W.P.(C) No. 7168 of 2016 (U)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **WEDNESDAY, THE 6TH DAY OF APRIL 2016/17TH CHAITHRA, 1938** ## **WP(C).No. 7168 of 2016 (U)** ## **---------------------------** ## **PETITIONERS:** - **--------------------** **1. NO.953357687 CONSTABLE/GENERAL DUTY (M) NEETHA RAJ GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, AVADI, CHENNAI - 600065, PRESENTLY RESIDING AT C/O.P.K.RAMANAN, QUARTER NO.A-38, CENTRAL INDUSTRIAL SECURITY FORCE UNIT COMPLEX, CENTRAL INDUSTRIAL SECURITY FORCE UNIT, LIQUID PROPULSION SYSTEMS CENTRE, VALIAMALA, THIRUVANANTHAPURAM - 695 541.** ## **2. NO.901406949 CONSTABLE/GENERAL DUTY RAMANAN P.K.** - **CENTRAL INDUSTRIAL SECURITY FORCE UNIT, LIQUID PROPULSION SYSTEMS CENTRE, VALIAMALA, THIRUVANANTHAPURAM - 695 541.** **BY ADV. SRI.S.VISHNU** **RESPONDENTS:** **-----------------------** ## **1. UNION OF INDIA** - **REPRESENTED BY THE SECRETARY, MINISTRY OF HOME AFFAIRS, NEW DLEHI - 110 001.** **2. THE DIRECTOR GENERAL DIRECTORATE, CENTRAL RESERVE POLICE FORCE, CENTRAL GOVERNMENT OFFICE COMPLEX, LODHI ROAD, NEW DELHI - 110 003.** **3. THE INSPECTOR GENERAL SOUTHERN SECTOR, CENTRAL RESERVE POLICE FORCE, ROAD NO.10C NEW MP/MLA COLONY, GAYATHRI HILLS, HYDERABAD-500 033.** **4. THE DEPUTY INSPECTOR GENERAL OF POLICE GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, AVADI, CHENNAI - 600 065.** **5. THE DEPUTY INSPECTOR GENERAL OF POLICE GROUP CENTRE, CENTRAL RESERVE POLICE FORCE, PALLIPPURAM, THIRUVANANTHAPURAM - 695 022.** **...2** ## **WP(C).No. 7168 of 2016 (U)** **-2-** ## **6. THE DIRECTOR GENERAL** **CENTRAL INDUSTRIAL SECURITY FORCE HEADQUARTERS, BLOCK NO.13 C.G.O.COMPLEX, LODHI ROAD, NEW DELHI - 110 003.** **7. THE ASSISTANT COMMANDANT CENTRAL INDUSTRIAL SECURITY FORCE, LIQUID PROPULSION SYSTEMS CENTRE, VALIAMALA, THIRUVANANTHAPURAM - 695 547.** **R1-R7 BY ADV. SMT.O.M.SHALINA, CGC BY SRI.N.NAGARESH, ASSISTANT SOLICITOR GENERAL** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 06-04-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 7168 of 2016 (U) ---------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS** - **-----------------------** - **P1 - TRUE COPY OF THE O.M.NO.28034/9/2009-ESTT(A) DATED 30.9.2009 ISSUED BY THE DEPARTMENT OF PERSONNEL AND TRAINING, NEW DELHI.** - **P2 - TRUE COPY OF THE REFERENCE BY THE COMPOSITE HOSPITAL, CRPF TO THE INFERTILITY CLINIC IN WOMEN AND CHILD HOSPITAL THYCAUD DATED 24.2.2015** - **P3 - TRUE COPY OF THE COMMUNICATION NO.L.II.1/2015-HQR-COY-GC(A) DATED 1.4.2015 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT.** - **P4 - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 15.3.2015 ISSUED BY THE SABINE HOSPITAL & RESEARCH CENTRE, MUVATTUPUZHA.** - **P4(A) - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 22.5.2015 ISSUED BY THE SABINE HOSPITAL & RESEARCH CENTRE, MUVATTUPUZHA.** - **P4(B) - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 8.6.2015 ISSUED BY THE SABINE HOSPITAL & RESEARCH CENTRE, MUVATTUPUZHA.** - **P5 - TRUE COPY OF THE COMMUNICATION NO. L.II.1/2015-HQR-COY-GC(A) DATED 1.6.2015 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT.** - **P6 - TRUE COPY OF THE REQUEST DATED 24.6.2015 TO THE 4TH RESPONDENT** - **P7 - TRUE COPY OF THE RELEVANT PORTION OF TREATMENT RECORD MAINTAINED AT COMPOSITE HOSPITAL, GROUP CENTRE, PALLIPURAM.** - **P8- TRUE COPY OF THE REQUEST DATED 13.7.2015 ADDRESSED TO THE 3RD RESPONDENT.** - **P9 - TRUE COPY OF THE REPRESENTATION DATED 23.9.2015 TO THE 4TH RESPONDENT** - **P10 - TRUE COPY OF THE COMMUNICATION NO.D.II.1/2015-EC-2-GC AVD DATED 26.9.2015 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT.** - **P11 - TRUE COPY OF THE MEDICAL RECORDS DATED 28.7.2015 ISSUED BY THE COMPOSITE HOSPITAL, GROUP CENTRE, PALLIPURAM.** - **P12 - TRUE COPY OF THE REPRESENTATION DATED 19.10.2015 TO THE 4TH RESPONDENT** - **P13 - TRUE COPY OF THE COMMUNICATION NO.D.II.1/2015-EC-2-GC AVD DATED 14.11.2015 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT.** **....2** **WP(C).No. 7168 of 2016 (U)** **-2-** - **P14 - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 7.9.2015 ISSUED BY THE SABINE HOSPITAL & RESEARCH CENTRE, MUVATTUPUZHA.** - **P15 - TRUE COPY OF THE CERTIFICATE DATED 25.11.2015 ISSUED BY CONSULTANT, OBSTETRICS AND GYNAECOLOGY OF GOVERNMENT WOMEN AND CHILDREN HOSPITAL, THYCAUD, THIRUVANANTHAPURAM.** - **P16 - TRUE COPY OF THE MEDICAL DISCHARGE SUMMARY ISSUED BY THE SABINE HOSPITAL & RESEARCH CENTRE, MUVATTUPUZHA.** - **P17 - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 30.11.2015 ISSUED BY THE CONSULTANT GOVERNMENT WOMEN AND CHILDREN HOSPITAL, THYCAUD, THIRUVANANTHAPURAM.** - **P18 - TRUE COPY OF THE COMMUNICATION NO.D.II.1/2015-EC-2-GC AVD DATED 19.12.2015 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT.** - **P19 - TRUE COPY OF THE APPLICATION DATED 30.11.2015 REFERRED TO IN EXHIBIT P18.** - **P20 - TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE 1ST PETITIONER TO THE 4TH RESPONDENT.** - **P21 -TRUE COPY OF THE COMMUNICATION NO.D.II.1/2016-EC-2-GC AVD DATED 11.1.2016 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT** - **P22 - TRUE COPY OF THE COMMUNICATION NO.D.II.1/2016-EC-2-GC AVD DATED 30.1.2016 ISSUED BY THE OFFICE OF THE 4TH RESPONDENT** - **P23 - TRUE COPY OF THE REPRESENTATION DATED 10.2.2016 TO THE 4TH RESPONDENT** - **P24 - TRUE COPY OF THE OFFICE ORDER DATED 8.6.2015 ISSUED BY THE 7TH RESPONDENT** - **P25 - TRUE COPY OF THE REPRESENTATION DATED 13.1.2016 OF THE 2ND PETITIONER TO THE 6TH RESPONDENT** - **P26 - TRUE COPY OF THE MEDICAL CERTIFICATE DATED 11.1.2016 ISSUED BY THE SABINE HOSPITAL & RESEARCH CENTRE MUVATTUPUZHA.** **RESPONDENT(S)' EXHIBITS** **-----------------------** **NIL** **//TRUE COPY//** **P.A. TO JUDGE** **JJJ** ## **K. VINOD CHANDRAN, J.** -----------------------------------------W.P.(C) No. 7168 of 2016 (U) -----------------------------------------Dated this the 6[th] day of April, 2016 ## **J U D G M E N T** The petitioners are wife and husband, who, on the basis of the infertility treatment undergone by the first petitioner, seeks to be transferred to and continued in their native place. 2. The contention raised is that the 1[st] petitioner, who is 39 years of age, had undertaken embryo transplant thrice, without success, and is attempting the fourth such measure and in such circumstance is unable to join for duty. It is also submitted that the 2[nd] petitioner, who is the husband, has also to accompany the petitioner for the treatment, as insisted upon by the hospital authorities. The claim is that the 2[nd] petitioner be given an extended term in the present posting at ## **W.P.(C) No. 7168/2016** **-2-** Thiruvananthapuram and the 1[st] petitioner be granted leave or temporary posting to Thiruvananthapuram; so as to complete the aforesaid treatment. It is contended that the 1[st] petitioner has produced medical certificates, which would indicate that the petitioner is disabled from attending the duties. 3. At the outset, it is to be noticed that the infertility treatment cannot be considered as a medical condition for which leave can be applied for from the employer, especially since there are no rules to indicate that medical leave can be applied on such grounds of treatment for infertility. The said medical condition cannot be a disabling one from attending to the duties and in such circumstance, there can also be no medical certificate issued to that extent. If at all such treatment requires hospitalisation and continued attention, then, that could only be permitted on leave as per the rules **-3-** ## **W.P.(C) No. 7168/2016** and not as a medical leave, as such. 4. The respondents have filed a statement wherein the incumbency details of both the petitioners have been listed out. As for the 2[nd] petitioner, he was transferred from Hyderabad to Thiruvananthapuram in June, 2012 on a request made by him. The 2[nd] petitioner had been continued in Thiruvananthapuram till now and in the year 2014 he was transferred to Delhi. However, on the basis of the treatment of his wife, the 2[nd] petitioner had sought for extension of his tenure in Thiruvananthapuram, which was granted. A further transfer to Delhi in the year 2015 also had been deferred for the very same reason and the 2[nd] petitioner is now entitled to continue in Thiruvananthapuram only up to 31.05.2016, after which the 2[nd] petitioner would also have to move out on transfer. ## **W.P.(C) No. 7168/2016** **-4-** 5. The 2[nd] petitioner is also said to have been in the south zone from 1995 onwards and the normal tenure for a personnel is ten years in the home zone. The 1[st] petitioner is now posted at Avadi in Tamil Nadu. The 1[st] petitioner had proceeded on leave on 29.01.2015 which was sanctioned up to 28.05.2015, as per Ext.P3. A further extension sought for was declined by Ext.P5. The petitioner did not join back for duty and continued without sanctioned leave and sought for temporary placement in Thiruvananthapuram. 6. The petitioners approached this Court with the above writ petition seeking for consideration of a posting of the 1[st] petitioner in Group Centre, Pallipuram for a period of one year on medical grounds, based on the medical certificates submitted by the 1[st] petitioner. It is also submitted that, as of now, a disciplinary proceeding has been initiated against the 1[st] petitioner ## **W.P.(C) No. 7168/2016** **-5-** by Order No.P.VIII.1/2016-BL(DE) dated 16.03.2016 and a memorandum of charges dated 19.02.2016 has also been issued. The petitioner's further contention is that the petitioner has preferred Ext.P8 request for temporary transfer to Group Centre, Pallipuram. 7. The 1[st] petitioner is now working at Avadi and the enquiry proceeding is also initiated from Avadi and this Court would not have jurisdiction under Article 226 of the Constitution of India to issue any writ against the authority within the State of Tamil Nadu, as has been held by the Full Bench of this Court in **Indian Maritime University v. Viswanathan - 2014 (4) KLT 798 (FB)** . 8. The learned Counsel for the petitioners, however, would contend that since the petitioners, husband and wife, are claiming under Ext.P1 for a convenient posting and since the husband of the ## **W.P.(C) No. 7168/2016** **-6-** petitioner is now posted in Kerala, this Court could invoke the said jurisdiction. This Court is not convinced that the same can be done, even looking at the specific condition in Ext.P1, i.e., clause (iv), which is extracted hereunder: “(iv) Where the spouse belongs to one Central Service and the other spouse belong to another Central Service:- The spouse with the longer service at a station may apply to his/her appropriate cadre controlling authority and the said authority may post the said officer to the station or if there is no post in that station to the nearest station where the post exists. In case that authority, after consideration of the request, is not in a position to accede to the request, on the basis of non-availability of vacant post, the spouse with lesser service may apply to the appropriate cadre authority accordingly, and that authority will consider such requests for posting the said officer to the station or if there is no **-7-** ## **W.P.(C) No. 7168/2016** post in that station to the nearest station where the post exists.” 9. The above extracted provision does not, on facts, enable the 1[st] petitioner to seek for a transfer to Thiruvananthapuram. The 1[st] petitioner was posted at Avadi from 2009 onwards and the 2[nd] petitioner, if at all, ought to have asked for a transfer to Avadi from Hyderabad. The 2[nd] petitioner chose to come to Thiruvananthapuram, his native place, obviously, to take up the treatment there and then on that basis the 1[st] petitioner sought transfer from her employer, to Thiruvananthapuram. The 1[st] petitioner is working in the Central Reserve Police Force (CRPF) and the 2[nd] petitioner in the Central Industrial Protection Force (CISF), both disciplined forces under the Central Government. Ext. P1 does not help the petitioners since what they seek is not a transfer of one spouse to join ## **W.P.(C) No. 7168/2016** **-8-** another, but to effectively transfer them to their native place; to carry out the infertility treatment. This Court would not exercise its extraordinary powers to enable such a measure, especially when the regulations do not permit such a measure and the same, on the incumbency details of the respective petitioners, would be against the norms. Both had sufficient home zone tenure and seek continuance at their native place, against the regulations. 10. In the factual circumstances herein, it is difficult to grant the prayers sought for by the 1[st] petitioner. The 2[nd] petitioner had been granted a favourable posting to Thiruvananthapuram in the year 2012 and two transfers, in the course of last four years, were deferred on his specific request. There can be no further deferment be made of the transfer of the 2[nd] petitioner. With respect to the 1[st] petitioner, this Court ## **W.P.(C) No. 7168/2016** **-9-** would not have any jurisdiction to interfere with the proceedings issued by the authorities within the State of Tamil Nadu. As for the request for consideration of Ext.P8, this Court could only hope that the Inspector General of Police, Southern Sector, C.R.P.F. Hyderabad, the 3[rd] respondent herein, would take up the matter and consider the made for a immediately prayer temporary transfer to Thiruvananthapuram, within a period of three weeks from the date of receipt of the certified copy of this judgment; sympathetically, after ensuring that the organisational interest also does not suffer. The writ petition would stand closed with the above observations. No Costs. Sd/K.VINOD CHANDRAN, JUDGE jjj 6/4/16