IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 20TH NOVEMBER 2008 / 29TH KARTHIKA 1930 WP(C).No. 23355 of 2008(E) -------------------------------------- PETITIONER(S): --------------------- SINDHUKUMARI, PEON, DIRECTORATE OF HEALTH SERVICE, THIRUVANANTHAPURAM. BY ADV. SMT.P.V.ASHA RESPONDENT(S): ------------------------- DIRECTOR OF TECHNICAL EDUCATION THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 20/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Rs/ P.N.Ravindran, J. ===================== W.P(C).No.23355 of 2008 ===================== Dated this the 20th day of November, 2008. JUDGMENT The petitioner is presently working as Peon in the Directorate of Health Services, Thiruvananthapuram. She entered service as Peon on 30.9.2004. She has passed the Pre Degree examination and I.T.I. certificate course in Electronics and Diploma in Electrical Engineering. With a view to better her prospectus, the petitioner applied through proper channel to the Director of Technical Education by submitting ExtP1 application for inter-departmental transfer. The application was forwarded by the Director of Health Services to the Director of Technical Education. By Ext.P2 letter dated 29.3.2007, the Director of Technical Education informed the Director of Health Services that due to administrative reasons, inter-departmental transfer has been temporarily stopped since 2001 and that vacancies also do not exist. The Director of Health Services was informed that for these reasons, the petitioner's application stands rejected. 2. The petitioner again applied by submitting Ext.P3 application and that was forwarded by the Director of Health Services to the Director of Technical Education. While the said application was pending, the petitioner came to know that by Ext.P4 order passed on 13.3.2008, five last grade employees working in various department were given inter- WP(C)23355/08 -: 2 :- departmental transfer to the Technical Education Department. The pleadings disclose that at least in respect of three among the five persons who were given inter-departmental transfer as per Ext.P4 commenced service on 29.8.2005, 2.1.2006 and 28.2.2007 after the petitioner entered service. The pleadings also disclose that contrary to the statement in Ext.P2, the Director of Technical Education had issued Ext.P5 order dated 14.3.2005 giving inter-departmental transfer to one Mr.Sanim Shah from the General Administration Department of the Secretariat. While the Writ Petition was pending, the second application submitted by the petitioner as per Ext.P3 was also rejected and the decision communicated to the Director of Health Services by Ext.P5(a) letter dated 7.8.2008. In this Writ Petition, the petitioner, relying on Exts.P4 and P5, challenges Exts.P2 and P5(a) and seeks a writ in the nature of mandamus commanding the respondent to grant inter- departmental transfer to her and to post her as Peon in one of the existing vacancies. 3. The petitioner submits that two vacancies of Peon are available in the College of Engineering, Thiruvananthapuram, that one vacancy of Peon is available in the Barton Hill Engineering College, Thiruvananthapuram and that one vacancy of Night Watchman is available in the Government Technical High School, Thiruvananthapuram. The petitioner further submits that her application was not entertained and her juniors who entered service later were given inter-departmental WP(C)23355/08 -: 3 :- transfer. The petitioner further submits that in the light of Exts.P4 and P5, the stand taken by the respondent in Exts.P2 and P5(a) cannot be sustained. 4. The respondent has filed a statement wherein it is stated that the first application submitted by the petitioner was not entertained, since inter-departmental transfer was stopped from 2001 onwards. As regards second application made by the petitioner, it is submitted that the petitioner being a woman, cannot be appointed as Watcher, that only male candidates are eligible for appointment as Watchmen/Watcher, that the post of Peon in the Technical Education Department is a post to which Watchman can be given category change. It is also stated that if the vacancy of Peon is filled up by inter-departmental transfer it will affect recruitment through Kerala Public Service Commission. 5. I have heard Smt.P.V .Asha, the learned counsel appearing for the petitioner and Sri.P.Nandakumar, the learned Government Pleader appearing for the respondent. Ext.P2 discloses that the first application submitted by the petitioner was rejected on 29.3.2007 on the ground that after 2001 inter-departmental transfer was not being given and also for the reason that vacancies of Peon do not exist. However, Ext.P5 discloses that pursuant to the directions issued by this Court, inter- departmental transfer was in fact effected in March, 2005. Therefore, the stand taken by the respondent that from 2001 onwards due to administrative reasons, inter-departmental transfer has been stopped is WP(C)23355/08 -: 4 :- not tenable. Further, Ext.P4 order dated 13.3.2008 also discloses that five persons were given inter-departmental transfer to the Technical Education Department. If as stated by the respondent, inter-departmental transfer is not being given since 2001, there is no reason why by Ext.P4 order, five persons were given such inter-departmental transfer. The second application submitted by the petitioner in the year 2007 was also rejected by Ext.P5(a) by merely stating that her application cannot be considered. No reasons are stated in Ext.P5(a) to justify rejection of the petitioner's application. It is also not stated that vacancies of Peon do not exist. Nor is it stated that inter-departmental transfer has been stopped. Ext.P5(a) does not at all give any reason as to why the petitioner's request cannot be entertained. 6. In the counter affidavit very many reasons are put forward. One of the grounds put forward is that the petitioner being a woman cannot be posted as Watchman/Watcher. Yet another reason stated is that if the petitioner is given inter-departmental transfer as Peon, it will affect Watchman/Watcher in the Technical Education Department seeking category change. Yet another reason stated is that a vacancy of Peon will be lost to persons who have applied for regular appointment through Kerala Public Service Commission. In my considered opinion, there is no merit in any of the contentions raised by the respondent. The petitioner has not asked for inter-departmental transfer and posting as Watchman. She had asked for inter-departmental transfer as Peon. Therefore, the WP(C)23355/08 -: 5 :- petitioner cannot be denied inter-departmental transfer on the ground that being a woman she cannot be posted as Watchman. As regards existence of vacancies, the statement is silent. The respondent does not dispute the averment made by the petitioner that two vacancies of Peon exist in the College of Engineering at Thiruvananthapuram and one in the Barton Hill Engineering College, Thiruvananthapuram. Yet another contention raised by the respondent is that if the petitioner is given inter-departmental transfer as Peon, it will affect the prospectus of male Watchman/Watcher in the department seeking category change. Apart from the vague statement, no material has been placed on record to indicate that the requests by Watchmen for category change are pending and that the said requests were in fact received prior to the date on which the petitioner applied for inter-departmental transfer. I Therefore overrule the said contention as well. Lastly, it is contended that if the vacant posts of Peon are filled up by inter-departmental transfer, it will adversely affect candidates selected by the Kerala Public Service Commission for regular appointment. The said contention is also without any merit. Appointments to last grade posts in the service of the State Government is made from a common ranked list. If the petitioner is transferred to the Technical Education Department a vacancy will necessarily arise in the Health Services Department and against that vacancy, a candidate recruited through the Kerala Public Service Commission can be advised and appointed. Therefore, there is no merit WP(C)23355/08 -: 6 :- in the said contention as well. Since the respondent does not dispute the fact that vacancies of Peon exist in the College of Engineering, Thiruvananthapuram and the Barton Hill Engineering College, Thiruvananthapuram and as no reasons have been stated in Ext.P5(a) to decline the petitioner's request for inter-departmental transfer, I am satisfied that the petitioner's request was rejected on extraneous considerations and on irrelevant ground. Such being the situation, Ext.P5(a) cannot be sustained. 7. In the result, the Writ Petition is allowed, Ext.P5(a) is quashed and the Director of Technical Education is directed to forthwith issue orders permitting inter-departmental transfer of the petitioner to the Technical Education Department. The respondent shall also issue necessary orders appointing the petitioner as Peon in one of the vacancies available in the College of Engineering, Thiruvananthapuram or the Barton Hill Engineering College, Thiruvananthapuram. Orders as directed above shall be passed within one month from the date of receipt of a copy of this judgment. P.N.Ravindran, Judge. ess 22/11