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2018 DIGILAW 32 (KER)

State of Kerala v. R. Cicilet

2018-01-10

DEVAN RAMACHANDRAN, P.R.RAMACHANDRA MENON

body2018
JUDGMENT : P.R. Ramachandra Menon, J. 1. Whether the service rendered by an employee prior to securing the inter-departmental transfer has to be ignored while reckoning the qualifying service for granting the higher grade benefit is the basic issue to be considered in this case. The Original Petition arises from the order dated 22.08.2016 in T.A.No.2103/2012, which was decided in favour of the respondent/applicant. The grievance is against Annexure A3 order, whereby the benefit has been ordered to be given to the applicant reckoning the total period of service for granting the third higher grade, i.e. with effect from 29.03.1979 after setting aside the order passed by the Departmental Authority granting the benefit only with effect from 07.05.2006. 2. Heard the learned Senior Government Pleader appearing for the petitioners as well as Sri. Elvin Peter. P.J., the learned counsel appearing for the respondent. 3. The respondent herein got appointed as 'Tracer' in the Soil Conservation Department on 29.03.1979. She was promoted as Draftsman Grade II on 12.01.1982. While working so, she sought for an inter-departmental transfer, for her own reasons, in conformity with G.O.(MS)No.4/61/PD dated 02.01.1961, which was considered and granted by the competent authority. Pursuant to this, she joined the service in the Harbour Engineering Department on 07.05.1983. In the due course, she was promoted to the post of Draftsman Grade I on 07.12.1989. 4. While working in the Harbour Engineering Department as above, the respondent completed eighteen years and according to her, she was eligible to obtain the second higher grade, which however was not given. This made the respondent to approach this Court by filing W.P.(C)No. 17300/2002, which was disposed of as per Exhibit P2 judgment dated 06.06.2005 granting benefit to the employee with effect from 01.11.1988, the date on which such higher grade benefit was given to her juniors. The respondent filed Exhibit P3 representation so as to implement the directions given by this Court. It was accordingly that Exhibit P4 order came to be passed on 30th March, 2006, whereby the benefit of second higher was given on completion of 18 years. As per the very same order, the benefit of the third higher grade was also given on completion of 23 years with effect from 15.01.2005. It was accordingly that Exhibit P4 order came to be passed on 30th March, 2006, whereby the benefit of second higher was given on completion of 18 years. As per the very same order, the benefit of the third higher grade was also given on completion of 23 years with effect from 15.01.2005. This, according to the respondent, was not correct, who contended that she was entitled to get the said benefit with effect from 14.06.2002, i.e., immediately on completion of 23 years of service. It was accordingly, that Exhibit P5 representation was preferred, which was considered and Exhibit P6 order came to be passed on 16.05.2008. As per the said order, the benefit already given as per Exhibit P4 (giving the benefit of third higher grade with effect from 15.01.2005) came to be further prolonged by giving effect only from 07.05.2005. The stand taken by the Department was that the employee was eligible to get the benefit of the third higher grade only after completion of service in the 'transferee department', i.e. Harbour Engineering Department and never before. This made the respondent to challenge the said proceeding by filing a writ petition before this Court, which came to be transferred to the Tribunal. 5. The Department sought to justify their stand as given in Exhibit P6 and contended that the applicant had to complete 23 years in the 'transferred department'. Reliance was sought to be placed on the 'Government Order of 1961' dealing with the inter-departmental transfer. After hearing both the sides, the Tribunal held that the inter-departmental transfer was of no consequence, in so far as the rights and liberties of the applicant to get the benefit of the third higher grade was concerned. Reference was also made to Rule 9B of Part II of the KS & SSR, projected by the Department/State and held that it was having absolutely no application at all, more so, when the benefit was not given with reference to the said Rule. It was accordingly, that the order under challenge was set aside and the Application was allowed, which made the Department to feel aggrieved, who is now before the Court, by way of this Original Petition. 6. It was accordingly, that the order under challenge was set aside and the Application was allowed, which made the Department to feel aggrieved, who is now before the Court, by way of this Original Petition. 6. But for the vague assertion as to the alleged ineligibility of the applicant to get benefit of the third higher grade, no material is brought to the notice of this Court so as to have it confined or granted only on completion of 23 years of service in the 'transferee department'. It is true that the employee, who seeks for inter-departmental transfer, would lose some benefits with regard to the service, but this is only with respect to the loss of seniority and prospects, if at all any. By virtue of the undertaking given (to have considered the request enabling her to join the service in the transferred Department) the respondent joined as the junior most candidate in the same category at the transferred department. But for this, no other adverse consequences are resulted and the earlier service rendered by the employee, which admittedly is liable to be reckoned for the purpose of granting increment and such other benefits, will not get obliterated under any circumstance. 7. After hearing both the sides and also after going through the provisions of law sought to be projected by the petitioners, this Court finds that Annexure A3 verdict passed by the Tribunal is perfectly in order and is not assailable under any circumstance. The Original Petition fails and it is dismissed accordingly. Since the time limit stipulated in Annexure A3 is already over, we grant two more months' time to the petitioners to work out the benefits and to have the same disbursed to the respondent.