Revenue Department Staff Welfare Association v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 6TH SEPTEMBER 2011 / 15TH BHADRA 1933 WP(C).NO. 1364 OF 2011(U) ------------------------- PETITIONER: --------------- REVENUE DEPARTMENT STAFF WELFARE ASSOCIATION (REG.NO.80/2009), KIZHAKKE PULLATTU, ARPOOKKARA EAST P.O., KOTTAYAM-686 008, REPRESENTED BY ITS TREASURER, BIJU S., AGED 40, S/O. SOMASEKHARAN PILLAI, SRUTHI, ARUNAPURAM P.O., PALA-686 574, KOTTAYAM. BY ADV. SRI.P.CHANDRASEKHAR SRI.ELVIN PETER P.J. SMT.POOJA SURENDRAN RESPONDENT(S): ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2. THE COMMISSIONER FOR LAND REVENUE, THIRUVANANTHAPURAM, PIN-695 003. 3. C.R.JOSPRAKASH, ASSISTANT COMMISSIONER, LAND REVENUE COMMISSIONERATE, THIRUVANANTHAPURAM, PIN-695 003. ## **ADDL.R4-11 IMPLEADED:** ADDL.R4: BEENA P.ANANTH, JUNIOR SUPERINTENDENT, COLLECTORATE, IDUKKI, IDUKKI DISTRICT. ADDL.R5: SURESH K., VALUATION ASSISTANT LA(GENERAL), TIRUR, MALAPPURAM DISTRICT. ADDL.R6: RANGANADHAN P., DEPUTY TAHSILDAR, PONNANI TALUK. ADDL.R7: G.PREMACHANDRAN, DEPUTY TAHSILDAR, TALUK OFFICE, PALAKKAD. ADDL.R8: B.ANILKUMAR, JUNIOR SUPERINTENDENT, COLLECTORATE, PALAKKAD. W.P.(C)No.1364/11 -2- ADDL.R9: MOHAMMED ABDUL BARI, JUNIOR SUPERINTENDENT, LAND BOARD, THIRUVANANTHAPURAM. ADDL.R10: JAYAN M.CHERIYAN, JUNIOR SUPREINTENDENT, COLLECTORATE, PALAKKAD. ADDL.R11: SAJITHA BEEGAM, JUNIOR SUPERINTENDENT, R.D.OFFICE, KOLLAM. ( **IMPLEADED VIDE ORDER DT.17.2.11 IN I.A.NO.1804/11)** ## ADDL.R12 IMPLEADED ADDL.R12: M.R.VARGHESE, SON OF M.P.RAPHEL, AGED 49 YEARS, JUNIOR SUPREINTENDENT, COLLECTORATE, IDUKKI RESIDING AT MOOTHEDAN HOUSE, AYATHUPADY, KOOVAPPADY P.O., ERNAKULAM DISTRICT. (IMPLEADED VIDE ORDER DT.10.6.11 IN IA.8148/11) ## **ADDL.R13 TO R16 IMPLEADED:** **ADDL.R13:** KABEER M.K., TAHSILDAR, TALUK OFFICE, KOZHENCHERRY, PATHANAMTHITTA DIST. **ADDL.R14:** U.FASSALUDEEN, ADDITIONAL TAHSILDAR, CHENGANNUR, ALAPPUZHA DISTRICT. **ADDL.R15:** KURIAN P.JACOB, PALLIKKUNNEL HOUSE, THOTTAKKAD P.O.,KOTTAYAM DIST.-686 539. ADDL.R16: JEROME,DEPUTY TAHSILDAR, LAND ACQUISITION, N.H.NO.3, VYTILA. (IMPLEADED VIDE ORDER DT.6.9.2011 IN I.A.NOS.9950, 9956 & 9957 RESPECTIVELY). BY GOVERNMENT PLEADER SHRI SANDESH RAJA FOR R1 & R2 SRI.S.RAMESH BABU FOR ADDL.R4 TO 11 SRI.N.SUGATHAN SMT.VARSHA BHASKAR SRI.V.VARGHESE FOR R3 SRI.T.RAMPRASAD UNNI FOR ADDL.R12 SMT.SMITHA GEORGE FOR ADDL.R12 SHRI ELVIN PETER FOR R13 SRI.K.JAJU BABU FOR R14 SRI.P.SANKARANKUTTY NAIR FOR R15 & 16 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1/9/2011, ALONG WITH WPC NO. 22070 OF 2006 & CON.CASES THE COURT ON 6.9.2011 DELIVERED THE FOLLOWING: W.P.(C)No.1364/11 -3- ## **APPENDIX IN W.P.(C)NO.1364/11** ## **PETITIONER'S EXTS:** EXT.P1: COPY OF RESOLUTION OF THE PETITIONER ASSOCIATION DT.7.11.10. EXT.P2: COPY OF G.O.(MS)NO. 661/64/RD DT.5.10.64. EXT.P3: COPY OF G.O.(MS)NO. 4/61/PD DT.2.1.61. EXT.P4: COPY OF G.O.(MS)NO. 442/80/GAD DT.26.9.80. EXT.P5: COPY OF GO(P)NO.3/82/GAD DT.2.1.82. EXT.P6: COPY OF GO(P)NO.36/91/P&ARD DT.2.12.91. EXT.P7: COPY OF LETTER NO.35997/C2/09/RD DT.1.11.09 OF THE 2ND RESPONDENT TO THE PRESIDENT OF THE PETITIONER ASSOCIATION. EXT.P8: COPY OF CLARIFICATION ORDER DT.8384/C3/2010/RD DT.8.2.10 OF THE 1ST RESPONDENT. EXT.P9: COPY OF INTERIM ORDER DT.17.3.10 IN W.P.(C)NO.8846/10. - EXT.P10: COPY OF INTERIM ORDER DT.6.4.10 IN W.P.(C)NO. 30805/09 AND CON.CASES. - EXT.P11: COPY OF VIGILANCE REPORT DT.4.6.10 OF THE DEPUTY SUPERINTENDENT OF POLICE, VIGILANCE AND ANTI CORRUPTION BUREAU, THIRUVANANTHAPURAM. - EXT.P12: COPY OF GO(RT)NO.4630/201/RD DT.14.10.10 OF THE 1ST RESPONDENT. ## **RESPONDENTS' EXTS:** ANNEXURE R1(A): COPY OF GOVERNMENT NOTIFICATION DT.8.3.93. ANNEXURE R1(B); COPY OF GO(RT)NO.6586/05/RD DT.19.12.05. ANNEXURE R1(C): COPY OF GO DT.20.10.09. ANNEXURE R1(D): COPY OF JUDGMENT IN W.P.(C)NO. 19076/08 DT.26.3.09. ANNEXURE R1(E): COPY OF RELEVANT PAGES OF THE SENIORITY LIST OF L.D.CLERK. EXT.R4(A); COPY OF GO(P)NO.123/93/RD/DT.8.3.93. EXT.R4(B): COPY OF GO(P)NO.252/98/RD DT.14.5.98. EXT.R4(C): COPY OF JUDGMENT DT.2.6.03 IN OP.1206/95. EXT.R4(D): COPY OF ORDER DT.1.3.94 ISSUED BY BOARD OF REVENUE (LR) EXT.R4(E): COPY OF ORDER DT.12.6.95 ISSUED BY THE BOARD OF REVENUE (LR) W.P.(C)No.1364/11 -4- EXT.R4(F): COPY OF ORDER DT.24.2.99 ISSUED BY THE 2ND RESPONDENT. EXT.R4(G): COPY OF GO(RT)NO.3847/2009/RD DT.20.10.09. ANNEXURE R2(A); COPY OF JUDGMENT DT.27.1.11 IN W.A.NO.116/11 ANNEXURE R2(B); COPY OF RELEVANT EXTRACT OF THE SENIORITY LIST OF LOWER DIVISION CLERK DT.16.4.11. ANNEXURE R2(C): COPY OF RELEVANT EXTRACT OF THE FINAL SENIORITY LIST OF UPPER DIVISION CLERK/SPECIAL VILLAGE OFFICER. ANNEXURE R2(D); COPY OF RELEVANT EXTRACT OF THE SENIORITY LIST OF VILLAGE OFFICER/REVENUE INSPECTOR/HEAD CLERK. ANNEXURE R2(E); COPY OF RELEVANT EXTRACT OF THE PROVISIONAL SENIORITY LIST OF DEPUTY TAHSILDAR/JUNIOR SUPREINTENDENT. ## **EXTS.PRODUCED ALONG WITH IA.9950/11** EXT.R4(A): COPY OF SELECT LIST ISSUED AS PER ORDER DT.5.12.06. EXT.R4(B): COPY OF COMMUNICATION DT.21.4.10 OF THE LAND REVENUE COMMISSIONER. EXT.R4(C); COPY OF SENIORITY LIST PUBLISHED AS PER EXT.R4(B) ORDER. EXT.R4(D); COPY OF ORDER, GO DT.11.5.10 ISSUED BY THE GOVERNMENT. EXT.R4(E): COPY OF ORDER GO DT.3.1.11 ISSUED BY THE GOVERNMENT. **EXTS. PRODUCED ALONG WITH IA.12492/11** EXT.R1(F): COPY OF LETTER ISSUED BY THE PSC DT.12.11.91. EXT.R1(G): COPY OF CIRCULAR DT.15.9.93. EXT.R1(H): COPY OF LETTER DT.21.1.94. EXT.R1(I): COPY OF ORDER DT.17.12.2007. ## TRUE COPY P.A.TO JUDGE dsn ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) Nos. 1364/2011/U, 22070/2006-B, 35189/2009-P, 35783/2009-P, 37117/2009-H, 8123/2010-M, 11101/2010-K & 11873/2010-H** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 6th day of September, 2011.** ## **JUDGMENT** Writ Petition No.22070/2006 is filed by the petitioners challenging Ext.P15 order passed by the Government rejecting their request for revision of seniority list of L.D. Clerks in the Revenue Department. W.P.(C) No.1364/2011 is filed by an Association, viz. Revenue Department Staff Welfare Association represented by its Treasurer. Therein, the challenge is against Ext.P12 Government Order whereby a previous order of the Government dated 20.10. 2009, G.O.(Rt)3847/2009/RD referred to as item No.3 therein, has been withdrawn. In W.P.(C) No.35783/2009 the challenge is against Ext.P6 Government Order dated 20.10.2009, viz. G.O. (Rt)3847/2009/RD. The same Government Order is under challenge in W.P.(C) Nos. 35189/2009, 37117/2009, 8123/2010, 11101/2010 and 11873/2010, 2. Since the challenge in W.P.(C) No.1364/2011 is against Ext.P12 Govt. Order which withdrew the Government Order which is under challenge in the other writ petitions except W.P.(C) No.22070/2006, I will wpc 1364/2011, etc. 2 first deal with the contentions therein. 3. The case of the petitioner in W.P.(C) No.1364/2011 is the following: Ext.P2 is the Government Order by which it was ordered that the employees of Board of Revenue, namely, Lower Division Clerks, Upper Division Clerks, L.D. Typists, UD Typists and Superintendents shall be drafted from various districts. Ext.P3 is the copy of the Government Order G.O.(Ms) No.4/61/PD dated 2.1.1961 which provided inter-alia, that a Government servant who is transferred from one unit to another unit within the same department will take rank below the juniormost in the category in the new Unit. By Ext.P4 Government Order, it was specified that the minimum period of five years from the date of commencement of continuous service is required for granting any request for inter-district transfer. 4. Ext.P5 is the notification issued by the Government amending Rule 27 of KS & SSR by adding a proviso. The same protects the seniority of a person advised by the District Office of the Public Service Commission for appointment in the vacancy in the headquarters, without obtaining his willingness and transferred after such appointment to the district of his choice without insisting on the time limit of five years. In such cases the seniority shall be determined with reference to the date of his original wpc 1364/2011, etc. 3 advice by the District Office of the Commission. 5. It is the case of the petitioner that Ext.P8 is a clarification issued by the Government at the instance of the third respondent who has been working in the cadre of Deputy Collector. The allegation raised in the writ petition is that the same is issued to protect the seniority of the third respondent in his parent district, viz. Idukki as per the advice dated 23.7.1980. He requested for transfer to the Board of Revenue and was transferred to Trivandrum and joined duty on 1.6.1983. It is therefore submitted that he is not entitled to seniority in Idukki district. It is contended that Ext.P8 clarification goes against Rule 27 of KS & SSR. Exts.P9 and P10 are interim orders passed by this Court in various writ petitions. The interim order Ext.P9 is issued in the writ petition filed by the petitioner challenging Ext.P6 herein. It was clarified that any list prepared shall be operated only after getting orders from this Court. By Ext.P10 interim order, this Court stayed the operation of the revised seniority list. Ext.P11 is said to be a report recommending action against the third respondent in a vigilance enquiry, which according to the petitioner, will reveal the part played by the third respondent. It is at that stage Ext.P12 order has been passed withdrawing the earlier order. 6. The petitioner mainly contends that the Government cannot adopt 4 wpc 1364/2011, etc. different standards in the matter of fixation of seniority of employees drafted to Board of Revenue from various districts on the one hand and employees drafted to Commissionerate of Land Revenue on the other. Ext.P3 has already been implemented in the Land Revenue Department. Finally, it is pointed out that Ext.P12 is issued with a malafide intention to give benefit to the third respondent. 7. W.P.(C) No.22070/2006 is filed by two petitioners who have been functioning as Village Officers at the time of filing of the writ petition. Therein, their plea mainly is that the contesting respondents have obtained inter-district transfers. In the case of inter-district transferees, such transfers have been effected in terms of the conditions laid down in G.O.(MS) No.4/61/PD dated 2.1.1961. Thus, they will rank below the juniormost in the category of L.D. Clerks in the district concerned. Therefore, they have relinquished their right to count their service in the districts of recruitment. Accordingly, it is contended that their seniority can be determined only with reference to the dates of their joining duty in the Revenue Department in Alappuzha district. Mention has been made about the various seniority lists published, objections raised by the petitioners, judgments of this Court and the final order passed by the Government as per Ext.P15, rejecting their representation to revise the seniority list. Therein also, the contentions are wpc 1364/2011, etc. 5 similar to the one raised in W.P.(C) No.1364/2011 that the Government Order, viz. G.O.(MS) No.4/61/PD dated 2.1.1961 would govern the fixation of seniority. 8. In W.P.(C) No.35783/2009 and other cases what is challenged is the Government Order dated 20.10.2009 whereby the Government ordered that seniority of inter district transferees in the Land Revenue Department shall be governed by G.O.(MS) No.4/61/PD dated 2/1/1961 and G.O.(P) No.154/71/PD dated 27.5.1971. Their contentions are similar. According to them, the seniority of a person appointed to a category on the advice of the Public Service Commission shall be determined by the date of effective advice made for his appointment as provided in sub-rule © of Rule 27 of KS & SSR. Therefore, the executive orders cannot govern the seniority of a person appointed in the service. It is pointed out that as per the provisions of the Special Rules for the Kerala Revenue Ministerial Subordinate Service, as amended by G.O.(P) No.123/93/RD dated 8.3.1993 the unit of appointment to the category of LDC/VA and other categories is the State, as per Rule 4. This has been given retrospective effect from 1.11.1956. Therefore, the transfer of any of the persons is within the same unit in the same department. In the light of the above, it is contended that the executive order like G.O.(MS) No.4/61/PD dated 2.1.1961 cannot apply to wpc 1364/2011, etc. 6 the Land Revenue Department. 9. The party respondents and the official respondents have filed separate counter affidavits. Along with I.A. No.922/2011 in W.P.(C) No.1364/2011 the first respondent has filed a detailed affidavit. The main contention raised therein are as follows: By Ext.R1(a) amendment to the special rules, viz. Kerala Revenue Ministerial Subordinate Service Rules, 1985, the State was made a unit of appointment in respect of all the category of the posts with effect from 1.11.1956. In the light of the above, the Government Order Ext.P3 (G.O.(MS) No.4/61) governing seniority of interdistrict transferees, has lost its relevance as far as this department is concerned. The final seniority list of L.D. Clerks was issued by the Land Revenue Commissioner after the issuance of Ext.R1(a) amendment, without implementing the same and the practice continued till 2009. In that context the Government had issued Ext.R1(b) order (Ext.P15 in W.P.(C) No.22070/2006). This was cancelled by Ext.R1(c) dated 20.10.2009. 10. After Ext.R1(c) order was issued, the final seniority list of L.D. Clerks was published, which was challenged in various writ petitions, wherein Ext.R1(c) was also under challenge. In the interim order Ext.P10, passed by this Court in the said writ petitions, the prima facie view taken was that Ext.R1(c) Govt. Order cannot be pressed into service in the light of wpc 1364/2011, etc. 7 Ext.R1(a) amendment, making the State as a unit. In Ext.R1(d) judgment this Court had directed the respondents to finalise the seniority list in the feeder category to the post of Deputy Tahsildar. Ext.R1(e) is the relevant pages of the list of L.D. Clerks published by the Land Revenue Commissioner, as final seniority list, without taking into account Ext.P3 Government Order, in the light of Ext.P10 interim order. 11. In the counter affidavit filed by the first respondent later, these averments have been reiterated. It is pointed out that after the amendment of the rules making the State as a unit, the Government Order which the petitioner relies upon, viz. Ext.P3 has lost is relevance. Therefore, it is contended that the lists have been prepared in terms of the statutory rules itself. 12. The additional respondents 4 to 6 have filed a counter affidavit. The same also supports the stand of the first respondent. It is pointed out that after the integration of village staff with revenue staff brought down by the Government in terms of Government Order, viz. G.O.(MS) No.911/184/RD dated 10.9.1984 the Special Rules for the Kerala Revenue Ministerial Subordinate Service, 1985 were amended for giving retrospective effect to the amendment from 10.9.1984. Rule 5 of the Special Rules provided that the Revenue District shall be the unit of appointment. 8 wpc 1364/2011, etc. When integration was effected, in certain districts one group got accelerated promotion, while in certain other districts that group got promotion only after many years of service in the entry post. In order to overcome the same, the rules were further amended in 1993 and as per rule 4, the State was made the unit of appointment. 13. It is pointed out that the unit of appointment of Village staff was also Revenue District earlier. The Government brought out Ext.R4(b) Special Rules with retrospective effect from 1.11.1956 in respect of Travancore Cochin area and from 1.9.1961 in respect of Malabar area. Therein also, rule 4 provided that State shall be the unit of appointment in respect of all categories. 14. It is pointed out that the additional fourth respondent was appointed as L.D. Clerk on 7.6.1988 and by Ext.R4(d) order dated 1.3.1994 he was transferred to Kottayam Revenue District. Subsequent promotions have also been effected in respect of additional respondents 4, 5 and 6 also. It is pointed out that the transfer orders relating to them, viz. Exts.R4(d), R4(e) and R4(f) were issued after the amendment of the Special Rules as per the Government Order dated 8.3.1993. Therefore, they cannot be treated as inter-district transferees. 15. It is further contended in para 7 of the counter affidavit that in all 9 wpc 1364/2011, etc. the seniority lists, the L.D. Clerks and Village Assistants who obtained inter-district transfer, were also assigned seniority on the basis of their dates of advice for appointment in the respective category, since State was made the unit of appointment with effect from 1.11.1956. 16. The third respondent has filed a counter affidavit denying the allegations against him. It is pointed out that he is entitled to retain his original seniority in the cadre of L.D. Clerk in view of the relevant provisions of the Special Rules and the various Government Orders. 17. Learned Counsel for the petitioner in W.P.(C) No.1364/2011, Shri P. Chandrasekhar submitted that Ext.P3 Government Order was issued in the year 1961, as per which the inter-district transferees will lose their seniority as stood originally. It is pointed out that when Ext.R1(c) order produced in W.P.(C) No.1364/2011 was issued by the Government, it was noticed that the said Government Order has not been implemented for preparing the seniority list. It is further pointed out that Ext.R1(c) also will reveal the fact that even though the State was taken as a single unit, appointments were being made district-wise. By the first proviso to Rule 27(a), the seniority of an employee getting transfer on his request, to another unit within the same department, shall be determined with reference to the date of his joining duty in the new unit or department. It is therefore wpc 1364/2011, etc. 10 submitted that the said Rule cannot be overlooked by the respondents. Therefore, learned counsel submitted that by operation of law, the proviso to Rule 27(c) will have to be given effect and the executive order Ext.P12 cannot override the .statutory prescriptions. It is further contended that the seniority was never settled also because of various disputes and pending cases. One of the contentions raised is that even though as per Ext.R1(a) order dated 8.3.1993 the State has been made as a unit, that was never implemented and recruitments are being made district-wise even thereafter. Therefore, the persons who were recruited prior to 1993, will have to lose their seniority consequent on the inter district transfer. 18. The contentions vehemently raised by Shri S.P. Aravaindakshan Pillai, learned counsel for the petitioner in W.P.(C) No.22070/2006 are also similar. It is pointed out that G.O.(MS) No.4/61 squarely applies as far as the inter-district transferees are concerned. The conditions laid down therein were accepted at the time of such transfers by the persons concerned. Therefore, they will rank below the juniormost in the category of L.D.C. in their respective district. It is therefore contended that the assignment of seniority overlooking these aspects cannot at all be accepted. Reliance is also placed on Rule 38 of KS & SSR. It is contended that the inter-district transferees, with open eyes relinquished their rights and thus, wpc 1364/2011, etc. 11 as the same has become final, the preparation of seniority list overlooking the same, cannot be justified at all. 19. Shri N. Sugathan, learned counsel appearing for the petitioner in W.P.(C) No.35783/2009 and for some of the party respondents in W.P.(C) Nos.22070/2006 and 1364/2011, submitted that the Government Order dated 2.1.1961 has lost its relevance in the light of the amendment of the statutory rules in 1993, whereby the State itself has been made as the unit of appointment from 1.11.1956. It is submitted that the said amendment is not under challenge in any of these writ petitions. The amended provision will therefore protect the initial seniority. When the State itself has been made as the unit of appointment, there is no meaning in contending that the transfers made district-wise based on earlier orders prior to 1993 will have to be reckoned for the purpose of fixing the seniority. It is submitted that the special rules will govern the field and executive orders will have to yield to the same. 20. Now I shall proceed to consider various factual and legal aspects. True that in Ext.P3 Government Order, viz. G.O.(MS) No.4/61 produced in W.P.(C) No.1364/2011 it is mentioned that “a person transferred to a new unit will take rank below the juniormost in the category in the new unit or department. He will not be allowed to count his previous service towards, wpc 1364/2011, etc. 12 seniority.” By Ext.P4 Government Order therein, the Government specified that a period of five years from the date of commencement of continuous service will be required for getting a transfer from one district to another district. Such transfers will be allowed only in terms of Ext.P3 Govt. Order. 21. The question herein is whether the State being the unit, the contention raised by the petitioners that inter-district transferees will lose their right to retain the initial seniority, is correct or not. The relevant facts as evident from the pleadings show the following: The Revenue Department consists of various services such as the Kerala Revenue Ministerial Subordinate Service, the Kerala Revenue Subordinate Service, the Kerala Revenue Service and the Kerala Civil Service (Executives). After the integration was ordered by the Government as per G.O.(MS) No.911/84/RD dated 10.9.1984 the Special Rules for the Kerala Revenue Ministerial Subordinate Service, 1985 were amended giving effect to the order of integration, as per Govt. Order dated 10.7.1989 and the amendments were given retrospective effect from 10.9.1984. The same resulted in the post of L.D.C. being integrated with the post of Village Assistant and the post of U.D.C. with the post of Village Officer. Rule 4 of the Special Rules which was introduced as per G.O.(P) No.123/93/RD dated 8.3.1993 (Ext.R1(a)) and its proviso reads as follows: wpc 1364/2011, etc. 13 “ **4. Unit of appointment.** - State shall be the unit of appointment in respect of all the categories of posts with effect from the first day of November, 1956: “Provided that no person shall suffer reversion on account of the change in the unit of appointment and such person shall be allowed to continue in the category till his turn of regular promotion under the State Unit System arises.” Similarly, in the Special Rules for the Village Ministerial Subordinate Service, 1998 similar provisions have been made and Rule 4 therein is extracted below: “ **4. Unit of appointment.** -- State shall be the Unit of appointment in respect of all categories of posts: Provided that no person shall suffer reversion on account of change of the unit of appointment from District to State and such person shall be allowed to continue in the category till his turn for regular promotion under the Special Unit system arises: Provided further that the date of appointment of Last Grade Servants, Attenders and Villageman to the cadre of Village Assistant by transfer effected by the District Collector concerned in their respective district on or before 9.9.1984 shall be adopted for determining the seniority in the State list of Village Assistants by the Secretary, Board of Revenue.” The Special Rules have been brought into force with effect from 1.11.1956 in respect of Travancore Cochin area and from 1.9.1961 in respect of 14 wpc 1364/2011, etc. Malabar area. Therefore, there is uniformity as far as the unit of appointment is concerned, in respect of these two special rules. 22. Evidently, in Ext.P12 produced in W.P.(C) No.1364/2011 various aspects were considered including the views expressed by this Court while passing Ext.P10 interim order. It was found that from the date of amendment of the Special Rules, the State has become the unit of appointment. Therefore, those persons who had obtained inter district transfer, after the coming into force of the Amendment Rules 1993 which has retrospective effect from 1.11.1956 cannot be said to be inter unit transferees, as the transfer was made in the State service. 23. Various disputes regarding the preparation of seniority list after the integration, were considered by a Division Bench of this Court in **Kuttikrishnan and others v. State of Kerala** (ILR 2000 (3) Ker. 1). Various principles have been laid down therein in the matter of preparation of seniority list. In all the seniority lists prepared thereafter, the assignment of seniority is on the basis of the date of advice for appointment to the respective category taking State as unit of appointment with effect from 1.11.1956. In Ext.P15 order passed by the Government in W.P.(C) No.22070/2006, justifications were made for preparing the seniority list by taking the State as a unit. In para 8 of the said order, it was held by the wpc 1364/2011, etc. 15 Government that inter district transfers has no relevance in the case of Revenue Department, the special rules of which provided State as a unit for appointment since the Special Rules will prevail over General rules and executive orders. But when the Government issued G.O.(Rt) No.3847/2009 dated 20.10.2009 the view taken is that G.O.(MS) No.4/61/PD dated 2.1.1961 will have to be adhered to for fixing the seniority of inter district transfers. Evidently, this was issued without considering the amendment of the special rules in 1993 making the State as the unit of appointment from 1.11.1956. This Court, while passing the interim order dated 6.4.2010 in W.P.(C) No.8123/2010 and connected cases took a prima facie view that the State itself has to be taken as unit of appointment in respect of the categories of posts with effect from 1.11.1956. Accordingly, it was directed that Exts.P16 and P17 seniority lists produced in W.P.(C) NO.8123/2010 shall not be taken as the basis for the purpose of preparing seniority list for the higher cadres falling under the different services mentioned in the interim order itself. 24. The effect of the amendment in 1993 as noticed already, is to make the State as unit of appointment from 1.11.1956. When the State itself is made as the unit of appointment, G.O.(MS) No.4/61 /PD dated 2.1.1961 has ceased to be in force. There cannot be any inter-district wpc 1364/2011, etc. 16 transfer when the State itself is taken as the unit. No contrary intention is there in the amended rules. Such being the position as far as the present department is concerned, G.O.(MS) No.4/61 has clearly lost its relevance. Evidently, GO.(MS) No.4/61 dated 2.1.1961 being an executive order it cannot prevail over the special rules prescribing the State as the unit of appointment with retrospective effect from 1.11.1956. The amendment is not under challenge in any of these writ petitions. Therefore, the argument of the learned counsel for the petitioner in W.P.(C) No.1364/2011, Shri P.Chandrasekhar that the first proviso to Rule 27(a) of KS & SSR will have its own impact in the matter of preparation of seniority list, cannot be accepted. The first proviso therein refers to seniority of persons on mutual or inter-unit or inter-departmental transfer from one unit to another within the same department or from one department to another, as the case may be. Only in such cases alone when transfers have been made on the request of such persons, the seniority will have to be determined with reference to the dates of their joining duty in the new Unit or Department. The said proviso to Rule 27(a) obviously cannot have application when the special rules herein itself fix the State as the unit of appointment with retrospective effect from 1.11.1956. It is clear from the object and reasons of the amendment also that the amendments were effected to ensure equal chances of wpc 1364/2011, etc. 17 promotion to all persons in the Department. Such being the position, the insistence made by the petitioners in W.P.(C) No.22070/2006 that G.O. (MS) No.4/61 dated 2.1.1961 should govern the preparation of seniority list, cannot at all be accepted. The decisions relied upon in respect of some other departments, wherein such special rules are absent, cannot help the plea raised herein. 25. The proviso to the amended rule 4 of the Special Rules for the Kerala Revenue Ministerial Subordinate Service Amendment Rules 1993 specifies that no person shall suffer reversion on account of the change in the unit of appointment. Such is the limited privilege that is saved by the amendment of Rule 4. In that view of the matter, as the Special Rules do not provide anything contrary to nullify the seniority of inter district transferees made between 1956 to 1993 or even thereafter, there is no meaning in contending that G.O.(MS) No.4/61/PD dated 2.1.1961 should have its own impact even after the amendment of the Special Rules. An executive order cannot prevail over the statutory rules. 26. Herein, it is vehemently contended by the learned counsel for the petitioners Shri P. Chandrasekhar and Shri S.P. Aravindakshan Pillai that even after the amendment, appointments are being made by District Collectors. Learned Govt. Pleader, Shri Sandesh Raja and learned counsel wpc 1364/2011, etc. 18 appearing for the party respondents, Shri N. Sugathan submitted that such appointments can only be termed as appointment in the State unit itself and will enure to the benefit of the State unit alone and it has no significant impact on the issue considered herein. 27. Along with I.A. No.12492/2011 in W.P.(C) No.1364/2011 filed on behalf of the Revenue Department, certain documents have been produced. Ext.R1(f) is the copy of the advice given by the Public Service Commission when the amendment of the Special Rules were mooted. The Commission agreed to the proposal subject to the condition that status-quo in respect of the officers likely to be affected shall be maintained without prejudice to the right of the Government to regulate their further promotion in accordance with the combined seniority list to be prepared in pursuance of Government proposals. As per Exts.R1(g) circular and R1(h) order dated 15.9.1993 and 21.1.1994 respectively the power conferred on the Land Revenue Commissioner for appointment in the cadre of LDC/VA have been delegated to the District collectors. In fact, after the abolition of the Board of Revenue the Land Revenue Commissionerate came into force and all the powers conferred on the Secretary, Board of Revenue were given to the Land Revenue Commissioner and by Ext.R1(i) the delegation of powers have been retained. wpc 1364/2011, etc. 19 28. Whatever that be, when the unit of appointment itself is the State, merely because the District Collectors, on the basis of such delegation of powers, are making appointments the contention that the pre amendment position continues and G.O.(MS) No.4/61 will hold the field, cannot be accepted. The Special Rules alone will govern the field. The actions, if any, taken against the spirit of the amendment in 1993 cannot survive. Any appointment can only enure to the State Unit. 29. In W.P.(C) No.1364/2011 the additional fourth respondent has produced a letter dated 3.1.2011 issued by the Government as per Ext.R4(e) wherein the Government proposes to amend the rules, viz. the Special Rules for Kerala Revenue Ministerial Subordinate Service Rules for introducing the provisions of Rule 27(a) of Part II of KS & SSR. It is explained by the learned Govt. Pleader that so far no amendments have been effected. Therefore, the legal position remains the same. 30. What remains is the contention vehemently raised by Shri S.P. Aravindakshan Pillai that Rule 38 of KS & SSR will have its own impact in the matter. Rule 38 and its explanation are extracted below: **“38. Relinquishment of rights by members.** -- Any person may, in writing relinquish any right or privilege to which he may be entitled under these rules or the Special Rules, if, in the opinion of the wpc 1364/2011, etc. 20 Appointing Authority, such relinquishment is not opposed to public interest; and nothing contained in these rules or the Special Rules shall be deemed to require the recognition of any right or privilege to the extent to which it has been so relinquished. **Explanation.--** The relinquishment of the right for promotion under this rule shall entail loss of seniority and a relinquishment of the right for promotion shall not be permissible unless such relinquishment entails loss of seniority.” It shows that any person in the service can in writing relinquish any right or privilege to which he may be entitled under the Special Rules. It is submitted that the relinquishment of seniority of inter district transferees therefore cannot be rolled back by the amendment of Special Rules making the State as a unit. 31. Evidently, inter district transfers prior to 1993 were not made on the basis of the operation of Rule 38 of the General Rules. If at all anything was made, G.O.(MS) No.4/61/PD dated 2.1.1961 alone was governing the field with reference to the inter departmental and inter unit transfer. The contention of the petitioners is also that the said Government Order will continue to have force. Rule 38 of the KS & SSR was never in contemplation. It is clear from Rule 38 itself that a person can relinquish any right or privilege at the time when anything is offered to him, e.g. wpc 1364/2011, etc. 21 promotion. In fact, Shri N.Sugathan, learned counsel appearing for some of the party respondents in W.P.(C) No.1364/2011 and in W.P.(C) No.22070/2006 invited my attention to G.O.(P) No.39/91P& ARD dated 7.12.1991 wherein the Government has prescribed the procedure to be adopted in the matter of relinquishment to be made by the employee concerned. Of course, that concerns the relinquishment for promotion and a form itself is prescribed. I need not consider these matters elaborately in the light of the fact that it is not a case where the inter district transferees have relinquished their rights either for seniority or for promotion consequent on inter district transfer under Rule 38 of KS & SSR. In that view of the matter, the said contention cannot also help the petitioners. 32. Therefore, I am of the view that Ext.P12 produced in W.P.(C) No.1364/2011 does not suffer from any legal infirmities. The Government was of the view that G.O.(MS) No.4/61/PD dated 2.1.1961 cannot be made applicable as regards the transfers in a State service is concerned. The Government was also of the view that persons who have obtained inter district transfer, after the coming into force of the Amendment Rules 1993 which has retrospective effect from 1.11.1956, cannot at any rate be said to be inter unit transferees, since the transfer was made in the State unit, and the transfer cannot be termed as an inter unit transfer. wpc 1364/2011, etc. 22 33. Hence, I hold that when the amendment is made with retrospective effect from 1.11.1956 and under Rule 4, there is nothing which prohibits the reckoning of seniority considering State as a unit and the proviso is only for a specific purpose to avoid reversion in spite of the change of unit of appointment and even in respect of inter district transfers prior to 1993 also the same position continued, G.O.(MS) No.4/61/PD dated 2.1.1961 cannot have any application. Therefore, Ext.P12 cannot be said to be invalid for any reasons stated by the learned counsel for the petitioner. Similar are the views taken in Ext.P15 order produced in W.P. (C) No.22070/2006 and the view taken by the Government therein cannot be said to be wrong. 34. The Government Order under challenge in W.P.(C) No.35783/2009 is the one dated 20.10.2009, viz. G.O.(Rt) No.3847/2009/RD which was withdrawn by Ext.P12 Govt. Order which is under challenge in W.P.(C) No.1364/2011. Since I have taken the view that Ext.P12 Govt. Order is valid in law and as the impugned order in W.P.(C) No.35783/2009 and connected cases, have been withdrawn, I need not separately consider the grievance raised by the petitioners therein on this aspect. Therefore, W.P.(C) Nos.1364/2011 and 22070/2006 are dismissed. wpc 1364/2011, etc. 23 W.P.(C) Nos. 8123/2010, 35783/2009, 11873/2010, 35189/2009, 37117/2009 and 11101/2010 are accordingly disposed of recording the fact that the impugned Govt. Order therein stood withdrawn by Ext.P12 Govt. Order produced in W.P.(C) No.1364/2011. No costs. **(T.R. Ramachandran Nair, Judge.)** ## **kav/**