Binumon K.P vs Kerala Public Service Commission

P. Krishna Kumar, J.

As per judgment dated 21.11.2024 in O.P. (KAT)No.293/2024, this court held that recruitment through by transfer method can be made from persons in a pay scale not higher than the post to which the applications are invited, with reference to Annexure A6 notification. The said judgment is sought to be reviewed by the petitioner in the said case mainly on the following grounds:

(i) The eligibility criteria based on the date of application is well settled in the service jurisprudence and hence if that criteria is diluted or interfered with the stability in fixed rules of public employment will be lost.

(ii) The court omitted to consider a situation where a senior in a cadre may obtain a grade promotion due to lapse of time whereas a junior may continue in the same scale of pay and then the junior will become eligible for a by-transfer appointment to a higher pay scale.

(iii) In that situation, an employer may await for a favourable employee to become qualified and delay the promotion/by-transfer appointment of the senior employee.

(iv) In the absence of a provision akin to Rule 186 of the Kerala Co-operative Societies Rules, the petitioner ought not to have been denied the appointment by referring to Rule 2 (13) of Part I of the Kerala State and Subordinate Service Rules (‘KS & SSR’, for short), which is only a definition clause.

Heard Sri.Kaleeswaram Raj, the learned counsel appearing for the review petitioner and Sri.P.C.Sasidharan, the learned Standing Counsel appearing for the respondent.

After considering the oral submissions made by the learned counsel for the petitioner and the contentions raised in the review petition, we find no reasons to interfere with the impugned judgment. The judgment did not dilute or interfere with the well settled eligibility criteria based on the last date of application. The operation of the judgment confines to the application of Rule 2(13) of Part I of KS & SSR read with the conditions stipulated in Annexure A6 notification. While we appreciate the sincere effort taken by Sri.Kaleeswaram Raj to ensure the correctness of the judgment passed by this Court, we do not find any reason to uphold his contention that if the judgment is sustained, it would result in an anomalous situation as suggested above. The senior employee who aspires to a by-transfer appointment may be entitled to waive his grade promotion and to make himself fit within the bounds of the conditions stipulated in the notification. If the employer unduly delays the process of promotion awaiting a favourable employee to become qualified, the senior employee may be able to challenge that arbitrary act through appropriate proceedings.

As we have considered the effect of clause 4 of Annexure A6 notification in the light of the provisions contained in Rule 2 (13), we do not find any merit in the contention that in the absence of a provision similar to Rule 186 of the Kerala Co-operative Societies Rules in the KS & SSR or the Special Rules, the impugned action ought not have been upheld. We cannot also accept the argument that a definition clause should not be interpreted in a manner that gives it substantive effect. There are several statutory provisions carrying similar effect.

In the result, the review petition is dismissed.