IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26430 of 2009(W)
1. K.S.CHANDRAN, AGED 49 YEARS,
... Petitioner
2. PAUL P.MATHAI, AGED 47 YEARS,
3. GEORGE KURIAKOSE, AGED 55 YEARS,
4. APPACHAN.P.O., AGED 48 YEARS,
5. P.KUTTAPPAN, AGED 50 YEARS,
6. P.R.JOSHY, AGED 47 YEARS,
7. ABDUL SATHAR.K.A., AGED 47 YEARS,
8. RAJU.M.P., AGED 47 YEARS,
Vs
1. STATE OF KERALA,
... Respondent
2. CHIEF CONSERVATOR OF FORESTS
3. CONSERVATOR OF FORESTS(CENTRAL CIRCLE),
4. DIVISIONAL FOREST OFFICER,
5. P.NARAYANAN, FOREST GUARD,
6. P.VIJAYAN, FOREST GUARD,
7. DAMODARAN.K., FORESTER,
8. NAZEER.K.H., FORESTER,
For Petitioner :SRI.O.V.RADHAKRISHNAN (SR.)
For Respondent :SRI.AUGUSTINE JOSEPH
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :10/11/2010
O R D E R
T.R. RAMACHANDRAN NAIR, J.
~~~~~~~~~~~~~~~~~~~~~~~~~~~
W.P.(C). No.26430/2009-W
~~~~~~~~~~~~~~~~~~~~~~~~~~~
Dated this the 10th day of November, 2010
J U D G M E N T
The petitioners who are working as Forest Guards are
mainly aggrieved by Ext.P24 whereby the Government directed
the Chief Conservator of Forests (Administration) to
prepare a revised seniority list of Forest Guards on
district wise basis. The circumstances leading to the
filing of the writ petition are the following:-
2. The petitioners 1 to 8 are presently working as
Forest Guards in various Forest Divisions under the Central
Circle, Thrissur within the administrative control of the
third respondent. They were initially recruited and
appointed as Forest Guards on 28/08/1991 on the advise of
the Kerala Public Service Commission as per their letter
dated 08/08/1991 (Ext.P1). Ext.P1 relates to the first
petitioner and it is pointed out that identical memos have
been issued to petitioners 2 to 8 also. Ext.P2 is the
office order by which petitioners 1 to 8 have been
appointed as Forest Guards in Malayattur Forest Division
along with 28 others. The appointment was followed by
training and after completion of training, they were posted
to different ranges as per Ext.P3 order dated 28/10/1991.
W.P.(C). No.26430/2009
-:2:-
3. Under the Special Rules, namely, the Kerala Forest
Subordinate Service Rules, in the case of Forest Guards the
Unit of appointment provided under Rule 12 is ‘Forest
Division’. Earlier, the same was ‘District’ which was
amended as per G.O.(MS).No.565/64/Agri. dated 27/08/1964.
The word ‘Forest Division’ was introduced by the said
amendment.
4. A provisional seniority list of Forest Guards,
namely, on Circle basis in Thrissur Circle was issued on
14/09/1992 and extract of the list is produced as Ext.P4.
The next promotion to the post of Forester is made on the
basis of Forest Circle Seniority list. Ext.P20 is the
provisional seniority list of Forest Guards of Central
Circle as on 31/03/2001. After considering various
objections, evidently, the said provisional list has been
finalised as per Ext.P21 which is dated 19/03/2005. The
petitioners 1 to 8 are assigned rank and seniority in terms
of Rule 27(c) of the K.S. & S.S.R. in these lists.
5. Now, in the light of the proceedings issued by the
Government as per Ext.P24, the final seniority list has
been upset and the case of the petitioners is that
respondents 5 and 6 in the writ petition filed a writ
petition as W.P.(C).No.4844/2007 which was disposed of by
Ext.P23 Judgment. The only direction in the said Judgment
W.P.(C). No.26430/2009
-:3:-
is to consider Ext.P4 representation therein. Apparently,
based on the said direction, Ext.P24 communication has been
issued by the Government to the Chief Conservator of
Forests (Administration). The learned Senior Counsel for
the petitioners Shri O.V.Radhakrishnan submitted that
Ext.P24 will evidently show that a wrong principle is
adopted by the Government that too against the Special
Rules. It is pointed out that Rule 12 of the Special Rules
has been ignored and mistakenly it is recorded that the
District has to be taken as the Unit of the Forest Guards.
It is also mentioned in the said communication that in the
case of inter district transfer of Forest Guards within the
circle, the seniority shall be determined as per the first
proviso to Rule 27(a) of Part II K.S & S.S.R. It appears
that thereafter a provisional seniority list was published
on district wise basis as per Ext.P25 in Ernakulam and
Thrissur Districts whereby the rank assigned to the
petitioners in the final seniority list Ext.P21 stands
varied. Even though the petitioners filed Ext.P26
representation, when the final seniority list was published
as per Ext.P27 in respect of Thrissur and Ernakulam
Districts, their seniority has been reckoned from the date
of their joining pursuant to their transfer from Malayattur
W.P.(C). No.26430/2009
-:4:-
to Thrissur District. It is submitted that the same is
illegal and arbitrary.
6. Mainly it is contended that the settled seniority
of the petitioners cannot be unsettled that too in an
improper manner. My attention was invited to Rule 27B of
K.S. & S.S.R to contend that even against the final
seniority list, Ext.P21, there was no statutory
representation within the period provided under Rule 27B
and the representation filed before the Government, long
after the final seniority list was adopted as per Ext.P21,
could not have been entertained. It is further pointed out
by the learned Senior Counsel that by Ext.P23 Judgment,
this Court has only directed consideration of the
representation without laying down any principle and the
direction therein has been relied upon to upset the
principles adopted in preparing the seniority list in terms
of the Special Rules.
7. The petitioners’ seniority has been varied mainly
for the reason that they have obtained an inter district
transfer on request. With regard to the same, the learned
Senior Counsel for the petitioners submitted that it was a
mandatory transfer going by the Guidelines prepared by the
Government for transfers, a copy of which is produced as
Ext.P5, adopted within the Department concerned. Clause 19
W.P.(C). No.26430/2009
-:5:-
(v) of the Guidelines provide that “Deputy Rangers,
Foresters and Forest Guards who have completed three terms
continuously within a Division will not be allowed to
continue in that Division. Inter-District transfers of
Foresters will be allowed only against open quota vacancies
and the vacancies in the stations from where such transfers
are made shall be reported in the Public Service Commission
for advising candidates”. It is, therefore, pointed out
that any transfer effected under the mandatory terms of
Ext.P5 cannot be said to be a transfer made on request, to
attract the proviso to Rule 27(a) of Part II K.S. & S.S.R.
Reliance is placed on the general orders of transfer issued
by the Conservator of Forest, copies of which are produced
as Exts.P6, P8, P10, P11, P16 and P19. It is also pointed
out that the petitioners except third petitioner have duly
submitted different applications for transfer like Exts.P7,
P9 etc., indicating their preference for transfer to other
divisions and choices of divisions have also been mentioned
in the applications for transfer, in accordance with the
guidelines itself.
8. Heard the learned Government Pleader appearing for
respondent Nos.1 and 2 and the learned counsel appearing
for respondent Nos.5 and 6.
W.P.(C). No.26430/2009
-:6:-
9. The Special Rules herein, namely, the Kerala
Forest Subordinate Service Rules show that category 3 is
Foresters and category 4 is Forest Guards. As already
mentioned, Rule 12 provides that “for purpose of
appointment to the Service, discharge for want of
vacancies, reappointment, seniority and appointment as full
member and promotion, the Forest Circle shall be the unit
in the case of Foresters and the Forest Division in the
case of Forest Guards”. Evidently, the words ‘Forest
Division’ was introduced by substituting the word
‘District’ by G.O.(MS).No.565/64/Agri. dated 27/08/1964 and
there is no case for the respondents that the word
‘District’ has been reintroduced in the Rule at any point
of time thereafter, by way of any amendment of the Rules.
Then the question is whether the preparation of the
seniority list initially suffered from any legal infirmity.
The argument raised by the learned counsel for respondent
Nos.5 and 6 is that the appointments are now made on
district wise basis and, therefore, the same has to be
reckoned as the unit for the purpose of Rule 12. In the
counter affidavit filed by the second respondent also,
reliance is placed on Ext.P5 guidelines for transfer to
point out that when transfers are ordered on request on the
basis of the preference given by the applicants, such
W.P.(C). No.26430/2009
-:7:-
transfers are taken as transfers on request and not on
administrative grounds. The details with regard to the
transfers of the petitioners have been given in paragraphs
5 to 9 of the counter affidavit. The plea taken in
paragraph 11 of the counter affidavit is that the transfer
of the petitioners would have been purely on administrative
grounds had they not submitted applications for their
transfer to their places of their choice. Reliance is
placed on Rule 27(a) of Part II K.S. & S.S.R and proviso
therein in support of the plea that the seniority of the
petitioners in the post of Forest Guards in Malayattur
Division has therefore been lost.
10. Evidently, the said contention cannot be accepted.
The guidelines for transfer cannot obviously override the
principle for fixing seniority. Ext.P5 guidelines show
that clause 7 permits an application for transfer to be
submitted to the authority competent to transfer the
employee, through the Head Office so as to reach him before
the first February of every year in a proforma prescribed
for it. The clause 8 shows that the application for
transfers will be registered in the order in which they are
received and an acknowledgement to be issued to the
applicant indicating the register number with date. Clause
9 gives the manner in which the applications will have to
W.P.(C). No.26430/2009
-:8:-
be dealt with, if large numbers of applications for a
particular station for a particular post are given,
indicating the preference. Clauses 10 to 18 also are
concerned with other procedures with regard to the
transfer. As rightly pointed out by the learned Senior
Counsel for the petitioners, there is no clause in Ext.P5
providing for a ‘request transfer’. Evidently, clause 19
(v) envisages a case where persons who have completed three
terms continuously within a Division will not be allowed to
continue in that Division. Therefore, when the
applications are made in the proforma prescribed which are
contemplated under the guidelines for transfer, the
applicants could not be at the disadvantage of the loss of
seniority for merely indicating the preference for
stations. The same made by the applicants cannot be termed
as requests contemplated in the proviso to Rule 27(a) of
Part II K.S. & S.S.R. A request for transfer will be one
made under one’s own volition indicating the Divisions.
Herein the petitioners except third petitioner had made the
preferences only after their 3 term of 9 years was over at
the time of general transfer, which is not disputed. It is
stated in para 11 of the counter affidavit that their
transfer would have been on administrative grounds, if
applications to their choice of places are not submitted.
W.P.(C). No.26430/2009
-:9:-
Evidently, the applications for transfer by the petitioners
show that they have been furnished in the proforma
prescribed. Apart from that, the averments in the counter
affidavit also show that all the petitioners have not been
given transfers in terms of the first preference of the
various applicants. A reading of the prescribed format
Ext.P7 shows that the caption given is “Application for
Transfer”. Column 10(a) of the application requires the
applicant to show the preferences in the order indicating
the places to which the transfers are sought. Therefore,
evidently, that the petitioners have only confined
themselves within the proforma prescribed while indicating
the division to which they are requesting for a transfer
after nine years. The same cannot be termed as a request
made for an inter unit transfer on their own volition which
alone will result in consequences provided under the
proviso to Rule 27(a) of Part II K.S. & S.S.SR. The said
proviso reads as follows:-
“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
W.P.(C). No.26430/2009
-:10:-of their joining duty in the new Unit or
Department. In the case of more than one person
joining duty in the same grade in the same Unit
or Department on the same date, seniority shall
be determined —
(a) if the persons who join duty belong to
different units or different departments, with
reference to their age, the older being
considered as senior, and
(b) if the persons who join duty belong to
the same category of post in the same Department,
in accordance with their seniority in the Unit or
Department from which they were transferred.”
Herein for the application of the Proviso, the respondents
1 and 2 have taken district as the unit for appointment as
evident from the counter affidavit, which goes against the
Special Rules.
11. In that view of the matter, merely because in
terms of the guidelines for transfer, namely, Ext.P5 the
petitioners have indicated preference for transfer of their
choice station that cannot be taken as a ground to deny the
seniority they have acquired in the division concerned by
treating them as request transfers. The order Ext.P8 is
one for general transfers and postings of Forest Guards.
W.P.(C). No.26430/2009
-:11:-
Exts.P9 and P11 etc. are similar orders. Therefore, the
very principle under which the seniority of the petitioners
have been reassigned, that too by publishing district wise
seniority list, cannot be sustained. In the orders
Exts.P8, P9, P11 etc. it is not stated that on transfer to
the station therein, petitioners will lose seniority. No
separate orders have been passed in that regard. The
transfers of the petitioners are on the basis of the
transfer policy of the Government.
12. The principle under which the Government has
directed the Chief Conservator of Forests (Administration)
by Ext.P24 to prepare the district wise seniority list is
also unsustainable. The same goes against Rule 12 of the
Special Rules. The justification for the same as averred
in the counter affidavit of the second respondent in para
13 is that “the rule cannot be applied when District Public
Service Commission appointment is made”. It is therefore
stated that when District is taken as the Unit and inter se
seniority of petitioners can be taken on the basis of their
date of joining in Thrissur District. The special rules as
existing will have to govern the field while fixing the
seniority. If so District cannot be the unit. Even though
this Court in W.P.(C).No.4844/2007 had only directed the
Government to consider Ext.P4 within a specified time,
W.P.(C). No.26430/2009
-:12:-
evidently, none of the legal issues have been addressed in
Ext.P24 after hearing the parties concerned. As rightly
contended by the learned Senior Counsel Shri
O.V.Radhakrishnan, importance of Rule 27B of Part II K.S. &
S.S.R and the time limit within which statutory
representation had to be filed has also been overlooked by
the Government by passing Ext.P24. Along with the reply
affidavit, the petitioners have produced true copies of the
Judgments, Exts.P30 and P31 which have been made mention of
in the counter affidavit filed by the second respondent. A
reading of Ext.P30 Judgment only shows that therein also
this Court has only directed consideration of the
representation Ext.P4 therein in accordance with law.
Similar directions have been issued in Ext.P31. Therein
also this Court did not indicate any principle under which
seniority list had to be prepared. Therefore, the reliance
placed by the second respondent on those Judgments for
upsetting the seniority list and preparation of the revised
seniority list on District-wise basis cannot be accepted.
13. The learned Senior Counsel for the petitioners
relied upon the principles stated by the Apex Court in
Rabindra Nath Bose and Others v. Union of India and Others
[AIR 1970 SC 470] to contend for the position that the
W.P.(C). No.26430/2009
-:13:-
settled seniority cannot be upset after a long lapse of a
number of years. The said principle has been stated thus
in paragraph 35:-
“Where the changes were made in the Seniority
List of Income-tax Officers Class I Grade II as a
result of change in the 1952 Seniority Rules and
the petition attacking the changes was filed
fifteen years after the 1952 Rules were
promulgated and effect given to them in the
seniority list prepared on 01/08/1953, it will be
unjust to deprive the officers of the rights
which have accrued to them. Each person ought to
be entitled to sit back and consider that his
appointment and promotion effected a long time
ago would not be set aside after the lapse of a
number of years.”
14. The learned Senior Counsel further relied upon
the dictum laid down by a Full Bench in T.C.Sreedharan
Pillai and Others v. State of Kerala and Others [1973 KLT
151 (FB)] wherein in paragraph 47, following the decision
of the Apex Court in Rabindra Nath Bose’s case [AIR 1970 SC
470], it was held thus:-
W.P.(C). No.26430/2009
-:14:-
“It is not in the interests of the
maintenance of the morale, efficiency and
contentment in the service to disrupt after such
long lapse of time matters pertaining to vital
service conditions like seniority and rank which
have already become settled. It will be neither
just nor equitable to deprive persons who have
been promoted many years ago, of the rights that
have accrued to them regarding their rank and
seniority by purporting to conduct a review of
promotions after the lapse of many years.”
These principles are therefore, relevant here.
15. The learned Government Pleader tried to sustain
the preparation of the seniority list by submitting that
the request for transfer has resulted in loss of seniority
by the petitioners. As I mentioned already, such
applications are only in terms of the proforma prescribed
in the guidelines for transfer and in the absence of any
orders issued in terms of the principle under Rule 27(a) of
Part II K.S & S.S.R also, the same cannot disentitle the
petitioners from retaining their seniority.
16. The learned Senior Counsel invited my attention to
the principles stated in paragraph 36 of the Judgment in
W.P.(C). No.26430/2009
-:15:-
A.Janardhana v. Union of India and others [AIR 1983 SC 769]
to contend for the position that since the petitioners are
only challenging the principles under which the seniority
list has been revised and fresh seniority list has been
prepared, and they are not challenging the particular
seniority assigned to any individual party concerned, it is
not necessary to implead all the persons who are included
in the revised seniority list above them. In paragraph 36
of the said Judgment it was held by the Apex Court thus:-
“…..In this case, appellant does not claim
seniority over any particular individual in the
background of any particular fact controverted by
that person against whom the claim is made. The
contention is that criteria adopted by the Union
Government in drawing-up the impugned seniority
list are invalid and illegal and the relief is
claimed against the Union Government restraining
it from upsetting or quashing the already drawn
up valid list and for quashing the impugned
seniority list. Thus the relief is claimed
against the Union Government and not against any
particular individual. In this background, we
consider it unnecessary to have all direct
recruits to be impleaded as respondents. We may
W.P.(C). No.26430/2009
-:16:-in this connection refer to General Manager,
South Central Rly., Secundrabad v. A.V.R.
Sidhanti (1974) 3 SCR 207 at p.212: (AIR 1974 SC
1755 at P.1759). Repelling a contention on
behalf of the appellant that the writ petitioners
did not implead about 120 employees who were
likely to be affected by the decision in the
case, this Court observed that the respondents
(original petitioners) are impeaching the
validity of those policy decisions on the ground
of their being violative of Arts. 14 and 16 of
the Constitution. The proceedings are analogous
to those in which the constitutionality of a
statutory rule regulating to seniority of
government servants is assailed. In such
proceedings, the necessary parties to be
impleaded are those against whom the relief is
sought, and in whose absence no effective
decision can be rendered by the Court
Approaching the matter from this angle, it may be
noticed that relief is sought only against the
Union of India and the concerned Ministry and not
against any individual nor any seniority is
claimed by anyone individual against another
W.P.(C). No.26430/2009
-:17:-
particular individual and, therefore, even if
technically the direct recruits were not before
the Court, the petition is not likely to fail on
that ground. The contention of the respondents
for this additional reason must also be
negatived.”
17. Lastly, the learned Senior Counsel relied upon the
decision of the Apex Court in H.S.Vankani and Others v.
State of Gujarat and Others [(2010) 4 SCC 301] especially
in paragraph 38 to contend for the position that once the
seniority has been settled, the same cannot be unsettled
and such unsettlement may result in bitterness among
Government employees.
18. The Government has evidently acted illegally in
issuing a direction as Ext.P24 ignoring Rule 12 of the
Special Rules that too in upsetting the seniority list
which has become final. Evidently, there was no challenge
against the seniority list under the relevant Rule 27B of
Part II K.S. & S.S.R within the time provided. A mere
direction issued as Ext.P24 that too against the relevant
clauses in the Special Rules cannot be justified.
19. Therefore, writ petition is allowed. Ext.P24 is
quashed. The seniority list which is prepared based on
W.P.(C). No.26430/2009
-:18:-
Ext.P24 is only dependent on Ext.P24 itself. Therefore, it
cannot survive once it is held that Ext.P24 is illegal.
Therefore, Ext.P27 is also quashed. It is declared that
the seniority list Ext.P21 is valid and the respondent Nos.
1 to 4 are therefore directed to effect promotions in terms
of Ext.P21 seniority list after revising the promotions
already made. Consequential orders granting promotion to
the post of Foresters after considering the claims of the
petitioners will be issued within a period of two months
from the date of receipt of the copy of this Judgment. No
costs.
(T.R. Ramachandran Nair, Judge.)
ms