IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 3777 of 2009(Y) ------------------------- PETITIONER(S): ---------------------- VINOD.C.A, S/O. MADHAVAN NAIR, AGED 39, RESIDING AT KAVUMANNAM HOUSE, KALPETTA, WYNAD DIST. PIN - 673 121. BY ADV. SRI.S.SREEKUMAR SRI.P.MARTIN JOSE SRI.P.PRIJITH SRI.S.VAIDYANATHAN RESPONDENT(S): --------------------------- 1. THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY, REVENEU T DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, TRIVANDRUM. 3. THE DISTRICT COLLECTOR, WYNAD. SR GOVERNMENT PLEADER SRI.P.NANDAKUMAR SRI.ALEXANDER THOMAS, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.3777/09 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF MEMO DT 8.6.99 ISSUED BY 2ND RESPONDENT. EXT.P2: TRUE COPY OF ORDER DT 3.7.99 OF THE DIRECTORATE OF MEDICAL EDUCATION. EXT.P3: TRUE COPY OF PROCEEDINGS DT 31.3.2000 OF THE 3RD RESPONDENT. EXT.P4: TRUE COPY OF GO(MS) 4/61/PD DT 2.1.1961. EXT.P5: TRUE COPY OF PROCEEDINGS DT 13.1.2005 OF THE 3RD RESPONDENT. EXT.P6: TRUE COPY OF FINAL SENIORITY LIST. EXT.P7: TRUE COPY OF PROCEEDINGS DT 2.7.04. EXT.P8: TRUE COPY OF ORDER DT 24.9.2008 BY THE 1ST RESPONDENT. EXT.P9: TRUE COPY OF GO(P) NO.36/91/P&ARD DT 2.12.91. EXT.P10: TRUE COPY OF GO(P) NO.1/2002/P&ARD DT 21.1.2002. EXT.P11: TRUE COPY OF GO NO.5/10/P&ARD DT 4.3.2010. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 3777 OF 2009 (Y) ===================== Dated this the 5th day of July, 2010 J U D G M E N T Pursuant to the applications invited by the 2nd respondent for appointment to the post of Last Grade Servants on district wise basis, petitioner submitted his application. Accordingly, he was included in the ranked list and advised for appointment for Wynad District as per Ext.P1 order. 2. By Ext.P2 proceedings of the Administrative Officer, Directorate of Medical Education, petitioner was appointed as Last Grade Servant in the Directorate of Medical Education, Trivandrum and he joined duty. Thereafter, he sought for an inter departmental transfer to Wynad, his district of choice. Accordingly, by Ext.P3 order dated 31/3/2000, petitioner was granted an inter departmental transfer to Revenue Department and was posted in Wynad District. 3. Later, petitioner submitted representations claiming that his seniority should be counted from the effective date of advise. The matter was considered and by Ext.P8 order, his request was turned down. The reasoning stated in Ext.P8 is that WPC No. 3777/09 :2 : inter departmental transfer granted to the petitioner was on an application made by him and subject to the conditions of GO(MS) No.4/61/PD dated 2/1/1961, a copy of which is Ext.P4. It is stated that, therefore, petitioner will rank junior most in Wynad District. It is challenging Ext.P8, the writ petition is filed. 4. The contention raised by the counsel for the petitioner is mainly that the posting of the petitioner at Trivandrum was to a headquarters vacancy, and therefore, when the petitioner is transferred and posted to the District of his choice, he is entitled to seniority from the effective date of his advise. He also relies on Exts.P10 and P11, by which Last Grade Service Rules were amended. Relying on Ext.P11, it is also contended that since there is no unit in the Medical Education Service and as his posting was to the headquarters vacancy, he is entitled to seniority from the date of advise. 5. Admittedly, the petitioner was granted an inter departmental transfer on an application made by him. Therefore, going by the provisions contained in the proviso to Rule 27 of Part II KS & SSR, by joining duty in the new department, the petitioner will rank junior most. The only issue is whether Exts.P11 and P12 WPC No. 3777/09 :3 : relied on by the petitioner makes any difference in so far as seniority position as stated above. Ext.P10 is the amendment to the Last Grade Service Rules by adding a note to Rule 14 thereof. A reading of Note shows that seniority of a person advised by the District Office of the PSC for appointment against a vacancy in headquarters and transferred after such appointment to the district of his choice shall be determined with reference to the original advice by the District Office of the PSC. This evidently can have application only when a person is posted to headquarters vacancy and is transferred back to the district of his choice and cannot apply to inter district or inter departmental transfers granted on application made by the employee concerned. Such cases will be governed by the provisions of GO (Ms) 4/61/PD dated 2nd January, 1961 subject to which Ext.P3 order of inter departmental transfer was allowed to the petitioner. 6. In so far as Ext.P11 Government Order is concerned, by this Government Order, Note 3 has been added to Rule 14, which shows that seniority of a person advised by the District Office of the PSC and appointed against a headquarters vacancy in the Government Secretariat, Advocate General's Office and similar WPC No. 3777/09 :4 : Departments, having no extension in Districts and transferred after such appointment to any department in the opted district, shall be determined on the basis of his date of first effective advice for appointment to such category. Apart from anything else, a reading of Ext.P11 itself show that this amendment came into force from 21st of January, 2002. Ext.P3 order transferring the petitioner to Wynad District is dated 31/3/2000. If that be so, Ext.P11 can have no application in so far as Ext.P3 order of transfer granted to the petitioner is concerned. 7. That apart, Ext.P3 order of transfer itself show that the same was granted to the petitioner subject to the terms of GO (Ms) NO.4/61/PD dated 2/1/1961. This was accepted by the petitioner without any protest, availed of the benefit thereof, and it is long thereafter, he started representing for restoration of seniority. Having accepted the transfer order subject to the condition and availed of the benefits thereof, in my view, thereafter it is not permissible for the petitioner to seek restoration of seniority contrary to the conditions of Ext.P3. 8. From the aforesaid reasons, the only conclusion that is possible is that the seniority of the petitioner will have to be WPC No. 3777/09 :5 : determined in terms of GO(Ms)No.4/61, which has now been incorporated as first proviso to Rule 27 Part II KS&SSR and consequently, the petitioner will rank junior most on his joining Wynad District. Writ petition is dismissed. ANTONY DOMINIC, JUDGE Rp