COMMON ORDER

The circular issued by the second respondent for on-line counseling (Video Conferencing) for Service Post Graduates for Degree/Diploma candidates and the vacancy details issued in circular dated 23.05.2021, are under challenge in these writ petitions.

2.The petitioners joined M.D Psychiatry in the year 2015 and 2016 respectively and completed the course in the year 2018 and 2019 respectively. They were appointed in the post of Assistant Surgeon and they were working at Government Head Quarters Hospital, Virudhunagar, Government Hospital, Rameshwaram and Government Head Quarters Hospital, Tirupur respectively, under the control of the Directorate of Medical Services. The second respondent issued a circular for transfer counseling for the post of Assistant Professor / Senior Resident / Tutor / Junior Resident in all specialities for the Medical Officers working in DMS/DMS(ESI)/DPH side.

3.The petitioners state that they were participated in the transfer counseling held on 28.02.2021 and chosen the Senior Resident Post and Assistant Professor Post in Department of Psychiatry, Ramanathapuram Government Medical College Hospital, Ramanathapuram and Senior Resident Post in Department of Psychiatry, Krishnagiri Government Medical College Hospital, Krishnagiri, respectively. However, the second respondent has not issued the order of transfer and posting, pursuant to the transfer counseling held on 28.02.2021. While so, the second respondent issued the impugned circular dated 23.05.2021 regarding online counseling (Video conferencing) for Service Post Graduates for Degree/Diploma candidates, who are completing their courses during May 2021. Thus, the petitioners are constrained to move the present writ petitions.

4.The learned counsel for the petitioners mainly contended that the petitioners are serving by executing a bond for two years. Admittedly, they are non-service candidates, working in the medical department. The petitioners have participated in the transfer counseling held on 28.02.2021 and chosen the post of Senior Resident and Assistant Professor in Department of Psychiatry, Ramanathapuram Government Medical College Hospital, Ramanathapuram and Senior Resident in Department of Psychiatry, Krishnagiri Government Medical College Hospital, Krishnagiri respectively. While so, without issuing the order of transfer and posting, the second respondent issued another circular for in-service candidates, thereby affecting the rights of the petitioners for transferring to the post at Ramanathapuram and Krishnagiri.

5.The learned Additional Government Pleader appearing on behalf of the official respondents opposed the contentions raised by the petitioners by stating that the impugned circular is no way connected with the petitioners. The circular was issued to in-service candidates, who have executed a bond to serve in the medical department till their retirement. However, the petitioners are the non-service candidates executed a bond for two years and they are not regularly appointed to the post of Assistant Surgeon. Therefore, the service of the petitioners cannot be compared with the in-service candidates, who all are executed a bond to serve in the medical department of the Government of Tamil Nadu, till they attain the age of superannuation. Thus, the very circular is not applicable to the writ petitioners and the counseling conducted to the non-service candidates are no way connected with the in-service candidates.

6.The question arises whether the transfer counseling can be claimed as a matter of absolute right by an employee and further transfer is a condition of service or right of an employee.

7.The constitutional Court across the Country as well as the Apex Court of India has repeatedly held that transfer is an incidental to service, more so, a condition of service. Place or post can never be claimed as a matter of absolute right. The transfer counseling is a facility or concession provided to the employees to choose th