Priya K.L. vs State Of Kerala
2021 Latest Caselaw 8454 Ker

               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

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

convenience'. 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

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

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

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

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

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

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




                            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 04-

12-2020 IN WP(C) NO. 24627/2020

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 16-

12-2020 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 20-10-

2020 ISSUED BY THE CHIEF NURSING OFFICER

EXHIBIT P6 TRUE COPY OF THE REPRESENTATATION DATED 05-12-2020 FILED BY THE 5TH RESPONDENT