Summary
The Supreme Court held that Kerala health service employees absorbed, with their posts and lien, into the Directorate of Medical Education on exercising an option under the policy abolishing dual control were not transferred 'on request'. The proviso to Rule 27(a) of the Kerala State and Subordinate Service Rules, which counts seniority from the date of joining, does not apply; their seniority is maintained from their original appointment under Rule 27(a) and 27(c), as Rule 8 of Appendix I to G.O. dated 25.10.2008 provides.
Issues
- Whether an option exercised by employees of the Directorate of Health Services to join the Directorate of Medical Education, under a Government policy abolishing dual control, is a transfer by absorption or an inter-departmental transfer on request under the proviso to Rule 27(a) of Part II of the KS&SS Rules.
- From which date the seniority of the absorbed employees in the Directorate of Medical Education is to be reckoned vis-a-vis its original employees.
Provisions considered
- Rule 27(a) and its proviso, Kerala State and Subordinate Service Rules, 1958 (Part II)Rule 27(a) fixes seniority by the date of first appointment; the proviso, counting seniority from the date of joining, is an exception confined to mutual, inter-unit or inter-departmental transfers made on the employee's request, and does not reach transfers by absorption under a Government policy in public interest. (¶¶ 19, 20, 21, 36, 37, 47, 52)
- Rule 27(c), Kerala State and Subordinate Service Rules, 1958 (Part II)Fixes the seniority of persons appointed on the Public Service Commission's advice by the date of first effective advice and their order in the advice list; applied together with Rule 27(a) to maintain the absorbed employees' seniority. (¶¶ 19, 22, 37, 52)
- Rule 8 of Appendix I and the declaration in Appendix II, G.O. (P) No. 548/2008/H&FWD dated 25.10.2008 (Government of Kerala)Rule 8 provides that the seniority of staff opting for Medical Education will be 'maintained' under Rule 27(a) and 27(c); the word 'maintained' and the option form showed that the Government intended to preserve their earlier service, not to treat the move as a request transfer. (¶¶ 14, 15, 33, 35, 51, 52)
- Definition (36), 'Transfer', Kerala Service Rules, 1959Transfer means movement of an officer from one headquarter station to another; it may be on request, on mutual request, or for administrative reasons in public interest, and the proviso to Rule 27(a) covers only the first two. (¶ 38)
Held
- The proviso to Rule 27(a) of Part II of the KS&SS Rules is an exception to the rule that seniority runs from the date of first appointment, and applies only to mutual or inter-unit or inter-departmental transfers made at the employee's own request. It does not apply to transfers made by the Government in administrative exigency or to transfers by way of absorption under a Government policy decision. (¶¶ 21, 36, 37, 38, 39)
- An 'option' and a 'request' differ: an option is a freedom to choose among choices offered by the authority, while a request is the employee's own asking for something to be granted. An option exercised under a Government scheme is not a request within the proviso. (¶¶ 43, 44, 45, 46, 47)
- On absorption, the employee becomes part and parcel of the absorbing department and takes on the same colour and character as its existing employees; the Court agreed with the Punjab and Haryana High Court Full Bench in Kartar Singh v. State of Punjab that absorbed employees carry their length of service to the new post. (¶¶ 40, 41, 42, 48)
- K.P. Sudhakaran v. State of Kerala, which held that an employee transferred at his own request forgoes his past seniority, concerns own-request transfers and does not help the original employees; it rather supports the absorbed employees. (¶¶ 49, 50)
- The Health Services employees were absorbed into the Directorate of Medical Education along with their posts and lien, in public interest under a policy abolishing dual control, and not on their own request. Under Rule 8 of Appendix I of the G.O. dated 25.10.2008, which uses the word 'maintained', their seniority and inter-se seniority must be maintained under Rule 27(a) and 27(c) read with the clarificatory letter dated 24.04.2010, and cannot be disturbed by applying the proviso. (¶¶ 31, 33, 35, 47, 51, 52)
- The Division Bench erred in treating the exercise of option as an inter-departmental transfer on request; its findings were based on a wrong interpretation of the rules. (¶¶ 25, 53)
Result
Appeals allowed; the Division Bench judgment dated 13.03.2019 set aside; the State of Kerala directed to draw up the seniority list of Directorate of Medical Education employees, original and absorbed, reckoning the absorbed employees' seniority as stated in paragraph 52.