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TMI Blog2006 (5) TMI 525X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ferred 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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. ( ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... de 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 prejudicial to the legitimate interest of anyone in the department to which he is transferred. But ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hority 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tively. 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 paym ..... X X X X Extracts X X X X X X X X Extracts X X X X
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