IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.SURENDRA MOHAN FRIDAY, THE 23RD DAY OF DECEMBER 2011/2ND POUSHA 1933 W.P.C. No. 19894 of 2011 (J) ----------------------------- PETITIONER: ----------- AMBILY P.T., AGED 31 YEARS, W/O.LATHEESH, KATTANGANATTU HOUSE, SL PURAM P.O. ALAPPUZHA DISTRICT. BY ADVS.SRI.C.V.MANUVILSAN SRI.P.G.SURESH SMT.K.VIDYA SRI.RAJAN VISHNURAJ SRI.P.CHANDRASEKHAR RESPONDENTS: ------------ 1. STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM-01 2. DIRECTOR, INDIAN SYSTEM OF MEDICINES, THIRUVANANTHAPURAM-695 001. 3. THE DISTRICT MEDICAL OFFICER, INDIAN SYSTEM OF MEDICINES, ALAPPUZHA-688 001. 4. THE DISTRICT MEDICAL OFFICER, INDIAN SYSTEM OF MEDICINES THIRUVANANTHAPURAM-695 001. 5. KERALA PUBLIC SERVICE COMMISSION, REP. BY ITS SECRETARY, PATTOM THIRUVANANTHAPURAM-695 004. R1 BY GOVERNMENT PLEADER, SRI. SHAJI RAJ T.K. R5 BY SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23- 12-2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: DST W.P.C. No. 19894 of 2011 (J) ----------------------------- APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF THE APPOINTMENT ORDER DATED 29.10.2005. EXT.P2 : COPY OF THE G.O.(P) NO. 36/91/P&ARD DATED 2.12.1991 EXT.P3 : COPY OF THE REPRESENTATION DATED 12.01.2009. EXT.P4 : COPY OF THE APPLICATION FOR GENERAL TRANSFER -2010, SUBMITTED BY THE PETITIONER ON 21.12.2010. EXT.P5 : COPY OF THE COMMUNICATION VIDE NO. E2.6978/09 DATED 03.02.2011. EXT.P6 : COPY OF THE REPRESENTATION DATED 24.02.201, SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P7 : COPY OF THE JUDGEMENT DATED 04.03.2011 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO. 6766/2011. EXT.P8 : COPY OF THE COVERING LETTER DATED 17.03.2011. EXT.P9 : COPY OF THE POSTAL RECEIPT EVIDENCING DISPATCH OF EXT. P8. EXT.P10 : COPY OF THE ORDER OF THE 2ND RESPONDENT ADDRESSED TO THE PETITIONER. EXT.P11 : COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT EXT.P12 : COPY OF THE REPLY DATED 16.06.2011 RESPONDENTS' EXHIBITS: NIL //TRUE COPY// P.A.TO JUDGE DST K. SURENDRA MOHAN, J. ------------------------------------------------------------ W.P(C) NO: 19894 OF 2011 ----------------------------------------------------------- Dated this the 23rd December, 2011. JUDGMENT The grievances of the petitioner in this writ petition is that Clause (6) in Ext.P2 G.O causes a lot of injustice to her. The petitioner is working as an Ayurveda Therapist in the Government Ayurveda Marma Hospital, Kanjiramkulam. She is the wife of a person serving in the General Reserve Engineering Force (Boarder Roads) (GREF for short). The petitioner contends that the GREF is part of the Indian Armed Forces and therefore, she is entitled to the benefits available to the wife of a soldier. Accordingly she claims that she is entitled to be granted an inter district transfer from Thiruvananthapuram to Alappuzha. 2. Clause (6) of Ext.P2 stipulates that only 10% of the vacancies arising in the district in an year in a category in a department shall be filled up by inter district transfer, including relaxation cases and cases of near relatives/dependents of soldiers. Since the number of Ayurveda Therapists in a district is five or only less than five, the petitioner is not able to get an inter district WPC 19894/2011 2 transfer without a suitable relaxation of the provision that limits such transfer to 10%. 3. The petitioner had earlier approached this Court by filing W.P(C)6766/2011. The said writ petition was disposed of directing the Director, Indian System of Medicines to consider and pass orders on the petitioner's representation. Accordingly, Ext.P10 order has been passed wherein it has been found by the second respondent that the claim of the petitioner that she is the wife of a soldier cannot be accepted for the reason that the Army Welfare Officer has informed the said authority by letter that an employee of GREF is not entitled to be treated as a soldier. Even if the petitioner is treated as the wife of a soldier she can claim an inter district transfer only if the Government relaxes the condition that inter district transfer in a particular cadre shall not exceed 10%. The petitioner has therefore filed this writ petition challenging Clause (6) of Ext.P2 in so far as it limits the number of inter district transfers to 10% of the strength of each cadre. The counsel for the petitioner contends that the provision discriminates against the petitioner and is violative of Art.14 of the Constitution. 4. A counter affidavit has been filed on behalf of the Kerala Public Service Commission (PSC for short). According to the PSC, it WPC 19894/2011 3 is for the other respondents in the case to defend the sustainability of Clause (6) that is under challenge. A statement has been filed by the second respondent stating that the request for inter district transfer of the petitioner can be considered only if relaxations are made in the conditions in Ext.P2 Government Order. Since the Government has expressed its willingness to consider the question as to whether relaxation is necessitated in a particular case, it is only appropriate that the petitioner moves the Government seeking such relaxation. I am not satisfied that the impugned provision discriminates against the petitioner for the reason that the post of Ayurveda Therapist forms a class by itself. The purpose of undertaking district wise recruitment to certain posts that are earmarked for the said purpose by the Government is to ensure that such posts are manned by employees from the said district alone. Grant of inter district transfers indiscriminately would defeat the very purpose of undertaking such district wise recruitments. Therefore, the object that is sought to be achieved by the classification cannot be said to be illusory. In view of the above, it is sufficient that the petitioner is directed to move the Government seeking relaxation of the stipulation contained in Clause (6) of Ext.P2. WPC 19894/2011 4 5. This writ petition is accordingly disposed of directing the petitioner to move the Government by submitting an appropriate representation seeking relaxation of Clause (6) of Ext.P2 Government Order. If such a representation is submitted within a period of two weeks from the date of receipt of a copy of this judgment, the same shall be considered in accordance with law and appropriate orders shall be passed thereon by the first respondent, as expeditiously as possible and at any rate within a period of one month thereafter. Sd/- K. SURENDRA MOHAN Judge jj P.S.to Judge WPC 19894/2011 5