IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 2ND AUGUST 2011 / 11TH SRAVANA 1933 WP(C).No. 15382 of 2011(W) -------------------------- PETITIONER(S): ----------------------- R.LATHA DEVI, SENIOR SUPERINTENDENT, DISTRICT MEDICAL OFFICE (HEALTH), KOTTAYAM. BY ADV. SRI.P.NANDAKUMAR RESPONDENT(S): --------------- 1. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM-695037. 2. GEORGE THOMAS, LAY SECRETARY & TREASURER TALUK HEAD QUARTERS HOSPITAL, RANNI-689672. PATHANAMTHITTA DISTRICT. ADV. SRI.SAJU JOHN FOR R2 GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 02/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 15382 of 2011(W) APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF ORDER OF 1ST RESPONDENT DATED 25.4.2011. EXT.P2: TRUE COPY OF ORDER OF 1ST RESPONDENT DATED 6.6.2011. EXT.P3: TRUE COPY OF CIRCULAR DATED 29.11.2010. EXT.P4: TRUE COPY OF THE ORDER OF THE 1ST RESPONDENT DATED 6.5.2011. RESPONDENTS' EXHIBITS: EXT.R1[a]: TRUE COPY OF THE OPTION PROFORMA OF APPLICATION SUBMITTED BY THE 2ND RESPONDENT FOR GENERAL TRANSFER OF 2011. EXT.R1[b]: TRUE COPY OF THE APPEAL SUBMITTED BY THE 2ND RESPONDENT DT. 24.12.2010. EXT.R2[a]: TRUE COPY OF THE 3RD PAGE OF THE SSLC BOOK OF THE 2ND RESPONDENT. EXT.R2[b]: TRUE COPY OF THE JOINING REPORT SUBMITTED BEFORE THE DMO, KOTTAYAM DATED 7.6.2011. EXT.R2[c]: TRUE COPY OF THE APPLICATION DATED 24.12.2010 SUBMITTED BY THE 2ND RESPONDENT FOR TRANSFER. EXT.R2[b]: TRUE COPY OF THE REPRESENTATION DATED 2.6.2011 SUBMITTED BY THE 2ND RESPONDENT BEFORE THE 1ST RESPONDENT. TRUE COPY P.A. TO JUDGE. Kp/ C.T. RAVIKUMAR, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 15382 OF 2011 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 2nd day of August, 2011 JUDGMENT The petitioner is working as Senior Superintendent in the office of the District Medical Officer(Health) Kottayam. This writ petition has been filed challenging Ext.P2 order of transfer whereby she was transferred and posted to Taluk Head Quarters Hospital, Ranni and the second respondent has been transferred and posted in place of the petitioner. Since the petitioner is due to retire from the service on 13.3.2013 she had opted to remain in the present station itself and therefore, she had not submitted any application for general transfer. Subsequently, general transfer was effected as per Ext.P1 dated 24.5.2011. The name of the petitioner was not included in Ext.P1. As per Ext.P1 the second respondent was transferred and posted from DMO Office, Idukki to Taluk Head Quarters Hospital, Ranni in Pathanamthitta District. The learned counsel appearing for the petitioner drew my attention to certain relevant aspects discernible from Ext.P1. It is stated that Messrs. Chandran, Babu, Habeeb and Smt.Ramany who were transferred WPC No.15382/2011 2 as per Ext.P1 against the places opted by the petitioner, as is obvious from Ext.R1(a). It is further submitted that among the said transferees Smt.Ramani, Sri.Chandran, Sri. Babu are juniors to the second respondent. Overlooking the rule of seniority Sri. Chandran was given transfer to DMO Office Kottayam which is in fact, the first place of choice of the second respondent. Likewise, certain other juniors were also given transfer to the places of choice of the second respondent. As far as the petitioner is concerned she had not challenged the said orders of transfer or raised any grievance against the transfer of the said persons as, at that point of time, she was absolutely unaffected by such transfers. Later, Ext.P4 order was passed. As per Ext.P4 the aforesaid Chandran was given a transfer from District Medical Office, Kottayam to Taluk Head Quarters Office, Chengannoor and one Tom Bessy .T. George was transferred to the post vacated by the said Chandran. Ext.P4 is dated 6.4.2011. It is contended that the second respondent had not challenged the said order of transfer as well. According to the petitioner, on 2.6.2011 as per Ext.R2(d) the second respondent raised grievance against the non-consideration of request for transfer to the District Medical Office, Kottayam. It WPC No.15382/2011 3 is thereafter that Ext.P2 viz., the impugned order of transfer was passed. It is challenging the said order that this writ petition has been filed. 2. Separate counter affidavits have been filed by the first and second respondents. The learned counsel for the petitioner brought to my attention the averments in paragraph 3 of the counter affidavit filed by the first respondent. The said averments, in so far as it is relevant for the purpose of this case, reads thus:- “It is further submitted that the 2nd respondent filed appeal to this respondent on the ground that the petitioner's option No.1 to 4 were not considered by the first respondent. A true copy of the appeal submitted by the second respondent dated 24.12.2010 is produced herewith and marked as Ext.R1(b). This respondent have to taking into consideration of the seniority of the second respondent and also also taking into consideration of the fact that the second respondent is due to retire on 31.02.2012 transferred the 2nd respondent in the post of Senior Superintendent, office in District Medical Officer(H), Kottayam. The petitioner is the Senior Superintendent who is working in the office of the District Medical Officer(H) Kottayam was transferred and posted to Taluk Head Quarters Hospital, Ranni, Pathanamthitta. Hence the action of the 1st respondent is strictly in accordance with the general transfer norms.” 3. It is thus obvious that first respondent is attempting to support and sustain the impugned order viz., Ext.P2 while virtually, admitting the fact that the petitioner's transfer was effected for accommodating the 2nd respondent. In this context it WPC No.15382/2011 4 is to be noted that going by the averment of the first respondent, the first respondent had acted upon the appeal filed by the second respondent dated 24.12.2010. However, the contention of the second respondent would run counter to the aforesaid averments. The 2nd respondent did not have a case that on being aggrieved by the non-consideration of his request of transfer to DMO Office, Kottayam he challenged Exts.P1 and P4 order. Ext.R2(d) is only a representation. It is evident that the grievance of the 2nd respondent raised as per Ext.R2(d) is against the continuance of the petitioner as Senior Superintendent at District Medical Office, Kottayam. A scanning of Ext.R2(d) would reveal the absolute absence of any direct challenge against Exts.P1 and P4. In the said circumstances, I am inclined to accept the contention of the petitioner that despite the non- consideration of the claims of the second respondent at the time of issuance of Exts.P1 as also Ext.P4 for a transfer and posting to DMO Office, Kottayam the second respondent had not preferred any objection or appeal against the same. Evidently, while effecting transfers vide Exts.P1 and P4 the claim of the second respondent was overlooked in the matter of posting against the places of choice as numbers 1 to 4 and in such places WPC No.15382/2011 5 his juniors were given transfers and postings. However, he had not chosen to challenge their transfers and postings. As per Ext.P1 order dated 24.5.2011 the second respondent was ordered to transfer to Taluk Head Quarters Pathanamthitta. Evidently, the said posting was against the last choice of the second respondent made as per Ext.R1(a) application. As already noticed hereinbefore, three of his juniors were transferred and posted against the higher choices of the 2nd respondent. However, the 2nd respondent had not challenged such transfers and postings either before the authorities or before this Court. As per Ext.R2(d) the second respondent has stated that his continued requests for transfer were not acted upon by the first respondents and the petitioner is continuing in the said place for several years. There is nothing on record to show that Ext.R2(d) was acted upon for the purpose of issuing Ext.P2 order of transfer. As noticed hereinbefore, Ext.R1(b) is an appeal filed by the second respondent on 24.12.2010. That apart, it is evident that the petitioner herein is also having only less than two years to retire from service and that fact was not at all taken into account by the first respondent while passing Ext.P2. All those aspects should have been taken into account by WPC No.15382/2011 6 the first respondent while issuing Ext.P2. The incongruity in the counter affidavits filed on behalf of the respondents 1 and 2 itself would reveal the fact that Ext.P2 order was passed without taking into account all those aspects. Moreover, Ext.P1 would suggest that the petitioner was allowed to continue in the same station taking into account the fact that she is having only two years to retire from service on superannuation. There is no dispute with regard to the facts that the petitioner is left with only less than two years to retire from service on superannuation and those employees having only less than two years of service to retire from service got a preferential right in the matter of transfer. As already noticed hereinbefore, the second respondent was given transfer as against the 5th place chosen by him. Though juniors were given transfer and posting that was obviously not challenged by the second respondent. Taking into account all these aspects, I am of the view that the action on the part of the first respondent in acceding to the request of the second respondent that too after his acceptance of transfer issued as per Ext.P1 without any demur. Even if it is taken that Ext.R2(d) was acted upon, evidently, the petitioner was not issued with any notice. Normally, if a person is given transfer WPC No.15382/2011 7 during the general transfer his/her immediate request for a further transfer would not be entertained. As already noted, while effecting general transfer, obviously, acknowledging the eligibility of the petitioner for continuance on account of impending retirement within 2 years she was not included in the transfer list. Thus, viewing the issue at any angle, I am of the view the Ext.R2(d) to the extent it ordered transfer of the petitioner from DMO Office, Kottayam to Taluk Head Quarters Hospital, Ranni, Pathanamthitta and that of the second respondent vice versa cannot be sustained. It is certainly not an exercise of the power of transfer in the best interest of the administration. It is an abuse of the power of transfer. 4. When this matter came up for admission, this Court passed an interim order on 8.6.2011 permitting the petitioner to continue as Senior Superintendent in DMO Office, Kottayam itself. The said order has been extended from time to time. In view of the foregoing reasons, Ext.P2 order to the extent it ordered transfer of the petitioner and the second respondent is set aside. It will be open to the second respondent to raise grievances against the transfer and posting given to his juniors ignoring his seniority before the appropriate authority. The WPC No.15382/2011 8 rejection of the contentions of the 2nd respondent would not stand in the way of such right of the second respondent. The learned counsel for the second respondent submitted that after the interim order passed by this Court, the second respondent was relieved from DMO Office, Kottayam. However, she was not issued with any order of posting. Such an order of posting was given only after the order of this Court on 24.6.2011. In view of the said position, it is ordered that the period between 10.6.2011 and the date of joining of the second respondent pursuant to the issuance of the posting order, shall be regularised by treating the period as duty for all purposes considering the fact that such a situation had arisen only on account of the interim order dated 24.6.2011. This writ petition is accordingly allowed. Sd/- (C.T. RAVIKUMAR, JUDGE) jma //true copy// P.A to Judge