M.GOPALAKRISHNA IYER Vs. STATE OF KERALA

JUDGEMENT

(1.) The petitioner is a postgraduate degree holder in Ophthalmology in the Directorate of Health Services, Kerala. He joined service on 16th September, 1965. He was sent for compulsory military service in 1966 where he served from 21st March, 1966 to 2nd December, 1969. He acquired Diploma (D.O.) in 1972 and postgraduate degree of N. S. in Ophthalmology in 1974. He was posted to E.S.I. Hospital, Pavithreswaram and Pappinisseri (1965-66) and Health Centre, Muhamma (1969-71) as an Eye Specialist in the Taluk Hospital, Shertallai from 7th November, 1973 to 16th February, 1977 and in the Taluk Hospital, Pathanamthitta from 17th February, 1977 to 31st May, 1980. Then he was transferred to the District Hospital, Trichur, as a Senior Ophthalmologist. This was his first District Hospital posting. He had an unblemished record of service to his credit. According to the norms of transfer of Government Medical Officers, he could have continued in the District Hospital, Trichur, at least for two years more. But he was transferred by an order, dated 20th May, 1981 served on him on 26th May, 1981 evidenced by Ext. P-1 to Perumbavoor. Out of ever 30 Doctors in the District Hospital, Trichur, only three including the petitioner were transferred from Trichur, the petitioner before completing three years of service. There were other Doctors who had completed over 10 years of service in the District Hospital. The petitioner avers that this transfer was apparently to provide for the 3rd respondent.

(2.) The 3rd respondent joined regular service on 24th September, 1973 and has only completed less than eight years of service. He is ranked as No. 2060 in the gradation list, as against Rank No. 598 assigned to the petitioner, of Assistant Surgeons. He is only a Postgraduate Diploma holder and has no military service to his credit. The petitioner had to wait for about 15 years for a District Hospital posting. The 3rd respondent gets such a posting before completion of 10 years of service. The petitioner has 46 points in his favour for being given independent unit charge whereas the 3rd respondent had only 26 such points which is not sufficient ordinarily for a unit charge or a District Hospital posting. The petitioner's case, therefore, is that his transfer was in violation of the norms, governing transfers, without any extraordinary circumstance justifying such transfer and only to accommodate the 3rd respondent. In this petition petitioner prays that Ext. P1 order be set aside as being violative of Art.14 and 16 of the Constitution and also prays for other consequential reliefs. The grounds urged are that Ext. P1 order of transfer is in violation of all known norms and ascertainable principles of conduct set up by the Government, that it is vitiated by extraneous considerations, unrelated to exigencies of administration and hence is vitiated by mala fides in law. In C.M.P. No. 9391 of 1981 this Court directed interim stay if the 3rd respondent had not taken charge in the Trichur Hospital. Thereafter, he filed C.M.P. No. 12025 of 1981 for an interim direction whereupon this Court directed the 2nd respondent to post the petitioner in the next available vacancy in the District Hospital, Trichur, pending disposal of the Original Petition. The petitioner again filed C.M.P. No. 16315 of 1981 to give directions to respondents 1 and 2 to post the petitioner back to the Trichur District Hospital where he had been working. No orders were passed on that. He again filed C.M.P. No. 19383 of 1981 for the same direction. There also no orders were passed. I understand that he has now been posted to Trichur but not to a place befitting his seniority, qualification and specialisation.

(3.) In the counter filed by the 1st respondent State, the case of the petitioner is met as follows: The transfer of the petitioner as per Ext. P-1 order is in public interest, not actuated by mala fides and hence not liable to be quashed. The petitioner's case that he can be transferred from the District Hospital only after completion of three years as per the norms for transfer, is denied. The norms only stipulate that in the normal course an officer need be transferred only after completion of a term of three years. This condition does not fetter the hands of the Government to transfer and post any officer at any time in the interest of service. The 3rd respondent is a junior hand when compared to the petitioner. He had been holding charge of an Eye unit in Government Hospital, Chittoor for the last two years and he is eligible to be posted to any unit in the speciality. Though there are norms prescribed for transfer, the Government have reserved the right to transfer any officer in public interest even if it is not in accordance with the general guidelines prescribed by them. It is a fact that officers shall not ordinarily be transferred before completion of three years. It is correct that Government desire to give preference in the matter of posting those who have served in the Army. But this is only optional and no one can claim it as a matter of right. The nature of preference to be given has to be decided by Government and not by individual, who is expected to receive it. The contention of the petitioner that being a senior specialist he can be allowed to continue in the District Hospital, Trichur, even after three years and his replacement could only be another specialist is an interpretation given by him to suit his convenience. It is not correct to say that a senior specialist can be replaced only by another Medical Officer of equal or more service and with equal or higher qualification. The only obligation in this regard is that a specialist is replaced by another specialist, if available, in the interest of service. In this case the transfer was made in good faith and in public interest. Ext. P1 order is not discriminatory and not violative of Art.14 and 16 of the Constitution. The order of transfer is not in violation of accepted standard or principle. It was issued in public interest and is not vitiated by any mala fides. The petitioner has already been relieved from the District Hospital, Trichur, and the 3rd respondent has joined duty in his place and therefore the transfer order has thus come into effect. The allegation that the petitioner's transfer is the result of the hostility of the Minister for Public Health against the Kerala Government Medical Officers' Association is denied.