Case: V. A. Subhadra And Ors Vs. A. Satyavan &amp; Ors

The appellant was appointed as a Lower Division Clerk ill the Department of Museums and Zoos, Trivandrum in 1949. She was confirmed in that post in 1950. The 1st respondent was appointed as a Lower Division Clerk in The same Department in 1955 and was confirmed ill 1963. On April 9, 1962 the appellant, on her own request-department transfer to the Department of Agriculture. her rank was an inter-departmental transfer. Though on transfer the appellant became the junior-most employee in the Department of Agriculture, her rank and lien were maintained in the Department of Museums andcourse of time vacancy arose in the post of the Upper Division Clerk in the Department of Museums and zoos. One M. S. Pillai was the senior most Lower Division Clerk in that Department but when The post of promotion was offered to him he declined it on the ground of ill-health. The appellant was next in order of seniority amongst the Lower Division Clerks ill the Department of Museums and Zoos and since her rank and lien in that Department were maintained, she was offered the post of the Upper Division Clerk. She conveyed her inability to accept that post for the time being and thereupon the 1st respondent, w ho was next in order of seniority, was appointed provisionally as an Upper Division Clerk. His appointment was made without prejudice to the claims of the seniors in the Department of Museums and Zoos.on the retirement of M. S. Pillai, a permanent vacancy in the post of the Upper Division Clerk arose in the Department of Museums and Zoos. On July 6, 1970 the appellant, who was working in the Department of Agriculture, conveyed her willingness to accept that post. By an order dated March 18, 1971 she was appointed as an Upper Division Clerk and later on May 3, 1971 she was further promoted as a Senior Superintendent. Both of these appointments as also the order by which his representation was rejected by the Government, were challenged in the Writ Petition by the 1stHigh Court of Kerala allowed the writ petition holding that under the relevant rules, the appellant was not entitled to be re-transferred to her parent department and without a valid order of re-transfer she could not be appointed as an Upper Division Clerk in that Department. The High Court therefore quashed the order dated March 18, 1971 by which the appellant was appointed as an Upper Division Clerk and the orders consequent upon it.

Reasoning:
In spite of this position, the appellants appointment as an Upper Division Clerk in the Department of Museums and Zoos is invalid because such an appointment could be made only if, in the first place, the appellant was entitled under the relevant rules to return to her parent . department. It was common ground that the appellants right to return to the Department of Museums and Zoos was governed by the notification issued by the Government of Kerala on January 2,is clear from this pro vision that a person can return to his parent department ill one of the two contingencies only. He can return if. There is no vacancy for him to continue ill the new unit to which he is transferred. Admittedly, there was a vacancy available to the appellant in the Department of Agriculture in which she could have continued and therefore this clause has no application. The second contingency in which a person can return to his parent Department is if his pay in the substantive post in the parent department becomes higher than his pay in the post held by him in the department to which he is transferred. The question which arises for consideration is whether by reason of this clause. The appellant was entitled to go back to her old unit. If she would validly go back, there is no doubt that it was open to the Government to appoint her to the post of an Upper Division Clerk. The High Court, in our opinion, was right in taking the view that "pay ill the substantive post in the parent department" means the pay attached to the post substantively held by the employee on the date of transfer to anotheris undisputed that the pay which the appellant would have drawn as an Upper Division Clerk in her parent department on March 18, 1971 was not higher than the pay which she w as drawing in the Department of Agriculture. Since under Paragraph 2, an employee can come back to his old unit or department, "only if and when either of the two conditions is satisfied, the appellant was not entitled to return to her parent department. Unless she could validly revert to her old unit, she could not be appointed to a post higher than the one substantively held by her in that unit on the date of heris impossible to accept this contention. The substantive post held by the appellant, apart from the impugned order of promotion, was that of a Lower Division Clerk in the Department of Museums and Zoos. The comparison therefore has to be between the pay of that post and the pay of the post which the appellant was holding in the department to which she was transferred.The order dated March 18, 1961 by which the appellant was appointed as an Upper Division Clerk in the Department of Museums and Zoos is therefore illegal and was rightly quashed by the High Court the order dated May 3, 1971 further promoting the appellant as a Senior Superintendent must fall with thatthe substantive post held by the appellant on the date of her transfer to the Department of Agriculture was that of a Lower Division Clerk, what must be considered is whetherthe pay which the appellant would have drawn in that post, had she continued in her parent department, had for any reason become higher than the pay drawn by her in the post held by her in the Department of Agriculture.