IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WP(C).No. 24116 of 2008(U) --------------------------------------- PETITIONER(S): ------------------------ K.B.BABURAJ, AGED 40 YEARS S/O BALAN, FLAT NO. D-57 NGO QUARTERS VELLIMADUKUNNU P.O., KOZHIKODE BY ADV. SRI.T.K.VIPINDAS RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF HEALTH THIRUVANANTHAPURAM. 2. DISTRICT MEDICAL OFFICER (HEALTH), KOZHIKODE 3. SUPERINTENDENT GOVERNMENT MENTAL HEALTH CENTRE KOZHIKODE. GOVERNMENT PLEADER SRI.P.NANDAKUMAR FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 14/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24116/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE PROCEEDINGS OF THE MEDICAL BOARD DT. 20.2.01. P2:- COPY OF THE ORDER OF THE DISTRICT MEDICAL OFFICER OF HEALTH, KOZHIKODE DT. 27.5.08. P3:- COPY OF THE REPRESENTATION ISSUED BY THE PETITIONER BEFORE THE DISTRICT MEDICAL OFFICER, KOZHIKODE DT. 23.6.08. P4:- COPY OF THE GOVERNMENT ORDER G.O.(P)11/90/P&ARD DT. 5.5.90. P5:- COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P6:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.JOJI MALLEKKAL. P7:- COPY OF THE O.P. TICKERT NO.17371 DT. 26.7.08. P8:- COPY OF THE MEDICAL CERTIFICATE ISSUED BY DR.K.S.MOHANAN DT. 4.8.08. P9:- COPY OF THE LEAVE APPLICATION. P10:- COPY OF THE MEMO OF CHARGES DT. 2.8.08. P11:- COPY OF THE EXPLANATION SUBMITTED BY THE PETITIONER TO EXT.P10. /TRUE COPY/ P.A. TO JUDGE tss T.R.RAMACHANDRAN NAIR, J -------------------------------------------------- W.P.(C) NO: 24116 of 2008 --------------------------------------------------- Dated this the 14th day of January, 2009 JUDGMENT The petitioner is a physically handicapped person who is having polio residual paralysis in the right lower limb and his percentage of permanent disability has been certified to be at 40% as per the proceedings of the Medical Board, Medical College Hospital, Calicut (Ext.P1). As per Ext.P2 order dated 27.5.2008, the petitioner while working at Medical College Hospital, Kozhikode was transferred and posted to Government Mental Health Centre, Kozhikode in the existing vacancy. 2. The petitioner challenges Ext.P1 on various grounds. According to him, the work involved in Mental Health Centre is hazardous because he has to deal with mental patients and there are no protective steps taken by the authorities in case of an emergency. The petitioner submits that he is unable to cope with the physical assault by the patients. Hence, he filed a representation before the District Medical Officer, Kozhikode seeking for a transfer back to the Medical College. 3. The respondents have filed a counter affidavit explaining as to why the petitioner had to be posted in the Government Mental Hospital, Kozhikode. It has explained that this Court had issued specific directions to the effect that permanent staff should be appointed to take care of the patients in the Government Mental Health Centre, Kozhikode. There is no such stipulation at present in the case of Medical College Hospital, wpc:24116 of 2008 2 Kozhikode. At present a female barber is attached to the Institute of Maternal and Child Health, Kozhikode. The petitioner, being a permanent staff, is posted to the Government Mental Health Centre, Kozhikode and the Superintendent of Medical College Hospital, Kozhikode was directed to fill up the existing vacancy by daily wage employees. It is pointed out that when the petitioner was appointed, he was very well aware that he will have to work in any of these two institutions and the transfer of the petitioner was inevitable. Pursuant to the interim direction passed on 23.9.2008, the matter was again considered by the District Medical Officer, and it was found that there was sufficient security arrangements for protecting the staff of the Mental Health Centre which includes female staff nurses. 4. It is submitted that, many other members of staff having other kind of disabilities are also working in this institution. In these circumstances, there is absolutely no merit in the contentions of the petitioner and the transfer of the petitioner to the Mental Health Centre, Kozhikode is perfectly legal. The argument is that, being a physically handicapped person, his request for transfer may be considered. But, the same cannot be accepted as the sole criteria. Even though the petitioner is relying upon Ext.P4, when the situation demands the deployment of staff, it may not be possible for the respondent to consider the request based on the said circular alone. The competent authority is entitled to consider public interest. wpc:24116 of 2008 3 Hence this Writ Petition fails and is dismissed. If there is a permanent vacancy in the Medical College, it has to be filled up on that basis. Respondents shall see that a permanent hand is appointed so that the petitioner can seek a transfer to the Medical College and appropriate action may be taken in that regard without delay. If the petitioner seeks any additional facilities for protection in the Mental Health Care Centre that also will be considered. T.R.RAMACHANDRAN NAIR, JUDGE bps