K P SOMAN Vs. STATE OF KERALA

JUDGEMENT

(1.) PETITIONER and respondent No. 3 are Civil Surgeons. Their speciality is Pediatrics. Petitioner is admittedly senior to the 3rd respondent and has longer service than him.

(2.) THIS Writ Petition has come to be filed as there is a clamour for posting by the petitioner and the 3rd respondent as Civil Surgeon and Pediatrician in the Taluk Head Quarters Hospital, Punalur. In regard to the controversy relating to the posting of a Civil Surgeon in the Speciality of Pediatrics in the Taluk Head Quarters, Punalur, this is the fourth writ petition filed before this Court wherein either the petitioner or the 3rd respondent figures as petitioner or respondent. Petitioner feels that a serious injustice has been done to him by the order of the 1st respondent declining his request for a posting at Punalur while preferring the 3rd respondent to that station. As per Ext. P8 Govt. Order dated 15/06/2005, the 1st respondent while issuing transfers and postings of Civil Surgeons, filled up the vacancy of Civil Surgeon by transferring and posting the 3rd respondent from Community Health Centre, Pathanapuram to Taluk Head Quarters Hospital, Punalur. By the very same order, Government transferred the petitioner from Government Hospital, Thiruvalla to Community Health Centre, Pathanapuram which post fell vacant by the posting of the 3rd respondent at Punalur.

(3.) PETITIONER has shown his inclination for a posting at Taluk Head Quarters Hospital, Punalur as Civil Surgeon in the Speciality of Pediatrician. He filed Ext. P5 application in the prescribed proforma on 10/03/2005. Ext. P5 shows that the petitioner's first preference at the time of general transfers was for a posting in the Taluk Head Quarters Hospital, Punalur in Kollam District. He has grounds to be stated, in order to justify his claim for posting at Punalur, more particularly, in preference to respondent No. 3. The first and the foremost ground urged by him is that there remains only less than two years for him to retire from service. His date of superannuation is 31/03/2007. Clause (3) of Ext. P3 Govt. Order dated 28/05/1987 says that Medical Officers who have only two years to retire from service on superannuation will not normally be disturbed by transfer, and will, as far as possible, be posted to institutions of their choice, preference being given to those who retire earlier. Clause (18) of Ext. P3 says that if there are more than one applicant for transfer for a particular post, first preference will be given to the Medical Officer who has only two years to retire, then to the person who had worked for the least period in the institution requested for, and then according to seniority. It is admitted position that respondent No. 3 will not come within the above mentioned preferential clauses. Going by his age, respondent No. 3 has more than 7 years to retire from service. It cannot be disputed that the petitioner is eligible to claim the benefit of causes 3 and 18 of Ext. P3. Petitioner, after attending the Post Graduate Course in Pediatrics, was reposted in the Govt. Hospital Thiruvalla as per Ext. P12 order dated 21/12/2002. He joined duty and has been continuing here until Ext. P8 order was issued by the Govt. In the light of the above fact, petitioner says that he is eligible to claim the benefit of Clause (6) of Ext. P3 Govt. Order which says that those rejoin duty on the expiry of leave or on completion of the period of a course/training, may be posted against open vacancies. However, such postings will be subject to review at the time of general transfer. Petitioner's case is that he having been posted at Thiruvalla in Pathanamthitta District on return from training can apply at the time of general transfers for posting at Punalur, which is the place of his choice, and that the Govt. has got an obligation to review Ext. P12 order by which he was posted at Thiruvalla, so as to explore the possibility of granting the request of the petitioner for posting at Punalur at the time of general transfers. Petitioner has got a grievance that instead of utilizing his services and experience as a Pediatrics Civil Surgeon at the Taluk Head Quarters Hospital, he has been transferred to a comparatively smaller institution like the Community Health Centre. His seniority and length of service as a Civil Surgeon has been discarded despite he norms laid down in Ext. P3 vide clause (15) to the effect that those who have completed 20 years of service may not be posted, as far as possible, in Primary Health Centres and Rural Dispensaries unless on request. Petitioner has got more than 20 years of service as a Medical Officer and his request was for a posting at Punalur and therefore only in a case where it was impossible for the Govt. , for justifiable reasons, to post him at Punalur, his option for posting in the places shown as choice numbers 2 and 3 was required to be considered. Petitioner relies on Ext. P3 to contend for the position that respondent No. 3 who is far junior in the cadre of Civil Surgeon and who was promoted to the post of Civil Surgeon only very recently, ought not to have been accommodated in a place preferred by him, after discarding the better claim of the petitioner; viewed from any angle. Clause (17) of Ext. P3 is also relied on, by the petitioner to point out that Medical Officers, immediately on promotion are liable to be posted in an institution or station different from the one where they had been working in the feeder post.