K.P.Sudhakaran & Anr vs State Of Kerala & Ors

3. The Appellants were recruited as LDCs in district X. The contesting private respondents were recruited as LDCs in other districts (say, district Y or district Z) and were transferred, on their own request to district X. (For convenience, we will refer to the appellants as 'Local LDCs' and the contesting private respondents as 'transferred LDCs'). The transferred LDCs., on own request transfers, were permitted to join as LDCs in district X by taking the rank below the junior-most local LDCs in the district.

5. After considering the representations received in respect of the said provisional seniority list dated 7.11.1984, the Inspector General of Registration, Kerala ('IG-Regn.' for short) by memorandum dated 6.4.1987 finalised the state-wise seniority list of LDCs as on 1.11.1983. On the basis of the said seniority list of LDCs, a provisional seniority list of UDCs. as on 22.2.1986 was also prepared, vide General Memorandum dated 9.12.1987. The said seniority list of LDCs as also the provisional seniority list of UDCs were challenged in O.P. No.4204/1990 before the High Court. The High Court by order dated 8.5.1990 disposed of the said petition, by directing the IG-Regn. to consider the representation given by the petitioner therein for re-fixation of his seniority.

6. Thereafter, the Inspector General of Registration issued a revised provisional seniority list of LDCs dated 13.11.1990. In the said seniority list, the positions of transferred LDCs were shown with reference to the date of their joining the new district, by excluding the service rendered till then in their old district. The transferred LDCs objected to the said change. The objections were rejected by IG-Regn. The provisional list dated 13.11.1990 and the order of IG-Regn. rejecting the objections, were challenged by the contesting private respondents and other similarly placed transferred LDCs in O.P. No.11194/1990 and connected cases.

8. In the meanwhile, the order of the learned Single Judge was challenged by the transferred LDCs in W.A. No.1178/1997 and connected appeals. The State resisted the appeals by relying on the G.O. dated 2.1.1961 and Rule 27 of Kerala State and Subordinate Service Rules, 1958 ('Rules' for short) to contend that transferred LDCs. had to be treated as junior-most in the new district and the list dated 22.9.1967 was finalized by applying the said rule. The Division Bench which heard the appeals, held that having regard to GO dated 2.1.1961 and Rule 27, the seniority of the transferred LDCs will have to be reckoned only from the date of their joining at the District to which they were transferred on their own request. It however felt that the seniority list finalized in 1984 and the position of the transferred LDCs should not be disturbed. It held that G.O. dated 2.1.1961 and the proviso to Rule 27(a) should be given effect prospectively. It, therefore, allowed the appeals filed by the transferred LDCs by order dated 14.8.2002 with the following observations :

9. The said order of the Division Bench is challenged by the appellants who are the 'local' LDCs. They contend that having regard to the relevant rules and the Government Orders (GOs.), a Government servant who is transferred from one district to another on his own request, cannot claim seniority from his initial date of recruitment in the post but only from the date on which he is transferred on his own request to the new district. As a consequence, when a common State-wise seniority list of LDCs. is prepared for promotion to the post of UDC, the rank of transferred LDCs. should be shown with reference to the date of their transfer to the new district on their own request, and not when with reference to the date when they were initially appointed as LDCs. They contend that the Division Bench of the High Court having accepted the said legal position, had no power to direct that G.O. dated 2.1.1961 and proviso to Rule 27(a) of the Rules to be applied prospectively. They submit that the Division Bench having held that the transferred LDCs. should take rank below the junior-most local LDCs. as per Rules, committed an error in not giving effect to the said finding.

(that is from the date of the judgment of the Division Bench), thereby giving benefit of the past service (from the date of initial appointment up to date of transfer), to transferred LDCs, contrary to the said rules and GO and denying to the local clerks the benefit of a higher position in the seniority list.

(iv) This will not affect the existing procedure where State- wise promotions are involved."

[c] Notwithstanding anything contained in clauses (a) and

(b) provides that the appointing authority shall, at the time of passing an order appointing two or more persons simultaneously to a service, fix the order of preference among them, and seniority shall be determined in accordance with it. Clause [c] made it clear that notwithstanding anything contained in clauses (a) and (b), where a person is appointed to a class, category or grade in a service on the advice of the Commission, the seniority of such person shall be determined by the date of first effective advice made for his appointment to such class, category or grade and when two or more persons are included in the same list of candidates advised, their relative seniority shall be fixed according to the order in which their names are arranged in the advice list. The effect of clause [c] is to clarify the date with reference to which seniority should be reckoned when they are initially appointed on the advice of PSC. It only means that where the appointments are from the selection list published by the PSC, their seniority will be reckoned/determined by the first effective advice made for such appointment by the PSC and not by the actual date of his appointment by the appointing authority. Clause [c] has therefore no effect or application, over the proviso which regulates subsequent 'own request' transfers.

Re : Point No. 2 :

Conclusion

19. In view of the above, we find that the revised seniority lists dated 13.11.1990 and 22.9.1997 under which seniority of transferred LDCs. (inter-district transferees) is counted only from the date of their joining the new district, excluding the previous service, are proper and do not call for interference.

20. These appeals are accordingly allowed. The judgment of the Division Bench of the High Court, to the extent it directs that G.O. dated 2.1.1961 and proviso to Rule 27(a) of the Rules will apply prospectively, and that the promotions made with reference to the seniority list dated 7.11.1984 should not be disturbed, is set aside. The writ petitions filed by the transferred LDCs. are dismissed. As a result of giving effect to the seniority list dated 13.11.1990 and 22.9.1997, if the positions of the transferred LDCs. are altered to their disadvantage, we direct that no consequential recovery shall be made from them, on the ground of excess payment.