IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 WP(C).No. 22338 of 2008(H) -------------------------- PETITIONER(S): --------------- DR.SUSHAMA.D., HOMOEO MEDICAL OFFICER (ON LEAVE), ('HARITHAM', JAWAHAR NAGAR, PATTATHANAM P.O., KOLLAM). BY ADV. SRI.B.S.SWATHY KUMAR RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, DEPARTMENT OF HEALTH & FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HOMOEOPATHY, THIRUVANANTHAPURAM. * 3. DR.SULEKHA, MEDICAL OFFICER, GOVERNMENT HOMOEO DISPENSARY, KOLLAM. (* THE NAME OF THE 3RD RESPONDENT IS DELETED AND SUBSTITUTED BY THE NAME OF DR. SASIDHARAN PILLAI, R.M.O AS PER ORDER DATED 18.8.08 IN I.A. 10753/2008) 3. DR. SASIDHARAN PILLAI, R.M.O, GOVERNMENT HOMOEO DISPENSARY, KOLLAM. GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.N. RAVINDRAN, J ----------------------------------- W.P.(C) No. 22338 OF 2008 ------------------------------------------ Dated this the 22nd day of October, 2008 J U D G M E N T The petitioner is presently working as Homoeo Medical Officer in the Department of Homoeopathy. She entered service on 13.4.1998. From the date of entry in service, till 3.7.2004 she worked in Kasaragod District. Thereafter, during the period from 6.7.2004 to 20.1.2005 she worked in Thrissur District. Later, she was transferred and posted as R.M.O in the District Homoeopathy Hospital, Kollam and she worked in that capacity from 22.1.2005 to 8.3.2007. With effect from 9.3.2007, she was posted as Homoeo Medical Officer in the District Homoeopathy Hospital at Kollam. 2. While matters stood thus, the second respondent published the draft list of Medical Officers proposed to be transferred, wherein the proposal was to transfer and post the petitioner as Homoeo Medical Officer in the Government Homoeo Dispensary at Kalady in Ernakulam District. The petitioner objected to the said proposal. However, by Ext. P3 order of transfer passed on 30.4.2008 the petitioner was transferred to Kalady and Dr. Abraham Vaidyan who was working as Homoeo Medical Officer at Chingoli in Alappuzha district was posted as the petitioner's substitute at Kollam. 3. Aggrieved by Ext. P3 order of transfer, the petitioner filed an appeal before the State Government. She thereafter filed W.P.(C) No. W.P.(C) No. 22338 OF 2008 -2- 15585 of 2008 in this Court. By Ext. P4 judgment delivered on 27.5.2008, this Court disposed of the said writ petition with a direction to the State Government to consider the appeal filed by the petitioner and pass orders thereon in the light of Exts . P2 and P4 guidelines regulating transfers. As directed by this Court, the Under Secretary to Government, Health & Family Welfare Department heard the petitioner on 20.6.2008. The representative of the Director of Homoeopathy was also present at the hearing. According to the petitioner, though Ext. P6 would show that Under Secretary had taken a decision to set aside the order transferring her from Kollam to Kalady, the Secretary to Government, Health and Family Welfare Department overruled the Under Secretary to Government and held that no reasons exist to interfere with the order of transfer. Ext. P5 order was thereupon passed on 8.7.2008 rejecting the petitioner's appeal. Exts. P3 and P5 are under challenge in this writ petition wherein the petitioner prays for a writ in the nature of mandamus commanding the official respondents to retain her at Kollam. 4. I have considered the submission made at the Bar by Sri. B.S. Swathi Kumar, the learned counsel appearing for the petitioner and Sri. P.Nandakumar, the learned Government Pleader appearing for respondents 1 and 2. Ext. P6 discloses that though the Under Secretary who heard the petitioner had recommend that she be retained in Kollam for the reason that the transfer was not in conformity with the guidelines regulating transfer, the other reasons put forward by the petitioner were not accepted. The Secretary to Government considered W.P.(C) No. 22338 OF 2008 -3- the notes of hearing prepared by the Under Secretary, took a different view and held that the petitioner who has completed three years at Kollam was liable to be transferred out in accordance with the guidelines. 5. It is not in dispute that the petitioner is working at Kollam since 22.1.2005. She has completed three years of service in Kollam and was therefore due for transfer from Kollam. It is for that reason that the Secretary to Government overruled the Under Secretary and decided to reject the appeal filed by the petitioner. Though the petitioner contends that the third respondent was liable to be transferred out from Kollam and she was entitled to be retained at Kollam, I notice from Ext. P6 that the third is due to retire from service on 30.4.2010. On going through Ext. P6 it can be seen that the Secretary to Government had only complied with the guidelines regulating transfers when he overruled the opinion expressed by the Under Secretary. 6. The Apex Court has in State of U.P. v. Gobardhan Lal (2004) 11 Supreme Court Cases 402 held that an order of transfer should not be lightly interfered with and that an order of transfer can be set aside only if it is passed by an incompetent authority or is passed in violation of any statutory rule or is proved to be vitiated by mala fides. In the instant case, the petitioner has no case that the order of transfer is issued in violation of statutory rule or by an incompetent authority. Therefore the only ground on which the petitioner can challenge Ext. P4 W.P.(C) No. 22338 OF 2008 -4- transfer is that it is vitiated by mala fides. 7. The Apex Court has in State of U.P. v. Gobardhan Lal - (2004) 11 S.C.C. 402 (supra) held that the allegations of malafides should not be entertained in the absence of concrete materials to prove that the order of transfer is vitiated by malafides. In the instant case, the petitioner has not made out any ground to hold that the order of transfer is vitiated by malafides. What the petitioner essentially seeks is her retention at Kollam, though she has completed three years in that station. In my considered opinion, the claim made by the petitioner is not tenable. The petitioner was due for transfer and the transferring authority decided to transfer her to Kalady. The Apex Court has in State of U.P. v. Gobardhan Lal - (2004) 11 S.C.C. 402 (supra) held that this Court exercising jurisdiction under Article 226 of the Constitution of India cannot sit in appeal over the decision taken by the transferring authority, assess the niceties of the situation and substitute its decision in the place of the decision of the transferring authority. In the absence of any cogent material to establish that the order of transfer is vitiated by malafides, I find no good reason to interfere with Exts.P3 and P5. For the reasons stated above, I hold that there is no merit in the Writ Petition. The Writ Petition fails and is accordingly dismissed. P.N.Ravindran, Judge. ess/vkm 23/10