2006 Supreme(SC) 479

2006(5) Supreme 31
Supreme Court of India
(From Kerala High Court)
B.N. Srikrishna & R.V. Raveendran, JJ.
K.P. Sudhakaran & Anr. — Appellants
versus
State of Kerala & Ors. — Respondents
Civil Appeal No. 9527 of 2003
With
Civil Appeal Nos. 9528/2003, 9530/2003, 9531/2003 and 9532/2003
All Decided on 11-5-2006
Counsel for the Parties :
For the Appellants and Proforma Respondents in all the Civil Appeals : Raju Ramchandran, Sr. Advocate, G. Prakash, Advocate.
For the Respondents : C.S. Rajan, Sr. Advocate, A. Raghunath, Kartikey Singh for K.R. Sasiprabhu and Romy Chacko, Advocates.

Important points
1. According to the proviso to Rule 27(a) of the Kerala State and Subordinate Service Rules, the seniority of the transferred LDCs has to be reckoned only from the date of their joining duty in the new unit (or district) and they are not entitled to count their service prior to the date of their transfer on their request.
2. The alleged intention behind a provision, cannot be used to defeat the express words of the provision. Once a statutory rule is made, without providing any exceptions, it is not possible to carve out exceptions to such rule, by judicial interpretation.

Headnote:Service Law — Kerala Public Services Act, 1968 — Section 3 — Kerala State and Subordinate Service Rules, 1958 — Rule 27 — Seniority and transfer of Government servants — Conditions subject to which mutual or inter-departmental transfers of Government servants can be ordered — A State wise seniority list of LDCs is maintained for promotion to the post of UDCs — Post of LDCs in Registration Department is a district wise post and post of UDC is a State wise post — Appellants were recruited as LDCs in district X while respondents were recruited as LDCs in other districts and were transferred on their own request to district X — State Government drew up a State wise seniority list of LDCs with reference to their date of first appointment to the service as LDCs, for purpose of effecting promotions to the next higher post (UDC) — Seniority of transferred LDCs were shown in the seniority list with reference to the dates of their first appointment as LDCs — Transferred LDCs were placed above the local LDCs — Thereafter, Inspector General of Registration revised provisional list showing positions of transferred LDCs with reference to the date of their joining the new district — Whether transferred LDCs were entitled to seniority with reference to the initial date of appointment as LDCs — (No).

       Held : In service jurisprudence, the general rule is that if a Government servant holding a particular post is transferred to the same post in the same cadre, the transfer will not wipe out his length of service in the post till the date of transfer and the period of service in the post before his transfer has to be taken into consideration in computing the seniority in the transferred post. But where a Government servant is so transferred on his own request, the transferred employee will have to forego his seniority till the date of transfer, and will be placed at the bottom below the junior-most employee in the category in the new cadre or department. This is because a government servant getting transferred to another unit or department for his personal considerations, cannot be permitted to disturb the seniority of the employees in the department to which he is transferred, by claiming that his service in the department from which he has been transferred, should be taken into account. This is also because a person appointed to a particular post in a cadre, should know the strength of the cadre and prospects of promotion on the basis of the seniority list prepared for the cadre and any addition from outside would disturb such prospects. The matter is, however, governed by the relevant service Rules. (Para 11)

       The following facts are not in dispute : (i) The contesting private respondents are transferee LDCs who were transferred from the district in which they were appointed to another district, in the same department on their own request. (ii) The appellants are the existing employees, that is local LDCs of the said department in the district to which the transferee LDCs were transferred, (iii) The transferred LDCs (contesting private respondents) were senior to the appellants with reference to their date of appointment as LDCs. But with reference to the date on which they were transferred to the new district, they will become juniors to the local LDCs (appellants). When the proviso to Rule 27(a) of the Service Rules is applied, as rightly held by the learned single Judge and the Division Bench, the seniority of the transferred LDCs has to be reckoned only from the date of their joining duty in the new unit (or district) and they are not entitled to count their service prior to the date of their transfer on their request. (Para 13)

       In view of the above, we find that the revised seniority lists dated 13.11.1990 and 22.9.1997 under which seniority of transferred LDCs (inter-district transferees) is counted only from the date of their joining the new district, excluding the previous service, are proper and do not call for interference. (Para 19)