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PETITIONER: V. A. SUBHADRA AND ORS.

       Vs.

RESPONDENT: A. SATYAVAN & ORS.

DATE OF JUDGMENT22/08/1975

BENCH: CHANDRACHUD, Y.V. BENCH: CHANDRACHUD, Y.V. RAY, A.N. (CJ) MATHEW, KUTTYIL KURIEN

CITATION:  1975 AIR 1913            1976 SCR  (1) 375  1975 SCC  (4) 624

ACT:      Service   matter-Rules   regarding   inter-departmental transfer-Notification issued  by the Government of Kerala on January 2,1961-Scope of.

HEADNOTE:      The appellant  who was  a Lower  Division  Clerk  in  a department of  the State  Government had gone on transfer to another department  on her own request. Under a notification issued by the State Government. a person could revert to his parent department  (i) only  if and when there is no vacancy for him  to continue  in the  new unit  or (ii)  if for  any reason his  pay  in  the  substantive  post  in  the  parent department becomes  higher than the pay of the new post held by him. The appellant was offered a temporary post of U.D.C. in  the  parent  department  but  she  declined.  The  first respondent was  therefore  promoted  to  the  post.  When  a permanent vacancy  of Upper  Division Clerk  occurred in the parent department  the appellant  was appointed  to the post and was  later promoted  to higher post. In a petition under Art. 226  of the  Constitution filed by respondent No. 1 the High Court  quashed the order of the appellant’s appointment and her  promotion to the higher post. Dismissing the appeal to this Court. ^       HELD:  The order  by which the appellant was appointed as an  Upper Division  Clerk in  the parent  department  was illegal and was rightly quashed by the High Court. The order promoting the appellant must fall with that order. [378F]       (I  ) Since  under paragraph  of the  notification  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 roost higher than the one substantively held  by her  in that  unit on the date of her transfer. [378B-C]        (2)  Pay  in  the  substantive  post  in  the  parent department means  the pay attached to the Post substantively held by  an employee  on the  date of  transfer  to  another department. The  pay which the appellant would have drawn as

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an Upper Division Clerk in her parent department on the date of her  appointment was  not higher.  than the pay which she was drawing  in the  new unit.  The substantive post held by the appellant apart from the impugned order of promotion was that of a Lower Division Clerk. 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. [377-H, 378E]

JUDGMENT:      CIVIL APPELLATE  JURISDICTION: Civil  Appeals Nos.  247 and 248 1975.      Appeals by  special leave  from the  Judgment and order dated the  29th May,  1974  of  the  Kerala  High  Court  in original Petition No. 5463 of 1971.       T.  5. Krishnamoorthy  Iyer and N. Sudhakaran, fol the appellant (in appeal No. 247/75 and respondent no. 2 in C.A. No. 248/75).      T. C.  Raghavan and  P. K.  Pillai, for respondent no.1 (in both the appeals).      K. T.  Harindranath (in  C.A. No.  248/75)  and  K.  R. Nambiyar. (for  respondent No,  2 in  C.A. No.  247 and  the appellant in C.A. No. 248/75). 376      The Judgment of the Court was delivered by       ‘CHANDRACHUD,  J.This appeal  by special leaves arises out of  the judgment  of the  High Court  of Kerala  in Writ Petition No.  5463 of  1971. That  petition was filed by the The respondent  A. Satyavan against the State of Kerala, the Director of  the department  of Museums and Zoos, Trivandrum and the  appellant Smt.  V. A.  Subhadra.  The  main  relief sought by  the Ist respondent was that the order passed by 1 the State  of  Kerala  on  March  ]8,  1971  appointing  the appellant as  an Upper  Division Clerk  in the Department of Museums and Zoos be quashed.       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 Ist 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 and Zoos.      In course  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,  who 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

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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 1st respondent.       The  High 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. ;1 1971 by  which the  appellant was  appointed as  an    Upper Division Clerk and the orders consequent upon it. 377      There are  two things  in favour  of the  appellant and they must  first be mentioned. The order dated April 9, 1962 passed by  the Director  of Museums  and Zoos  by which  the appellant was  transferred to  the Department of Agriculture expressly mentions that her lien and rank will be maintained in the Department of Museums and zoos. It is therefore plain that if  and when  the appellant  rejoined the Department of Museums  and   Zoos  in   conformity  with   the  rules  and regulations, she  would occupy the rank which she would have occupied  but   for  her   transfer  to  the  Department  of Agriculture. Secondly,  the order dated April 4, 1968 passed by the  Director of  Museums  and  Zoos  by  which  the  1st respondent was  appointed as  an Upper Division Clerk in the Department of  Museums and  Zoos mentions  expressly that he was appointed in the higher post for the time being only and that the  appointment was  made  without  prejudice  to  the claims of his seniors. In the Department of Museums and Zoos the appellant was senior to the 1st respondent and therefore her  claim  of  seniority  would  not  be  affected  by  the appointment of the 1st respondent as an Upper Division       In spite of this position, the appellant’s 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 appellant’s right to re  turn to  the  Department  of  Museums  and  Zoos  was governed by  the notification  issued by  the Government  of Kerala on  January 2, 1961. Paragraph 2 of that notification reads thus:      :    A  permanent   person  need  not  be  required  to relinquish his permanency. He may be permitted to retain his permanent lien  in the  old post until he is confirms in the new unit or department, but he can come back to the old unit or department  only if  and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him." It is  clear from this provision 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

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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 378 attached to  the post  substantively held by the employee on the date  of  transfer  to  another  department.  since  the 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 whether the 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. It is 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  was 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 her transfer.       It  is urged  on behalf  of the appellant that the pay which she  would draw in the post of an Upper Division Clerk in tile  parent department  after her  re-transfer  to  that department, would  be higher  than the  pay  which  she  was drawing In  the post which she was holding in the Department of Agriculture and therefore she would be entitled to re- 1) turn to  her parent  department under  the second of the two condition mentioned  above. It  is 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  that  order.  The  appeal  is  accordingly dismissed. F       Civil Appeal No. 248 of 1975: ,      This appeal is filed by the state of Kerala against the same judgment  of the  High Court  which gave  rise  to  the appeal just  disposed of  by us. In accordance with the view taken by  us in  C.A. No.  247 of  1975, this appeal must be dismissed.      While admitting  these  two  appeals,  this  Court  had directed that  the Government  of Kerala shall pay the costs of  the   1st  respondent,   A.  Satyavan,   in  any  event. Accordingly, the Government of Kerala shall pay the costs of the 1st respondent. Costs shall be in one set only. P.B.R.                                     Appeal dismissed. 379

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