IMPORTANT POINT
The court held that the Special Rules prohibit relinquishment of the option for placement in the Speciality Cadre once exercised, prevailing over general provisions in KS&SSR.

JUDGMENT :

P.Krishna Kumar, J.

The key issue in these cases is whether Assistant Surgeons appointed under the Kerala Health Service (Medical Officers) Special Rules, 2010 (‘Special Rules, for short) who have exercised the option for placement in the Speciality Cadre can later relinquish their right to such an appointment under Rule 38 of Part II of Kerala State & Subordinate Service Rules (‘KS&SSR’).

2. The petitioners are Assistant Surgeons in the Kerala State Health Service. Both petitioners opted for placement in the Speciality Cadre in 2013. However, in 2024, they submitted a request to relinquish their right to such an appointment in the Speciality Cadre, citing personal inconveniences. The Government rejected their request for relinquishment (the request made by one of them was not acted upon by the Government) on the ground that Rule 6 of the Special Rules prohibits it. The Government further proceeded to post them in the Speciality Cadre. Aggrieved by this decision, the petitioners approached the Kerala Administrative Tribunal. Through the impugned common order, the Tribunal found that the petitioners are entitled to relinquish the option exercised by them as per the provisions of Rule 38 of KS&SSR, dehors the inhibition in Rule 6 of the Special Rules.

3. The Government challenged this finding through these original petitions, contending that Rule 6 of the Special Rules overrides the provisions in Rule 38 of the KS&SSR. Since both cases involve common questions of law, they are being disposed of together, with O.P. (KAT) No. 420/2024 as the leading case.

4. We heard Sri.Sunilkumar Kuriakose, the learned Government Pleader appearing for the State and Sri.Fathahudeen M., the learned counsel appearing for the respondents.

5. The primary challenge raised against the findings of the Tribunal is that the impugned judgment fails to recognise the overriding effect of Rule 6 of the Special Rules on Rule 38 of Part II KS&SSR, in view of Rule 2 of Part II, KS&SSR. It is thus profitable to quote the relevant statutory provisions hereunder:

Rule 5, 6 and 7 of the Special Rules are as follows:

“5. Option for placement:- Option for placement in Administrative Cadre - Branch A and Speciality Cadre - Branch C and Public Health Lab. cadres - Branch D(a) and (b)

shall be exercised by the Assistant Surgeons / Assistant Dental Surgeons of Branch B during the period of probation itself.

6. Option once exercised shall be final.

7. Those Assistant Surgeons who have not exercised their option to any of the cadres during probation period or later shall be deemed to have continued in the entry cadre Branch B - General Cadre.”

Rule 38 of Part II KS&SSR reads as follows:

“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 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.

Provided that request for relinquishment of right for promotion/appointment by transfer to a post, under the above rule, shall not be allowed if such request for relinquishment is submitted by the employee on or after the date of order by which the person was promoted or appointed by transfer to the said post.

Explanation - The relinquishment of the right for promotion or appointment by transfer under this Rule shall entail loss of seniority and a relinquishment of the right for promotion or appointment by transfer shall not be permissible unless such relinquishment entails loss of seniority.”

6. After considering the above provisions, it seems that there is substance in the contention of the learned Government Pleader that Rule 6 of the Special Rules prevails over the general provisions contained in Rule 38 of Part II KS&SSR. The Tribunal proceeded