Kusuma C.S v. Land Revenue Additional Commissioner & State of Kerala (OP(KAT) No.125 of 2021)

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **MONDAY, THE 5[TH] DAY OF JULY 2021 / 14TH ASHADHA, 1943** **OP(KAT) NO. 125 OF 2021** **AGAINST THE ORDER DATED 27-02-2020 IN OA 994/2017 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM.** ## **PETITIONERS/RESPONDENTS IN O.A :** - **1 LAND REVENUE ADDITIONAL COMMISSIONER, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM-695033.** - **2 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** **BY SR.GOVERNMENT PLEADER SRI.SAIGI JACOB PALATTY,** ## **RESPONDENT/APPLICANT IN O.A :** **KUSUMA C.S, AGED 53 YEARS, W/O. K.R. NANDAKUMAR, WORKING AS CONFIDENTIAL ASSISTANT, COLLECTORATE, THRISSUR, RESIDING AT KOZHIPARAMBIL HOUSE, 4TH STONE, A-ONE ROAD,** **P.O. ARIMBUR, THRISSUR-680620.** **BY ADVS.SRI.KALEESWARAM RAJ & SRI.VARUN C.VIJAY.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 05.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) No.125 OF 2021 2 # **C.R' ALEXANDER THOMAS & A.BADHARUDEEN, J J.** ## **------------------------------------------------** ## **O.P (KAT) No.125 OF 2021** (Arising out of the impugned final order dated 27-02-2020 in O.A No.994 of 2017 on the file of the KAT, Tvm.) **---------------------------------------------------Dated this the 5[th] day of July, 2021** ## **J U D G M E N T** ## **ALEXANDER THOMAS, J** The prayers in the aforecaptioned O.P(KAT) filed under Articles 226 & 227 of the Constitution of India are as follows { _See page 10 of the_ _paper book of the OP(KAT)_ } : - _“1. To set aside the Exhibit P3 order of the Kerala Administrative Tribunal, or in the alternative._ - _2. To dismiss the OA declaring that the Respondent is not entitled to the benefit of her entire service for all service benefits._ _3. Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 2. Heard Sri.Saigi Jacob Palatty, the learned Senior Government Pleader appearing for the petitioners (Commissioner for Land Revenue and the State of Kerala) in the O.P/respondents in O.A and Sri.Kaleeswaram Raj, the learned counsel appearing for the sole respondent herein/sole applicant in the O.A before the Tribunal. 3. The prayers in Ext.P1 OA No.994 of 2017 filed by the respondent herein before the KAT, Thiruvananthapuram Bench are as O.P (KAT) No.125 OF 2021 3 follows _{ See page No.26 & 27 of the paper book of the OP(KAT) }_ : - _“(a) to pass an order setting aside the Annexure -A9 order, holding that the same is legal and contrary to the provisions of the Kerala State and Subordinate Service Rules._ - _(b) to pass an order directing that the seniority of the applicant has to be determined with effect from 9-2-1995, the date on which the applicant joined at the Head Quarters vacancy of Kerala Public Service Commission._ - _(c) to pass an order holding that the promotion given to the applicant as Grade-I with effect from 1-9-2003 and Senior Grade with effect from 25-3-2006 are legal and proper and that the applicant is entitled for all further promotions and fixation of salary determining her seniority with effect from 9-2-1995._ - _(d) such other orders and directions as the Hon'ble Tribunal deems fit and proper in the nature and circumstances of the case and applicant may seek for.”_ 4. The Tribunal after hearing both sides has rendered the impugned Ext.P3 final order dated 27-02-2020 in the instant O.A No.994 of 2017, whereby it was held that the impugned Annexure A9 order dated 5-4-2017 issued by R-1 in the OA (Commissioner for Land Revenue) is not legally sustainable and hence Annexure A9 order was quashed and further, the Tribunal has also ordered as per Ext.P3 that the original applicant is entitled to get the benefits of her entire service and that she is entitled to reckon seniority with effect from her date of initial advice as stipulated in Rule 27(c) of KS&SSR Part II. 5. The applicant was initially included in the rank list prepared by the Kerala Public Service Commission for selection and O.P (KAT) No.125 OF 2021 4 appointment to the post of Confidential Assistant Grade II in various departments in Thrissur district. As per the norms, the said rank list for Thrissur district was to be utilized for advising candidates not only for vacancies reported by the various appointing authorities in the post of Confidential Assistant Grade II in Thrissur district, but also to posts of Confidential Assistant Grade II in the Head quarters vacancies as apportioned to the Thrissur district. It appears that when the turn of the petitioner for advice had arisen from the above rank list, the vacancy that was utilized for an advice was a headquarter vacancy in Thrissur district. Hence, as per the norms followed consistently by the Public Service Commission and the Government departments, the candidate like the applicant has no option in the matter and she has to necessarily accept the advice failing which the consequential vacancy to be treated as non joining duty. Hence following the said norm, the Public Service Commission had advised the applicant for appointment as Confidential Assistant Grade II to headquarters vacancy, which in fact was available in the office of the Public Service Commission at Thiruvananthapuram and the appointing authority had also appointed her. She was so advised by the Public Service Commission for the said appointment as per Annexure A10 advice memo dated 14-12-1994 and thereupon she had O.P (KAT) No.125 OF 2021 5 joined duty in the post of Confidential Assistant Grade II, in the office of the Public Service Commission on 09-02-1995. Later, the applicant had submitted a request for transfer to the Thrissur district. But at that time, she was given transfer to Ernakulam district and subsequently, she was transferred to the Regional office, Public Service Commission at Ernakulam as per Annexure A1 order dated 18-08-1995. Subsequently, she was given an inter-departmental transfer to the Revenue Department and posted in Thrissur district as per Annexure A2 order dated 30-01-1997 and accordingly she had joined duty at Thrissur Collectorate as Confidential Assistant Grade II on 11-02-1997. 6. Later, the applicant was given higher grades reckoning entire service w.e.f 09-02-1995 ( and she was also given first higher grade w.e.f 01-09-2003). Later, the higher grade promotions were cancelled as per Annexure A4 order dated 15-06-2007 issued by R-1 in the O.A (Commissioner for Land Revenue) stating that the applicant's service in Revenue Department in Thrissur district alone can be reckoned for higher grades. The applicant's appeal against Annexure A4 was also rejected as per Annexure A6 order dated 31-01-2009 issued by the Government holding that since the transfer of the applicant to Thrissur was on a request, it will necessarily result in loss O.P (KAT) No.125 OF 2021 6 of seniority. Annexure A6 appellate order (Confirming Annexure A4 order) was set aside by the Tribunal as per Annexure A7 final order dated 02-06-2016 in TA No.3719 of 2012, wherein after quashing the said decision, the Tribunal had directed the first respondent to reconsider the matter and pass fresh orders after hearing the applicant. Consequently, Annexure A9 order dated 5-4-2017 was issued by R-1 in the O.A, that has again rejected the claim stating that the inter departmental transfer and inter district transfer will entail loss of seniority and that the applicant's service in Thrissur Revenue district alone can be reckoned for the purpose of granting higher grades. It was this order at Annexure A9 that was under challenge in the instant O.A. R-1 in the O.A has mainly relied on the provisions in GO(MS) No.4/61/PD dated 2-01-1961 to contend that inter unit transfer on request will result in loss of seniority and in that regard the Note appended to the 4[th] proviso under Rule 27(a) of KS&SSR Part II has been relied on to reject the plea of the applicant. 7. As per the 4[th] proviso to Rule 27(a) of KS&SSR Part II, the seniority of a person advised in a head quarters vacancy without ascertaining the willingness will not be affected on transfer to the district of choice even before completing 5 years service and that in such cases, the seniority of the incumbent advised to the Headquarters O.P (KAT) No.125 OF 2021 7 vacancy will be determined with reference to the date of initial advice of the Public Service Commission. The above said provision has come into statutory force on 26-09-1980. Hence, the Tribunal has rightly held that the prescriptions in GO(MS) No.4/61/PD dated 2-01-1961 will not cover such cases of advice to Headquarters vacancy in the light of the statutory provision which came into force on 26-09-1980. A Division Bench of this Court in the judgment rendered on 05-07-1996 in the case in _**Director of Industries v. Sreedharan [1996 (2) KLT 370]** (copy of which has been produced at Annexure A12 herein)_ has held that there is no distinction between the interdepartmental and inter-district transfers and a person appointed in a Headquarters vacancy will not lose the seniority on such transfers in view of the 4[th] proviso to Rule 27(a) of KS&SSR Part II. Later the rendering of the decision of the Division Bench of this Court on 05-07-1996 in _**Sreedharan's**_ case (supra) _**(1996 (2) KLT 370)**_ , a separate note has also been appended w.e.f 1-3-1997 after the 4[th] proviso to Rule 27(a) of KS&SSR, wherein it has been stipulated that the above proviso shall not apply to inter unit or inter-departmental transfers. 8. The respondents in the O.A have raised a contention that the applicant in the O.A cannot get the benefit of the 4[th] proviso in O.P (KAT) No.125 OF 2021 8 view of the note subsequently added to the said 4[th] proviso to Rule 27(a), as per notification dated 1-3-1997. This Court after construing the effect of the said note appended to the 4[th] proviso to Rule 27(a) made effective from 1-3-1997 in the decision rendered on 8-6-2006 in the case, _**Thomas v. State of Kerala [2006(3) KLT 60]**_ (copy of which has been produced at Annexure A13), has held that those who availed inter departmental/inter unit transfer prior to 1-3-1997 and covered by the 4[th] proviso are entitled to seniority based on the date of effective advice as ordered in the 4[th] proviso. In the instant case, the applicant's transfer to Thrissur was much prior to the above said cut off date dated 1-3-1997 and she had joined the new unit on 11-2-1997, whereas the new note was appended to the 4[th] proviso only prospectively with effect from 1-3-1997. In the light of this aspect, the Tribunal has thus held that the applicant is fully entitled to succeed and that she is entitled to get seniority from the date of effective advice going by the mandate contained in the 4[th] proviso to Rule 27(a) and that here the case will not be in any manner trammelled by the new note appended to the 4[th] proviso, which was made effective prospectively w.e.f 1-3-1997, whereas she had joined in new unit on 11-02-1997. It is in the light of these aspects that the Tribunal has held that the impugned rejection order at Annexure A9 is illegal and has O.P (KAT) No.125 OF 2021 9 been quashed. In other words, the Tribunal is right in holding that the date of seniority of the petitioner is fully regulated by the 4[th] proviso under Rule 27(a), meaning thereby she is entitled to reckon her seniority on the basis of her first effective advice from the Public Service Commission, as her advice was against a headquarters vacancy though the rank list in question was for the Thrissur district. In other words, the Tribunal's consequential finding that she is entitled for the first higher grade or second higher grade reckoning the entire service from the date of initial appointment etc does not deserve any interdiction at the hands of this Court. Original petition fails and the same will stand dismissed. ## **ALEXANDER THOMAS, JUDGE** ## **A.BADHARUDEEN, JUDGE** amk O.P (KAT) No.125 OF 2021 10 ## **APPENDIX OF OP(KAT) 125/2021** ## **PETITIONERS' EXHIBITS :** **Exhibit P1** **A TRUE COPY OF THE O.A NO.994/2017 ALONG WITH ANNEXURES.** **Exhibit P2** **TRUE COPY OF THE REPLY STATEMENT FILED ON 16/10/2017 BY THE SECOND PETITIONER HEREIN IN THE ORIGINAL APPLICATION.** **Exhibit P3** **TRUE COPY OF THE FINAL ORDER DATED 27/02/2020 IN OA 994/2017 OF THE KERALA ADMINISTRATIVE TRIBUNAL.** **ANNEXURE A1** **TRUE COPY OF THE ORDER NO.ESTT.II(4) 10548/90/GW DATED 18/08/1995 OF THE KERALA PUBLIC SERVICE COMMISSION.** **ANNEXURE A2** **TRUE COPY OF THE ORDER OF THE DISTRICT COLLECTOR, THRISSUR NO.A6-23621/95 DATED 30/01/1997, POSTING THE RESPONDENT AS CONFIDENTIAL ASSISTANT AT THE OFFICE OF THE APPELLATE AUTHORITY (LR) THRISSUR.** ## **ANNEXURE A3** **TRUE COPY OF THE ORDER NO. ESTT.II(4) 24709/96/GW DATED 10/02/1997 OF THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, TRIVANDRUM TO REGIONAL OFFICER, REGIONAL OFFICE OF THE PUBLIC SERVICE COMMISSION, ERNAKULAM.** **ANNEXURE A4** **TRUE COPY OF THE ORDER OF 1ST PETITIONER NO.L.R.(N)2-20439/06 DATED 15/06/2007 CANCELLING THE GRADE PROMOTIONS GRANTED TO THE RESPONDENT.** O.P (KAT) No.125 OF 2021 11 **ANNEXURE A5 TRUE COPY OF THE APPEAL PETITION SUBMITTED BY THE RESPONDENT BEFORE THE 2ND PETITIONER. ANNEXURE A6 TRUE COPY OF THE ORDER OF THE 2ND PETITIONER NO.63134/T3/07/RD DATED 31/01/2009. ANNEXURE A7 TRUE COPY OF THE ORDER OF THE TRIBUNAL DATED 02/06/2016 IN T.A. NO.3719/2012, SETTING ASIDE THE EXHIBIT P1 AND P4 ORDERS DIRECTING THE PETITIONER HEREIN TO HEAR THE RESPONDENT AND TAKE FRESH DECISION. ANNEXURE A8 TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE RESPONDENT BEFORE THE 1ST PETITIONER DATED 21/06/2016. ANNEXURE A9 TRUE COPY OF THE ORDER OF THE 1ST PETITIONER NO. L.R.(N) 2-24189/2016 DATED 05/04/2017. ANNEXURE A10 TRUE COPY OF THE ADVICE OF KERALA PUBLIC SERVICE COMMISSION DISTRICT OFFICE, THRISSUR TO THE HEAD QUARTERS VACANCY DATED 14/12/1994, A PER FILE NO. R1(3)475/90. ANNEXURE A11 TRUE COPY OF THE APPOINTMENT ORDER OF THE RESPONDENT ISSUED BY THE PUBLIC SERVICE COMMISSION DATED 30/01/1995 AS PER ORDER NO. ESTT.II(4)/10548/90.** - **ANNEXURE A12 TRUE COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT OF KERALA REPORTED IN 1996(2) KLT-370.** - **ANNEXURE A13 TRUE COPY OF THE JUDGMENT OF HONOURABLE HIGH COURT OF KERALA REPORTED IN 2006(3) KLT 60.**