IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 21ST MAY 2010 / 31ST VAISAKHA 1932 WP(C).No. 19521 of 2009(I) -------------------------- PETITIONER(S): --------------- P.MOLY, LOWER DIVISION CLERK, DISTRICT SOCIAL WELFARE OFFICE, KANNUR. BY ADV. SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY CHIEF SECRETARY TO GOVERNMENT OF KERALA, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. SECRETARY TO GOVERNMENT, SOCIAL WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. DIRECTOR OF SOCIAL WELFARE DEPARTMENT, THIRUVANANTHAPURAM. MR.P.NANDAKUMAR, SR.GOVERNMENT PLEADER FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/05/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.19521/2009 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE PROMOTION ORDER DATED 16/08/2007. P2 : COPY OF THE PROMOTION ORDER DATED 01/09/08 TO THE POST OF UD CLERK ISSUED BY R3. P3 : COPY OF THE RELEVANT PORTION OF THE SENIORITY LIST DATED 28/04/2008. P4 : COPY OF LETTER DATED 21/08/08 ISSUED BY R3 TO THE DISTRICT SOCIAL WELFARE OFFICER. P5 : COPY OF LETTER DATED 31/12/2008 ISSUED BY R3 TO THE PETITIONER. P6 : COPY OF REPRESENTATION DATED 20/01/09. P7 : COPY OF LETTER DATED 18/03/09 ISSUED BY R2. P8 : COPY OF GO(P) NO.37/96/P&ARD DATED 07/11/96. P9 : COPY OF REVIEW PETITION DATED 01/07/09 SUBMITTED BY THE PETITIONER BEFORE R2. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. ------------------------- W.P.(C.) No.19521 of 2009 (I) --------------------------------- Dated, this the 21st day of May, 2010 J U D G M E N T The petitioner joined service as Lower Division Clerk in the Agricultural Department in Kasaragod district on 21/06/2001. By way of inter departmental transfer, she was transferred and had joined the Social Welfare Department on 08/11/2001. Thereafter she sought inter district transfer from Kasaragod district to Kannur district, which was granted and she joined Kannur on 18/11/2005. When Ext.P3 seniority list was published on 28/04/2008, her seniority in the Social Welfare Department was reckoned with effect from 18/11/2005, the date on which she joined Kannur on inter district transfer. She made representations for getting her previous service reckoned mainly relying on Exts.P1 & P2, and the representations were rejected. Finally she sought review by filing Ext.P9, and that is pending. 2. Learned counsel for the petitioner contends that in the Social Welfare Department, the proviso to Rule 27(a) of Part-II, KS & WP(C) No.19521/2009 -2- SSR providing for loss of seniority on inter district transfer was not implemented till 1999. It is also stated that in all previous cases, total seniority was reckoned, as is evident from Exts.P1 and P2. It is therefore contended that the petitioner is seriously prejudiced by Ext.P3. The petitioner also challenges Ext.P8, a Government Order, which provides that a district wide recruit shall complete five years service in the district of recruitment as well as in the department, where he is working so as to become eligible to get the inter district transfer to another district, and that inter district transfer of district wise recruits will result in loss of seniority even in cases where State-wise seniority is maintained. 3. The question is whether, even after the inter district transfer, the petitioner is entitled to have her total seniority restored. In my view, this claim of the petitioner is squarely covered against her by the provisions contained in the proviso to Rule 27 and also by G.O.(P) No.36/91/P&ARD dated 02/12/1991. The proviso to Rule 27(a), part II, KS & SSR provides that seniority of persons on inter unit or inter departmental transfer from one unit to another within the same department or from one department to WP(C) No.19521/2009 -3- another, as the case may be, on request from such persons shall be determined with reference to the dates of their joining duty in the new unit or department. G.O.(P) No.36/91 also reiterates this position. But however makes exception only to cases of transfer to Headquarters vacancies and that of near relative/dependents of serving soldiers /soldiers killed in action or died while on duty in field / forward areas. The petitioner's case do not come within any of these exceptions. Therefore, the petitioner could have seniority in Kannur district only from 18/11/2005, when she joined that unit. Once a Rule has been framed and implemented, there is no question of not implementing the Rule in any particular department. 4. It may be true that in Exts.P1 & P2, which are the promotion order and seniority list, this Rule has not been taken into account. If that be so, the only inference is that Exts.P1 & P2 to that extent is contrary to the Rules. But however, that does not dilute the requirements of Rules in any manner. Therefore, even if the challenge against Ext.P8 is not considered, still so long as the Rule and the Government Order referred to above remain, seniority position as reflected in Ext.P3 cannot be faulted. In that view of the WP(C) No.19521/2009 -4- matter, I see no reason to interfere with Ext.P3 or direct consideration of Ext.P9. At this stage, the learned counsel for the petitioner seeks a direction to the Government to permit the petitioner to rejoin duty at Kasaragod. If the petitioner wants yet another inter district transfer to Kasaragod, it is open to the petitioner to move the 1st respondent on that behalf, in which event the request of the petitioner will be duly considered and orders thereon will be passed in accordance with law. Therefore with that liberty, this writ petition is disposed of. (ANTONY DOMINIC, JUDGE) jg