Highlighting the difference between transfer of a government employee in the public interest and transfer made at one's own request, the Supreme Court has explained that subject to specific provisions of the Rules governing the services, the latter transferees are generally placed at the bottom, below the junior-most employee in the category in the new cadre or department.

The Apex Court was considering an appeal against the judgment allowing the application of a former Staff Nurse working in the Department of Indian System of Medicine and Homeopathy, State of Karnataka.

The Division Bench, comprising Justice Pamidighantam Sri Narasimha and Justice Manoj Misra observed, “If a government employee holding a particular post is transferred on public interest, he carries with him his existing status including seniority to the transferred post. However, if an officer is transferred at his own request, such a transferred employee will have to be accommodated in the transferred post, subject to the claims and status of the other employees at the transferred place, as their interests cannot be varied without there being any public interest in the transfer. Subject to specific provision of the Rules governing the services, such transferees are generally placed at the bottom, below the junior-most employee in the category in the new cadre or department. The rationale in assignment of such seniority is to avoid heartburn of existing employees in the transferred cadre."

AOR V. N. Raghupathy represented the Appellant while AOR Himanshu Chaubey represented the Respondent.

Factual Background

The respondent was appointed as a Staff Nurse in the Department of Indian System of Medicine and Homeopathy, State of Karnataka in the year 1979. She submitted a representation to the government and requested to change her cadre to First Division Assistant on medical grounds. The Medical Board submitted its report in 1985, indicating that the respondent was suffering from bronchitis and that she would not be able to carry out the duties of a Staff Nurse.

Accepting her consent to be placed below the last person in the transferred post, orders of temporary posting, followed by a final order, were issued by the government changing the cadre of the respondent from Staff Nurse to First Division Assistant on medical grounds and to take the position below the last candidate. The respondent continued in the new position as First Division Assistant at the place as was accepted by her from 1989 to 2007. However, when the seniority list was released in 2007, she approached the Karnataka Administrative Tribunal challenging the final seniority list on the ground that her seniority must be fixed as per her initial appointment as Staff Nurse in 1979 and not on the basis of her entry into the new cadre on January 19, 1989 as First Division Assistant.

The Tribunal allowed the Original Application. It was in such circumstances that the Health & Family Welfare Department approached the Apex Court.

Reasoning

The Bench explained that Rule 16 is in two parts. Rule 16(a) enables the government to make appointments of certain officers and Rule 16(b) empowers such appointments by relaxing the qualifications prescribed. Reference was made to Rule d with Rule 16(a), which in turn comprises three categories of officers in whose favour the relaxation could be made. One of the categories relates to the appointment of an officer who, by bodily infirmit,y is permanently incapacitated for the post he holds.

For appointment of such an officer, the Rule prescribes two conditions and they are indicated in the proviso. The first condition is that the said officer should not be appointed to a post lower than the post held by him or her. The second condition is that if the officer consents, he can be appointed to a post lower than the one that was held by him or her.

The Bench explained that the invocation of Rule 16 is an exception. However, if the power is exercised, it will operate notwithstanding anything contained in the 1977 Recruitment Rules or other rules, and the reason for the exercise of such a power must be evidenced in the written text of the record.“An officer who by bodily infirmity is permanently incapacitated can be appointed to the new post in relaxation of the existing Rules. However, such appointment shall not be lower than the one he holds. The prescription that such an officer cannot be appointed to a post lower than that held by him or her can be waived or deviated from if the officer himself consents for the same", it observed.

It was further stated that Rule 6 of the 1957 Seniority Rules contemplates transfers under two contingencies; the first is when the transfer is made in the public interest, and the second is when the transfer is made at the request of the officer. “In the order impugned before us, the High Court has fallen into an error by blurring the distinction between the two functions and treating a transfer made at the request of the officer on medical grounds as equivalent to transfer in public interest. Keeping the distinction is essential since origin and the consequences that follow are distinct”, it said.

Keeping in view Rule 16 of the 1977 Rules, as per which the respondent accepted the appointment after consenting to be placed before the last person in the transferred post, the Bench was of the opinion that seniority has to be with effect from 1989 only. “The decision of the government in issuance of final seniority list dated 01.10.2007 granting seniority w.e.f. 19.04.1989 is in consonance with Rule 16 of 1977 Recruitment Rules. This decision is also in consonance with Rule 6 of the 1957 Seniority Rules which specifically provide that where transfers are made at the request of the officer, the employee shall be placed below all the officers borne in that class in the transferred post”, the Bench said.

It was observed that the facts of the present case were identical to the decision in M K Jagadeesh v. The Registrar General, High Court of Karnataka (2007) wherein it was observed that having sought change of cadre giving an undertaking to become the junior to the juniormost in the new cadre and having accepted the appointment to the new cadre with the condition that he would be junior to the juniormost First Division Assistant in the unit, it was not open to the appellant to request that his seniority must be reckoned from the original date of appointment.

In light of such factual and legal aspects, the Bench held that the Tribunal as well as the High Court committed an error in directing the appellant to grant seniority to the respondent in the cadre of First Division Assistant with effect from the date in which the said respondent had entered service in the cadre of Staff Nurse from January 5, 1979, instead of April 19, 1989, when she was appointed in the new cadre of First Division Assistant.

Thus, allowing the appeal, the Bench set aside the order of the Karnataka High Court.

Cause Title: The Secretary to Government Department of Health & Family Welfare & Anr. v. K.C. Devaki (Neutral Citation: 2025 INSC 389)

Appearance:

Appellant: AOR V. N. Raghupathy, Advocates Raghavendra M. Kulkarni, Mythili S, M. Bangaraswamy, Venkata Raghu Mannepalli, Md. Apzal Ansari

Respondent: AOR Himanshu Chaubey, Advocates Siddharth Garg, Himanshu Chaubey, Srijan Sinha, Lihzu Shiney Konyak, Srajan Yadav

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Justice Pamidighantam Sri NarasimhaJustice Manoj Misra

Tulip Kanth

Assistant Editor

Tulip Kanth is an Assistant Editor at Verdictum having over 5 years of experience in the field of legal journalism and editing. She extensively covers judgments of the Supreme Court, High Courts as well as Tribunals. She has previously worked with a legal publishing website where she oversaw the work of other editors and has also created updates on notifications of different Government Ministries. She holds an English Honours Degree from SGTB Khalsa College, Delhi University and has completed her LLB course with specialisation in Corporate Law from Amity University.