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CASE NO.: Appeal (civil)  9527 of 2003

PETITIONER: K.P.Sudhakaran & Anr.

RESPONDENT: State of Kerala & Ors.

DATE OF JUDGMENT: 11/05/2006

BENCH: B N Srikrishna & R V Raveendran

JUDGMENT: J U D G M E N T (With CA Nos.9528/2003, 9530/2003, 9531/2003 & 9532/2003)

RAVEENDRAN, J.

       These appeals by special leave against the judgments  dated 14.8.2002 of the High Court of Kerala in W.A.  No.1178/1997, WA No.1170/1997 and WA No. 1135/1997  involve common questions of fact and law.  

2.      The appellants and the private respondents were recruited  as Lower Division Clerks (LDCs) in the Registration  Department, in different districts of the State of Kerala. In the  cadre hierarchy, the promotion post for LDCs is that of Upper  Division Clerk (’UDC’ for short).  The post of LDC is a  district-wise post and the post of UDC is a State-wise post. In  other words, the unit for recruitment of LDCs is the district, and  the unit for recruitment of UDCs is the entire State. A State- wise seniority list of LDCs. is maintained for promotion to the  post of UDCs.  

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.  

4.      On 7.11.1984, the State Government drew up a State- wise seniority list of LDCs with reference to their date of first  appointment to the service as LDCs, for the purpose of  effecting promotions to the next higher post (UDC). In Kerala,  this is stated to be with effect from date of first effective advice  made by PSC for their appointment to the service. The seniority  of the transferred LDCs were shown in the said list, with  reference to the dates of their first appointment as LDCs and  not with reference to the dates of their joining in the district to  which they were transferred on their own request. Having  regard to the fact that they were recruited as LDCs, prior to the  local LDCs, the transferred LDCs were placed above the local  LDCs. If the seniority of the transferred LDCs had been fixed  with reference to the date of transfer to the district to which  they were transferred, they would have been placed at the  bottom of the seniority list on the date of transfer and their

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position/rank would have been below that of local LDCs.   

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.  

7.      A learned Single Judge of the High Court disposed of the  said petitions by order dated 24.3.1997, holding as follows : (i)  the transferred LDCs were not entitled to seniority with  reference to the initial date of appointment as LDCs. and their  seniority in the post of LDCs. has to be reckoned only from the  date of their joining in the new district to which they were  transferred on ’own request’; (ii) having regard to the fact that  the recruitment of LDCs was district-wise and not State-wise,  the transferred LDCs cannot contend that all LDCs in the State  formed one unit for the purpose of seniority, nor claim any  benefit in excess of what the rules conferred on them; and (iii)  there was no merit in the challenge to the provisional seniority  list dated 13.11.1990. However, as the IG-Regn, had not  disposed of the objections filed by the transferred LDCs., by a  reasoned order, the Single Judge directed the IG-Regn. to  consider their objections as also other objections, if any,  received in regard to the provisional seniority list dated  13.11.1990 and pass appropriate orders considering each of the  objections and finalise the seniority list. He also directed that  the promotions, if any, made on the basis of the seniority list  dated 7.11.1984 and further promotions shall be reviewed based  on the seniority list to be finalized. In compliance with the said  direction, the IG-Regn. considered the objections again and by  order dated 22.9.1997 rejected the objections of the transferred  LDCs. He also issued a  final seniority list of LDCs dated  22.9.1997 on that basis.  

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

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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 :

"This is a case where inter-district transfers were effected  before 1984 and they were all included in the final seniority  list of L.D. Clerks giving seniority from the date of which  they joined duty in the parent district. We are of the view at  this distance of time there is no justification in disturbing  the said situation. In such circumstances we hold that the  direction given by first and second respondents to revise  the final seniority list published vide office General  Memorandum No. E4-34154/84 dated 7.11.1984 is illegal.  Promotions on the basis of the said list be not disturbed and  G.O. (Ms) 4/61/PD dated 2.1.1961 and the proviso to  General Rule 27 of the Kerala State and Subordinate  Services Rules would apply only prospectively without  unsettling the rank and position of the petitioners. It is so  declared and Ext. P7 order (order/seniority list dated  13.11.1990), would stand quashed. Rights of the parties  will be regulated accordingly. Judgment of the learned  single judge will stand set aside. All the writ appeals and  original petitions are disposed of as above."

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.  10.     On the contentions urged, the following two points arise  for consideration :  (i)     Whether the seniority of transferred LDCs  (transferred on own request to another unit  (district) in the same department) should be  reckoned from the date of their initial appointment  to the post, or from the date on which they were  transferred to the new district. Whether the lower  post (LDC) being a district-wise post and the  promotion post (UDC) being a state-wise post,  would make any difference to the position.  

(ii)    Whether the Division Bench was justified in  holding that the GO dated 2.1.1961 and proviso to  Rule 27(a) of the Rules should only be applied

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prospectively in the case of the transferred LDCs.  (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.

Re: Point No. 1 :

11.     In service jurisprudence, the general rule is that if a  Government servant holding a particular post is transferred to  the same post in the same cadre, the transfer will not wipe out  his length of service in the post till the date of transfer             and the period of service in the post before his transfer has to be  taken into consideration in computing the seniority in the  transferred post. But where a Government servant is so  transferred on his own request, the transferred employee will  have to forego his seniority till the date of transfer, and will be  placed at the bottom below the junior-most employee in the  category in the new cadre or department. This is because a  government servant getting transferred to another unit or  department for his personal considerations, cannot be permitted  to disturb the seniority of the employees in the department to  which he is transferred, by claiming that his service in the  department from which he has been transferred, should be taken  into account. This is also because a person appointed to a  particular post in a cadre, should know the strength of the cadre  and prospects of promotion on the basis of the seniority list  prepared for the cadre and any addition from outside would  disturb such prospects. The matter is, however, governed by the  relevant service Rules.  

12.     We may next refer to the relevant rules and GOs having a  bearing on the subject. The service of State Government  servants in State of Kerala are governed by the Kerala Public  Services Act, 1968. Section 3 provides that all Rules made  under the proviso to Article 309 regulating the recruitment and  conditions of service of persons appointed to Government  service and in force immediately before 17.9.1968, shall be  deemed to have been made under the said Act and shall  continue to be in force unless and until they are superseded by  Rules made under the Act. The Kerala State and Subordinate  Services Rules, 1958 (’Rules’ for short) were made in exercise  of power conferred under proviso to Article 309. The said  statutory Rules governed seniority and transfer of Government  servants. The said Rules as they originally stood, did not  provide for ’own request transfers’ and consequences thereof.   

12.1)   The State Government issued a GO dated 2.1.1961 in  consultation with the Kerala Public Service Commission (’PSC’  for short), laying down the conditions subject to which mutual  or inter-departmental transfers of  Government servants from  one unit to another within the same department, or from one  department to another within the same subordinate service, can  be ordered by the appointing authorities concerned, on request.  Two of the conditions which are relevant are extracted below :

"(1) A person transferred to a new unit will take rank below  the juniormost in the category in the new unit or  department. He will not be allowed to count his previous  service towards seniority. Such transfers should not be

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prejudicial to the legitimate interest of anyone in the  department to which he is transferred. But he may be  allowed to count his previous service towards increment,  leave, pension, gratuity, etc. He will not be required to  undergo fresh probation, if he has already completed  probation.

x x x x x

(4) Persons transferred from one department to another or  from one unit to another in the same department due to  proved administrative reasons will retain all their rights in  the old unit or department, as their case may be."

12.2)   The State Government issued another G.O. dated  27.5.1971 providing for recruitment to the lower Ministerial  cadres at district level, in consultation with the Public Service  Commission. The said GO directed that the recruitment at  district level through the district recruitment boards would be  made subject to the following conditions :-

"(i) No transfers will be allowed from the District to  another within a period of five years from the date of  commencement of continuous service;

(ii) Such inter-district transfers will be allowed only after  five years and subject to the conditions laid down in G.O.  MS. No.4/PD dated 2-1-61.

x x x x x

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

12.3)   Rule 27 of the Rules relating to seniority was amended  by G.O. dated 13.1.1976 (Gazetted on 3.2.1976) inserting a  proviso to clause (a), providing for the consequences of an ’on  request’ transfer. The note to the said proviso stated that the  amendment shall be deemed to have come into force with effect  from 28.12.1960. Relevant portions of Rule 27 as amended, are  extracted below : "27. Seniority.- (a) Seniority of a person in a service, class,  category or grade shall, unless he has been reduced to a  lower rank as punishment, be determined by the date of the  order of his first appointment to such service, class,  category or grade. xxxxxxx

Provided that the seniority of persons on mutual or inter- unit or inter-departmental transfer from one unit to another  within the same department or from one department to  another, as the case may be, on requests from such persons  shall be determined with reference to the dates of their  joining duty in the new unit or department."  

12.4)    The executive instructions contained in the Government  Orders dated 2.1.1961 and 27.5.1971 in so far as ’own request’  transfers, ceased to apply, once a provision therefor was made  the statutory service rules, by amendment. The proviso to Rule  27(a)  of the Rules categorically provided that the seniority of  an employee getting transferred at his own request to another  unit within the same department or to another department will

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be determined with reference to the date of his joining duty in  the new department. This proviso is an exception to the general  rule (contained in clause (a) of Rule 27) that seniority of a  person shall be determined by the date of the order of his first  appointment.  

13.     The following facts are not in dispute : (i) The contesting  private respondents are transferee LDCs who were transferred  from the district in which they were appointed to another  district, in the same department on their own request. (ii) The  appellants are the existing employees, that is local LDCs of the  said department in the district to which the transferee LDCs  were transferred. (iii) The transferred LDCs (contesting private  respondents) were senior to the appellants with reference to  their date of appointment as LDCs. But with reference to the  date on which they were transferred to the new district, they  will become juniors to the local LDCs (appellants). When the  proviso to Rule 27(a) of the Service Rules is applied, as rightly  held by the learned single Judge and the Division Bench, the  seniority of the transferred LDCs has to be reckoned only from  the date of their joining duty in the new unit (or district) and  they are not entitled to count their service prior to the date of  their transfer on their request.  

14.     The transferred LDCs. (contesting private respondents)   contended that the GO dated 27.5.1971 stated that it will not  affect the existing procedure where State-wise promotions are  involved. They point out that though the posts of LDCs. are  District-wise, as the promotion of LDCs to UDCs is State-wise,  the provisions of G.O. dated 2.1.1961 will not apply, in view of  clause (iv) of G.O. dated 27.5.1971. It is unnecessary to  examine whether clause (iv) of G.O. dated 27.5.1971 excludes  the applicability of G.O. dated 2.1.1961, as neither the G.O.  dated 27.5.1971 nor the G.O. dated 2.1.1961 governed the  effect of ’own request’ transfers, after Rule 27(a) of the Service  Rules was amended by introducing a proviso providing for the  consequences of ’own request’ transfers. Where Statutory Rules  govern the field, prior executive instructions cease to apply.  

15.     The transferred LDCs. next submitted that the proviso to  clause (a) of Rule 27 will not apply, having regard to the  exclusion contained in clause (c) of Rule 27 which reads as  under : --

[c] Notwithstanding anything contained in clauses (a) and  (b) above, the seniority of a person appointed to a class,  category or grade in a service on the advice of the  Commission shall, unless he has been reduced to a lower  rank as punishment, 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."

A careful reading of clause [c] shows that it did in no way  affect the contents of proviso to clause (a) of Rule 27 inserted  by amendment by G.O. dated 13.1.1976. Clause (a) of Rule 27  provided that seniority of a person in a service, class, category  or grade shall be determined by the date of the order of his first  appointment to such service, class, category or grade. Clause  (b) provides that the appointing authority shall, at the time of

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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.

16.     The transferred LDCs next submitted that the intention of  making a provision that a person on an ’own request’ transfer  will be ranked as the juniormost in the new district or new unit,  is to ensure that the seniority of the existing employees in the  category in the new unit or district is not affected by a senior  person coming from outside by transfer. It is contended that  where the promotion post is State-wise, the seniority of the  existing employees in the district to which the outside employee  is transferred, will not be affected and, therefore, where the  promotion is to a state-wise post, proviso to Rule 27(a) which  requires those who are transferred on ’own request’, to give up  their seniority, will not apply. We cannot agree. The alleged  intention behind a provision, cannot be used to defeat the  express words of the provision. Once a statutory rule is made,  without providing any exceptions, it is not possible to carve out  exceptions to such rule, by judicial interpretation. Nor can an  exemption from application of a clear and specific rule be  claimed on the ground of hardship or similar reasons. The  proviso to Rule 27(a) of the Rules is categorical and applies to  all employees transferred on own request. It does not make  distinction between employees  whose promotion post is a  State-wise post and those where the promotion posts are  district-wise posts.

17.     The learned counsel for the contesting private  respondents lastly submitted that by now the appellants and the  contesting private respondents have all been promoted from the  posts of LDC to UDC and several of them have also been  promoted as Sub-Registrars and the matter should not be  unsettled after such a long time. We find that the matter has  been continuously under litigation ever since 1990 and the  delay in disposal cannot defeat the rights of appellants.  

Re : Point No. 2 :

18.     The Division Bench having held that the transferred  LDCs would take rank below the juniormost in the category in  the district to which they were transferred, could not have held  that the seniority list prepared on 7.11.1984 (wrongly giving  transferred LDCs seniority from the date of initial appointment

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as LDCs) should not be disturbed and proviso to Rule 27(a)  should be given effect prospectively. The High Court has no  power to direct that a Rule which has been in force for several  years, will be operated only prospectively, that too in a  proceeding where the validity of the Rule was not in challenge.  

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.