Transfer Of Employee Via Absorption On Exercise Of Option Doesn't Attract Proviso To Rule 27(a) Of KS&SS Rules: SC
The Supreme Court observed that the transfer of an employee by way of absorption on exercise of option does not attract the proviso to Rule 27(a) of the Kerala State and Subordinate Service Rules, 1958 (KS&SS Rules).
The Court observed thus in Civil Appeals preferred against the Order of the Kerala High Court by which it reversed the Judgments of the Single Judge.
The two-Judge Bench of Justice J.K. Maheshwari and Justice Rajesh Bindal held, “… the transfer by way of absorption on exercise of option as specified in Appendix I and Appendix II contained in G.O. dated 25.10.2008 does not attract the proviso to Rule 27(a) of KS&SS Rules, which only deals with the transfer on request or on mutual request. Thus, the action taken in public interest due to administrative exigency even on option is different than the action done on request. In our view, the proviso to Rule 27(a) does not attract in case of a transfer by way of absorption done by the Department in furtherance to the policy decision of the Government. Therefore, transfer by way of absorption in public interest cannot be equated with the transfer on request in contingencies as specified in proviso to Rule 27(a) or applied mutually."
The Bench clarified that an ‘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.
Senior Advocates Raghenth Basant and V. Giri represented the Appellants while Senior Advocate Jaideep Gupta represented the Respondents.
Facts of the Case -
The Appellants were the employees who were working in the Directorate of Health Services (DHS) later absorbed on furnishing option as demanded, in the Directorate of Medical Education (DME) on account of abolition of dual control system of the staff in medical colleges under the policy decision of the Kerala State. The rival claims of inter-se seniority between the original employees of DME and absorbed employees from DHS in the respective categories of DME made by both were decided by the High Court. A Writ Petition was filed by the absorbed employees, contending that they are entitled to retain their existing seniority even on absorption in DME. Since the inter-se seniority of the absorbed employees was yet to be finalized, during the pendency of the said Writ Petition, promotions made to the post of Junior Superintendent and Upper Division Clerks in the DME were cancelled.
Meanwhile, the State Government issued a clarificatory letter indicating that seniority of the absorbed employees shall be reckoned from the date of order of promotion for the promotees and from the date of first effective advice in case of direct recruits. The said letter was assailed via Writ Petitions by the original employees. The case set out was that once the absorbed employees were transferred after exercising their ‘option’ to join DME, they must rank junior and be placed at the bottom of the seniority list and their seniority be reckoned from the date of joining in the DME as per Rules 27(a) and 27(c) of the KS&SS Rules. The Single Judge allowed the absorbed employees’ Petitions while dismissed the ones of the original employees. Resultantly, Appeal was preferred before the Division Bench and it set aside the Single Judge’s Judgment. Challenging this, the Appellants approached the Apex Court.
The Supreme Court in view of the facts and circumstances of the case, noted, “In our view, the intent of Rules 27(a) and 27(c) is clear that seniority be reckoned from the order of his first appointment and the inter-se seniority be determined as per the date of first effective advice made for his appointment in service, class, category or grade as the case may be. 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.”
The Court added that the proviso to Rule 27(a) is an exception to the transfer on administrative grounds in public interest and the said fact is also clear from the Rules framed and its declaration, by which the employee has furnished option for absorption without making any request for transfer.
“Here, it is a case of transfer by way of absorption. Now, to deal with the meaning of absorption, we can profitably refer to the different glossaries. As per P. Ramanatha Aiyar’s Advanced Law Lexicon, 7th Edition, ‘absorption’ means ‘to take in. On absorption, the employee becomes part and parcel of the department absorbing him and partakes the same colour and character of the existing employees of the department”, it further noted.
The Court enunciated 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 i.e., absorb clearly indicates to suck up, to imbibe to draw as a constituent part and consume.
“The transfer of an employee is an incidence of service if it is in public interest. It cannot be disputed that the Government is the best judge to decide how to distribute and utilise the services of an employee", it remarked.
The Court added that, if an employee makes a request due to some hardship and if the authority or the Government as the case may be is satisfied, it may post such employee as per request, but such transfer cannot be termed as transfer in public interest because it is on the request of the employee and not in the exigencies of the public administration.
“… abolition of dual control system was inevitable, therefore, bifurcation of DHS and DME was directed based on the recommendations. … seniority of the absorbed employee cannot be disturbed applying the proviso of Rule 27(a) of KS&SS Rules. … 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”, it concluded.
Accordingly, the Apex Court allowed the Appeals, set aside the impugned Judgment, and directed the State to draw the seniority list of DME employees.
Cause Title- Geetha V.M. & Ors. v. Rethnasenan K. & Ors. (Neutral Citation: 2025 INSC 33)
Appearance:
Appellants: Senior Advocates Raghenth Basant, V. Giri, AOR Mohammed Sadique T.A., Advocates Alim Anvar, Krishna Dev Jagarlamudi, Harshed Sundar, and Santhosh K.
Respondents: Senior Advocate Jaideep Gupta, AORs K. Rajeev, C. K. Sasi, Arvind Gupta, Advocates Dileep Poolakkot, Meena K Poulose, Riddhi Bose, Racheeta Chawla, Rishi Agarwal, Sampriti Bakshi, and Siddharth Banerjee.
