IMPORTANT POINT
The appointment by transfer to the post of High School Assistant against the quota of 10% will be available to Clerks, Typists, Attenders and Peons in the General Education Department who have the prescribed qualification and who have put in not less than 5 years of service. The reference to 5 years of service in paragraph 3 of the order Ext.P2 does not in any manner mean that the service required can be in any Department

JUDGMENT :

T.R. Ravi, J.

The petitioner who is now working as Office Attendant at the Office of the Deputy Director of Education, Malappuram, entered service on 01.12.2010 through a selection process conducted by the 1st respondent, Kerala Public Service Commission. The selection was conducted for the post of Office Attendant in various departments in Malappuram district. When the turn arose for the appointment, there was no vacancy available in Malappuram district and the petitioner was advised to join in the headquarters vacancy in the office of the Enquiry Commissioner and Special Judge (Vigilance), Thiruvananthapuram. His probation was declared on 16.10.2010. While working in the said office, the petitioner got appointment as Office Attendant in the Education Department in the Malappuram district. He was included in the final seniority list of Class IV employees working under the Deputy Director of Education, Malappuram.

2. On 18.08.2017, the 1st respondent issued Ext.P3(A3) notification calling for applications for appointment by transfer to the post of High School Assistant (Physical Science). One of the qualification prescribed is that the applicant should have not less than 5 years service as Clerk/Typist/Attender/Office Attendant in the General Education Department as on the date of application. The petitioner had applied pursuant to the above notification. The petitioner's application was rejected by the 1st respondent since he had not put in the necessary number of years of service. The rejection of the application was challenged by the petitioner before the Tribunal in O.A.491/2018 which was dismissed by the Tribunal by order dated 14.9.2020. The petitioner preferred as review application as R.A.(Ekm)No.2/2020 which was also dismissed by the Tribunal. It is challenging the orders of the Tribunal that this original petition is preferred. The issue that needs to be decided in this original petition is whether the said period of 5 years has to be service in the General Education Department alone or whether it can include the petitioner's previous service in the headquarters.

3. Heard Dr.George Abraham, learned counsel for the petitioner, Sri P.C.Sasidharan, learned Standing Counsel for respondents 1 & 2 and Sri B.Vinod, learned Senior Government Pleader on behalf of respondents 3 and 4.

4. Admittedly, the petitioner was initially appointed in the headquarters vacancy as Office Attendant and was subsequently appointed as Office Attendant in the General Education Department, Malappuram district. It is also not disputed that the petitioner does not have 5 years' service in the General Education Department. Annexure A3 produced along with the original application before the Tribunal is the notification dated 18.08.2017 calling for applications for appointment by transfer. In paragraph 7(a), dealing with qualifications, it has been specifically stated that the applicant should have service as Clerk/Typist/Attender/Office Attendant in the General Education Department with not less than 5 years as on the date of application. The petitioner was hence fully aware of the requirement of service in the General Education Department of not less than 5 years. The petitioner relies on G.O.(P)No.5/2010/P & ARD. Dated 04.03.2010, whereby the Special Rules for the Kerala Last Grade Service were amended. The order has been produced as Annexure A8 in the original application. As per the amendment, Note III was added under sub-rule (c) of Rule 14 of the Special Rules. After amendment, the Rule reads as follows:

“Rule 14. Seniority.-(a) Seniority of a member in any category of the service shall, unless he has been reduced to a lower rank as punishment, be determined by the date of the order of his first appointment to such category:

Provided that if any portion of the service of such person does not count towards probation under the rules, his seniority shall be determined by the date of commencement of his service which counts towards probation.

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