IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 3777 of 2009(Y)
1. VINOD.C.A, S/O. MADHAVAN NAIR, AGED 39,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY ITS
... Respondent
2. KERALA PUBLIC SERVICE COMMISSION,
3. THE DISTRICT COLLECTOR,
For Petitioner :SRI.S.SREEKUMAR
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :05/07/2010
O R D E R
ANTONY DOMINIC, J.
================
W.P.(C) NO. 3777 OF 2009 (Y)
=====================
Dated this the 5th day of July, 2010
J U D G M E N T
Pursuant to the applications invited by the 2nd respondent
for appointment to the post of Last Grade Servants on district
wise basis, petitioner submitted his application. Accordingly, he
was included in the ranked list and advised for appointment for
Wynad District as per Ext.P1 order.
2. By Ext.P2 proceedings of the Administrative Officer,
Directorate of Medical Education, petitioner was appointed as Last
Grade Servant in the Directorate of Medical Education,
Trivandrum and he joined duty. Thereafter, he sought for an inter
departmental transfer to Wynad, his district of choice.
Accordingly, by Ext.P3 order dated 31/3/2000, petitioner was
granted an inter departmental transfer to Revenue Department
and was posted in Wynad District.
3. Later, petitioner submitted representations claiming
that his seniority should be counted from the effective date of
advise. The matter was considered and by Ext.P8 order, his
request was turned down. The reasoning stated in Ext.P8 is that
WPC No. 3777/09
:2 :
inter departmental transfer granted to the petitioner was on an
application made by him and subject to the conditions of GO(MS)
No.4/61/PD dated 2/1/1961, a copy of which is Ext.P4. It is stated
that, therefore, petitioner will rank junior most in Wynad District.
It is challenging Ext.P8, the writ petition is filed.
4. The contention raised by the counsel for the petitioner
is mainly that the posting of the petitioner at Trivandrum was to a
headquarters vacancy, and therefore, when the petitioner is
transferred and posted to the District of his choice, he is entitled
to seniority from the effective date of his advise. He also relies on
Exts.P10 and P11, by which Last Grade Service Rules were
amended. Relying on Ext.P11, it is also contended that since
there is no unit in the Medical Education Service and as his
posting was to the headquarters vacancy, he is entitled to
seniority from the date of advise.
5. Admittedly, the petitioner was granted an inter
departmental transfer on an application made by him. Therefore,
going by the provisions contained in the proviso to Rule 27 of Part
II KS & SSR, by joining duty in the new department, the petitioner
will rank junior most. The only issue is whether Exts.P11 and P12
WPC No. 3777/09
:3 :
relied on by the petitioner makes any difference in so far as
seniority position as stated above. Ext.P10 is the amendment to
the Last Grade Service Rules by adding a note to Rule 14 thereof.
A reading of Note shows that seniority of a person advised by the
District Office of the PSC for appointment against a vacancy in
headquarters and transferred after such appointment to the
district of his choice shall be determined with reference to the
original advice by the District Office of the PSC. This evidently
can have application only when a person is posted to
headquarters vacancy and is transferred back to the district of his
choice and cannot apply to inter district or inter departmental
transfers granted on application made by the employee
concerned. Such cases will be governed by the provisions of GO
(Ms) 4/61/PD dated 2nd January, 1961 subject to which Ext.P3
order of inter departmental transfer was allowed to the petitioner.
6. In so far as Ext.P11 Government Order is concerned, by
this Government Order, Note 3 has been added to Rule 14, which
shows that seniority of a person advised by the District Office of
the PSC and appointed against a headquarters vacancy in the
Government Secretariat, Advocate General’s Office and similar
WPC No. 3777/09
:4 :
Departments, having no extension in Districts and transferred
after such appointment to any department in the opted district,
shall be determined on the basis of his date of first effective
advice for appointment to such category. Apart from anything
else, a reading of Ext.P11 itself show that this amendment came
into force from 21st of January, 2002. Ext.P3 order transferring
the petitioner to Wynad District is dated 31/3/2000. If that be so,
Ext.P11 can have no application in so far as Ext.P3 order of
transfer granted to the petitioner is concerned.
7. That apart, Ext.P3 order of transfer itself show that the
same was granted to the petitioner subject to the terms of GO
(Ms) NO.4/61/PD dated 2/1/1961. This was accepted by the
petitioner without any protest, availed of the benefit thereof, and
it is long thereafter, he started representing for restoration of
seniority. Having accepted the transfer order subject to the
condition and availed of the benefits thereof, in my view,
thereafter it is not permissible for the petitioner to seek
restoration of seniority contrary to the conditions of Ext.P3.
8. From the aforesaid reasons, the only conclusion that is
possible is that the seniority of the petitioner will have to be
WPC No. 3777/09
:5 :
determined in terms of GO(Ms)No.4/61, which has now been
incorporated as first proviso to Rule 27 Part II KS&SSR and
consequently, the petitioner will rank junior most on his joining
Wynad District.
Writ petition is dismissed.
ANTONY DOMINIC, JUDGE
Rp