Prasadh S. v. B. Sunil Kumar and State of Kerala represented by the Secretary, Health and Family Welfare Department, and The Director of Health Services

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** # **PRESENT** **THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **MONDAY, THE 07TH DAY OF JANUARY 2019 / 17TH POUSHA, 1940** **OP(KAT).No. 458 of 2018** **AGAINST THE ORDER DATED 21-06-2018 IN OA 212/2018 AND ORDER DATED 29-10-2018 IN UN-RA-OF 2018 IN O.A.NO.212/2018 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/RESPONDENT NO.3:** **PRASADH.S., AGED 50 YEARS S/O.K.SREEDHARA PANICKER, FORMAN MECHANIC, DISTRICT MEDICAL OFFICE OF HEALTH, ALAPPUZHA-688005,(RESIDING AT PRASAD BHAVANAM, VEMBI, ELAVATTOM P.O, PALODE, THIRUVANANTHAPURAM -695562** **BY ADVS. SRI.SABU GEORGE SRI.NIDHI BALACHANDRAN** ## **RESPONDENTS/PETITIONER AND RESPONDENTS 1 & 2:** **1 B.SUNIL KUMAR, FOREMAN MECHANIC, CENTRAL WORKSHOP, DIRECTORATE OF HEALTH SERVICE, THIRUVANANANTHAPURAM-695035** **2 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVT.HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM-695001** 2 ## **O.P.(KAT).458/2018** **3 THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM-695035** **GOVERNMENT PLEADER SRI ANTONY MUKKATH.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.01.2019, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **O.P.(KAT).458/2018** 3 ## **JUDGMENT** ## **Ravikumar, J.** This original petition is filed against the order dated 21.6.2018 in O.A.No.212 of 2018 and the order dated 29.10.2018 in unnumbered Review Application of the year 2018 in O.A.No.212 of 2018, passed by the Kerala Administrative Tribunal. The petitioner herein was the 3[rd] respondent in the above Original Application which was moved by the first respondent herein. The parties are referred to hereafter in this judgment in accordance with their rank and status in this original petition. Both the petitioner and the first respondent are Foreman Mechanic in the Department of Health Services. The first respondent was aggrieved by Annexure-A1 whereby the petitioner herein was directed to be posted in Thiruvananthapuram in his place. He challenged the said order successfully raising various grounds. The Tribunal, after appreciating the rival contentions, allowed the Original Application and set aside Annexure-A1. It is in the said circumstances that the captioned original petition has been filed. **O.P.(KAT).458/2018** 4 2. We have heard the learned counsel for the petitioner, the learned counsel for the first respondent and also the learned Government Pleader. 3. A perusal of the pleadings of the petitioner before the Tribunal as also before this Court would reveal that his precise case is that the applicant/first respondent herein was not having the requisite stay of three years in the particular station viz., at Kottayam as on 30.3.2016 as specified in Annexure-R3(d). In short, according to the petitioner, in view of the shortage of the requisite period of service, the application of the first respondent ought not to have been considered for general transfer going by Ext.R3(d) notification. Per contra, justifying the issuance of Annexure-A1, the first respondent had taken up the contention that he was given transfer only on completion of three years service in Kottayam and that apart, the Government order existing at the relevant point of time viz., 504/2005/H&WD dated 21.2.2005 does not insist for three years service in the previous station when there is open vacancy. The **O.P.(KAT).458/2018** 5 Tribunal considered all the relevant aspects and also compared the personal difficulties of both the petitioner and the first respondent and ultimately found that the difficulties mentioned by the applicant/first respondent herein are more deplorable than that of the petitioner. Considering such reasons, the Tribunal held that Annexure-A1 is liable to be interfered with and consequently, allowed the Original Application. In the contextual situation, it is relevant to refer to Annexure-A1. 4. A perusal of Annexure A1 would reveal that it was issued pursuant to order dated 24/8/2017 passed by the Tribunal in O.A.No.2817/2016 and the representation dated 14.9.2017 submitted by the petitioner herein who was the applicant in O.A.No.2817/2016. The foundation for issuance of Annexure A1, as is evident from Annexure A1, is that the petitioner herein had submitted application for general transfer pursuant to Annexure R3(d) on 31.3.2016 whereas the first respondent had submitted his application only on 17.6.2017. That apart, it is stated therein that as on the relevant date viz., on **O.P.(KAT).458/2018** 6 31.3.2016 and also on the date of submission of the application, the first respondent had not completed three years' service in Kottayam. In the contextual situation, the indisputable and undisputed fact is that even after issuance of Annexure R3(d) notification, implementation of transfer pursuant to the receipt of applications could not have been effected owing to the implementation of the Code of Conduct for general election. Thereafter, the first respondent was granted transfer to Thiruvananthapuram as per Annexure R3(c) order dated 25.6.2016. Evidently, the petitioner herein had moved O.A No.2817/2016 before the Tribunal on being aggrieved by Annexure R3(c) order. The said original application was disposed of as per Annexure A2 order dated 24.8.2017. It is evident from Annexure A2 that the Tribunal had not entered into any finding on merits. However, granted permission to the applicant therein/petitioner herein to file a detailed representation before the first respondent therein viz., the second respondent herein. A consequential direction was also issued to the second respondent herein to consider and pass appropriate orders thereon after affording **O.P.(KAT).458/2018** 7 an opportunity of being heard to the petitioner and the first respondent herein. Essentially, it is the consideration pursuant to such direction that culminated in the order that was challenged in O.A No.212/2018. Annexure A1 in O.A No.212/2018 is dated 30.1.2018. Virtually, as per Annexure A1, Annexure R3(c) order dated 25.6.2016 was set aside by the second respondent. In other words, it is evident that after more than 1½ years that Annexure R3(c) order of transfer was interfered with by the second respondent as per Annexure A1. As noticed hereinbefore, though applications were invited for transfer, as per Annexure R3(d) notification, orders of transfer could not be issued despite the receipt of applications owing to the implementation of the Code of Conduct for general election. It is thereafter that transfers were effected. A perusal of Annexure R3(c) would reveal that it is not an order of general transfer. The grievance of the petitioner is that at the time when the case of the first respondent for transfer was taken out, his claim for transfer to Thiruvananthapuram was not considered. It is in the said circumstances that the Tribunal virtually considered **O.P.(KAT).458/2018** 8 the aspects that by the time Annexure R3(c) order was passed on 25.6.2016, the first respondent had virtually completed 3 years stay at Kottayam and also of the fact that going by the relevant G.O in force, three years stay at previous station need not be insisted when there is open vacancy. The said reasons assigned by the Tribunal cannot be said to be erroneous or perverse warranting an interference especially taking note of the fact that on the strength of Annexure R3(c) order dated 25.6.2016, the first respondent had joined in Thiruvananthapuram and it is only after more than 1½ years that Annexure A1 order was issued on 30.1.2018 interfering with Annexure R3(c). In such circumstances, we do not find any illegality or perversity in the order passed by the Tribunal warranting an interference in exercise of the power of judicial review. Consequently, this original petition must fail and accordingly, it is dismissed. As regards the challenge against the order passed in the un-numbered Review application, we do not find any illegality in that order as the application for review was filed with a delay and there is no power for **O.P.(KAT).458/2018** 9 the Tribunal to condone the delay. In Union of India & others v. Chitra Lekha Chakraborthy (Civil Appeal No.6213/2008), the Hon'ble Apex Court held that the Administrative Tribunals got no power to condone delay in filing Review Application. Hence, we do not find any illegality in the order dated 29.10.2018 as well passed in the unnumbered Review Application. Hence, the challenge against the same also stands dismissed. **Sd/-** **C.T.RAVIKUMAR JUDGE Sd/V.G.ARUN JUDGE** **O.P.(KAT).458/2018** 10 ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF O.A NO.212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P2 TRUE COPY OF THE REPLY STATEMENT OF RESPONDENT NO.1 IN O.A NO.212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P3 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A NO.212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT OF RESPONDENT NO.3 IN O.A NO.212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P5 TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT IN O.A NO.212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM. EXHIBIT P6 TRUE COPY OF M.A NO OF 2018 IN O.A NO.212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM.** - **EXHIBIT P7 TRUE COPY OF THE ORDER DATED 21/6/2018 IN OA NO. 212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM.** **O.P.(KAT).458/2018** 11 **EXHIBIT P8 TRUE COPY OF UN-RA-OF 2018 IN OA NO 212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TIRBUNAL AT THIRUVANANTHAPURAM ALONG WITH DELAY CONDONATION APPLICATION EXHIBIT P9 TRUE COPY OF THE ORDER DATED 29/10/2018 IN UN-RA-OF 2018 IN OA NO 212 OF 2018 ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL AT THIRUVANANTHAPURAM** ## **RESPONDENTS' EXHIBITS:NIL** TKS/spc