IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN THURSDAY, THE 17TH JULY 2008 / 26TH ASHADHA 1930 WP(C).No. 15711 of 2008(U) PETITIONER: DR.KAVITHA RAJA, ASSOCIATE PROFESSOR OF MICROBIOLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM, RESIDING AT 310, GANDHI NAGAR, VAZHUTHACAUD, THIRUVANANTHAPURAM-14. BY ADV. SRI.A.S.P.KURUP SRI.SADCHITH.P.KURUP RESPONDENTS: 1. STATE OF KERALA, REP.BY SECRETARY (HEALTH & FAMILY WELFARE DEPARTMENT) GOVERNMENT OF KERALA, KERALA SECRETARIATE, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF MEDICAL EDUCATION, OFFICE OF THE DIRECTOR OF MEDICAL EDUCATION, MEDICAL COLLEGE PO, THIRUVANANTHAPURAM. 3. DR.BEENA PAUL, ASSOCIATE PROFESSOR OF MICROBIOLOGY, MEDICAL COLLEGE, THIRUVANANTHAPURAM. ADDL.R4 IMPLEADED: 4. THE PRINCIPAL, MEDICAL COLLEGE, TRIVANDRUM. ADDL.R4 IS IMPLEADED AS PER ORDER DATED 3.6.2008 IN I.A.NO.6611 OF 2008. R3 BY ADV. SRI.C.K.PAVITHRAN R1 & R4 BY GOVERNMENT PLEADER SRI.T.T.MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 17/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF DRAFT PROPOSAL PUBLISHED BY SECOND RESPONDENT. EXT.P2 TRUE COPY OF REPRESENTATION DATED 27.3.2008 GIVEN BY THIRD RESPONDENT TO SECOND RESPONDENT. EXT.P3 TRUE COPY OF REPRESENTATION DATED 30.3.2008 GIVEN BY PETITIONER TO THE SECOND RESPONDENT. EXT.P4 TRUE COPY OF LETTER DATED 21.4.2008 GIVEN BY SECOND RESPONDENT TO FIRST RESPONDENT. EXT.P5 TRUE COPY OF REPRESENTATION DATED 3.5.2008 GIVEN BY PETITIONER TO FIRST RESPONDENT. EXT.P6 TRUE COPY OF ORDER DATED 22.5.2008 ISSUED BY FIRST RESPONDENT TO PETITIONER. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 15711 OF 2008 U -------------------------------------------- Dated this the 17th July, 2008 JUDGMENT The petitioner, Dr.Kavitha Raja, Associate Professor of Microbiology, Medical College, Thiruvananthapuram, challenges Ext.P6 order dated 22.5.2008, by which she was transferred and posted as such at Medical College, Kottayam. Before passing Ext.P6 order of transfer, Ext.P1 draft proposal was made. As per the draft proposal, Dr.Geetha Raveendran, Associate Professor of Microbiology, working at Medical College, Kottayam, was to be transferred to Medical College, Thiruvananthapuram and the third respondent, Dr.Beena Paul, who was shown as having maximum service at Medical College, Thiruvananthapuram, was proposed to be transferred out. The petitioner is not aggrieved by Ext.P1 and therefore, there was no necessity for her to file any objection. However, by way of abundant caution, she filed Ext.P3 representation dated 30.3.2008, to the Director of Medical Education, stating that the statement in the draft proposal that Dr.Beena Paul has been working at Medical College, Thiruvananthapuram since 1.10.1996 is not fully correct and that Dr.Beena Paul has been working at Medical College, Thiruvananthapuram since 1.12.1993. It is also stated in Ext.P3 that Dr.Kavitha Raja was having an outstation service of one year. W.P.(C) NO.15711 OF 2008 :: 2 :: 2. Against the draft proposal, Dr.Beena Paul filed W.P.(C) No.11223 of 2008, which was disposed of as per judgment dated 2.4.2008, directing the Director of Medical Education to consider the representation filed by Dr.Beena Paul in accordance with law, after affording an opportunity of being heard to Dr.Beena Paul and other teachers who may be affected by any order that may be passed. Thereafter, all the affected parties were heard. The petitioner submitted Ext.P5 representation dated 3.5.2008, wherein she stated that she has been continuously working at Medical College, Thiruvananthapuram only for the past five years and nine months. It is admitted in Ext.P5 representation that Dr.Beena Paul has an outstation service of one year and nine months. 3. When Ext.P6 order was passed, instead of transferring out Dr.Beena Paul from Thiruvananthapuram, the petitioner was transferred. The petitioner is aggrieved by the same. According to the petitioner, Dr.Beena Paul has longest period of service at her home station of Thiruvananthapuram and, therefore, she had to be transferred out, as suggested in Ext.P1 draft proposal. W.P.(C) NO.15711 OF 2008 :: 3 :: 4. A counter affidavit is filed by the first respondent wherein in paragraph 4 it is stated thus: “4. It is submitted that the argument of the petitioner is baseless. The Exhibit P1 is only a draft proposal. When the third respondent found the draft proposal against the existing norms, she approached this Hon. Court against the injustice and the court found merit in the contention of the third respondent. Hence Honourable High Court has passed its verdict and the first respondent executed the court direction. Government found that the third respondent is having the longest outstation service and as such there is no wrong in the action of government in having transferred the petitioner to Kottayam.” A reading of paragraph 4 of the counter affidavit would indicate that the authority concerned was under the impression that this Court had found merit in the contention of Dr.Beena Paul. The judgment in W.P.(C) No.11223 of 2008, which was made available to me for perusal, does not give any indication that the matter was considered on the merits by this Court. There was only a direction to dispose of the representation submitted by Dr.Beena Paul. Such a direction cannot be treated as a verdict, as stated by the first respondent in the counter affidavit. 5. Ext.P6 as such does not show that the rival contentions put forward by the parties were taken note of. Paragraph 33 of the guidelines for transfer of employees in the Health and Family Department (dated 21.2.2005) provides that at the time of transfer, the total outstation W.P.(C) NO.15711 OF 2008 :: 4 :: service shall be taken into account. Paragraph 34 of the guidelines provides that a person whose name was not included in the draft list shall not be included in the final list, unless it was an omission at the time when the draft list was published. Here there is no case that there was such an omission at the time when Ext.P1 draft list was published. The petitioner's name was not included in the draft list at all. Paragraph 15 of the guidelines provides thus: The counter affidavit filed by the first respondent and the counter affidavit filed by the third respondent do not throw any light for arriving at a conclusion as to the length of outstation service, going by paragraph 15 of the guidelines. The counter affidavit also does not indicate that clause 15 of the guidelines was taken note of at the time of issuing Ext.P6. It is stated that the third respondent had longer period of service at Thiruvananthapuram when compared to the service of the petitioner at Thiruvananthapuram. The relevant details are not clearly available in the pleadings. At the time when Ext.P6 order was passed, the length of W.P.(C) NO.15711 OF 2008 :: 5 :: service of the petitioner and that of the third respondent at Thiruvananthapuram was not considered. At the same time, in Ext.P1 draft proposal, there is an indication that Dr.Beena Paul has maximum service at Medical College, Thiruvananthapuram as she is working since 21.10.1996. In Ext.P3 objection, the petitioner has pointed out that Dr.Beena Paul is working at Thiruvananthapuram since 1.12.1993. While passing the final order, namely, Ext.P6, these matters have not been considered. The third respondent has raised a contention in paragraph 5 of the counter affidavit that the petitioner had more than sixteen years of service at Thiruvananthapuram and only less than one year service outside Thiruvananthapuram. 6. From the facts narrated above, it is clear that the first respondent has not considered all the relevant details while passing Ext.P6 order. The contentions put forward by the petitioner and those put forward by the third respondent were not properly considered and a proper decision was not arrived at on the basis of the guidelines and also taking into account the relevant facts and circumstances of the case. At no point of time, it is considered as to who remained for the longer period at Thiruvananthapuram. Though it is not specifically stated in the guidelines, that also is a relevant criterion to be taken into account at the time when a person is proposed to be transferred out of that station. Why W.P.(C) NO.15711 OF 2008 :: 6 :: the stand taken in Ext.P1 draft proposal was given a go bye is also not clear from the pleadings or from Ext.P6. I am of the view that Ext.P6 does not indicate that the relevant facts and the relevant contentions were considered. 7. At the time when the Writ Petition was admitted an interim stay of Ext.P6 was granted. Later, that order was modified as per order dated 3.6.2008, which reads as follows: “It is submitted that even before the interim order dated 27.5.'08 was passed, Geetha Raveendran has taken charge on 24.5.'08 at Medical College, Thiruvananthapuram. It is stated that now, as per the order impugned, the petitioner has to join at Kottayam. The prayer, for the time being, is that the petitioner may be permitted to take leave. Non-extension of the interim order will not preclude the petitioner from getting appropriate reliefs from the respondents.” Now Dr.Geetha Raveendran has taken charge at Thiruvananthapuram and Dr.Beena Paul is remaining at Thiruvananthapuram. It is stated that the petitioner has joined at Kottayam. Therefore, the status quo as available as on today need not be disturbed for the purpose of considering the matter afresh by the first respondent. Though Ext.P6 order does not stand scrutiny, I am not quashing Ext.P6 in its entirety, as it is necessary to maintain the status quo as on today till the disposal of the matter in the manner indicated herein below. But for all other W.P.(C) NO.15711 OF 2008 :: 7 :: purposes and in respect of the findings contained therein with reference to the petitioner and the third respondent, Ext.P6 should be treated as quashed. The first respondent shall consider the matter afresh after affording an opportunity of being heard to the petitioner, the third respondent Dr.Beena Paul and any other affected party including Dr.Geetha Raveendran. The first respondent shall hear all the parties concerned and shall take a final decision in the matter within a period of six weeks from today. It is also made clear that the transfer of Dr.Geetha Raveendran is not affected by this order as her entitlement to get transfer as recognised in Ext.P6 order is not under challenge. The Writ Petition is allowed as indicated above. (K.T.SANKARAN) Judge ahz/