After five years of service, an employee from a preferential category can be transferred without requiring replacement by another member of the same category.

JUDGMENT

The petitioner belongs to a scheduled caste community. He is a native of Thiruvananthapuram. The petitioner was appointed as Junior Laboratory Assistant in the Medical College, Thiruvananthapuram on 7.2.2005. While working in the Medical College, Thiruvananthapuram, the petitioner was transferred to the Dental College, Kottayam, as per Ext.P1 order dated 29.3.2010. Jayakumar, the third respondent, who was working in the Medical College, Kottayam, was transferred to the Medical College, Thiruvananthapuram, as per Ext.P1 order of transfer. The petitioner is aggrieved by Ext.P1 order of transfer and also Ext.P16 order dated 24.9.2010 passed by the Government rejecting the representation submitted by the petitioner objecting to the transfer.

2. The contention of the petitioner is that he being a person belonging to Scheduled Caste, he can be replaced only by another Scheduled Caste candidate. The third respondent does not belong to a Scheduled Caste. It is therefore contended that Ext.P1 order, in so far as it relates to the petitioner, is contrary to the guidelines for transfer issued by the Government.

3. G.O.(P) 15/89/P&ARD dated 22.5.1989 (Ext.P4) was issued by the Government providing the guidelines for transfer of Government employees. Ext.P4 was issued updating the earlier Government Order s issued in that regard. Clause 2(b) of the guidelines provides that no employee who has completed three years of service in a particular station need necessarily be transferred unless there is a claimant who has worked for three years in an outside station to be provided there, or unless a transfer of the existing incumbent has become necessary in public interest. Clause 11 of the guidelines provides for transfer relating to Scheduled Caste and Scheduled Tribe employees and persons belonging to other preferential categories. The order of priority among the different categories of employees are shown in category Nos.1 to 7, of which the first category is SC/ST employees. Clause

11(a) provides thus:

“11(a) Employees who are physically handicapped, relatives of Jawans, Inter-caste married and Scheduled Castes/Scheduled Tribes shall not ordinarily be transferred until they complete 5 years of duty/service in a station/district. A transfer in such cases should be resorted to only to provide employees belonging to categories who have got preferential claim for transfer. Such transfer should be resorted to only to provide employees belonging to the same priority category; i.e., a transfer of employee of inter-caste marriage should be resorted to only to provide another employee of inter-caste marriage and so on.”

4. Sri.Dinesh Rao, the learned counsel for the petitioner, submitted that the plain meaning of clause 11(a) is that a person belonging to SC/ST shall not be transferred before he completes five years in a particular station except in the case of exigencies of service or on the ground of dire necessity of transferring that employee and in such a case, such transfer should be to accommodate another person belonging to the same category. The counsel submitted that even after such a person in the preferential category completes five years in a station, then also, he can be transferred only to accommodate a person belonging to the same category.

5. The learned Government Pleader as well as the learned counsel appearing for the third respondent submitted that the interpretation sought to be placed by the learned counsel for the petitioner on clause 11(a) is untenable and that a person belonging to a preferential category does not have an indefeasible right to remain in the same station after the expiry of five years of service in that station.

6. On a consideration of the various provisions in the guidelines, I am not inclined to accept the contentions put forward by the petitioner. Clause 11 provides for preference to the seven categories of persons, namely, SC/ST, physically handicapped, inter- caste married employees, Ex-Servicemen, rel