George M.S. v The State of Kerala and Others (OP(KAT) Nos. 134/2019 & 488/2019)

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** ## **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941** ## **OP(KAT).No.134 OF 2019 AGAINST THE ORDER/JUDGMENT IN OA 1722/2018 DATED 15-03-2019 OF KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER:** **GEORGE.M.S, AGED 54 YEARS, S/O.LATE SCARIA, D7/10, MURINAKARY, STAGE II, CH NAGAR HOUSING COLONY, MARIKUNNU POST, KOZHIKODE DISTRICT, PIN-673 012.** **BY ADVS. SRI.V.T.MADHAVANUNNI SRI.V.A.SATHEESH SRI.M.S.VINEETH SRI.M.VIVEK RABINDRANATH** ## **RESPONDENTS:** - **1 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001.** - **2 THE DIRECTOR OF HEALTH SERVICES,DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM-673 035.** - **3 THE DIRECTOR OF MEDICAL EDUCATION,DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695 011.** - **4 GEETHANANDAN K.,AGED 49 YEARS, S/O.GANGADHARAN, STORE SUPERINTENDENT, IMCH, MEDICAL COLLEGE, KOZHIKODE, RESIDING AT GEETHAM, POONAMCHALIL PARAMBA, MATIKUNNU POST, KOZHIKODE-673 012.** - **5 PADMANABHAN K.K.AGED 53 YEARS, S/O.CHATHU PANICKER, PHARMACIST STORE KEEPER, IMCH, MEDICAL COLLEGE, KOZHIKODE, RESIDING AT PARIJATHAM, CHERUKATTU PARAMBA, NELLIKKODU POST, KOZHIKODE-673 016.** - **6 MUHAMMED ASHRAF P.M., AGED 49 YEARS, S/O.SEEMAMU, PHARMACIST STORE KEEPER, GOVERNMENT T D MEDICAL COLLEGE HOSPITAL, VANDANAM, KOZHIKODE, RESIDING AT PARIJATHAM, ALAPPUZHA PERMANENTLY RESIDING AT PULPARAMBIL HOUSE, KARANTHUR POST, KOZHIKODE-673 571.** **R1-3 BY ANTONY MUKKATH, SR.GP R5 BY ADV. SMT.REKHA VASUDEVAN** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 27.11.2019, ALONG WITH OP(KAT).488/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No.134 and 488 of 2019 - 2 - ## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR.JUSTICE V.G.ARUN** **WEDNESDAY, THE 27TH DAY OF NOVEMBER 2019 / 6TH AGRAHAYANA, 1941 OP(KAT).No.488 OF 2019** **AGAINST THE ORDER/JUDGMENT IN OA 2071/2018 DATED 15-03-2019 OF KERALA** **ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/S:** **GEORGE M.S., AGED 55 YEARS S/O. LATE SCARIA, D7/10, MURIANKARY, STAGE II, C.H. NAGAR HOUSING COLONY, MARIKUNNU POST, KOZHIKODE DISTRICT, PIN-673012.** **BY ADV. SRI.V.T.MADHAVANUNNI** ## **RESPONDENT/S:** **1 PADMANABHAN K.K., S/O. CHATHU PANICKER, AGED 55 YEARS, PHARMACIST STORE KEEPER, GOVERNMENT T.D. MEDICAL COLLEGE HOSPITAL, VANDANAM, ALAPPUZHA-688001, PRESENTLY RESIDING AT THARAYIL, NEAR KOTTUKULANGARA TEMPLE, THALAVADY, AVALUKUNNU POST, ALAPPUZHA, KERALA, PIN-688006. 2 THE STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTAHPURAM, PIN-695001. 3 THE DIRECTOR OF HEALTH SERVICES, DIRECTORATE OF HEALTH SERVICES, THIRUVANANTHAPURAM673035. 4 THE DIRECTOR OF MEDICAL EDUCATION, DIRECTORATE OF MEDICAL EDUCATION, MEDICAL COLLEGE P.O., THIRUVANANTHAPURAM-695011. R1 BY ADV. SMT.REKHA VASUDEVAN** **OTHER PRESENT:** **SRI.ANTONY MUKKATH, SR.GP** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 27.11.2019, ALONG WITH OP(KAT).134/2019, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** OP(KAT) No.134 and 488 of 2019 - 3 - **JUDGMENT (OP(KAT) Nos. 134/2019 & 488/2019 Dated, this the 27[th] day of November, 2019** **Vinod Chandran, J.** **Bereft of the facts we can confine ourselves to the legal issue as to whether the petitioner is entitled to seniority over the party respondents as per the original advise of appointment issued to him by the Kerala Public Service Commission (for brevity 'PSC'). The respondents assert that the normal rule of seniority from date of advice, cannot apply in the context of inter-district transfers on request; when the incumbent, in the new district is placed as the junior most at the time of joining the new district.** **2. Admittedly the applicant was advised as Pharmacist Grade II prior to the party respondents. In the entry posts recruitment is** OP(KAT) No.134 and 488 of 2019 - 4 - **made District wise by the PSC, and inter-district transfers on request are entertained only after five years and subject to conditions; for reasons to be elaborated a little later. The applicant joined service in Palakkad District in the year 1986, availed inter-district transfer to Kottayam in 1991 and further to Kozhikode on 01.09.1994. If his seniority is counted from the time he came to Kozhikode then, he would be below the party respondents in seniority. The impugned order in the original petitions is the common order in two OA's, one filed by the petitioner herein and other by the 5[th] respondent.** **3. We have heard Sri V.T.Madhavanunni appearing for the petitioner and Smt. Rekha Vasudevan for the party respondents.** **4. The issue is no longer** _**res integra,**_ **as held in a plethora of precedents, the latest by a decision of this very Division Bench in O.P(KAT) No.245, 256 and 312 of 2018 dated 12.11.2019. The learned Counsel for the petitioner however** OP(KAT) No.134 and 488 of 2019 - 5 - **would seek to draw a distinction insofar as, according to him, certain provisions in the Kerala State and Subordinate Service Rules (for brevity 'KS& SSR) have not been considered by this Court in the said decision. Reference is made to Rule 27 which has the nominal heading of seniority. It is argued that the unit as found in the proviso to the Rule has not been defined in the KS&SSR. Reference is made to the Note under the proviso to Rule 9(a)(iii) which gives an indication of what the executive government had in mind while using that word. The above contention is urged placing reliance on the judgment of the Hon'ble Supreme Court reported in** _**AIR 1954 SC 592 [K.N.Guruswamy v. The State of Mysore and others]**_ **and (2015) 2 SCC 189 [Hyder Consulting (UK) Limited v. Governor, State of Orissa].** **5. The reference made to Hyder Consulting (UK) Limited is based on the declaration in paragraph 87, which is the dissenting judgment of** OP(KAT) No.134 and 488 of 2019 - 6 - **one as against the majority of two. Despite that we find that the dissent is not on that aspect and what is laid down is the well established principle of construction; of the same word appearing in the same section in the same statute being given the same meaning, unless a contrary intention is indicated. We are unable to agree with the contention raised.** **6. First and foremost the word attempted to be equated here, does not appear in the same provision. Further the specific proviso pointed out to impress upon us, the definition of unit as intended by the executive Government itself indicates the said definition to be applicable only to that proviso. Hence there is a contrary intention seen in the Note itself for reason of the post, within the jurisdiction of an appointing authority, being treated as a unit for the purpose of that proviso alone. We cannot assume that what is intended in Rule 27 is akin to that intended in the note to Rule 9(a)(iii),** OP(KAT) No.134 and 488 of 2019 - 7 - **which again, as the Tribunal correctly noticed, has reference to temporary appointments. Seniority as regulated by Rule 27 is of permanent appointments.** **7. As to the question raised we need only extract paragraph 6 and 7 from the judgment in O.P(KAT) 247/2018 and connected cases dated 12.11.2019.** **6. We find that the District-wise seniority was insisted upon because the PSC conducts recruitment District-wise to entry posts in the Subordinate Services. Earlier a person appointed to a far-off district would immediately claim inter-district transfer and get a posting to his home district, resulting in dearth of government servants to man the posts** **in far flung districts, immediately after the recruitment itself. It is in such circumstances, on the advise of the PSC, the State** OP(KAT) No.134 and 488 of 2019 - 8 - |**decided to have a District-wise**| |---| |**recruitment, which was brought in by**| |**G.O.(Ms.)**<br>**No.154/71/PD**<br>**dated**| |**27.05.1971. This Government Order**| |**provided for delegation of work to the**| |**District**<br>**Recruitment**<br>**Boards**<br>**in**| |**connection to the advise of the**| |**candidates for certain posts. The**| |**specific purpose as seen from the G.O**| |**was to decentralise the recruitment of**| |**lower ministerial cadres in the**| |**District level. A person appointed in**| |**a particular district could seek**| |**inter-district transfer only after**| |**five years from the date of**| |**commencement of his service that too**| |**subject to the conditions laid down in**| |**GO(MS) No.4/61/PD dated 02.01.1961.**| **7. The G.O. of 1961 deals with revised principles of mutual and inter-departmental transfers in public** OP(KAT) No.134 and 488 of 2019 - 9 - **services. Therein the mutual interdepartmental transfers of Government servants from one unit to another within the same Department or from one Department to another within the same subordinate service can be ordered by the appointing authorities on request, subject to the conditions enumerated therein. The first condition is that a person transferred to a new unit will take rank below the junior most in the category in the new unit or Department. He would not be allowed to count his previous service towards seniority and his transfer would not be prejudicial to the legitimate interest of anyone in the Department to which he is transferred. This does not disallow counting of the previous service towards increment, leave, pension, gratuity etc. In such circumstances, inter-District** OP(KAT) No.134 and 488 of 2019 - 10 - **transfers as regulated by the Government Order of 1971 would not affect the seniority of the persons in the District to which a person is transferred and he would be posted as a junior most in that District in that particular service and category. This is the reason for maintaining a District-wise seniority list and for promotion to any State-wise post the seniority as assigned in a District would regulate such promotions.** **The unit as understood in the rules has to be taken on the facts of each case especially since the word has been used along with the word department; as revealed from the G.O of 1961 as a component of a department which gets a wider definition by virtue of the later G.O of 1971. The identification of a unit as in the case of a department would depend upon the exclusivity of such unit has with reference to the other units.** OP(KAT) No.134 and 488 of 2019 - 11 - **In the present case the issue is of interdistrict transfer as was noticed in the extract above; for the purpose of departmental seniority as akin to an inter-unit or inter-departmental transfer. There was already a Government Order of 1961 which regulated inter-unit and interdepartmental transfers which conditions where imported into inter-district transfers. Viewed thus we need not have even laboured on the interpretation of the word unit; which we did only on a contention being raised.** ## **8. When the appointments made by** **the PSC, in remote districts faced problems as seen in the extract, the Government decided to make the initial appointment, district wise which as understood from the Rules has to be considered as a separate unit from the other districts. We do not find any reason to entertain the Original Petition (KAT) and we dismiss the same upholding the order of the Tribunal. The learned Counsel appearing for the party respondents would submit** OP(KAT) No.134 and 488 of 2019 - 12 - **that despite the order passed by the Tribunal and there being no stay, the order has not been given effect. The learned Government Pleader submits that it is only due to the pendency of the appeal that the order was not given effect and that it would be done expeditiously. We hope the same would be done expeditiously .** **Original Petition (KAT) would stand dismissed. Parties are left to suffer their respective costs.** **Sd/-** **K. Vinod Chandran, Judge** **Sd/V.G. Arun, Judge** ## **jma** OP(KAT) No.134 and 488 of 2019 - 13 - ## **APPENDIX OF OP(KAT) 134/2019** ## **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1** **TRUE COPY OF THE O.A.(EKM) NO. 1722 OF 2018.** **EXHIBIT P1(A1)** **TRUE COPY OF THE EXPLANATION OF THERESPONDENT NO.2 NO.26608/H2/89/H&WD DATED 01-02-1991.** **EXHIBIT P1(A2) TRUE COPY OF THE ORDER NO.SPL.CELL(3) 109516/90/DHS/DT 31-10-1990 OF THE RESPONDENT NO.2.** - **EXHIBIT P1(A3) TRUE COPY OF THE JUDGMENT IN O.A.(EKM) NO.500/2015 DATED 06-07-2015.** - **EXHIBIT P1(A4) TRUE COPY OF THE ORDER NO. ES3 34452/2002/DHS DATED 28-05-2002.** - **EXHIBIT P1(A5) TRUE COPY OF THE ORDER NO. ES3 58837/2015/DHS DATED 09-11-2017.** - **EXHIBIT P1(A6) TRUE COPY OF THE APPEAL FILED BY THE APPLICANT BEFORE THE RESPONDENT NO.1 DATED 08-03-2018.** - **EXHIBIT P1(A7) TRUE COPY OF THE ORDER IN G.O.(RT) NO. 23550/2018/H&FWD DATED 13-08-2018.** - **EXHIBIT P1(A8) TRUE COPY OF THE ORDER NO. EE4/16236/83 DHS DATED 05-12-1985.** - **EXHIBIT P2 REPLY STATEMENT FILED BY RESPONDENT NO.2** - **EXHIBIT P2(R2A) TRUE COPY OF THE G.O.(MS) NO.4/61/PD DATED 02-01-1961.** - **EXHIBIT P2 (R2B) TRUE COPY OF THE G.O.(P)51/90/P&ARD.** - **EXHIBIT P3 TRUE COPY OF THEJ UDGMENT IN O.A.(EKM) NO. 1722 OF 2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM DATE 15-03-2019.** ## **RESPONDENT'S/S EXHIBITS:** **EXHIBIT-R3(a) A TRUE COPY OF THE ORDER NO.H5/23611/2015/DMEDATED 25-03-2019.** **EXHIBIT R5(A) TRUE COPY OF THE LETTER NO.E1/2537/11 DATED 16-05-2011 ADDRESSED BY THE SUPERINTENDENT OF INSTITUTE OF MATERNAL& CHILD HEALTH TO** OP(KAT) No.134 and 488 of 2019 - 14 - **THE PRINCIPAL MEDICAL COLLEGE, KOZHIKODE.** **EXHIBIT R5(B) TRUE COPY OF THE ORDER NO. ES355222/2010/DHS DATED 06-12-2011 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE RELEVANT PORTION OF THE SENIORITY LIST.** **EXHIBIT R5(C) TRUE COPY OF THE LETTER NO.E8/5371/2012/MCC DATED 11-04-2012 ADDRESSED BY THE PRINCIPAL MEDICAL COLLEGE, KOZHIKODE TO THE 3RD RESPONDENT. EXHIBIT R5(D) TRUE COPY OF THE ORDER DATED 16-06-2014 IN O.A. NO. 952 OF 2014 OF THE HON'BLE TRIBUNAL. EXHIBIT R5(E) TRUE COPY OF THE NOTICE NO.ES-358837/2015/DHS DATED 04-10-2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT R5(F) TRUE COPY OF THE EXPLANATION DATED 14-102017 SUBMITTED BY THE PETITIONER TO THE 2ND RESPONDENT. EXHIBIT R5(G) TRUE COPY OF THE ORDER NO. ES358837/2015/DHS DATED 04-10-2017 ISSUED BY THE 2ND RESPONDENT. EXHIBIT R5(H) TRUE COPY OF THE DATED 09-03-2018 IN O.A. (EKM) NO. 1937 OF 2017 OF THIS HON'BLE TRIBUNAL. EXHIBIT R5(I) TRUE COPY OF THE HEARING NOTE DATED 14-052018 SUBMITTED BY THE RESPONDENTS 4 TO 6HEREIN TO THE 1ST RESPONDENT. EXHIBIT R5(J) TRUE COPY OF THE ORDER 12-09-2018 IN OA(EKM) NO, 1722/2018 OF THE HON'BLE TRIBUNAL. EXHIBIT R5(K) TRUE COPY OF THE REPRESENTATION DATED 1610-2018 SUBMITTED BY THE APPLICANT TO THE 1ST RESPONDENT. EXHIBIT R5(L) TRUE COPY OF THE G.O.(RT) NO. 323/2018/H&FWD DATED 29-01-2018 ISSUED BY THE 1ST RESPONDENT.** OP(KAT) No.134 and 488 of 2019 - 15 - ## **APPENDIX OF OP(KAT) 488/2019** **PETITIONER'S/S EXHIBITS:** **EXHIBIT P1 TRUE COPY OF THE OA NO.2071 OF 2018.** **EXHIBIT P1(A1) TRUE COPY OF THE LETTER NO.E1-2537/11 DATED 16/05/2011 BY THE SUPERINTENDENT OF INSTITUTE OF MATERNAL AND CHILD HEALTH TO THE PRINCIPAL MEDICAL COLLEGE, KOZHIKODE.** **EXHIBIT P1(A2) TRUE COPY OF THE ORDER NO.ES355222/2010/DHS DATED 06/12/2011.** **EXHIBIT P1(A3) TRUE COPY OF THE LETTER NO.E8/5371/2012/MCC DATED 11/04/2012 BY THE PRINCIPAL, MEDICAL COLLEGE, KOZHIKODE. EXHIBIT P1(A4) TRUE COPY OF THE ORDER DATED 16/06/2014 IN OA NO.952/2014. EXHIBIT P1(A5) TRUE COPY OF THE ORDER IN OA NO.500/2015 DATED 06/07/2015. EXHIBIT P1(A6) TRUE COPY OF THE NOTICE NO.ES358837/2015/DHS DATED 04/10/2017. EXHIBIT P1(A7) TRUE COPY OF THE EXPLANATION DATED 14/10/2017. EXHIBIT P1(A8) TRUE COPY OF THE ORDER NO.ES-358837/2015/DHS DATED 04/10/2017.** - **EXHIBIT P1(A9) TRUE COPY OF THE ORDER NO.ES-358837/2015/DHS DATED 09/11/2017.** - **EXHIBIT P1(A10) TRUE COPY OF THE APPEAL DATED 14/10/2017. EXHIBIT P1(A11) TRUE COPY OF THE ORDER IN OA (EKM) NO. 1937/2017 DATED 09/03/2018.** - **EXHIBIT P1(A12) TRUE COPY OF THE HEARING NOTE DATED 14/05/2018.** - **EXHIBIT P1(A13) TRUE COPY OF THE GO(RT) NO.2550/2018/H&FWD DATED 13/08/2018.** **EXHIBIT P1(A14) TRUE COPY OF THE INTERIM ORDER IN OA NO.1722/2018 DATED 12/09/2018.** **EXHIBIT P1(A15) TRUE COPY OF THE REPRESENTATION DATED 16/10/2018.** OP(KAT) No.134 and 488 of 2019 - 16 - **EXHIBIT P1(A16) TRUE COPY OF THE GO(RT) NO.323/2018/H&FWD DATED 29/01/2018.** **EXHIBIT P2 TRUE COPY OF THE JUDGMENT IN OA NO.2071 OF 2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM DATED 15/03/2019.**