IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 27TH MARCH 2008 / 7TH CHAITHRA 1930 WA.No. 3008 of 2007 ---------------------------- THE JUDGEMENT/ORDER IN WPC.4243/2005 Dated 14/08/2006 .................................. APPELLANT: RESPONDENTS ----------------------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION, TRIVANDRUM. 2. THE DEPUTY COLLECTOR OF EDUCATION, KOTTAYAM. BY GOVERNMENT PLEADER SRI. SANDESH RAJA RESPONDENTS: PETITIONER --------------------------------------- BEENA ANTONY, HEADMISTRESS, GOVT. HWLPS, VAYALA, VAYALA P.O., KOTTAYAM DISTRICT. BY ADV. SRI.SAJI MATHEW SRI.DENU JOSEPH THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 27/03/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.Balakrishnan Nair & P.N.Ravindran, JJ. ======================== W.A.No.3008 of 2007 ======================== Dated this the 27th day of March, 2008. JUDGMENT Balakrishnan Nair,J. The appellants are the respondents in the writ petition. The respondent herein was the writ petitioner. 2. The writ petitioner was appointed as a P.D. Teacher in Malappuram District on the basis of the advice of the Public Service Commission on 8.7.1987. By Ext.P1 order dated 2.11.1993 passed by the Deputy Director of Education, Kottayam, the petitioner was transferred along with nine others to Kottayam District. Of the 10 persons so transferred as per Ext.P1, serial Nos. 1 to 7 had given declarations that they have no objection in treating him as the junior most in Kottayam District. But there was no such stipulation regarding serial Nos. 8 to 10 in that order who were transferred as dependents of Jawans. The writ petitioner was serial No.8 in Ext.P1. Later, she was promoted as Headmistress provisionally on 16.8.2004 counting her seniority in Malappuram District also. Soon WA 3008/07 -: 2 :- thereafter, it was found that the petitioner is not entitled to count her past service. So, Ext.P3 show cause notice dated 15.1.2005 was issued proposing to revert her and modify her seniority. She was also called for a personal hearing on 24.1.2005. The petitioner filed Ext.P4 reply to the said notice and thereafter the writ petition was filed seeking an order restraining the second respondent - second appellant from reverting her to the post of Headmistress. 3. The respondents have filed a counter affidavit stating that the petitioner was granted seniority counting her past service in Malappuram District by a mistake. The benefit of seniority protection granted to the dependents of Jawans was withdrawn by the Government as per order dated 2.12.1991. The writ petitioner was transferred subsequent to the said order and therefore, she is not entitled to get protection of seniority. The learned Judge, who heard the matter, allowed the writ petition. The aggrieved appellants have preferred this appeal. Along with the appeal, they have produced copy of G.O.(P) No.36/91/P&ARD dated 2.12.1991 as Annexure 1. According to them, in view of the said order, there is no protection to the WA 3008/07 -: 3 :- dependents of Jawans concerning seniority while inter district transfer is made. Further, the first proviso to Rule 27(a) also does not grant any such concession. 4. The writ petitioner would submit that she is entitled to get the benefit of G.O.(MS)No.504 dated 20.11.1963 which grants protection of seniority on inter district transfer to near relatives of army personnel. Further, Ext.P1 Order provided that the writ petitioner and two others need not specifically give declarations concerning loss of seniority. The learned counsel for the writ petitioner also relied on a Full Bench decision of this court in T.C.Sreedharan Pillai v. State of Kerala and others - 1973 K.L.T. 151 and contended that the petitioner is entitled to sit back. She was treated as senior from 1993 onwards. She was granted seniority counting her past service also from 1993 onwards. Now the appellants cannot turn around and take a different stand. 5. The seniority of a Government servant appointed to a unit is governed by Rule 27 (a) of the Kerala Service & Subordinate Services Rules, 1958 (hereinafter referred to as the "K.S. & S.S.R." The relevant portion of the said rule reads thus: WA 3008/07 -: 4 :- "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 order of his first appointment to such service, class, category or grade. Explanation:- For the purposes of this sub-rule, "appointment" shall not include appointment under rule 9 or appointment by promotion under rule 31. This amendment shall be deemed to have come into force with effect on and from the 17th December, 1958, but shall not affect the seniority of any member of a service settled prior to the date of publication of this amendment in the Gazette. 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..." (emphasis supplied) The proviso quoted above was added to the Rules with effect from 13.1.1976. In view of the above statutory provision, all WA 3008/07 -: 5 :- executive orders which governed the field earlier were obliterated and an inter district transfree can claim the benefit of seniority only with effect from he joins the new unit. He cannot count his past service. So, 1963 Government Order relied on by the writ petitioner cannot survive after this amendment. Annexure I Government Order is one apparently issued under Rule 39 of the K.S. & S.S.R. in exercise of the power of relaxation by the Government. The said Government Order only provides that near relatives/dependants of serving soldiers, etc. can apply for inter district transfer without waiting for five years from their date of appointment to a unit. So, any concession which is not available under Annexure-I cannot be claimed by the writ petitioner after the amendment to Rule 27 and also the issuance of the said Government Order. 6. The next point to be considered is whether the theory of sit back saves the petitioner. The factual context in which the Full Bench made the observation has no application to the facts of this case. In this case, the Deputy Director of Education, by a mistake, allowed the petitioner to count her past service for the purpose of seniority. The action of a Deputy Director of WA 3008/07 -: 6 :- Education cannot bind the Government. The theory of sit back cannot be pressed into service to sustain a plainly illegal order or to continue to get the benefits flowing from it. So, the contentions of the learned counsel for the writ petitioner cannot be accepted. The petitioner's seniority will be governed by the first proviso to Rule 27 of the K.S. & S.S.R. The concession granted in annexure-I does not extend to counting her past service for seniority. 7. In the result, the judgment under appeal is reversed. The writ petition is dismissed and the writ appeal is allowed as above. It is clarified that the salary drawn by the writ petitioner in the promoted post shall not be recovered. K.Balakrishnan Nair, Judge. P.N.Ravindran, Judge. ess 31/3