Summary
A Staff Nurse whose cadre was changed to First Division Assistant on medical grounds at her own request, on her written consent to rank below the last person in the new cadre, later claimed seniority from her original 1979 appointment; the Tribunal and the High Court upheld her claim. The Court held that a transfer at the employee's request, even on medical grounds under Rule 16(a)(iii) of the Karnataka Civil Services (General Recruitment) Rules, 1977, is not a transfer in public interest, and under the first proviso to Rule 6 of the Karnataka Government Servants (Seniority) Rules, 1957 the transferee ranks below all officers already in the new cadre. Seniority runs from 1989. Appeal allowed.
Issues
- Whether the transfer or reappointment of a government employee from one post to another affects seniority in the new post, and whether the answer depends on whether the transfer was made in public interest or at the employee's own request.
- Whether a change of cadre on medical grounds under Rule 16(a)(iii) of the 1977 Recruitment Rules, made on the employee's request and consent to rank last, is a transfer in public interest carrying forward the earlier seniority.
- Whether the High Court's decision in State of Karnataka v. K. Seetharamulu, treating a cadre change following a medical board report as one in public interest, lays down the correct principle.
Provisions considered
- Rule 16(a)(iii), Karnataka Civil Services (General Recruitment) Rules, 1977Rule 16 is an exception permitting the Government, for reasons recorded in writing and notwithstanding the other rules, to appoint to a post an officer permanently incapacitated by bodily infirmity, subject to the proviso that the appointment shall not be to a lower post save with the officer's consent. The respondent's cadre change was made under this clause on her own request and on her consent to be placed below the last person in the new cadre, a condition recorded in the order of 19/04/1989 itself; seniority therefore runs only from 1989. (¶¶ 9, 11, 12, 13, 22)
- Rule 6 and its first proviso, Karnataka Government Servants (Seniority) Rules, 1957Rule 6 provides that a transfer in public interest to another class or grade carrying the same pay is not a first appointment and seniority is reckoned from the earlier appointment, but its first proviso places an officer transferred at his own request below all officers borne on the new class or grade on the date of transfer. The Court held the Rules themselves recognise the distinction between the two kinds of transfer and that the respondent's request transfer fell under the proviso, so the 2007 seniority list fixing seniority from 19/04/1989 conformed to the Rule. (¶¶ 14, 15, 18, 19, 22)
Held
- The relationship between the State and its employee is one of status governed by administrative rules, not contract. When an employee's grievance is brought before a court or tribunal, the primary question is which Rule governs the service, and the court simply determines whether the action conforms to the Rule, without any value judgment on the executive action unless the Rule itself is challenged. (¶ 3)
- Rule 16 of the 1977 Recruitment Rules is an exception to the recruitment rules, operating notwithstanding anything contained in them, and requires reasons recorded in writing. Under clause (a)(iii) an officer permanently incapacitated by bodily infirmity may be appointed to a new post in relaxation of the rules; such appointment shall not be to a lower post, but that bar may be waived if the officer consents. (¶¶ 11, 12, 13)
- Rule 6 of the 1957 Seniority Rules contemplates transfers in public interest and transfers at the officer's request, whose purpose, procedure and consequences differ. A transfer in public interest is rooted in administrative exigency and the employee carries his existing seniority to the new post. A transfer at the employee's request, even when the Government accommodates a genuine need, does not partake of the character of a transfer in public interest; such a transferee is, subject to the rules, placed at the bottom below the junior-most employee in the new cadre, so as not to disturb the expectations of the existing employees (K.P. Sudhakaran, Surendra Singh Beniwal followed). (¶¶ 15, 16, 17, 18, 19)
- The High Court erred in blurring the distinction and treating a transfer made at the officer's request on medical grounds as equivalent to a transfer in public interest. The decision in K. Seetharamulu does not lay down the correct principle: its sweeping observation that a cadre change following a medical board report must be treated as one in public interest is unsustainable, as a medical board's report is not determinative of whether the transfer is in public interest or at the officer's request. The Division Bench decision in M.K. Jagadeesh, on identical facts, which held an employee to his undertaking to rank junior-most under the first proviso to Rule 6, was not noticed in Seetharamulu or by the High Court. (¶¶ 20, 21, 23, 23.1, 23.2)
- Since the respondent accepted appointment as First Division Assistant under Rule 16 after consenting to be placed below the last person in the new cadre, a condition recorded in the order of 19/04/1989 itself, her seniority in that cadre runs from 1989 only. The final seniority list of 01/10/2007 reckoning seniority from 19/04/1989 conforms to Rule 16 of the 1977 Rules and to Rule 6 of the 1957 Seniority Rules; the Tribunal and the High Court erred in directing seniority from her entry as Staff Nurse on 05/01/1979. (¶¶ 22, 24)
Result
Appeal allowed; order of the High Court of Karnataka dated 25/10/2021 in W.P. No. 42244 of 2019 set aside. No order as to costs.