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Supreme Court of India
K.P.Sudhakaran & Anr vs State Of Kerala & Ors on 11 May, 2006
Author: Raveendran
Bench: B N Srikrishna, R V Raveendran
           CASE NO.:
Appeal (civil)  9527 of 2003

PETITIONER:
K.P.Sudhakaran & Anr.

RESPONDENT:
State of Kerala & Ors.

DATE OF JUDGMENT: 11/05/2006

BENCH:
B N Srikrishna & R V Raveendran

JUDGMENT:

J U D G M E N T
(With CA Nos.9528/2003, 9530/2003, 9531/2003 & 9532/2003)

RAVEENDRAN, J.

These appeals by special leave against the judgments
dated 14.8.2002 of the High Court of Kerala in W.A.
No.1178/1997, WA No.1170/1997 and WA No. 1135/1997
involve common questions of fact and law.

2. The appellants and the private respondents were recruited
as Lower Division Clerks (LDCs) in the Registration
Department, in different districts of the State of Kerala. In the
cadre hierarchy, the promotion post for LDCs is that of Upper
Division Clerk (‘UDC’ for short). The post of LDC is a
district-wise post and the post of UDC is a State-wise post. In
other words, the unit for recruitment of LDCs is the district, and
the unit for recruitment of UDCs is the entire State. A State-
wise seniority list of LDCs. is maintained for promotion to the
post of UDCs.

3. The Appellants were recruited as LDCs in district X. The
contesting private respondents were recruited as LDCs in other
districts (say, district Y or district Z) and were transferred, on
their own request to district X. (For convenience, we will refer
to the appellants as ‘Local LDCs’ and the contesting private
respondents as ‘transferred LDCs’). The transferred LDCs., on
own request transfers, were permitted to join as LDCs in district
X by taking the rank below the junior-most local LDCs in the
district.

4. On 7.11.1984, the State Government drew up a State-
wise seniority list of LDCs with reference to their date of first
appointment to the service as LDCs, for the purpose of
effecting promotions to the next higher post (UDC). In Kerala,
this is stated to be with effect from date of first effective advice
made by PSC for their appointment to the service. The seniority
of the transferred LDCs were shown in the said list, with
reference to the dates of their first appointment as LDCs and
not with reference to the dates of their joining in the district to
which they were transferred on their own request. Having
regard to the fact that they were recruited as LDCs, prior to the
local LDCs, the transferred LDCs were placed above the local
LDCs. If the seniority of the transferred LDCs had been fixed
with reference to the date of transfer to the district to which
they were transferred, they would have been placed at the
bottom of the seniority list on the date of transfer and their
position/rank would have been below that of local LDCs.

5. After considering the representations received in respect
of the said provisional seniority list dated 7.11.1984, the
Inspector General of Registration, Kerala (‘IG-Regn.’ for short)
by memorandum dated 6.4.1987 finalised the state-wise
seniority list of LDCs as on 1.11.1983. On the basis of the said
seniority list of LDCs, a provisional seniority list of UDCs. as
on 22.2.1986 was also prepared, vide General Memorandum
dated 9.12.1987. The said seniority list of LDCs as also the
provisional seniority list of UDCs were challenged in O.P.
No.4204/1990 before the High Court. The High Court by order
dated 8.5.1990 disposed of the said petition, by directing the
IG-Regn. to consider the representation given by the petitioner
therein for re-fixation of his seniority.

6. Thereafter, the Inspector General of Registration issued a
revised provisional seniority list of LDCs dated 13.11.1990. In
the said seniority list, the positions of transferred LDCs were
shown with reference to the date of their joining the new
district, by excluding the service rendered till then in their old
district. The transferred LDCs objected to the said change. The
objections were rejected by IG-Regn. The provisional list dated
13.11.1990 and the order of IG-Regn. rejecting the objections,
were challenged by the contesting private respondents and other
similarly placed transferred LDCs in O.P. No.11194/1990 and
connected cases.

7. A learned Single Judge of the High Court disposed of the
said petitions by order dated 24.3.1997, holding as follows : (i)
the transferred LDCs were not entitled to seniority with
reference to the initial date of appointment as LDCs. and their
seniority in the post of LDCs. has to be reckoned only from the
date of their joining in the new district to which they were
transferred on ‘own request’; (ii) having regard to the fact that
the recruitment of LDCs was district-wise and not State-wise,
the transferred LDCs cannot contend that all LDCs in the State
formed one unit for the purpose of seniority, nor claim any
benefit in excess of what the rules conferred on them; and (iii)
there was no merit in the challenge to the provisional seniority
list dated 13.11.1990. However, as the IG-Regn, had not
disposed of the objections filed by the transferred LDCs., by a
reasoned order, the Single Judge directed the IG-Regn. to
consider their objections as also other objections, if any,
received in regard to the provisional seniority list dated
13.11.1990 and pass appropriate orders considering each of the
objections and finalise the seniority list. He also directed that
the promotions, if any, made on the basis of the seniority list
dated 7.11.1984 and further promotions shall be reviewed based
on the seniority list to be finalized. In compliance with the said
direction, the IG-Regn. considered the objections again and by
order dated 22.9.1997 rejected the objections of the transferred
LDCs. He also issued a final seniority list of LDCs dated
22.9.1997 on that basis.

8. In the meanwhile, the order of the learned Single Judge
was challenged by the transferred LDCs in W.A. No.1178/1997
and connected appeals. The State resisted the appeals by relying
on the G.O. dated 2.1.1961 and Rule 27 of Kerala State and
Subordinate Service Rules, 1958 (‘Rules’ for short) to contend
that transferred LDCs. had to be treated as junior-most in the
new district and the list dated 22.9.1967 was finalized by
applying the said rule. The Division Bench which heard the
appeals, held that having regard to GO dated 2.1.1961 and Rule
27, the seniority of the transferred LDCs will have to be
reckoned only from the date of their joining at the District to
which they were transferred on their own request. It however
felt that the seniority list finalized in 1984 and the position of
the transferred LDCs should not be disturbed. It held that G.O.
dated 2.1.1961 and the proviso to Rule 27(a) should be given
effect prospectively. It, therefore, allowed the appeals filed by
the transferred LDCs by order dated 14.8.2002 with the
following observations :

“This is a case where inter-district transfers were effected
before 1984 and they were all included in the final seniority
list of L.D. Clerks giving seniority from the date of which
they joined duty in the parent district. We are of the view at
this distance of time there is no justification in disturbing
the said situation. In such circumstances we hold that the
direction given by first and second respondents to revise
the final seniority list published vide office General
Memorandum No. E4-34154/84 dated 7.11.1984 is illegal.
Promotions on the basis of the said list be not disturbed and
G.O. (Ms) 4/61/PD dated 2.1.1961 and the proviso to
General Rule 27 of the Kerala State and Subordinate
Services Rules would apply only prospectively without
unsettling the rank and position of the petitioners. It is so
declared and Ext. P7 order (order/seniority list dated
13.11.1990), would stand quashed. Rights of the parties
will be regulated accordingly. Judgment of the learned
single judge will stand set aside. All the writ appeals and
original petitions are disposed of as above.”

9. The said order of the Division Bench is challenged by the
appellants who are the ‘local’ LDCs. They contend that having
regard to the relevant rules and the Government Orders (GOs.),
a Government servant who is transferred from one district to
another on his own request, cannot claim seniority from his
initial date of recruitment in the post but only from the date on
which he is transferred on his own request to the new district.
As a consequence, when a common State-wise seniority list of
LDCs. is prepared for promotion to the post of UDC, the rank
of transferred LDCs. should be shown with reference to the date
of their transfer to the new district on their own request, and not
when with reference to the date when they were initially
appointed as LDCs. They contend that the Division Bench of
the High Court having accepted the said legal position, had no
power to direct that G.O. dated 2.1.1961 and proviso to Rule
27(a) of the Rules to be applied prospectively. They submit that
the Division Bench having held that the transferred LDCs.
should take rank below the junior-most local LDCs. as per
Rules, committed an error in not giving effect to the said
finding.

10. On the contentions urged, the following two points arise
for consideration :

(i) Whether the seniority of transferred LDCs
(transferred on own request to another unit
(district) in the same department) should be
reckoned from the date of their initial appointment
to the post, or from the date on which they were
transferred to the new district. Whether the lower
post (LDC) being a district-wise post and the
promotion post (UDC) being a state-wise post,
would make any difference to the position.

(ii) Whether the Division Bench was justified in
holding that the GO dated 2.1.1961 and proviso to
Rule 27(a) of the Rules should only be applied
prospectively in the case of the transferred LDCs.
(that is from the date of the judgment of the
Division Bench), thereby giving benefit of the
past service (from the date of initial appointment
up to date of transfer), to transferred LDCs,
contrary to the said rules and GO and denying to
the local clerks the benefit of a higher position in
the seniority list.

Re: Point No. 1 :

11. In service jurisprudence, the general rule is that if a
Government servant holding a particular post is transferred to
the same post in the same cadre, the transfer will not wipe out
his length of service in the post till the date of transfer
and the period of service in the post before his transfer has to be
taken into consideration in computing the seniority in the
transferred post. But where a Government servant is so
transferred on his own request, the transferred employee will
have to forego his seniority till the date of transfer, and will be
placed at the bottom below the junior-most employee in the
category in the new cadre or department. This is because a
government servant getting transferred to another unit or
department for his personal considerations, cannot be permitted
to disturb the seniority of the employees in the department to
which he is transferred, by claiming that his service in the
department from which he has been transferred, should be taken
into account. This is also because a person appointed to a
particular post in a cadre, should know the strength of the cadre
and prospects of promotion on the basis of the seniority list
prepared for the cadre and any addition from outside would
disturb such prospects. The matter is, however, governed by the
relevant service Rules.

12. We may next refer to the relevant rules and GOs having a
bearing on the subject. The service of State Government
servants in State of Kerala are governed by the Kerala Public
Services Act, 1968. Section 3 provides that all Rules made
under the proviso to Article 309 regulating the recruitment and
conditions of service of persons appointed to Government
service and in force immediately before 17.9.1968, shall be
deemed to have been made under the said Act and shall
continue to be in force unless and until they are superseded by
Rules made under the Act. The Kerala State and Subordinate
Services Rules, 1958 (‘Rules’ for short) were made in exercise
of power conferred under proviso to Article 309. The said
statutory Rules governed seniority and transfer of Government
servants. The said Rules as they originally stood, did not
provide for ‘own request transfers’ and consequences thereof.

12.1) The State Government issued a GO dated 2.1.1961 in
consultation with the Kerala Public Service Commission (‘PSC’
for short), laying down the conditions subject to which mutual
or inter-departmental transfers of Government servants from
one unit to another within the same department, or from one
department to another within the same subordinate service, can
be ordered by the appointing authorities concerned, on request.
Two of the conditions which are relevant are extracted below :

“(1) A person transferred to a new unit will take rank below
the juniormost in the category in the new unit or
department. He will not be allowed to count his previous
service towards seniority. Such transfers should not be
prejudicial to the legitimate interest of anyone in the
department to which he is transferred. But he may be
allowed to count his previous service towards increment,
leave, pension, gratuity, etc. He will not be required to
undergo fresh probation, if he has already completed
probation.

x x x x x

(4) Persons transferred from one department to another or
from one unit to another in the same department due to
proved administrative reasons will retain all their rights in
the old unit or department, as their case may be.”

12.2) The State Government issued another G.O. dated
27.5.1971 providing for recruitment to the lower Ministerial
cadres at district level, in consultation with the Public Service
Commission. The said GO directed that the recruitment at
district level through the district recruitment boards would be
made subject to the following conditions :-

“(i) No transfers will be allowed from the District to
another within a period of five years from the date of
commencement of continuous service;

(ii) Such inter-district transfers will be allowed only after
five years and subject to the conditions laid down in G.O.
MS. No.4/PD dated 2-1-61.

x x x x x

(iv) This will not affect the existing procedure where State-
wise promotions are involved.”

12.3) Rule 27 of the Rules relating to seniority was amended
by G.O. dated 13.1.1976 (Gazetted on 3.2.1976) inserting a
proviso to clause (a), providing for the consequences of an ‘on
request’ transfer. The note to the said proviso stated that the
amendment shall be deemed to have come into force with effect
from 28.12.1960. Relevant portions of Rule 27 as amended, are
extracted below :

“27. Seniority.- (a) Seniority of a person in a service, class,
category or grade shall, unless he has been reduced to a
lower rank as punishment, be determined by the date of the
order of his first appointment to such service, class,
category or grade.

xxxxxxx

Provided that the seniority of persons on mutual or inter-
unit or inter-departmental transfer from one unit to another
within the same department or from one department to
another, as the case may be, on requests from such persons
shall be determined with reference to the dates of their
joining duty in the new unit or department.”

12.4) The executive instructions contained in the Government
Orders dated 2.1.1961 and 27.5.1971 in so far as ‘own request’
transfers, ceased to apply, once a provision therefor was made
the statutory service rules, by amendment. The proviso to Rule
27(a) of the Rules categorically provided that the seniority of
an employee getting transferred at his own request to another
unit within the same department or to another department will
be determined with reference to the date of his joining duty in
the new department. This proviso is an exception to the general
rule (contained in clause (a) of Rule 27) that seniority of a
person shall be determined by the date of the order of his first
appointment.

13. The following facts are not in dispute : (i) The contesting
private respondents are transferee LDCs who were transferred
from the district in which they were appointed to another
district, in the same department on their own request. (ii) The
appellants are the existing employees, that is local LDCs of the
said department in the district to which the transferee LDCs
were transferred. (iii) The transferred LDCs (contesting private
respondents) were senior to the appellants with reference to
their date of appointment as LDCs. But with reference to the
date on which they were transferred to the new district, they
will become juniors to the local LDCs (appellants). When the
proviso to Rule 27(a) of the Service Rules is applied, as rightly
held by the learned single Judge and the Division Bench, the
seniority of the transferred LDCs has to be reckoned only from
the date of their joining duty in the new unit (or district) and
they are not entitled to count their service prior to the date of
their transfer on their request.

14. The transferred LDCs. (contesting private respondents)
contended that the GO dated 27.5.1971 stated that it will not
affect the existing procedure where State-wise promotions are
involved. They point out that though the posts of LDCs. are
District-wise, as the promotion of LDCs to UDCs is State-wise,
the provisions of G.O. dated 2.1.1961 will not apply, in view of
clause (iv) of G.O. dated 27.5.1971. It is unnecessary to
examine whether clause (iv) of G.O. dated 27.5.1971 excludes
the applicability of G.O. dated 2.1.1961, as neither the G.O.
dated 27.5.1971 nor the G.O. dated 2.1.1961 governed the
effect of ‘own request’ transfers, after Rule 27(a) of the Service
Rules was amended by introducing a proviso providing for the
consequences of ‘own request’ transfers. Where Statutory Rules
govern the field, prior executive instructions cease to apply.

15. The transferred LDCs. next submitted that the proviso to
clause (a) of Rule 27 will not apply, having regard to the
exclusion contained in clause (c) of Rule 27 which reads as
under : —

[c] Notwithstanding anything contained in clauses (a) and

(b) above, the seniority of a person appointed to a class,
category or grade in a service on the advice of the
Commission shall, unless he has been reduced to a lower
rank as punishment, be determined by the date of first
effective advice made for his appointment to such class,
category or grade and when two or more persons are
included in the same list of candidates advised, their
relative seniority shall be fixed according to the order in
which their names are arranged in the advice list.”

A careful reading of clause [c] shows that it did in no way
affect the contents of proviso to clause (a) of Rule 27 inserted
by amendment by G.O. dated 13.1.1976. Clause (a) of Rule 27
provided that seniority of a person in a service, class, category
or grade shall be determined by the date of the order of his first
appointment to such service, class, category or grade. Clause

(b) provides that the appointing authority shall, at the time of
passing an order appointing two or more persons
simultaneously to a service, fix the order of preference among
them, and seniority shall be determined in accordance with it.
Clause [c] made it clear that notwithstanding anything
contained in clauses (a) and (b), where a person is appointed to
a class, category or grade in a service on the advice of the
Commission, the seniority of such person shall be determined
by the date of first effective advice made for his appointment to
such class, category or grade and when two or more persons are
included in the same list of candidates advised, their relative
seniority shall be fixed according to the order in which their
names are arranged in the advice list. The effect of clause [c] is
to clarify the date with reference to which seniority should be
reckoned when they are initially appointed on the advice of
PSC. It only means that where the appointments are from the
selection list published by the PSC, their seniority will be
reckoned/determined by the first effective advice made for such
appointment by the PSC and not by the actual date of his
appointment by the appointing authority. Clause [c] has
therefore no effect or application, over the proviso which
regulates subsequent ‘own request’ transfers.

16. The transferred LDCs next submitted that the intention of
making a provision that a person on an ‘own request’ transfer
will be ranked as the juniormost in the new district or new unit,
is to ensure that the seniority of the existing employees in the
category in the new unit or district is not affected by a senior
person coming from outside by transfer. It is contended that
where the promotion post is State-wise, the seniority of the
existing employees in the district to which the outside employee
is transferred, will not be affected and, therefore, where the
promotion is to a state-wise post, proviso to Rule 27(a) which
requires those who are transferred on ‘own request’, to give up
their seniority, will not apply. We cannot agree. The alleged
intention behind a provision, cannot be used to defeat the
express words of the provision. Once a statutory rule is made,
without providing any exceptions, it is not possible to carve out
exceptions to such rule, by judicial interpretation. Nor can an
exemption from application of a clear and specific rule be
claimed on the ground of hardship or similar reasons. The
proviso to Rule 27(a) of the Rules is categorical and applies to
all employees transferred on own request. It does not make
distinction between employees whose promotion post is a
State-wise post and those where the promotion posts are
district-wise posts.

17. The learned counsel for the contesting private
respondents lastly submitted that by now the appellants and the
contesting private respondents have all been promoted from the
posts of LDC to UDC and several of them have also been
promoted as Sub-Registrars and the matter should not be
unsettled after such a long time. We find that the matter has
been continuously under litigation ever since 1990 and the
delay in disposal cannot defeat the rights of appellants.

Re : Point No. 2 :

18. The Division Bench having held that the transferred
LDCs would take rank below the juniormost in the category in
the district to which they were transferred, could not have held
that the seniority list prepared on 7.11.1984 (wrongly giving
transferred LDCs seniority from the date of initial appointment
as LDCs) should not be disturbed and proviso to Rule 27(a)
should be given effect prospectively. The High Court has no
power to direct that a Rule which has been in force for several
years, will be operated only prospectively, that too in a
proceeding where the validity of the Rule was not in challenge.

Conclusion

19. In view of the above, we find that the revised seniority
lists dated 13.11.1990 and 22.9.1997 under which seniority of
transferred LDCs. (inter-district transferees) is counted only
from the date of their joining the new district, excluding the
previous service, are proper and do not call for interference.

20. These appeals are accordingly allowed. The judgment of
the Division Bench of the High Court, to the extent it directs
that G.O. dated 2.1.1961 and proviso to Rule 27(a) of the Rules
will apply prospectively, and that the promotions made with
reference to the seniority list dated 7.11.1984 should not be
disturbed, is set aside. The writ petitions filed by the
transferred LDCs. are dismissed. As a result of giving effect to
the seniority list dated 13.11.1990 and 22.9.1997, if the
positions of the transferred LDCs. are altered to their
disadvantage, we direct that no consequential recovery shall be
made from them, on the ground of excess payment.


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