IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.SURENDRA MOHAN SATURDAY, THE 19TH NOVEMBER 2011 / 28TH KARTHIKA 1933 WP(C).No. 26022 of 2009(W) -------------------------- PETITIONER(S): -------------------------- ARUN M.S., ASSISTANT HOUSE KEEPING (A) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM, RESIDING AT CHITRALAYAM, MRA-90, KANJIRAPARA P.O., SASTHAMANGALAM, THIRUVANANTHAPURAM. BY ADVS. SRI.T.P.DEYANANTHAN SRI.A.V.RAMAKRISHNA PANICKER SMT.R.SEEMA RESPONDENT(S): --------------- STATE OF KERALA, REPRESENTED BY ITS ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION A DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. BY GOVT. PLEADER SRI. JOSE ADIYODI. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 26022 of 2009(W) APPENDIX: PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE GAZETTE NOTIFICATION IN VOL.48 DATED 17.06.2003. EXT.P2: TRUE COPY OF THE LETTER RL No.552/05/ERIIA DATED 31.12.2005 EXT.P3: TRUE COPY OF THE ADVISE LETTER OF KPSC DATED 07.02.2006. EXT.P4: TRUE COPY OF THE REPRESENTATION DT. 18.02.2008. EXT.P5: TRUE COPY OF THE REPLY IN LETTER No.46321/SA1/2008 GAD DATED 25.06.2009. EXT.P6: TRUE COPY OF THE GOVERNMENT LETER No.SA1 - 48433/09/GAD DATED 17.08.2009. EXT.P7: TRUE COPY OF THE REPRESENTATION TO THE 1ST RESPONDENT ON 29.08.2009. EXT.P8: TRUE COPY OF THE MODIFICATION ORDERIN G.O.(MS) 4/61/PD DATED 2.1.61. EXT.P9: TRUE COPY OF THE MODIFICATION ORDER IN G.O.(P) 15/68/PD DATED 19.1.68. EXT.P10: TRUE COPY OF THE TRANSFER ORDER ISSUED IN G.O.(Rt) No. 7147/07/GAD DATED 29.6.2007. EXT.P11: TRUE COPYOF THE ORDER IN G.O. (P) 442/80 GAD DATED 26.9.1980. EXT.P12: TRUE COPY OF THE ORDER IN G.O.(MS) 180/81/GAD DATED 3.6.1981. RESPONDENT'S EXHIBITS: NIL. TRUE COPY P.A. TO JUDGE. K.SURENDRA MOHAN,J. --------------------------------------- W.P.(C). No. 26022 of 2009 ---------------------------------------- Dated this the 19th day of November, 2011 JUDGMENT The petitioner is working as an Assistant, House Keeping (A) department, Secretariat, Thiruvananthapuram. He was initially advised for appointment as an Assistant in the service of the Kerala Public Service Commission and he joined duty in the post on 08.03.2006. While working as an Assistant, he applied for mutual inter departmental transfer to the Government Secretariat, which was granted. Accordingly, he was relieved from the Public Service Commission with effect from 3.07.2007 and he joined the Administrative Secretariat with effect from 04.07.2007 as an Assistant. On the same day, from the very same list from which he was advised for appointment to the Kerala Public Service Commission, 38 candidates who were ranked below him were advised for appointment to the Government W.P.C. No. 26022 OF 2009 -2- Secretariat, Thiruvananthapuram. The said 38 persons also had joined duty with effect from the same date, 04.07.2007. The grievance of the petitioner is that he has been placed below the said 38 persons in the seniority position of Assistants. The petitioner is also placed below many others who had been ranked below him in the PSC rank list for the reason that they had joined the Government Secretariat directly. 2. According to the petitioner, he had been granted the inter departmental transfer even before he had completed his probation. Therefore, persons who have been ranked below him in the very same rank list by the Kerala Public Service Commission should not be assigned seniority positions above him for the reason that such a course would be in violation of Rule 27(c) of the Kerala State and Subordinate Service Rule(KS&SSR for short). The petitioner therefore, claims restoration of his seniority on the basis of the date of his initial advise for appointment to the Kerala W.P.C. No. 26022 OF 2009 -3- Public Service Commission. 3. The petitioner has therefore, submitted a request for the restoration of his seniority to him before the Government. However, by Ext.P5 his request has been rejected. The petitioner thereafter submitted Ext.P7 which is pending before the respondent seeking re-consideration of Ext.P5. According to the counsel for the petitioner, the case of the petitioner is governed by Ext.P8 Government Order, G.O.(M.S.)4/61/PD dated 02.01.1961. It is contended by the learned counsel for the petitioner that Ext.P5 has been issued on the basis of the first paragraph of Ext.P8. Further, according to the counsel Ext.P8 has been amended by Ext.P9 and a proviso has been added to paragraph 1, thereby altering the position substantially. However, Ext.P5 has been issued without considering or even taking note of the amendment to Ext.P8 as per Ext.P9. Therefore, it is contended by the counsel that this is a fit case in which the authorities are liable to be directed to re- W.P.C. No. 26022 OF 2009 -4- consider the matter. 4. A counter affidavit has been filed on behalf of the respondent. It is not disputed by the respondent that the case of the petitioner is governed by Ext.P8 Government Order. According to the respondent, since the petitioner is a person who has been transferred from another department, he would take the place of the junior most person in the unit to which he is transferred. It is further pointed out that the inter departmental transfer that was granted to the petitioner was on his request and on the agreement that he would abide by the conditions stipulated by Ext.P8 Government Order. It is also pointed out that as per the 5th proviso to Rule 27(c) of the KS&SSR, the petitioner has to be included below those 38 persons who had been advised to the Government Secretariat on the same day on which the petitioner joined duty there. It is further pointed out that the clear understanding at the time of granting the inter departmental transfer was that his previous service W.P.C. No. 26022 OF 2009 -5- would not be counted for any purpose. The learned Government Pleader also points out that though the petitioner was undergoing his probation at the time of interdepartmental transfer, in view of the Special Rules applicable, he was directed to undergo fresh probation, which he has completed. For the above reasons, it is submitted that the writ petition is only to be dismissed. 5. I have considered the rival contentions anxiously. 6. The impugned proceedings Ext.P5 reads as follows: “1) In inviting a reference to the representations cited I am to inform you as follows: 2) you have joined in the administrative secretariat as assistant on the F.N of 04/07/2007 under orders of Interdepartmental Mutual Transfer. On the same date 38 candidates were advised by the KPSC for appointment as Assistants in the Administrative Secretariat. As per the proviso to Rule 27 of KS&SSRs in case where the date of joining duty of a person appointed on mutual or inter unit or inter-departmental W.P.C. No. 26022 OF 2009 -6- transfer to a post on request and the date of first effective advice of a person appointed to the same category of post on the advice of the commission are the same, the latter person shall be deemed senior to the former subject to provisions in the first proviso. 3) In the above circumstances your request to fix your rank above to the 38 Assistants who were advised through KPSC on the same date of your joining in the Administrative Secretariat as per the Government Order cited does not deserve consideration and hence rejected.” A reading of Ext.P5 does not give any indication that the authority has considered the proviso that has been incorporated by amendment to the first paragraph of Ext.P8. According to the newly inserted proviso a change has been brought about to the scope of paragraph 1 of Ext.P8. The application of the proviso to the case of the petitioner is a matter that should have been considered by the authority while considering his claim. Since both the petitioner as well as the respondent agree that the case of the petitioner W.P.C. No. 26022 OF 2009 -7- is to be governed by Ext.P8 Government Order an omission to consider the amendment that has been brought about by Ext.P9 certainly impairs the consideration of his case that culminated inExt.P5. In view of the above it is only proper that the respondent considers the claim of the petitioner afresh in the light of the proviso that has been added to paragraph 1 of Ext.P8 by amendment as per Ext.P9. Since Ext.P7 has already been submitted by the petitioner requesting for such a re-consideration and since the same is still pending consideration by the respondent, it is sufficient that this writ petition is disposed of directing Ext.P7 to be considered with a specified time. In the above circumstances, this writ petition is disposed of directing the respondent to consider the revision of the petitioner, evidenced herein by Ext.P7 in accordance with law and in the light of Ext.P8 Government Order as amended by Ext.P9, as well as other Rules and Orders that are applicable and to pass appropriate orders thereon as W.P.C. No. 26022 OF 2009 -8- expeditiously as possible and at any rate, within a period of two months from the receipt of a copy of this judgment, after affording an opportunity of being heard to the petitioner also. K.SURENDRA MOHAN, JUDGE. Kp/-