IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 19TH MARCH 2008 / 29TH PHALGUNA 1929 OP.No. 38184 of 2001(U) --------------------------------- PETITIONER: ------------------- K.M.SAFIYA, AGED 50 YEARS, W/O. T.USMAN, HEAD CLERK, DISTRICT POLICE OFFICE, WAYANAD, KALPETTA NORTH P.O. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ----------------------- 1. THE SECRTARY TO GOVERNMENT, HOME DEPARTMENT, SECRTARIAT, TRIVANDRUM. 2. THE DIRECTOR GENERAL OF POLKICE, POLICE HEAD QUARTERS, TRIVANDRUM 3. THE SUPERINTENDENT OF POLICE, DISTRICT POLICE OFFICE, WAYANAD BY GOVERNMENT PLEADER SRI.S.DILEEP THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 19/03/2008 , THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.38184/2000 ORDER ON CMP. NO.62584/2001 IN OP. NO.38184/2000 DISMISSED 19.03.2008 SD/- T.R.RAMACHANDRAN NAIR, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE ORDER NO.M2-108911/92 OF THE 2ND RESPONDENT DT. 23.11.92. EXT.P2:- COPY OF THE SUBMISSION OF THE PETITIONER DT. 5.10.83. EXT.P3:- COPY OF THE SUBMISSION OF THE PETITIONER DT. NIL. EXT.P4- COPY OF THE LETTER NO.46705/H2/97/HOME OF THE GOVERNMENT DT.2.11.98. EXT.P5:- COPY OF THE REPRESENTATION OF THE PETITIONR DT. 18.12.2000. EXT.P6:- COPY OF THE ORDER NO.12770/H2/01/HOME OF THE GOVERNMENT DT. 27.7.01. /TRUE COPY/ P.S.TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - O.P.NO.38184 of 2001-U - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 19th day of March, 2008. JUDGMENT The challenge is against Ext.P6 order by which the review petition filed by the petitioner requesting for restoration of seniority in the cadre of L.D. Clerk was rejected by the Government. The petitioner was appointed as an L.D. Clerk as advised by the Public Service Commission, in the Police Department. The advice was made by the District Office of the Commission, Kannur and as there was no vacancy in Kannur District, she could not be appointed at that time. She was therefore appointed as L.D. Clerk in the Police Headquarters, Trivandrum and she joined there even though her district of choice was Kannur. After joining duty in the Headquarters on 1.9.1979, she was granted a posting to Kannur District as per Government letter dated 23.1.1980. She joined duty at the District Police Office, Kannur on 25.2.1980. Thereafter, she was promoted as U.D. Clerk with effect from 16.9.1985. A seniority list of U.D. Clerks in Police Department as on 1.1.1990 was published which is produced as Ext.P1 herein by the petitioner. Going by the seniority list, she is assigned rank No.609 and according to the petitioner, her seniority has been considered in OP 38184/2001 -2- the cadre of L.D. Clerk only from the date of joining duty in Kannur District and the seniority from the first effective advice of the Commission as contemplated in Rule 27(c) was not granted. If she was assigned that seniority, she would have become eligible for promotion as U.D. Clerk in February 1984 with seniority at 521 in Ext.P1 seniority list. For getting her seniority restored, the petitioner submitted Exts.P2 and P3 representations which were rejected by Ext.P4. Again, she filed Ext.P5 seeking to review the above decision and thereafter approached this court by filing O.P. No.3585/2001. Pursuant to the direction issued by this court, again the matter was considered by the Government which resulted in Ext.P6. 2. The view taken in Ext.P6 is that even though she was appointed as L.D. Clerk in the Police Headquarters against a vacancy in the Headquarters, she was transferred to Kannur District on her request and the transfer was given to her as agreed by her to be the juniormost L.D. Clerk in that district. It is therefore concluded that she cannot claim seniority and the date 25.2.1980 is the relevant date being the date of joining duty in Kannur, to fix her seniority. 3. Learned counsel for the petitioner submitted that even though the opted district was Kannur, she was posted in the Headquarters in a vacancy that was available there, against her will and the transfer effected thereafter OP 38184/2001 -3- to the district of her choice is without insisting on the time limit of five years and in such circumstances, the seniority has to be fixed as provided in the 4th proviso to Rule 27(a) of KS & SSR. It is therefore pointed out that the view taken in Exts.P4 and P6 is not correct and the petitioner is entitled to be assigned the seniority as pointed out by her. 4. For easy reference, 4th proviso to Rule 27(a) is extracted below. “Provided also that the seniority of a person advised by the District Office of the Public Service Commission for appointment in the vacancy in the Headquarters, without obtaining his willingness and transferred after such appointment to the district of his choice without insisting on the time limit of five years, shall be determined with reference to the date of his original advice by the District Office of the Public Service Commission.” Going by the said proviso, the seniority of a person who was advised by the District Office for appointment in the vacancy at Headquarters without obtaining his willingness and transferred after such appointment, to the district of his choice without insisting on the time limit of five years, shall be determined with reference to the date of his original advice by the District Office of the Commission. Whether, on the facts of this case, the said rule applies is the next question. Obviously, that question has not been examined while passing orders, Ext.P4 which was confirmed in Ext.P6. The petitioner asserts that the transfer, even though was on her request, in view of the initial posting given to her in the headquarters which was not in OP 38184/2001 -4- accordance with the advice of the District Office, she is entitled to get the benefit of such proviso. 5. Since the above question has not been examined, Ext.P6 stands quashed. The Government will reconsider the matter including the claim of the petitioner for the benefit of the 4th proviso to Rule 27(a) in accordance with law. The Government shall hear any other affected party also while passing orders as directed above. Appropriate orders shall be passed within four months from the date of receipt of a copy of this judgment. (T.R. Ramachandran Nair, Judge.) kav/ OP 38184/2001 -5- T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - O.P. No.38184 of 2001-U - - - - - - - - - - - - - - - - - - - - - - JUDGMENT 19th March, 2008.