IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 23RD JUNE 2010 / 2ND ASHADHA 1932 WP(C).No. 19566 of 2010(U) -------------------------- PETITIONER(S): ---------------------- S.K.JAYAPRAKASH, OVERSEER GRADE III, OFFICE OF THE ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, PAVITHRESWARAM GRAMA PANCHAYAT, KOLLAM. BY ADV. SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): ----------------------- 1. STATE OF KERALA-REPRESENTED BY ITS SECRETARY, LOCAL SELF GOVERNMENT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 3. THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, THIRUVANANTHAPURAM. 4. ABDUL WAHAB I. OVERSEER GRADE II, EDAPPAL AND KALADY GRAMA PANCHAYAT UNDER PONNANI BLOCK PANCHAYAT, MALAPPURAM. 5. PRASANNAN K.S., OVERSEER GRADE II, TIRUVEGAPURA/KOPPAM GRAMA PANCHAYAT, PATTAMBI, PALAKKAD DT. GOVT.PLEADER SRI.ARAVINDKUMAR BABU THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 23/06/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ANTONY DOMINIC, J. ================ W.P.(C) NO. 19566 OF 2010 (U) ===================== Dated this the 23rd day of June, 2010 J U D G M E N T In 1993, petitioner was advised and was appointed as an Overseer Grade III in Public Works Department. Pursuant to an application made by the petitioner, by Ext.P2 order dated 25/7/2001, he was granted inter departmental transfer to Irrigation Department. The inter departmental transfer was subject to the provisions contained in GO(P) No.4/01/PD dated 2/1/1961, as a result of which, the petitioner joined as the junior most in the Irrigation Department. 2. While continuing in Irrigation Department, by Ext.P3 order dated 13/12/07, the Local Self Government Department (LSGD) was constituted drawing officers from Municipal Common Service, Irrigation and PWD Departments. On constitution of the LSGD, in terms of Exts.P3 and P4, options were invited and the petitioner exercised his option for transfer and absorption to the LSGD, which was allowed. 3. Ext.P5 is the Special Rules concerning the LSGD. When seniority in the LSGD was fixed in terms of Ext.P5 Special Rules, WPC No. 19566/2010 :2 : the petitioner's seniority was fixed w.e.f. 26/2/2001, the date on which he joined the Irrigation Department on inter departmental transfer. This seniority is reflected in Exts.P6 and P6(a) seniority lists. Contending that he is entitled to have seniority from 1993, petitioner submitted Ext.P9 objection. It is at that stage the writ petition is filed mainly contending that he is entitled to have his seniority restored with effect from 1993, when he was advised for appointment in the Public works Department. 4. The contention raised by the counsel for the petitioner is that since a new service has been constituted by Ext.P3 Government Order, drawing officers from different services, irrespective of the inter departmental transfer that he obtained by Ext.P2, he should be assigned seniority with effect from 1993 when he was advised for appointment in Public Works Department as Overseer Grade III. 5. The rule governing fixation of rank and seniority in the LSGD is contained in Rule 2(v) of Ext.P5 Special Rules, which reads as under:- The rank and seniority of a person absorbed into the Kerala Local Self Government Department Engineering Subordinate Service and included in a category in that service under sub rule (2), (3), (4) or (5), shall be WPC No. 19566/2010 :3 : determined on the basis of his date of appointment and seniority in the respective category in the former service, and if he is a direct recruit in that category, on the basis of the date of advice of the Public Service Commission for appointment to that category. 6. A reading of this Rule shows that seniority of a person absorbed into Local Self Government Engineering Subordinate Service shall be determined on the basis of the date of his appointment and seniority in the respective category in the former service. In so far as the petitioner is concerned, his former service is the service in Irrigation Department, where he joined on interdepartmental transfer only in 2001. In that view of the matter, the seniority assigned to the petitioner in LSGD w.e.f. 26/2/2001 cannot be faulted. 7. However, learned counsel for the petitioner relied on the latter part of Rule 2(v), which provides that if the employee is a direct recruit in that category, his seniority has to be reckoned on the basis of the date of advice of the PSC for appointment to that category. It is his contention that as against the word 'service' used in the former part of the Rule, in the latter part, 'category' is the expression used. Counsel contended that at the time of his absorption in the LSGD, he was in the category of WPC No. 19566/2010 :4 : Overseer Grade III, being a direct recruit, he is entitled to have his seniority from the date of advice by the PSC. Although at the first blush, this contention is attractive and the word used is “category”, I am not persuaded to accept the contention raised by the learned counsel for the petitioner. The rule has to be read in its entirety, and in my view, if it is so read, the petitioner's service in the category as Overseer Grade III has to be reckoned only from the date of commencement of his service in the Irrigation Department. Even otherwise, petitioner was a direct recruit in the category of Overseer Grade III in the Public Works Department and not in the Irrigation Department, from where he was absorbed into LSGD. 8. The expression “direct recruit in the category” occurring in the latter part of the Rule has to be read along with the former part of the Rule, and if so read, these expressions can only mean that the category should be in the former service, which in the case of the petitioner is the Irrigation Department. Otherwise, the consequence would be that, on account of the option exercised by the petitioner himself, he will be getting the forfeited seniority restored, which cannot be the purport of Rule 2 WPC No. 19566/2010 :5 : (v) of Ext.P5 Special Rules. Counsel then contended that if seniority now assigned is upheld, petitioner will be junior to his juniors in Public Works Department, who are now absorbed from that Department into the LSGD. It may be true, but then, it was with that knowledge that the petitioner opted for absorption into the LSGD. Therefore, he cannot now raise this contention. 9. Learned counsel for the petitioner relied on the judgment in Ganesh Pillai v. State of Kerala (1986 KLT 242). However, a closer reading of the judgment shows that, in that case, this Court was not concerned with the employee who has availed inter departmental transfer, as in the case of the petitioner. For that reason, I do not find the judgment to be of any relevance in this writ petition. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp