PRIYA K.L. v. STATE OF KERALA & ORS

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN** **MONDAY, THE 15TH DAY OF MARCH 2021 / 24TH PHALGUNA, 1942** ## **WP(C).No.3762 OF 2021(U)** ## **PETITIONER:** **PRIYA K.L., STAFF NURSE, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **BY ADVS. SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA KUM.THULASI K. RAJ SMT.MAITREYI SACHIDANANDA HEGDE** ## **RESPONDENTS:** - **1 STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE , SECRETARIAT, THIRUVANANTHAPURAM 695 001** - **2 REGIONAL CANCER CENTRE, REPRESENTED BY CHAIRMAN DIRECTOR P.O BOX NO. 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** - **3 THE EXECUTIVE COMMITTEE, REPRESENTED BY ITS CHAIRMAN, DIRECTOR, REGIONAL CANCER CENTRE, P.O BOX NO. 2417, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** - **4 DIRECTOR, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** - **5 AJILA M.S, STAFF NURSE, REGIONAL CANCER CENTRE, ECDC, PALAKKAD 680 017** - **6 GRIEVANCE REDRESSAL COMMITTEE OF REGIONAL CANCER CENTRE, REPRESENTED BY CHAIRPERSON, ADDITIONAL DIRECTOR, REGIONAL CANCER CENTRE, MEDICAL COLLEGE CAMPUS, THIRUVANANTHAPURAM 695 011** **BY ADVS. SRI.ATHUL SHAJI SRI. SUNIL KUMAR KURIAKOSE - GP** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15.03.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WPC 3762/21 2 ## **JUDGMENT** The petitioner has approached this Court impugning Ext.P5, which is an order issued by the 'Employees Grievance Cell' attached to the Regional Cancer Centre, Trivandrum (RCC for short). 2. According to the petitioner, she was originally sought to be transferred from Trivandrum to Palakkad and was, therefore, constrained to approach this Court by filing W.P(C)No.24627/2020, which had been disposed of through Ext.P2 judgment, directing the Grievance Cell to consider the objections, but permitting her transfer pending such exercise. She says that she, therefore, preferred Writ Appeal No.1675/2020 against Ext.P2 judgment, which culminated in Ext.P3, whereby, a learned Division Bench of this Court reiterated the directions of this Court that the Grievance Cell of the RCC should look into her WPC 3762/21 3 grievances, but interdicted her transfer until completion of the said exercise. 3. The petitioner says that, however, in spite of the specific directions in Ext.P3 judgment with respect to the manner in which her objections had to be considered by the Grievance Cell, Ext.P5 order has now been issued, wherein, all of them have been rejected through a single sentence that ' _transfer was ordered on administrative_ _convenienc_ e'. She, therefore, prays that Ext.P5 be set aside and her transfer be not permitted. 4. In response to the afore submissions made on behalf of the petitioner by her learned counsel – Sri.Kaleeswaram Raj, the learned Standing Counsel for the RCC – Sri.Athul Shaji, submitted that all contentions of the petitioner, along with that of another nurse by name Smt.Ajila M.S, were WPC 3762/21 4 considered in detail by the Grievance Committee, finding them to be untenable. He explained that petitioner was transferred to Palakkad, as has been noticed in Ext.P2 judgment, on account of her expertise and because her presence there is absolutely imperative and therefore, that she cannot be heard to say that the RCC cannot transfer her even in administrative exigencies. He added that, in fact, even in Ext.P3 judgment, the learned Division Bench has made it clear that if the petitioner's transfer has been made in administrative exigency by the RCC, then it is permissible and therefore, prayed that this Writ Petition be dismissed. 5. I am afraid that I cannot find favour with Sri.Athul Shaji in his afore submissions because the directions of this Court, both in Exts.P2 and P3 judgments, were to the clear effect that the Grievance Committee of the RCC WPC 3762/21 5 must consider the plight of the petitioner, as also that of the nurse sought to be transferred from Palakkad to Trivandrum, taking note of their specific assertions with respect to the extenuating circumstances. 6. Of course, as is well-settled, when transfers are made in administrative exigencies, the personal inconvenience of the incumbents will have to give way, but this does not mean that every transfer can be justified by the employer merely saying that there is an 'administrative exigency'. When the learned Division Bench of this Court issued Ext.P3 directing the Grievance Committee of the RCC to take an appropriate decision adverting to the plight of the petitioner as well as the other nurse, what was meant was that said Committee should consider it with the seriousness it deserves and to then record the reason why they did not WPC 3762/21 6 find favour with it. 7. However, when one examines Ext.P5, it is evident that the manner in which the Committee has dealt with all the contentions of two nurses are available in the first paragraph of its second page which reads as under: The committee considered the grievances of both the incumbents. Smt.Ajila had been transferred from Thiruvananthapuram to Palakkad for a period of three years which expired in May 2020 and it was only because of the Covid 19 situation that she was allowed to continue at Palakkad. Both the incumbents have cited health issues of family members and other personal matters as grounds for requesting to cancel the transfer order. It is seen that the transfer was ordered on administrative convenience. The employer has the authority to transfer employees if administrative convenience so demands and no employee has the right to insist that he or she will work at a particular station only. The committee held that in matters of transfer of employees, exigencies of service will prevail over personal convenience or inconvenience of the employees concerned. 8. As is perspicuous from the above, none of the specific contentions of the petitioner WPC 3762/21 7 had been taken into account, but they have been rejected saying that personal reasons and health issues of family members are not reasons why transfers can be interdicted particularly when ' _they are ordered on administrative convenience_ ' (sic). Pertinently, said order does not even mention what is the 'administrative convenience' involved and why it must override the plight of the petitioner, as has been projected in her representation. 9. I, therefore, can only find Ext.P5 to be an exercise in purported compliance of the directions of this Court, but to be not in conformity with the manner it was directed to be done or ought to have been done. 10. Perhaps discerning my mind as afore, Sri.Athul Shaji submitted that he will place on record the Minutes of the Grievance Committee and that it would clearly establish WPC 3762/21 8 the validity of the decision making process adopted by the said Committee. 11. I am afraid that I cannot accept the afore submissions of Sri.Athul Shaji either, since, it is well-settled through a catena of judgments beginning from **Mohinder Singh Gill** **v. Chief Election Commissioner [1978(1) SCC** **405],** that every order will have to be justified and supported by its own contents and cannot be bettered by pleadings to be placed on record when litigations are subsequently launched. 12. I am, therefore, of the firm view that Ext.P5 cannot find my favour and that the Grievance Cell Committee of the RCC must reconsider the matter, after rehearing the petitioner and the other Nurse – either physically or through video conferencing – thus culminating in an appropriate order thereon as expeditiously as is possible. WPC 3762/21 9 Resultantly, this Writ Petition is ordered and Ext.P5 is set aside; however, leaving liberty to the Grievance Committee of the RCC to complete the exercise as afore mentioned. Needless to say, until the afore exercise is completed and the resultant order communicated to the petitioner, the interim order granted by this Court on 12.02.2021 will continue to be in effect. **Sd/-** ## **DEVAN RAMACHANDRAN** RR **JUDGE** WPC 3762/21 10 ## APPENDIX ## PETITIONER'S/S EXHIBITS: EXHIBIT P1 TRUE COPY OF THE ORDER NO RCC/116/2019-SDIR DATED 09-11-2020 ISSUED BY THE 4THR ESPONDENT EXHIBIT P2 TRUE COPY OF THE JUDGMENT DATED 0412-2020 IN WP(C) NO. 24627/2020 EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 1612-2020 IN WA NO. 1675/2020 EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 14-12-2020 SUBMITTED BY THE PETITIONER TO THE 4TH RESPONDENT EXHIBIT P5 TRUE COPY OF THE ORDER NO. RCC/115/2021/ADMN 6 DATED 08-02-2021 ISSUED BY THE 4TH RESPONDENT EXHIBIT P5 A TRUE COPY OF THE LETTER DATED 20-102020 ISSUED BY THE CHIEF NURSING OFFICER EXHIBIT P6 TRUE COPY OF THE REPRESENTATATION DATED 05-12-2020 FILED BY THE 5TH RESPONDENT