IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 19TH OCTOBER 2010 / 27TH ASWINA 1932 WP(C).No. 18219 of 2008(R) ---------------------------------- PETITIONER(S): ------------------- RAMESH BABU, WATCHMAN, CORPORATION OF KOCHI, SUBHASH PARK, BOAT JETTY, ERNAKULAM BY ADVS. SRI.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI SRI.BRIJESH MOHAN RESPONDENT(S): -------------------- 1. THE DIRECTOR OF URBAN AFFAIRS, THIRUVANANTHAPURAM 2. CORPORATION OF KOCHI, SUBHASH PARK, BOAT JETTY, ERNAKULAM, REP. BY ITS SECRETARY 3. STATE OF KERALA, REP. BY SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM R3 BY GOVT. PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 18/10/2010, THE COURT ON 19/10/2010 DELIVERED THE FOLLOWING: SVS/ WP(C).No. 18219/2008(R) APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF G.O.(MS)NO.313/2005/LSGD DATED 26/10/2005 ISSUED BY THE GOVERNMENT. P2: COPY OF JUDGMENT DATED 04/04/2005 IN WPC.NO.11221/05 OF THIS HON'BLE COURT. P3: COPY OF REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 16/07/07 WITH ACKNOWLEDGMENT. P4: COPY OF JUDGMENT DATED 23/08/2007 IN WPC.NO.25774/07 OF THIS HON'BLE COURT. P5: COPY OF ORDER NO.E3-14175/07 IN DATED 19/10/2007 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: R3(a): ORDER NO.O.J.2-16414/2003 DATED 30/12/2005 OF DIRECTOR OF URBAN AFFAIRS. /TRUE COPY/ P.A. TO JUDGE SVS/ S.SIRI JAGAN, J. ----------------------------------------- W.P. (C) NO. 18219 OF 2008 ---------------------------------------- Dated this the 19th day of October, 2010. JUDGMENT The petitioner is working as a Watchman in the Corporation of Kochi. According to the petitioner, he was working from 31.7.1996 and that his service has been regularised on 11.1.2006 by Ext.P1 Government order. The Government directed that 10% of the post of Lower Division Clerk/Bill Collector in Municipal Common Service shall be filled up 'by transfer method' from among the low paid employees (Class IV) in regular services of Municipal Common Service possessing the educational qualification of SSLC. The petitioner staked a claim for such appointment by transfer. Pursuant to Ext.P4 judgment of this Court directing consideration of the petitioners representation, Ext.P5 order has been passed rejecting the claim of the petitioner. Petitioner is challenging Ext.P5 order seeking the following reliefs:- “i) issue a writ of certiorari or any other appropriate writ, order or direction, calling for Ext.P5 and quash the same. ii) Declare that exclusion of low paid employees like the petitioner working the contingent establishment from the purview of Ext.P1 is arbitrary and discriminatory and strike down the same to the extent it limits consideration of low paid employees in regular service alone. W.P. (C) NO. 18219 OF 2008 2 iii)Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the respondents to consider low paid employees in the contingent establishment also for extending be benefits of Ext.P1. iv) Issue a writ of Mandamus or any other appropriate writ, order or direction, directing the respondents to promote the petitioner as LD Clerk/Bill Collector in Municipal Common Service by extending the benefit of Ext.P1 and grant him all consequential benefits including arrears of salary.” 2. According to the petitioner, petitioner being a Watchman should be treated as a Class IV employee and, therefore, he is eligible to be considered for 'by transfer' appointment to the post of Lower Division Clerk/Bill Collector in Municipal Common Service. 3. A counter affidavit has been filed by the 3rd respondent wherein the stand taken is that the post of Watchman is not a post borne on the regular service, but he is only a contingent employee. As per Ext.P1 only Class IV employees in regular service are eligible for being considered for appointment by transfer as Lower Division Clerk/Bill Collector is the contention of the third respondent. 4. I have considered rival contentions in detail. As per Ext.P1, 10% posts of Lower Division Clerk/Bill Collector in Municipal Common Service is to be filled up by transfer from among Class IV employees in regular service of Municipal Common Service. W.P. (C) NO. 18219 OF 2008 3 Petitioner could not satisfy me that his employment as Watchman is in the regular service of the Corporation. On the other hand the respondents have taken a stand that the post of Watchman is in the contingent service. Petitioner could not disprove the same. That being so the petitioner is not eligible for the benefit of Ext.P1 Government order. Consequently he cannot be considered for appointment by transfer to the post of Lower Division Clerk/Bill Collector, even if he is qualified for the same. Therefore the writ petition lacks merit and accordingly the same is dismissed. S.SIRI JAGAN, JUDGE. mns