State Of Kerala vs Renjith Kumar S
2022 Latest Caselaw 727 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                                  PRESENT

             THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS

                                    &

                THE HONOURABLE MR.JUSTICE VIJU ABRAHAM

         MONDAY, THE 17TH DAY OF JANUARY 2022 / 27TH POUSHA, 1943

                          OP(KAT) NO. 354 OF 2021

   AGAINST THE INTERIM ORDER DATED 08.12.2021 IN OA 2202/2021 OF KERALA

             ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM

PETITIONERS/RESPONDENT IN O.A.:

             STATE OF KERALA
             REPRESENTED BY THE SECRETARY TO GOVERNMENT,
             LAW DEPARTMENT, GOVERNMENT SECRETARIAT,
             THIRUVANANTHAPURAM - 695 001, KERALA.
             BY SRI. ANTONY MUKKATH, SR. GOVERNMENT PLEADER


RESPONDENT/APPLICANT IN O.A.:

             RENJITH KUMAR S.
             AGED 50 YEARS, S/O. SUDARSANA PANICKER,
             ASSISTANT LAW OFFICER AT THE LAW WING ATTACHED TO THE
             OFFICE OF THE RESIDENT COMMISSIONER, KERALA HOUSE,
             NEW DELHI - 110 001., RESIDENT OF 'KAILASAM', CNRA 123,
             THARANGINI JUNCTION, VAZHAYILA, KUDAPANAKUNNU P. O.,
             THIRUVANANTHAPURAM - 695 043.
             BY ADVS.
             SRI.JELSON J. EDAMPADOM (B/O)
             M.FATHAHUDEEN



      THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR

ADMISSION ON 17.01.2022, THE COURT ON THE SAME DAY DELIVERED THE

FOLLOWING:
 O.P.(KAT) No.354 of 2021
                                                     2




   ALEXANDER THOMAS & VIJU ABRAHAM, JJ.
            -----------------------------------------------------------------
                             O.P.(KAT) No.354 of 2021
                  [arising out of the impugned interim order dated 08.12.2021
                    in O.A. No.2202/2021 on the file of the KAT, Tvm Bench]
                 ------------------------------------------------------
                     Dated this the 17th day of January, 2022

                                   JUDGMENT

Alexander Thomas , J.

The sole respondent herein has filed the instant Ext.P1

original application, O.A.No.2202/2021 before the Kerala

Administrative Tribunal, Thiruvananthapuram Bench, with the

following prayers:-

"1) Call for the records leading to the transfer and postings of the applicant for the period ranging from 2015 and set aside Annexure A-3 order.

2) Direct the Respondent to issue orders forthwith transferring and posting the applicant to anyone of the posts of Assistant Law Officer in Thiruvananthapuram and in the event the Respondent is reluctant or fails to issue such orders, then this Honorable Tribunal may permit the applicant to get relieved from New Delhi Office and to join duty at the office of the Respondent in Thiruvananthapuram forthwith.

3) Such other order or direction as this Hon'ble Tribunal may consider fit and proper in the facts and circumstances of the case."

2. The interim prayers/interim reliefs sought for in the

above Ext.P1 original application are as follows:-

"..............to direct the Respondent to issue orders forthwith giving a transfer and posting to the applicant to any of the offices in and around Thiruvananthapuram city"

O.P.(KAT) No.354 of 2021

3. The Tribunal, after hearing both sides, has rendered the

impugned Ext.P2 interim order dated 08.12.2021 in the instant O.A.

No.2202/2021 holding that as the findings in Anx.A4 medical

certificate dated 03.07.2021 has been endorsed and confirmed by

the District Medical Board as per Anx.A9 dated 18.08.2021, the 1 st

respondent in the O.A. shall take a decision on Anx.A9 report

submitted by the District Medical Board without further delay so as

to provide the applicant a convenient posting at

Thiruvananthapuram to enable him to avail the further medical

treatment, etc.

4. It is this interim order at Ext.P2 rendered on

08.12.2021, by the Kerala Administrative Tribunal,

Thiruvananthapuram Bench, that is under challenge in the instant

original petition filed at the instance of the State of Kerala. The

prayers in the instant original petition filed under Articles 226 &

227 of the Constitution of India are as follows:-

"1) To set aside Exhibit P2 Interim Order dated 08.12.2021 of the Kerala Administrative Tribunal in O.A. No.2202/2021 and dismiss the Exhibit P1 Original Application.

2) To issue such other reliefs, this Honourable Court may deem fit in the Original Application."

5. Heard Sri. Antony Mukkath, learned Senior Government

Pleader appearing for the petitioner in the O.P./respondent in the O.P.(KAT) No.354 of 2021

O.A. and Sri.Jelson J. Edampadom, learned Counsel appearing for

the sole respondent in the O.P./the sole applicant in the O.A. before

the Tribunal.

6. The case set up by the original applicant is to the effect

that he has been now transferred and posted as an Assistant Law

Officer to the Law Wing attached to the office of the Resident

Commissioner, Kerala House, New Delhi and that he is staying

alone at New Delhi and his family consisting of his wife and children

are residing at Thiruvananthapuram and that he is suffering from a

serious ailment referred to Anx.A4, which requires immediate

treatment. Further that, though the certification in Anx.A4 medical

certificate is doubted the matter was referred by the respondents in

original application to the District Medical Board, Nedumangad.

The Superintendent of the District Hospital, has now issued Anx.A9

communication dated 18.08.2021, confirming the findings in

Anx.A4 medical certificate. That, therefore, the respondents in the

original application are obliged in law to provide a convenient

posting on compassionate ground to an office at

Thiruvananthapuram, as his further medical treatment can be

effectively conducted only there, etc. O.P.(KAT) No.354 of 2021

7. The Tribunal, as per the impugned Ext.P2 interim order

dated 08.12.2021 has held that the correctness of Anx.A4 medical

certificate has now been confirmed by the District Medical Board as

per Anx.A9 dated 18.08.2021, and that therefore the respondents in

the original application are obliged to provide a convenient posting

to the applicant in an office at Thiruvananthapuram in order to

enable him to effectively avail the further treatment effectively, on

the said compassionate ground.

8. The respondents in the original application has filed the

instant original petition on the premise that the abovesaid

assumption made by the Tribunal as per the impugned Ext.P2

interim order about the confirmation value of Anx.A9 is wrong and

incorrect inasmuch as the procedure prescribes that the medical

experts in the field concerned should have physically examined a

patient like the original applicant before said certification process as

per Anx.A9, etc. This was contested by the respondent herein, who

is the original applicant. Hence we have issued order dated

05.01.2022 directing the petitioner herein to ensure that the

Superintendent or competent representative of the Medical Board

may file an affidavit/statement on the abovesaid aspects. Now, the O.P.(KAT) No.354 of 2021

Medical Superintendent of the District Government Hospital,

Nedumangad, has filed an affidavit dated 10.01.2022 in the above

original petition for and on behalf of the said District Medical Board

and para Nos.2 & 3 of the said affidavit read as follows:-

"2) It is submitted that District Medical Officer, Thiruvananthapuram directed to constitute a Medical Board as per Order No.D1- 22386/2020/DMO dated 12.08.2021 with specialist to examine and issue Medical Board Certificate. Accordingly, the Medical Board was scheduled to be held on 18.08.2021 and Sri.Renjithkumar was directed to appear before the Medical Board on 18.08.2021 and he was examined by Dr.Nazeera, Junior Consultant, ENT and she reviewed the previous investigation report of Sri.Renjithkumar. Though Sri.Renjithkumar was examined by Dr.Nazeera it was not possible to assess the disease as at the time of examination of patient he did not show any type of symptoms. However on examination of the MRI PNS (Para Nasal Sinuses) of Sri.Renjithkumar dated 01.07.2021 and Direct Nasal Examination Report of District Model Hospital, Peroorkada, it was found that there was no sign of infection. The Direct Nasal Examination (DNE) Report clearly shows that there is no infection. However, the MRI Para Nasal Sinuses (Plain Contrast Report) is not sufficient to get a clear picture regarding the alleged disease of the Sri.Renjithkumar. MRI report is not confirmatory report regarding the illness. For finding the illness, it is necessary to get a CT scan Para Nasal Sinuses report and a Turbinate biopsy, fungal culture diagnosis. The District Hospital, Nedumangad did not have the facility to conduct the CT Scan and diagnosis of surgical intervention of Turbinate biopsy, fungal culture and stain, the Junior Consultant, ENT reported that the patient to be referred to a higher centre. It is submitted that the facility of CT Scan Para Nasal Sinuses and diagnosis for surgical intervention for Turbinate biopsy, fungal culture and stain to rule out fungal sinusitis is available only in the Medical College Hospitals. Therefore, the Medical Board constituted by the Medical College Hospital may be able to assess the illness alleged by Sri.Renjithkumar.

3) On physical examination the patient did not show any type of symptoms and therefore only at the level of examination by CT Scan Para Nasal Sinuses and diagnosis surgical intervention for Turbinate biopsy, fungal culture and stain it can be examined that whether there is any such illness suffered by Sri.Renjithkumar. The MRI Scan report is not sufficient to examine the illness and the DNE report shows that no infection findings. The Annexure A9 letter was issued by me considered the fact that there is no facility to examine the alleged illness in District Hospital, Nedumangad and therefore the matter has to be referred to a higher hospital."

O.P.(KAT) No.354 of 2021

9. Now, on a reading of the said affidavit, more particularly

para No.2 thereof would reveal that it is highly necessary to get a CT

Scan Para Nasal Sinuses report and a Turbinate biopsy, fungal

culture diagnosis, etc. to enable the competent Medical Board

concerned to arrive at a final conclusion as to whether the applicant

(respondent herein) requires further specialised treatment in the

matter, etc. Further the abovesaid affidavit also reveals that the

said aspect cannot be examined by the District Medical Board and

the matter may have to go to the Medical Board attached to

Government Medical College Hospial to assess the alleged illness of

the applicant after getting the abovesaid scan, biopsy and diagnosis

details of the applicant.

10. The learned counsel for the respondent herein/the

applicant had sought time to get instructions.

11. Today, when the matter has been taken up for

consideration, Sri.Jelson J. Edampadom, learned counsel appearing

for the applicant would submit on the basis of instructions that his

party is now based in New Delhi and that he is prepared to come

down to Thiruvananthapuram any time within the next 2 to 3

subject to travel facility in view of the COVID-19 issues and that he O.P.(KAT) No.354 of 2021

is prepared to take the CT Scan, Turbinate Biopsy and the Fungal

Culture Diagnosis as insisted by the respondent in the O.A. and that

he is also prepared to undergo the further Medical Board

Examination by the Medical Board attached to the Government

Medical College Hospital, Thiruvananthapuram, etc.

12. Earlier, the learned Senior Government Pleader had also

raised a submission on the basis of instructions, that it is not as if

the abovesaid treatment is not available in New Delhi, where the

respondent is posted and that if at all the illness is confirmed and if

he requires further treatment, etc. better medical facilities will be

available to have such further treatment at New Delhi in eminent

medical institutions like All India Medical Institute of India or such

other recognised medical institutions there and that if the applicant

has any such illness, it is not as if the applicant should necessarily

be transferred and posted all the way from New Delhi to

Thiruvananthapuram for having such treatment, etc.

13. Per contra, Sri. Jelson J. Edampadom, learned counsel

appearing for the respondent herein/the applicant would submit

that it may be true that such facilities may be available in New Delhi

but that the applicant is living alone and that his wife is not in a O.P.(KAT) No.354 of 2021

position to live with him in New Delhi and that the nature of the

treatment is such that he would require a bye-stander and that the

presence of his wife beside him is highly vital and necessary to have

an effective treatment and further that the climate in New Delhi is

leading to the deterioration of the disease, etc. For these reasons, in

view of the illness, the applicant is entitled to post him back to

Thiruvananthapuram on compassionate grounds, to have the said

treatment conducted in Government Medical College,

Thiruvananthapuram or such other medical institutions in

Thiruvananthapuram.

14. In such circumstances, we are not getting into these

disputed issues. It shall be open to the applicant, to file a detailed

representation before the Government, with supportive materials, if

any, stating the abovesaid details as to why such effective treatment

can be continued only in Thiruvananthapuram, in his particular

case and why it is not feasible in New Delhi, in the facts and

circumstances of this case, etc. As and when the applicant subjects

himself for medical examination by the Medical Board at the

Government Medical College, Thiruvananthapuram, a copy of such

representation along with supportive materials to substantiate those O.P.(KAT) No.354 of 2021

aspects may also submitted before the said Medical Board for their

consideration.

15. The applicant may report before the Superintendent of

the Government Medical College Hospital, Thiruvananthapuram, for

further medical examination and the Superintendent of the

Government Medical College Hospital, Thiruvananthapuram, may

ensure that the CT Scan Para Nasal Sinuses Report, Turbinate biopsy,

fungal culture diagnosis, etc. in regard to the applicant is made

available, and if any fee is payable, it is for the applicant to ensure the

payment of the same. Thereafter, the Superintendent of the

Government Medical College Hospital, Thiruvananthapuram, will

refer the case of the applicant along with all necessary materials to

the Medical Board of that Medical College Hospital consisting of

experts, particularly the one in the field of ENT Surgery. The Medical

Board attached to the Government Medical College Hospital,

Thiruvananthapuram, will physically examine the applicant and after

perusal of all the available materials including the CT Scan Para

Nasal Sinus report, Turbinate biopsy and fungal culture

diagnosis, etc., may give a considered opinion as to whether the

applicant is suffering from the ailments referred to in Anxs.A4 & A9

and also as to the medical institutions in Thiruvananthapuram, O.P.(KAT) No.354 of 2021

which can provide such effective treatment, etc. In case, the

Medical Board opines that the applicant is suffering from the said

ailment, referred to in Anxs.A4 & A9, then the Medical Board may

also consider the plea set up by the applicant that his effective

treatment is to be conducted in Thiruvananthapuram, in preference

to New Delhi, as alleged by him and the correctness or otherwise of

any such pleas set up by him.

16. The above said process shall be completed within 2

weeks from the date on which the applicant reports before the

Superintendent of Government Medical College Hospital,

Thiruvananthapuram and report of the Medical Board shall be duly

forwarded by the Superintendent of Government Medical College

Hospital, Thiruvananthapuram, to the Law Secretary of the State

Government, by special messenger also. Thereafter, the Law

Secretary of the State Government may afford opportunity of being

heard to the applicant and then may take a decision on the plea of

the applicant for compassionate transfer and posting to

Thiruvananthapuram, etc. without much delay, at any rate, within a

period of 3 weeks from the date on which the report from the

Medical Board of the Government Medical College Hospital, O.P.(KAT) No.354 of 2021

Thiruvananthapuram, is received.

17. The directions and orders of the Tribunal as per Ext.P2

interim order dated 08.12.2021, rendered by the Kerala

Administrative Tribunal, Thiruvananthapuram Bench, will stand

modified and substituted as above.

With these observations and directions, the above original

petition will stand disposed of.

Sd/-

ALEXANDER THOMAS, JUDGE

Sd/-

VIJU ABRAHAM, JUDGE Skk//18012022 O.P.(KAT) No.354 of 2021

APPENDIX OF OP(KAT) 354/2021 PETITIONER'S EXHIBITS:-

Exhibit P1 PHOTOCOPY OF THE O.A.NO.2202/2021 ALONG WITH ANNEXURES.

ANNEXURE A1 TRUE COPY OF G.O.(RT) NO.925/2020/LAW DATED 10.11.2020 OF THE PETITIONER.

ANNEXURE A2 TRUE COPY OF THE TREATMENT CERTIFICATE DATED 25.03.2017 ISSUED BY THE DEPARTMENT OF CARDIOLOGY, MEDICAL COLLEGE HOSPITAL, THIRUVANANTHAPURAM.

ANNEXURE A3 TRUE COPY OF THE MEMORANDUM NO.15746/ADMIN II(B)/2020/LAW DATED 25.06.2021 OF THE PETITIONER. ANNEXURE A4 TRUE COPY OF THE CERTIFICATE DATED 03.07.2021 ISSUED BY DR. ANU THAMPY, CONSULTANT, ENT SURGERY, SUT HOSPITAL, THIRUVANANTHAPURAM. ANNEXURE A5 TRUE COPY OF LETTER NO.15746(2)/ADMIN II(3)/2020/LAW DATED 08.07.2021 OF THE PETITIONER.

ANNEXURE A6 TRUE COPY OF LETTER NO.15746(2)/ADMIN II(3)/2020/LAW DATED 26.07.2021 OF THE PETITIONER.

ANNEXURE A7 TRUE COPY OF LETTER NO.D1/22386/2020/DMO DATED 12.08.2021 OF THE DISTRICT MEDICAL OFFICER (HEALTH), THIRUVANANTHAPURAM.

ANNEXURE A8 TRUE COPY OF THE LETTER NO.D4/615/2021/DHN DATED 13.08.2021 OF THE SUPERINTENDENT, DISTRICT HOSPITAL, NEDUMANGAD.

ANNEXURE A9 TRUE COPY OF THE LETTER NO.D-4611/2021/GHN DATED 18.08.2021 OF THE SUPERINTENDENT, DISTRICT HOSPITAL, NEDUMANGAD.

ANNEXURE A10 TRUE COPY OF THE G.O.(RT) NO.1424/2016/LAW DATED 24.12.2016 OF THE RESPONDENT.

ANNEXURE A11 TRUE COPY OF THE INTERIM ORDER DATED 28.12.2016 IN OA NO.2845/2016 OF THE KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A12 TRUE COPY OF THE ORDER DATED 27.02.2017 IN OA NO.2845/2016 OF THE KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A13 TRUE COPY OF THE G.O.(RT) NO.346/2017/LAW DATED 16.03.2017 OF THE PETITIONER.

ANNEXURE A14 TRUE COPY OF THE ORDER DATED 30.03.2017 IN OA NO.526/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL.

ANNEXURE A15 TRUE COPY OF THE G.O.(RT) NO.553/2017/LAW DATED 21.04.2017 OF THE PETITIONER.

ANNEXURE A16 TRUE COPY OF THE G.O.(RT) NO.611/2018/SJD DATED 26.10.2018 OF SOCIAL JUSTICE DEPARTMENT, GOVERNMENT OF KERALA.

Exhibit P2 PHOTOCOPY OF THE INTERIM ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 08.12.2021 IN THE AFORESAID ORIGINAL APPLICATION.