Dr. Asha V. Aged v. The Director of Health Services, Directorate of Health Services, General Hospital, Thiruvananthapuram (W.P.(C) No.16590 of 2022)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 20[TH] DAY OF JUNE 2022 / 30TH JYAISHTA, 1944** ## **WP(C) NO. 16590 OF 2022** ## **PETITIONER/S:** DR. ASHA V. AGED 53 YEARS CONSULTART (GYNAECOLOGY) DISTRICT HOSPITAL, KOZHENCHERRY, PATHANAMTHITTA DISTRICT, RESIDING AT PRATHYASHA, 21- ULLOOR GARDENS, ULLOOR, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM DISTRICT - 695 011. BY ADV M.R.RAJESH ## **RESPONDENT/S:** THE DIRECTOR OF HEALTH SERVICES DIRECTORATE OF HEATH SERVICES, GENERAL HOSPITAL, THIRUVANANTHAPURAM. PIN-695035. ## **OTHER PRESENT:** SR.GP.PREETHA K.K. **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** W.P.(C) No.16590 of 2022 -2- ## **JUDGMENT** Dated this the 20[th] day of June, 2022 The petitioner is working as Consultant in Gynaecology in the District Hospital, Kozhencherry in Pathanamthitta District. She is aggrieved by Ext.P2 draft transfer list and nonconsideration of her objection filed against the list. The objection is on the basis that Ext.P1 application submitted by the petitioner, seeking transfer to Thiruvananthapuram, was not taken into consideration while issuing the draft transfer list. The petitioner is therefore seeking the issue of a writ of mandamus commanding the respondent to consider Ext.P3 objection/appeal of the petitioner, specifically adverting to the contentions raised therein, and not to finalise Ext.P2 draft transfer list till such time. W.P.(C) No.16590 of 2022 -3- 2. The petitioner being a Government servant and the relief sought being with respect to her service, learned Counsel for the petitioner was called upon to argue on the question of maintainability in view of the efficacious remedy available under the Administrative Tribunals Act and the decision of the Apex Court in _**L.Chandrakumar v Union of India**_ _**[AIR 1997 SC 1125]**_ . 2. Learned Counsel first contended that judicial review under Article 226 is a basic feature of the Constitution which cannot be curtailed in the manner observed in _**L.Chandrakumar** (supra)_ . It was then contended that, availability of alternative remedy is not an absolute bar in exercising the power under Article 226. After putting forth the legal contentions, learned Counsel raised strong objection against the manner in which the W.P.(C) No.16590 of 2022 -4- Registry had noted the defect as to maintainability of the writ petition. It is submitted that the obstinate stand of the Registry had resulted in the petitioner losing valuable time, before her case could be taken up in court. It is submitted that the Registry should not be allowed to usurp the court's power of deciding the question of maintainability. When in doubt, the Registry should immediately send the case to the Judge concerned, the prerogative to decide maintainability being that of the court alone. 3. In spite of the erudite arguments put forth by the learned Counsel, I am compelled to repel the contentions as to maintainability of the writ petition. No doubt, discretionary jurisdiction under Article 226 can be exercised in appropriate cases despite availability of an alternative remedy. As far as the case at hand is concerned, the petitioner is seeking interference ## W.P.(C) No.16590 of 2022 -5- with a draft seniority list, which cannot, at any stretch of imagination, be termed as an extraordinary circumstance warranting interference under Article 226, in spite of availability of an efficacious remedy before the Kerala Administrative Tribunal. Even though the writ petition was filed at a time when the Administrative Tribunal was closed for summer vacation, the Tribunal having re-opened, the writ petition cannot be entertained on that premise also. 4. Finding substance in the grievance raised by the learned Counsel regarding the manner in which the Registry is noting defects with respect to the maintainability of writ petitions and other cases, I am compelled to reiterate the directions issued by the Division Bench in _**Ayub Khan PA v State of Kerala and**_ _**another [ILR 2012 (1) Ker.615**_ **].** Being -6- ## W.P.(C) No.16590 of 2022 contextually relevant, the directions are extracted hereunder for easy reference; _“3. We are of the considered view that maintainability is essentially a matter which needs to be considered on the judicial side. Registry is of course free to consider maintainability and if they do not find any case maintainable, they are free to record the reason and refuse to number the same without orders from the Bench. However, if party or the counsel filing the case requires maintainability to be adjudicated by the court on the judicial side, it is the duty of the Registry to send unnumbered case to the concerned Judge or Bench hearing the matter based on roster fixed by the Chief Justice for consideration of maintainability and for numbering, if ordered by the court. We, therefore, direct the Registry to post all unnumbered cases before the Bench at the request of the counsel, if it is a today moving matter, on the date of filing itself or otherwise, on the date following noting of defect by the Registry. So far as cases otherwise maintainable but filed with defects are concerned, it is for the Registry to grant time for curing defect and such cases also should be posted before the Bench, if defect_ W.P.(C) No.16590 of 2022 -7- _is not cured or the defect itself is subject matter of contest on which party/counsel wants adjudication by the Bench. Registrar (Judicial) will circulate these instructions to the Filing Section._ _A copy of this order will be issued to the President of the Kerala High Court Advocates’ Association.”_ Needless to say that the above directions are to be scrupulously followed by the Registry, without giving cause for complaints as in the instant case. Once the Registry notes a defect and answer given by the Counsel is found unacceptable, the case shall immediately be posted before the court, without calling for further explanation. The writ petition is accordingly closed, without prejudice to the petitioner's right to ventilate her grievance before the Kerala Administrative Tribunal. **==> picture [34 x 12] intentionally omitted <==** ## **V.G.ARUN JUDGE** Scl/ W.P.(C) No.16590 of 2022 -8- ## **APPENDIX OF WP(C) 16590/2022** PETITIONER EXHIBITS Exhibit P1 A TRUE COPY OF THE TRANSFER APPLICATION NO. 158238 OF THE PETITIONER SUBMITTED TO THE RESPONDENT AND APPLIED IN THE PROPER CHANNEL. Exhibit P2 A TRUE COPY OF THE ORDER NO. EA189258/2021 DHS DATED 01.01.2022 OF THE RESPONDENT. Exhibit P3 A TRUE COPY OF THE OBJECTION/APPEAL DATED 03.02.2022 SUBMITTED TO THE RESPONDENT.