IMPORTANT POINT
Eligibility for recruitment by transfer must be maintained until appointment is finalized, disqualifying candidates with higher pay scales.

JUDGMENT :

(P. Krishna Kumar, J.)

The petitioner challenges the order passed by the Kerala Administrative Tribunal in O.A.No. 45 of 2021, in which the Tribunal rejected the petitioner's claim that he is entitled to be included in Annexure A6, the ranked list prepared by the Kerala Public Service Commission/first respondent, for the post of Lower Division Typist, through by transfer method.

2. While working as Driver Grade II (HG) in the Block Development Office, the petitioner applied for the post of L.D.Typist (recruitment by transfer) in various departments, pursuant to the gazette notification published on 29/12/2018. As per the notification, applications were invited from low-paid employees in the Kerala Government Subordinate Service for appointment to the above post. The scale of pay for the post was Rs.19000-43600. At the time of submission of application, as it appears from Annexure A3 service certificate issued in favour of the petitioner, his scale of pay was Rs.18000-41500. As per Annexure A1 notification, the last date to apply was 30/01/2019.

3. The petitioner was excluded from Annexure A6 ranked list for the reason (as explained in Annexure A7) that he was not eligible for recruitment through by transfer method in view of note 2 of Rule 8(c) of Part II of Kerala State & Subordinate Services Rules, 1958 (hereinafter referred to as ‘KS & SSR’). The respondents further explained the reason for the exclusion of the petitioner from the said ranked list through the reply statement submitted before the Tribunal. According to them, as per Rule 2(13) of Part I of KS & SSR, a person can be recruited by transfer only if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service. Applications were invited only from low-paid employees and thus the said eligibility for recruitment by transfer has to be maintained until a candidate is finally appointed to found that the petitioner was promoted to the post of Driver Grade II (HG) with a scale of pay of Rs.20000- 45800. It is also contented by the respondents in the reply statement that, by virtue of the provisions of Rule 8 of KS & SSR, a candidate who applied for by transfer appointment, if appointed to a post (having a higher scale of pay) in another department, he is entitled to be repatriated to his initial post (having a lower scale of pay) from which he applied for by transfer appointment, but if he cannot go back to the original post as it carries a higher scale of pay, he is not eligible for by transfer appointment.

4. Adv.Sri.Kaleshwaram Raj, the learned counsel for the petitioner, assailed the order of the Tribunal mainly on the ground that the eligibility or qualification for appointment to a post is to be examined with reference to the last date for receiving the application unless and until the notification prescribes otherwise. According to him, this elementary principle was not acted upon by the Tribunal and hence, A6 ranked list. To support the said contention, the learned counsel relied on the decisions in Ashok Kumar Sharma & Ors. v. Chander Shekhar & Anr. [(1997) 4 SCC 18], Ashok Kumar Sonkar v. Union of India & Ors. [(2007) 4 SCC 54], Rekha Chaturvedi v. University of Rajasthan [1993 Supp(3)SCC 168], A.P.Public Service Commission v. B.Sarat Chandra [(1990) 2 SCC 669], Bhupinderpal Singh v. State of Punjab [(2000) 5 SCC 262] and Divya v. Union of India [(2024) 1 SCC 448].

5. It is further argued that if the contentions put forward by the Public Service Commission are accepted, an employer can very well defeat the rights of an eligible candidate by delaying the process of appointment, which will result in disastrous consequences. It is also contended that the relevant special rules do not contain a provision like Rule 187 of the Co-operative Societies Rules, wherein it is provided that the stipulation for reservation in the vacancies of apex societies to the employees of a member society shal