Rani Kour vs State and Others

H. Imtiyaz Hussain, J.—Petitioner seeks quashment of Order No. 176/DCJ/2007 dated 14-03-2007 issued by respondent No. 3.

The brief facts are that the petitioner was appointed as Jr. Staff Nurse in the year 1987 in Government Medical College Hospital, Srinagar. Vide

Order dated 11-10-2000 issued by order of the Government, she was transferred to Government Medical College Hospital, Jammu. The order

further directed that she will draw her salary against the equivalent or higher post vacant in Government Medical College Hospital, Jammu and she

shall retain lien in her parent cadre. Later on the post she was holding in Government Medical College, Jammu, was, alongwith other posts,

transferred to Government Dental College, Jammu permanently vide Government Order No. 103-HME of 2006 dated 23-02-2006 and she was

permanently absorbed in Govt. Dental College Hospital, Jammu. In the seniority list prepared by the respondents she has been shown junior to the

private respondents. She is aggrieved of the same and submits that the respondents have ignored her basic appointment made on substantive basis

in the year 1987 and have ranked her junior to the private respondents who by virtue of length of service are much junior to the petitioner, as

having become members of service in the year 1996-2000.

Respondents, both official as well as private, contend that the petitioner's case cannot sustain as it was at her own request that she was

transferred to Government Medical College Hospital, Jammu, as such, she cannot claim seniority over and above the private respondents.

Heard. I have considered the matter.

The facts are not in dispute. Admittedly the petitioner was appointed and was earlier working in Govt. Medical College, Srinagar. It is also not

in dispute that she was transferred from Government Medical College, Srinagar to Govt. Medical College Jammu at her own request. While

directing her transfer her lien was retained in her parent cadre. Later on her permanent absorption she became the member of Government Dental

College Jammu. While fixing the placement her date of transfer from Srinagar to Jammu was taken as the date to determine her seniority vis-a-vis

other employees. I find no illegality in the same.

Learned Counsel for the petitioner has relied on S.I. Rooplal and Another Vs. Lt. Governor Through Chief Secretary, Delhi and Others, and

V.S. Murty and Others Vs. Deputy Chief Accounts Officer and Others, .

On going through the judgment, I find the same are not applicable in the present case. The present case is not a case of deputation or transfer of

petitioner from Srinagar to Jammu by the department. It was at the request of the petitioner that she was transferred from Srinagar to Jammu. The

order specifically directed that she shall retain her lien in the parent cadre.

The law on the subject is well settled now. In K.P. Sudhakaran and Another Vs. State of Kerala and Others, it was observed by the Apex

Court as under:

In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same

cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer

has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own

request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior most

employee in the category in the new cadre or department. This is because a Government servant getting transferred to another unit or department

for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by

claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person

appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list

prepared for the cadre and any addition from outside would disturb such prospects....

When an employee is transferred from a department to another department, at his own request, if separate seniority is maintained in the two

departments, he will take placement below the junior-most in the category in the new 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.

He may be allowed to count his previous service towards increment, leave, pension etc but cannot be allowed to steal a march over the employees

of the department to which he is sent on his own request.

I find no ground is made out to maintain the present petition, which is hereby dismissed.