KS & SSR| Govt Employee Transferred By Way Of Absorption To Another Department Can Retain Seniority Of Previous Dept : Supreme Court

The Supreme Court (recently on January 03) held that employees who are transferred on absorption to another department are entitled to retain the seniority of their previous department as per the Kerala State and Subordinate Service Rules(KS&SSR).The Court held that the proviso to Rule 27(a) of the KS & SSR, which hold that previous seniority cannot be claimed when an employee is transferred on request, won't apply to transfer on absorption.The brief facts of the case were such that the present appellants were employees who were working in the Directorate of Health Services (DHS) of the Kerala Government. They were later absorbed on furnishing option as demanded, in the Directorate of Medical Education (DME) on account of the abolition of a dual control system of the staff in medical colleges. The issue was regarding the seniority between the original employees of DME and the absorbed ones.A Single Judge Bench of the Kerala High Court allowed the writ petition filed by absorbed employees. The Court said that the employees are entitled to retain their existing seniority even on absorption in the DME. However, the same was set aside by the Division Bench holding that once absorbed employees had joined DME on their own request opting for interdepartmental transfer, proviso to Rule 27(a) of Kerala State and Subordinate Service Rules, 1958, shall come into play. Against this background, the present matter reached the Apex Court.For context, as per this Rule, the seniority of a person is to be determined from the date of the order of his first appointment to such service. However, the proviso to this rule states that when a transfer is sought mutually or on request, the seniority of the person shall be decided from the date of joining the new department.The Supreme Court pointed out that the proviso does not include transfer due to administrative exigencies or by way of absorption under the government's policy decision within its ambit.“The proviso of Rule 27(a) is merely an exception to the said Rule of maintaining the seniority from the date of appointment in the cases of 'on request' and mutual transfer. The said exception does not attract in a case of transfer by way of absorption made by the Government in public interest or in administrative exigencies. Thus, proviso to Rule 27(a) is an exception to the transfer on administrative grounds in public interest," observed a bench comprising Justice JK Maheshwari and Justice Rajesh Bindal.Perusing the definition of transfer, as provided under the Rules, the Court said that it could be on request or mutual request based on the needs of the employees or for administrative reasons in public interest.Based on this, the Court said that the present is a case of transfer by way of absorption. It also went through the different meanings of the word absorb. Not only this but the Court also considered the difference between the words 'option' and 'request'."it is clear that if transfer is by absorption, then such employee becomes part and parcel of the department absorbing him and partakes the same colour and character of the existing employees. In other words, absorb clearly indicates to suck up, to imbibe to draw as a constituent part and consume."“After going through the definitions, it is clear that option gives a right to choose with freedom of choosing amongst the choices presented to the person concerned, whereas a request is the desire of a person to be granted something by asking or is a demand or requirement of the employee.''Having cemented this background, the Court said that the transfer was made by absorption on the basis of option and not on the basis of request.“The said absorption was in furtherance to a policy decision of the Government to abolish the dual control system enhancing the efficiency of the administration of medical colleges and attached hospitals thereto giving it to DME withdrawing from DHS…”The Court concluded that the action taken in public interest due to administrative exigency even on option is different than the action done on request. Thus, it said that transfer through absorption in public interest cannot be equated with the one on request as given under Rule 24(a) proviso.“In totality of facts as discussed, the inescapable conclusion that can be drawn is that the transfer of appellants – absorbed employees was by way of absorption as per the policy decision of the Government of Kerala and it would not fall within the purview of proviso to Rule 27(a) of KS&SS Rules. The appellants exercised the option for absorption by transfer from DHS to DME in line with the policy decision taken by Government of Kerala and not on their own volition.”As a result, the Court had set aside the findings of the Division Bench of the High Court finding the same to be based on wrong interpretation of rules. Apart from this, the Court directed the State of Kerala to draw the seniority list of DME employees as per the above observations.Senior Advocate V...

KS & SSR| Govt Employee Transferred By Way Of Absorption To Another Department Can Retain Seniority Of Previous Dept : Supreme Court

Gyanvi Khanna

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