P.P. Sreedharan vs Director of Industries

Sivaraman Nair, J.—The Public Service Commission selected the Petitioner for appointment as a Lower Division Clerk and empanelled him in the ranked list. Therefore, the Commission advised him for appointment in Cannanore District Revenue Establishment in advice letter dated 30th March 1977.

The District Collector in his letter dated 4th April 1977 required the Petitioner to submit his pro forma for verification of character and antecedents. Petitioner filed that within time. While Ors. were appointed before verification but subject to regularisation under the proviso to Rule 10(b) of the Kerala State and Subordinate Services Rules (hereinafter referred to as the General Rules), the Petitioner was appointed only after three months. Apparently since there was no vacancy in Cannanore District Revenue Establishment, the Public Service Commission advised the Petitioner for appointment in one of the headquarters vacancies. In that advice memo also, the date of first effective advice of the Petitioner was shown as 30th March 1977. The Director of Ports, Trivandrum required the Petitioner to join duty in his letter dated 2nd July 1977 and the Petitioner complied by joining duty on 1st August 1977. While continuing as Lower Division Clerk in the Directorate of Ports, successful completion of probation in the category of Lower Division Clerk was declared as on 7th August 1980. That was by order dated 10th August 1980. In the meantime, Petitioner had requested in his representation dated 30th June 1980 that he may be posted in Cannanore District, which unit he had indicated while applying for appointment and for appointment in which he was initially advised by the District Office of the Commission. During the pendency of that representation, Government issued Ext. P-1 G.O. (Ms) 442/80/GAD, dated 26th September 1980 and Ext. P-2 G.O. (Ms) 180/81/GAD, dated 3rd June 1981, modifying and relaxing the conditions of service of staff for interdistrict and interdepartmental transfers of candidates recruited on district-wise basis and appointed in headquarters vacancies.

According to paragraph 5 of Ext. P-1, the requirement that the transferee should have served for a period of five years would not apply to candidates who were advised for appointment in the headquarters vacancies, so that he could get transfer to the district of his choice without insisting on the period of limit of five years, and the resultant vacancy at the headquarters should be allotted to the same district from where the candidate was originally advised for recruitment so that the particular district may not lose any turn as a result of the transfer of the candidate. Thereafter, Government passed Ext. P-3 order on 17th July 1981, agreeing to the interdepartmental transfer of the Petitioner to the district of his choice, and directed the Director of Industries and Commerce to give a posting to the Petitioner in the Industries Department. Pursuant to Ext. P-3, the Director of Industries appointed him as Lower Division Clerk in the Coir Project Office, Cannanore in his order dated 22nd July 1981, in which post he joined duty on 3rd August 1981. The posting order indicated that his interdepartmental transfer was subject to G.O. (Ms) 4/61/PD, dated 2nd January 1961 and the conditions in G.O (Ms) 442/80/GAD, dated 26th September 1980 read with G.O. (Ms.) 180/81/GAD, dated 3rd June 1981.

Rule 27 of the General Rules was amended in 1982 by incorporating a proviso to Rule 27 to the following effect:

Provided also that the seniority of a person advised by the district office of the Public Service Commission for appointment in the vacancy in the headquarters, without obtaining his willingness and transferred after such appointment, to the district of his choice without insisting on the time limit of five years, shall be determined with reference to the date of his original advice by the District Office of the Public Service Commission.

The explanatory note indicated that the intention of the amendment was to incorporate the principles contained in Exts. P-1 and P-2 orders into the statutory service rules. Thereafter, Petitioner filed Ext. P-4 representation dated 1st July 1985, requesting that his seniority may be determined with reference to the date of first effective advice. In Ext. P-5 order dated 17th August 1985, that request was turned down. Government did not refer to the proviso to Rule 27(a) and the explanatory note in passing Ext. P-5 order; nor did it refer to Exts. P-l and P-2 orders, whereby the Petitioner is entitled to seniority from the date of first effective advice. Petitioner assails Ext. P-5 order and seeks the issue of a writ of mandamus directing the Respondent to determine his seniority as Lower Division Clerk with reference to 30th March 1977, the date of first effective advice rendered by the District Recruitment Board of the Public Service Commission and to treat the Petitioner as approved probationer in the Industries Department with effect from 7th August 1979.

The facts are not in controversy. Admittedly, Petitioner was advised for appointment on 30th March 1977. He was so advised by the District Recruitment Board of the Public Service Commission, Cannanore. The appointment was to be in the District Unit. But he was actually posted not in that unit, but in the headquarters unit. That appointment was not on his request or after ascertaining his willingness. As a matter of fact, he had requested for posting back to the unit in which he was advised for appointment. Cases of such persons are governed by Exts. P-1 and P-2 orders. Proviso to Rule 27(a) of the General Rules deals with seniority of such transferees and ensures in their favour the benefit of Rule 27(c) of the General Rules. Petitioner, who was posted in a vacancy in the headquarters without obtaining his willingness and was transferred after such appointment to the district of his choice, without insisting upon the time limit of five years was naturally entitled to the benefit of those provisions. It is oblivious that his seniority shall be determined with reference to the date of original advice by the District Office of the Public Service Commission.

It is evident that the Government has not adverted to Clause 5 of Ext. P-1 as extended by Ext. P-2 or the effect of the third proviso to Rule 27(a) of the General Rules in passing Ext. P-5 order. Only such persons as were advised for appointment in one unit by the Public Service Commission and were posted or transferred on their request to Anr. unit are liable to lose the benefit of seniority in the previous unit in terms of G.O. (Ms) 4/61/PD, dated 2nd January 1961, which has been enacted as the first proviso to Rule 27 of the rules. No reasons are stated in the order or in the counter affidavit as to why the Petitioner is not entitled to the benefit of the proviso to Rule 27(a) read with Clause (c) of the General Rules.

The assumption which informs Ext. P-5 and the counter affidavit of the Respondents is that the Petitioner having been transferred on his request to Cannanore Unit is not entitled to the benefit of the third proviso to Rule 27(a) and Clause (c) of the General Rules. It is obvious that as a direct recruit, his seniority was to be determined from the date of first effective advice for appointment in Cannanore District viz., 30th March 1977. If he had abandoned that privilege by seeking his fortune elsewhere, the Respondents would have been justified in depriving him of that benefit but not otherwise. It is undeniable that he was entitled to the benefit of Clause 5 of Ext. P-1 read with Ext. P-2. His transfer to Cannanore was in terms of those orders. It is clear from a reading of the third proviso that it was in respect of such transferees that it was issued The mere fact that the Petitioner obtained transfer back to his original unit on his request will not justify denial of that benefit to him.

I therefore allow this Original Petition with costs and quash Ext. P-5 order. The Petitioner is entitled to rank as Lower Division Clerk in the Industries Department from 30th March 1977 and as an approved probationer from 7th August 1980. The second Respondent shall assign him such rank and all consequential benefits within a period not exceeding three months from the date of receipt of a copy of this judgment. This may be done with notice to and after hearing any person who is likely to be affected.