IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 24603 of 2009(U) ----------------------------------- PETITIONER(S): ---------------------- RENUKA T., W/O. BIJU S., AGED 35 YEARS, E.C. 49/399-A, SAMADARSHINI JUNCTION, KUTHUKALLIL MOODU, MANAKKAD P.O., THIRUVANANTHAPURAM, WORKING AS PHARMACIST GRADE-II COMMUNITY HEALTH CENTRE, NEDUMKANDOM, IDUKKI. BY ADV. SRI.C.P.PEETHAMBARAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REP. BY ITS SECRETARY, HEALTH ANF FAMILY WELFARE DEPT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICE, THIRUVANANTHAPURAM. 3. THE ADDL. DIRECTOR OF HEALTH SERVICE (MEDICAL), THIRUVANANTHAPURAM. 4. AJITH T.S., PHARMACIST, P.H.C., KATTAKKADA (NEW), THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER MR.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24603/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE EMPLOYMENT CERTIFICATE OF THE PETITIONER'S HUSBAND. P2:- COPY OF THE APPLICATION FOR GENERAL TRANSFER 2009 SUBMITTED BY THE PETITIONER. P3:- COPY OF THE REPRESENTATION DTD. 2.3.09 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P4:- COPY OF THE PROVISIONAL ORDER OF TRANSFER FOR THE YEAR 2009 DTD. 23.5.09. P5:- COPY OF THE APPEAL SUBMITTED TO THE 3RD RESPONDENT DTD. 27.5.09. P6:- COPY OF THE JUDGMENT DTD. 2.7.09 IN WPC. 18471/2009 OF THIS HONOURABLE COURT. P7:- COPY OF THE ORDER DTD. 18.7.09 ISSUED BY THE 3RD RESPONDENT. P8:- COPY OF THE ORDER DTD. 11.8.09 OF THE 3RD RESPONDENT. P9:- COPY OF THE LETTER ISSUED BY THE IST RESPONDENT TO THE 2ND RESPONDENT DTD. 28.5.09. P10:- COPY OF THE ALLOTMENT LIST ALONGWITH THE ORDER 17.6.09 OF THE IST RESPONDENT. P11:- COPY OF THE POSTING ORDER OF 4TH RESPONDENT AS PHARMACIST IN MCH., ALAPPUZHA. TRUE COPY P.A. TO JUDGE tss ANTONY DOMINIC, J. ================ W.P.(C) NO. 24603 OF 2009 (U) ===================== Dated this the 10th day of December, 2009 J U D G M E N T Petitioner joined Health Service Department as Pharmacist Grade II on 4/6/1999 and was posted at Karunapuram in Idukki District, which is stated to be a hill station. Her husband is a UD Clerk in the CJM Court, Thiruvananthapuram and Ext.P1 is the employment certificate. 2. By Ext.P2 dated 16/2/2009, petitioner applied for inter district transfer to Thiruvananthapuram District. Orders were not forthcoming and therefore she made Ext.P3 representation. However, when Ext.P4 provisional list of the applicants for inter district transfer was prepared, one Sri.Dileep Kumar, having lesser service than the petitioner, was included in the list. Contending that seniority should be the criteria for priority of the applications for inter district transfer, petitioner filed Ext.P5 appeal before the Director of Health Services. 3. Complaining of delay in the disposal of Ext.P5 appeal, she approached this Court and filed WP(C) No.18471/09 and that writ petition was disposed of by Ext.P6 judgment, directing WPC 24603/09 :2 : disposal of the appeal and to communicate the decision thereon. While so, Ext.P7 order was issued giving inter district transfer to the 4th respondent, a SC candidate, to Thiruvananthapuram district. Ext.P7 itself shows that the 4th respondent had only 6 years and three months service and therefore was junior to the petitioner. 4. It was still later that by Ext.P8, order was passed disposing of Ext.P5 appeal. In this order, it is stated that in 2009- 2010, only one vacancy was set apart to Thiruvananthapuram District for inter district transfer. It is stated that as per the norms governing transfer, being one belonging to the scheduled caste community, 4th respondent was eligible for preference and it was therefore that he was transferred. 5. Petitioner submits that the reasoning in Ext.P8 is illegal and approached this Court challenging the said order. It is also her contention that only seniority can be criteria and she refers to Exts.P9 and P10 to canvass this contention. Finally, it is stated that the 4th respondent has since been transferred to Medical Education Department and therefore, he having vacated the post to which he was transferred, the petitioner should be considered WPC 24603/09 :3 : against that vacancy. 6. A counter affidavit has been filed on behalf of the 2nd respondent. The reason for having given inter district transfer to the 4th respondent despite the seniority of the petitioner is that the 4th respondent claimed the benefit of being a scheduled caste candidate and it is stated that it was on this basis, he was preferred. 7. Therefore, the only issue that arises is whether the respondents could have preferred the 4th respondent over the petitioner extending him the benefit of being a member of the Scheduled caste community. 8. Learned Government Pleader has invited my attention to Clause 18 of GO(P) No.12/04/P&ARD dated 10th of September, 2004, which provides that existing orders regarding transfer facilities available to employees belonging to SC/ST will continue to be followed. He has also referred to clause (1) of the Appendix to the GO(Rt) No.504/05/H&FWD dated 21/2/2005 which provides that in the Health service Department, the norms laid down in GO (P) No.12/04/P&ARD will be followed. Reference is also made to GO(Ms) No.459/80/GAD of 3rd October, 1980, which also provides WPC 24603/09 :4 : that in inter district transfer, an employee belonging to SC/ST may be given posting in his native place or in the district of his choice. It is stated that when request is made, it is not possible to accept the same and the request may be considered as and when vacancies arise. Again reference has been made to GO(P) No.22/92/P&ARD dated 18th of April 1992, which shows the order of priority in different categories of employees for preference and that among the different categories, SC/ST employees are entitled to get the first priority. Thus, it is obvious that the candidate belonging to SC/ST candidates are eligible for preference in the matter of inter district transfer. 9. Therefore, among the candidates satisfying the minimum of 5 years service, if an application has been received from a SC/ST candidate satisfying the aforesaid condition, he is certainly entitled to be preferred in view of the provisions contained in the Government Orders noticed earlier. In this case, admittedly 4th respondent belongs to SC/ST community, and if so, I cannot find fault with the authorities in considering his request for inter district transfer in preference to that made by the petitioner, a general candidate. WPC 24603/09 :5 : 10. Counsel then submitted that by Ext.P11, the 4th respondent has been transferred and that therefore she should atleast be considered against the post vacated by the 4th respondent. First of all, Ext.P11 order is dated 17/8/2009 and the position as on date is not disclosed. Secondly, learned Government Pleader submits that discussions have already been initiated at the Government level with the service organisation for revising the norms of transfer in the light of the orders of the Government unifying the retirement age. Therefore, in such a situation, it is not possible to issue any positive direction as sought for by the petitioner. 11. Be that as it may, if the vacancy is available and if the Rules permit, it will be open to the petitioner to take up her claim with the 3rd respondent, in which case, it is up to that authority to deal with the same. Writ petition is disposed of as above. ANTONY DOMINIC, JUDGE Rp