Kerala High Court · 2012

.....2....W.A.NO.1305/2008*ADDL.R2 & R3 IMPLEADED:R2.P.BALACHANDRAN, SENIOR SUPERINTENDENT, OFFICE OF THE REGIONAL DEPUTY DIRECTOR,INSURANCE MEDICAL SERVICES,CHALAPURAM, KOZHIKODE - 2.R3.K.KRISHNA KUMAR,JUNIOR SUPERINTENDENT, E.S.I. HOSPITAL,PEOORKADA, THIRUVANANTHAPURAM.(*ADDL.R2 & R3 ARE IMPLEADED AS PER ORDER DTD. 10/09/2012 IN I.A.NO.734/2011) R1 BY ADV. SRI.S.SUBHASH CHAND ADDL.R2 & R3 BY SRI.C.P.SUDHAKARA PRASAD, SENIOR ADVOCATE BY ADVS. SRI.S.RAMESH SRI.NAVEEN.T SMT.POOJA SURENDRAN THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 09/10/2012 ALONG WITH WA. NO.531/2012, THE COURT ON 20/12/2012 DELIVERED THE FOLLOWING:Kss W.A.NO.1305/2008APPENDIXAPPELLANT'S ANNEXURE:ANNEX.R1(A):COPY OF THE RELEVANT PAGES OF THE SERVICE BOOK OF THE PETITIONER.RESPONDENT'S ANNEXURES:N I L /TRUE COPY/P.S.TO JUDGE Kss MANJULA CHELLUR, C.J & A.M.SHAFFIQUE, J. ---------------------------------------------------- W.A. Nos. 1305 of 2008 and 531 of 2012 --------------------------------------------------- Dated this the 20th day of December, 2012 J U D G M E N TShaffique, J. As these appeals arise out of a common judgment, the sameare disposed together. 2. Writ Appeal No. 1305 of 2008 is filed by the respondentsin the Original Petition and Writ Appeal No. 531 of 2012 is filed bythird parties with leave of court. 3. The first respondent in Writ Appeal No.1305/2008 is thepetitioner in the original petition and additional respondents 2 and 3are the appellants in W.A. No.531/2012. The appellants in W.A.No. 531/2012 supports the contentions in W.A. No. 1305/2008.4. The original petition is filed by the first respondent seeking adirection to the respondents to gra12nt seniority to the petitionerin the cadre of Lower Division Clerk with effect from his original dateof advise in the Directorate of Medical Education Department by theKerala Public Service Commission as per Ext.P2 and also challenges W.A. Nos. 1305 of 2008 and 531 of 2012 2the retrospective operation of Ext.P2 amendment. 5. The facts involved in the case disclose that the petitionerwas appointed as LD clerk on the basis of Ext. P1 advice in theMedical Education Department. Though his choice of district wasPathanamthitta, since he was advised against headquartersvacancy in the Directorate of Medical Education inThiruvananthapuram and though he tried for a transfer toPathanamthitta, as the Directorate of Medical Education did nothave any office at Pathanamthitta, he was unable to get a transfer.During the relevant time as per the proviso to Rule 27 (a) of part IIKS & SSR, 1958, the seniority of persons advised by KPSC forappointment in a vacancy in the head quarters without obtaining hiswillingness and transfer after such appointment to the district officeof his choice, without insisting on the time limit of five years shall bedetermined with reference to the date of his original advice by KPSC.Hence the petitioner requested for a transfer to Pathanamthittadistrict in the Land Revenue Department and he got a transfer toPathanamthitta on 21.2.1990 and he joined duty on 26.2.1990.6. Since he was not given seniority with reference to thedate of joining as per Ext. P1, on enquiry, later on, he came toknow that as per Ext.P2, Government order, a note was W.A. Nos. 1305 of 2008 and 531 of 2012 3introduced by way of an amendment to Rule 27 (a) of KS & SSR,which inter alia reads as under:“ Note – The above proviso shall not apply to inter- unit or inter-departmental transfers”7. The said note has come into effect from 26.9.1998.8. Petitioner contended that by virtue of the Rule prevailing ason the date of Ext.P1 he was entitled for inter-departmental transferwithout loosing his seniority and such a vested right cannot betaken away by a subsequent amendment to the Rules. Hence thepetitioner challenges the retrospective effect of the amendment tothe Rule 27(a) and contends that the implication of the note canhave only prospective operation. 9. The appellants however supported the stand taken in Ext.P2. Learned Single Judge however, relying upon the judgment ofthe Supreme court in Union of India v. Tushar Ranjan Mohanty[(1994) 5 SCC 450] came to the conclusion that since a benefitwas available to the petitioner as on the date of his entry into thecadre in the form of 4th proviso to Rule 27 (a) of KS & SSR, thesame cannot be taken by Ext. P2 note to reduce 7 years of service W.A. Nos. 1305 of 2008 and 531 of 2012 4and the same being a vested right, to that extent, the note has onlyprospective operation and the petitioner shall be entitled to retainseniority based on Ext.P1. 10. Learned Government Pleader impugned the abovejudgment. It is inter alia contended that the petitioner was givena transfer to a vacancy of L.D. Clerk in the Land Revenue Departmentin Pathanamthitta on his request and it was specifically indicated inhis service book Annexure R1(a). That transfer was as perconditions laid down in G.O.(MS) 4/61/PD dated 2.1.1961 whereinhis prior service in the Department will not count for seniority inthe Land Revenue Department. It is also contended that thepetitioner never had a vested right to have a promotion or a seniorityand in that view of the matter the judgment of the learned SingleJudge requires to be set aside. It is contended that the petitionerwas not assigned seniority in the cadre of L.D clerk with effect from1986 and no benefit is accrued to the petitioner by virtue of theproviso to Rule 27(a). It is further contended that theGovernment has power under Article 309 of the Constitution ofIndia to make the laws with retrospective effect and in PrafullaKumar Das v. State of Orissa (2003 (11) SCC 614) it was heldthat under Article 309, the Government has discretion to bestow or W.A. Nos. 1305 of 2008 and 531 of 2012 5divest right of seniority. It being a policy matter it was wrong on thepart of the learned Single Judge to have passed the impugnedjudgment.11. The appellants in Writ Appeal No. 531/2012 alsosupported the appellants in Writ Appeal No. 1305/2008. Thelearned senior counsel Sri Sudhakara Prasad relied upon thejudgment of the Supreme Court in T.Narasimhulu and others v.State of Andhra Pradesh and Others [(2010) 6 SCC 545] inwhich the Supreme Court had occasion to consider the judgmentin Union of India v. Tushar Ranjan Mohanty [(1994) 5 SCC 450].It is observed by the Supreme Court that a three Judge Bench ofthe Supreme Court in S.S. Bola v. B.D. Sardana (1997 (8) SCC522) had held that seniority was not a vested or accrued right . Inpara 24 of the said judgment, the Supreme Court held as under: “It is, thus, clear from the judgment of alarger Bench that in S.S. Bola v. B.D. Sardanathat seniority of a government servant is not avested right and that an Act of the StateLegislature or a rule made under Article 309 ofthe Constitution can retrospectively affect theseniority of a government servant”. W.A. Nos. 1305 of 2008 and 531 of 2012 612. In the light of the above law laid down by the SupremeCourt explaining the judgment in Union of India v. TusharRanjan Mohanty [(1994) 5 SCC 450], and the dictum laid down inT.Narasimhulu and others v. State of Andhra Pradesh andOthers (2010) 6 SCC 545 (supra), we are of the view that the writappeals are only to be allowed. 13. The learned counsel appearing for the 1st respondenthowever contended that as far as the petitioner is concerned hisoption was to get an appointment at Pathanamthitta and only onaccount of the fact that there was no district office of MedicalEducation Department in Pathanamthitta district and that it waswithout his consent that he was posted at Thiruvananthapuram HeadOffice. He had made a request for inter-departmental transfer purelyrelying upon the 4th proviso to Rule 27(a). According to him, if hewould have lost his seniority, he would not have opted for atransfer to Pathanamthitta. Such an argument though can beappreciated on taking a sympathetic approach will not stand in theeye of law and service jurisprudence. In so far as the governmenthas that right to legislate on service conditions and when it is clearthat even the retrospective legislation is permissible under Article W.A. Nos. 1305 of 2008 and 531 of 2012 7309 of the Constitution of India and when it is held by the SupremeCourt that the seniority is not a vested right, we cannot exerciseany sympathy in the matter. In the result, the judgment of the learned Single Judge is setaside and these appeals are allowed. (MANJULA CHELLUR, CHIEF JUSTICE) (A.M.SHAFFIQUE, JUDGE)rka