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2007 DIGILAW 731 (KER)

A. S. Sanim Shah v. State of Kerala

2007-10-29

A.K.BASHEER, K.S.RADHAKRISHNAN

body2007
Judgment :- Radhakrishnan, J. We are in this case concerned with the interpretation of Rule 10 read with Rule 17(d) of the Kerala Last Grade Service which deals with transfer on request from one department to another department of the State. 2. Petitioner commenced service as a Peon in the General Education Department on 19-11-1999. While he was an approved probationer in the General Education Department he has sought for a transfer to the Technical Education Department vide Ext.P-1 order dated 14-3-2005. Petitioner was accordingly transferred as Peon to the Technical Education Department and he joined the Technical Education Department as Peon on 23-3-2005. In the order granting transfer it was stated that petitioner had to complete probation for a period of one year from the date of joining duty. But he had already completed his probation in the category of Peon in the General Education Department. Petitioner then approached the second respondent against condition imposed in Ext.P-1. His request was turned down vide Ext.P-6 order dated 31-3-2006. Petitioner then took up the matter with the Government. Government vide Ext.P-7 order partly accepted the petitioners request and ordered that petitioner need not undergo probation again since he had already completed probation in the category of Peon in the General Education Department. However, it was ordered that petitioner would have to be ranked below probationers, approved probationers and full members in the Technical Education Department. Aggrieved by the same petitioner has approached this Court. 3. Learned Single Judge interpreting Rule 17(d) took the view that petitioner has to forego the right to seniority based on Rule 14 and that he would have to take his rank as last in the list of probationers, even though he had completed his probation in the category of Peon in Education Department. Learned Single Judge was of the opinion that it would be inconsistent with the purport of Rule 17(d) to allow a person who seeks a request for transfer to lay a claim for seniority over a probationer in the new Department, who in fact would be entitled to lay claim to seniority in terms of Rule 14 on the basis of his first appointment. 4. 4. Smt. P.V. Asha, learned counsel appearing for the appellant submitted that the learned Single Judge has committed an error in interpreting Rule 10 and Rule 17(d) and came to a wrong conclusion that the petitioner has to take his rank as last in the list of probationers, approved probationers or full members in the Technical Education Department. Counsel submitted that the petitioner is entitled to be considered for appointment as Tradesman against any vacancy which arose after his joining the department. Counsel also submitted that petitioner has no complaint against those who were already promoted, but entitled to get appointment by transfer along with approved probationers and not as last among probationers. 5. Sri K. Sandesh Raj, learned Government Pleader contended that there is no illegality in Ext.P-7 order passed by the Government. Learned Government Pleader submitted that petitioner has to remain last in the seniority since he came to the Technical Department on his own request and that he will be treated as last in the Department among probationers. Under such circumstance petitioner's claim was not considered for appointment by transfer to the post of Tradesman along with approved probationers. 6. Rule 3 of the Last Grade Service deals with applicability of General Rules which says that Part II of the Kerala State and Subordinate Services Rules other than Rules, 3, 4, 5(9), 6 (10 c), 14, 15, 16 and 17 shall not apply to the service. Rule 10 deals with service in a category in different departments or offices which is extracted below for easy reference: "Subject to the provisions of sub-rule (d) of Rule 17 service rendered in a post included in any one of the categories in a department or office shall count for probation and seniority in regard to another post in the same category whether in the same or another department or office." Above-mentioned rule would indicate that the service rendered in a post included in any one of the categories in a department or office shall count for probation and seniority in regard to another post in the same category whether in the same or another department or office subject to the provisions of sub-rule (d) of Rule 17. Post of Peon was included in that category and therefore service rendered by a person as Peon in the General Department shall be counted for probation and seniority in the Technical Education Department as well. Now we may examine the scope of Section 17(d), which is also extracted hereunder for easy reference. "17(d) Transfers on request.- Probationers approved probationers or full members desiring transfer from the jurisdiction of one appointing authority to that of another appointing authority may be permanently transferred, mutually or otherwise, with the mutual consent of the appointing authorities concerned, if the persons desiring transfer (i) forgo their right to seniority based on Rule 14 and each of them takes his rank last in the list of probationers, approved probationers or full members, as the case may be, for administrative unit to which he is transferred as it stands on the date on which he joins the new Unit and (ii) receive no T.A. for the journeys to be places to which they are transferred; Provided that full members shall be re-transferred to the unit from which they were transferred in the event of there being no vacancy for them to continue in the administrative unit to which they were transferred or for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him. Note: (1) The persons appointed as Peon in the Lottery Offices at New Delhi and Calcutta will not be eligible for transfer to another unit before completing five years of service in the respective station. Note: (2) The patient employees appointed as Hospital Attendants Grade II in the Leprosy Hospitals under the Health Services Department shall not be eligible for transfer to institutions other than Leprosy Hospitals." Rule 17(d) deals with transfer on request, which deals with three categories of last grade servants, i.e., probationers, approved probationers and full members. The word "probationer" is defined in Rule 2(10) of Part I KS & SSR as a member of that service who has not completed his probation. Approved probationer is defined under Rule 2(3) as a member of that service, class or category who has satisfactorily completed his probation and awaits appointment as a full member of such service, class or category. Approved probationer is defined under Rule 2(3) as a member of that service, class or category who has satisfactorily completed his probation and awaits appointment as a full member of such service, class or category. Full member is defined under Rule 2(7) as a member of that service who has been appointed substantively to a permanent post borne on the cadre thereof Those three categories of persons can make a request for transfer to another department. But those categories of persons will have to forego their seniority based on Rule 14 and each of them have to take their rank list in the list of probationers, approved probationers or full members at the transferred department as the case may be. A probationer who has made a request for transfer has to forgo his seniority based on Rule 14 and be ranked last among the probationers in the transferred department, so also an approved probationer or full member who has made a request for transfer to another department will have to forego seniority based on Rule 14 be ranked last in the transferee department in their respective categories. Expression as the case may be is in consonance with the above interpretation. Expression " as the case may be" came up for consideration before the apex court in Subramaniam Shanmugham v. M. L. Ragendran ((1987) 4 S.C.C. 215) Apex court was dealing with Section 10 (3) (c) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960. Referring to the judgment in Bluston & Bramley Ltd. v. Leigh ((1950) 2 All E.R. 29) the apex court has stated as follows: "Justice Morris in Bluston & Bramley Ltd. v. Leigh explained that the phrase 'as the case may be' meant in the events that have happened. Our attention was also drawn to the expression 'as the case may be' as appearing in the Words and Phrases, Permanent Edition 4 pages 596. The meaning of the expression "as the case maybe' is what the expression says, i.e., as the situation may be, in other words in case there are separate and distinct units then concept of need will apply accordingly. Where, however, there is no such separate and distinct unit, it has no significance. There is no magic in that expression. The meaning of the expression "as the case maybe' is what the expression says, i.e., as the situation may be, in other words in case there are separate and distinct units then concept of need will apply accordingly. Where, however, there is no such separate and distinct unit, it has no significance. There is no magic in that expression. The expression 'as the case may be' has been properly construed in the judgment mentioned herein before" Expression "as the case may be" again came up for consideration before the Apex Court in Union of India v. Ashok Kumar (2006 (1) K.L.T. Short Note Page 30, Case No.41). Apex court while considering the scope of Rule 20(2) of Border Security Force Rules, 1969 said that the words "as the case maybe" means "whichever the case may be" or "as the situation may be". The expression means that one out of the various alternatives would apply to one out of the various situations and not otherwise. When we give meaning to the expression "as the case may be" in Rule 17(d) if a full member of a department is transferred to another department he would be ranked as junior most not among probationers or approved probationers of the transferred department, but as last among full members. In other words an approved probationer who has sought for a transfer will lose his seniority under rule 14 and be treated as junior most among the approved probationers of the transferee department, so also the case of a probationer. Rule 17 (d) only says that such person has to forgo his seniority in the list of probationers, approved probationers or full members as the case may be. 7. Under such circumstance we are of the view that since petitioner was an approved probationer in the General Education Department on transfer to Technical Education Department petitioner will have to forgo seniority and be a junior most among approved probationer and not among probationers. Petitioner was an approved probationer, in the General Education Department and hence on transfer to the Technical Education Department, he will be among the approved probationers in the Technical Education Department, but as last among them in the seniority list because he has to forgo seniority as among approved probationer. Petitioner was an approved probationer, in the General Education Department and hence on transfer to the Technical Education Department, he will be among the approved probationers in the Technical Education Department, but as last among them in the seniority list because he has to forgo seniority as among approved probationer. We are informed that the petitioner was already promoted as Tradesman among probationers and not treating him as junior most approved probationers, which is not correct in view of our interpretation. Consequently Ext.P-7 order stands quashed. Respondents would work out the claim of the petitioner in view of our declaration of law. Accordingly the judgment of the learned Single Judge is set aside. Writ appeal is allowed as above.