955 and she has only less than two years to retire from service. 2. The petitioner is aggrieved by Ext.P6 order of transfer whereby she is transferred to Medical College, Thrissur, in the place of the third respondent. 3. Mainly it is contended that the petitioner, being a person having less than two years of service, should have been retained in the station of her choice. Apart from that the petitioner is relying upon Exts.P1 and P2 to show that she has undergone a major surgery and she is unable to undertake travel also. She is a person having high blood pressure and she is also a diabetic patient. Petitioner had submitted Ext.P3 representation requesting to retain her at Thiruvananthapuram. Exts.P4 and P5 are the relevant norms and guidelines for transfer. Ext.P8 is the draft proposal published by the second respondent, the Director of Medical Education, dated 23/03/2009. W.P.(C). No.14130/2009 -:2:- The petitioner's name is not shown there, and against the name of the third respondent, it is mentioned that there is no open vacancy and the petitioner cannot be transferred since she has less than two years to retire from service. It is pointed out that even without a valid revised proposal, the petitioner was ordered to be transferred as per Ext.P6. 4. In the counter affidavit filed by the third respondent, reliance is placed on various clauses in Ext.P4 norms, namely, clauses 20, 22, 33 and 40 as well as clause 16 of Ext.P5 guidelines for transfer to contend for the position that the transfer ordered in favour of the third respondent is perfectly justified. The third respondent has got a case that the petitioner is having only ten months outstation service. 5. In the counter affidavit filed on behalf of the first respondent, it is pointed out that no medical certificate accompanied Ext.P1 representation and the petitioner is due to retire from service only on 30/04/2011 and therefore, the remaining service cannot be treated as less than two years. 6. The question is whether the order of transfer is justified. The proposal Ext.P8 does not contain any idea as to whether the petitioner is due for transfer. It is specifically stated therein that the petitioner cannot be transferred because she has only less than two years to retire from service. W.P.(C). No.14130/2009 -:3:- It is pointed out by the learned counsel for the petitioner that the averments in paragraph (3) of the first respondent's counter affidavit also cannot be treated as correct since even by counting two years from the date of Ext.P6, the petitioner will be having less than two years of service. 7. It is evident from the proceedings that when Ext.P8 proposal was changed and the third respondent was proposed to be transferred no information was given to the petitioner and therefore, she could not stake her claim before the Government by filing an appropriate representation. 8. Learned Senior Counsel appearing for the third respondent submitted that the superior claims of the third respondent have been considered by the Government while passing Ext.P6. 9. Pursuant to the order of transfer, the third respondent has already joined Medical College, Thiruvananthapuram and the petitioner at Medical College, Thrissur. 10. In the light of the fact that the claims of the petitioner have not been considered when the draft proposal was finalised, it is only proper that the Government shall reconsider the matter with notice to the petitioner and the third respondent. Therefore, if the petitioner files an appropriate representation before the Government showing the details of her claim W.P.(C). No.14130/2009 -:4:- within a period of two weeks from today, the same will be considered by the first respondent with notice to the petitioner and the third respondent and appropriate orders will be passed within a period of two months from the date of receipt of the copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms