O. Santhamma v. The Secretary, Labour Department, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE J.B.KOSHY** **& THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN** **WEDNESDAY, THE 24TH SEPTEMBER 2008 / 2ND ASWINA 1930** **WA.No.1745 of 2006 (E)** **---------------------------AGAINST THE JUDGMENT IN WPC.34235/2004 Dated 29/05/2006** **....................** ## **APPELLANT/PETITIONER** **-----------------------------** **O.SANTHAMMA, W/O.T.RAVINDRAN PILLAI, AGED 51 YEARS, NOW WORKING AS JUNIOR SUPERINTENDENT, DISTRICT LABOUR OFFICE, ERNAKULAM.** **BY ADV. SRI.T.A.UNNIKRISHNAN SMT.RESHMI POULOSE** ## **RESPONDENT/RESPONDENT:** **----------------------------------** **THE SECRETARY, LABOUR DEPARTMENT, THIRUVANANTHAPURAM.** ## **SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 24/09/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## J. B. KOSHY & K. P. BALACHANDRAN, JJ. -----------------------------------------------W. A. No.1745 of 2006 -----------------------------------------------Dated this the 24[th] day of September, 2008 ## **JUDGMENT** ## _**Koshy, J**_ The appellant/petitioner was advised for appointment to the post of L.D. Clerk on 10/07/84 in the Headquarters' vacancy of the Mining and Geology Department, Trivandrum. According to the appellant, though she was selected by P.S.C for the post of L.D. Clerk in various departments in Kollam District, she was posted in the Headquarters' quota of Mining and Geology Department, Trivandrum as no post was available to accommodate her in Kollam district at that time. Thereafter, in 1985 she applied for transfer and she was posted in the Labour Department, Kollam vide order dt.13/12/1985. Ext.P1 is the transfer order wherein it is mentioned that the above W. A. No.1745 of 2006 -2- inter department transfer was made on the following conditions:- “Smt.O.Santhamma, L.D.Clerk Office of the Director of Mining & Geology, Trivandrum is interdepartmentally transferred to this department as per the rules and regulations contained in the G.O.read (3) above, and posted in the office of the Labour Court, Quilon the vacancy caused consequent to the conversion of the post of copyist as L.D.Clerk.” 2. As per the Government Order G.O.(MS) 4/61/PD dt.02/01/1961 mentioned in Ext.P1 (as 3[rd] reference), a person inter departmentally transferred to a new unit will take rank below the junior most in the category in the new department. The appellant had also made an undertaking that she would abide by the conditions laid down in G.O.(MS) No.4 dt. 02/01/1961. On that basis she was given transfer. Later, appellant/petitioner in the year 2003 made a representation to consider her seniority in the Labour Department taking into account her services in the Mining and Geology Department also from the date of W. A. No.1745 of 2006 -3- advice. That was turned down. Then she approached this Court by filing W.P.C. 39969/03. Petitioner relied on the decision of a Division Bench of this Court in _Director of Industries v. Sreedharan [1996(3) ILR Kerala Series 447 (W.A. No.133/90)]_ wherein it was held as follows:- “When a candidate, who is ranked for appointment in a particular District, is advised for appointment in a vacancy in the headquarters without obtaining his consent and subsequently posted in the district of his choice, his seniority will have to be decided with reference to the date of first advice”. 3. This Court closed the writ petition recording the submission of the Government Pleader that her representation would be considered appropriately in the light of the above decision. Government noticed that the rule itself was amended after the above decision with retrospective effect. Vide Ext.P3 Notification G.O.(P)No.5/97/P&ARD Dated 22/02/1997 published as SRO No.136/97 in Kerala Gazette extra ordinary dated W. A. No.1745 of 2006 -4- 01/03/1997, the Government amended the KS&SSR with effect from 26/09/1980 to the effect that the fourth proviso to sub-rule (a) of General Rule 27 in Part II of the Kerala State and Subordinate Services Rules, 1958 shall not apply to inter-unit or inter-departmental transfers. The explanatory note appended below the said notification reads as follows:- “As per the first proviso to General Rule 27(a) of the Kerala State and Subordinate Services Rules, the seniority of persons on inter-unit/inter-departmental transfers, on request from such persons, shall be determined with reference to their joining duty in the new unit/department. But according to the fourth proviso to the above rule the seniority of a person who is appointed to a vacancy in the Headquarters without obtaining its willingness, on advice by the district office of the Kerala Public Service Commission, and who is subsequently transferred to the district of his choice without insisting on the time limit of five years, shall be determined with reference to the date of his original advice by the Commission. It is considered necessary to specify that the benefit of the fourth proviso to sub-rule (a) of General Rule 27 shall be allowed only in the case of transfer from Headquarters to the district of choice within the same unit/department. The benefit of the rule shall not be allowed in case of transfer from Headquarters to a vacancy in the district of choice in another unit department.” W. A. No.1745 of 2006 -5- 4. Petitioner's representation was again rejected by Ext.P2. She again approached this Court by filing W.P.C.34235/04 and that was also dismissed by the learned Single Judge holding that as the present amendment protects the vested rights of many, the challenge against the retrospectivity given to the amendment of Rule is not sustainable. That judgment was impugned in this Writ Appeal. 5. The contention of the appellant/ petitioner in this Writ Appeal is that the amended rules will not affect the vested rights of the parties. It is submitted that the learned Single Judge of this Court in _Thomas v. State of Kerala (2006(3) KLT 60)_ held that the persons who got inter department transfer before amendment of the rule are entitled to get the benefits without looking into the amendment. But in _Thomas v. State of Kerala_ (cited supra) it is not stated anywhere that the W. A. No.1745 of 2006 -6- appellant in that case has given an undertaking that he would abide by the G.O. (MS)No.4/61/PD dt.02/01/1961. In _Sreedharan's_ case also (cited supra), it is not stated that such an undertaking was given by the respondent/petitioner in that case. Even the Government Order dt.02/01/1961 was also not brought to the notice of the petitioner. Here, the appellant got an inter departmental transfer to the Labour Department, Kollam from Mining and Geology Department, Trivandrum on the specific condition that she will be junior in the Kollam district in the post she was holding. Otherwise she would have to wait till the vacancy arose in Mining and Geology Department. In view of the undertaking so given by the appellant, we are of the opinion that the appellant cannot approach this Court for a discretionary relief against her own undertaking. Apart from the above, we also W. A. No.1745 of 2006 -7- note that if her seniority is changed in the Labour Department, it will affect the seniority of various other persons in the same department and they are also not made as parties. Claim for service was made from an earlier service in another department years after transfer. We do not find any reason to interfere with the impugned judgment. Appeal fails and is dismissed accordingly. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-