Inter-departmental transfer on employee's own request with lien retained in parent department. The Court construed paragraph 2 of a Kerala Government notification governing reversion, held neither condition for return to the parent department was satisfied, so her appointment as Upper Division Clerk and subsequent promotion were illegal.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
375
A
V. A. SlJBHADRA AND ORS.
v.
A. SATYAVAN & ORS.
August 22, 1975
[A. N. RAY, C.J., K. K. MATHEW ANDY. v. C!!ANDRACHUD, JJ.J
B St•rvice rnattcr~Rules regarding inter-depor11nenta! transfers-Notification is.1ued by the Go1·enunent of Kerala on January 2, 1961-Scope of.
The appellant, who was a Lower Division Clerk in a department of the State Government. had gone on transfer to another department on .her own request. Under a notification issued by the State Government, a person could revert to his parent department (i) only if and when there is no vacancy for hm. to continue in the new unit or (ii) if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by c him. The appellant was offered a temporary post of U.D.C. in the parent departn1ent but she declind. The first respondent was therefore pron1oted to the post. When a permanent vacancy of Upper Division Clerk occurred in the parent department the appellant was appointed to tha:· post and was later promoted to a higher post. In a petition under Art. 226 of the Constitution filed by respondent No. I the High Court quashed the order of the appellant's appointment and her promotion to the higher post. Dismissing the appeal to this Court, HELD : Tlte order by which the appellant was appointed as an Upper Divi~ D sion Clerk in the parent department was illegal and was rightly quashed by the High Court. The order promoting the appellant must fall with that order. 1378FJ
( 1) Since under paragraph 2 of the no''.ifica-tion an employee can come back to his old nnit or deoartment "onlv if and when" either of the two conditions is satisfied. the appellant \Vas not entitled to return to her parent department. Unless she could validly revert to her old unit she could not be appointed ·to a post higher than the one substantively held by her in that unit on the date of her E transfer. [378B,C]
(2) Pay :n the substantive post in the parent depa1iment means the pay attached to the post substantively held by an employee on the date of transfer to another department. The pay which the appellant would have drawn as an Upper Division Clerk in her parent department on the date of her appointment \Vas not higher than the pay which she was drawing in the new unit. The substantive post held by the appellant, apart from the impugned order of promotion, F \Vas that of a Lower Division Clerk. The comparison, therefore. has to be betY.'een the pay of that post and the pay of the post which the appeili,:lnt \Vas holding in the department to which she wa'i transferred. [377~H, 378EJ CIVIL APPLIATE JURISDICTION : Civil Appeals Nos. 247 and 248 1975. Appeals by special leave from the Judgment and Order dated the • G 29th May, 1974 of the Kentla High Court in Original Petition No . 5463 of 1971. T. S. Krishnamoorzhy Iyer and N. ·Sudhakaran, for the appellant (in appeal No. 247175 and respondent no. 2 in C.A. No. 248/75). T. C. Raghavan and P. K. Pillai, for respondent no.I (in both the appeals). H K. T. Harindranath (in C.A. No. 248/75) and K. R. Nambiy1ll', (for respondent No. 2 in C.A. No. 247 and the appellant in C.A. No. 248175).
[1976] 1 S.C.R.
376
SlJPREME CDURT REPORTS
The Judgment of the Court was dclivcreXI by
A
CHANIJRACHUD, J. This appeal by special leaves arises out of the judgment of the High Court of Kerala in Writ Petition No. 5463 of 1971. That petition was filed by the !st respondent A. Satyavan against the Stute of Kerala, the Director of the Uepartment of Museums and Zoos, Trivandrum and the appellant Smt. V. A. Subhadra. The main relief sought by the J st respondent was that the order passed by B the State of Kerala on March 18, 1971 appointing the appellant as an Upper Division Clerk in the Department of Museums and Zoos be quashed.
The appellant was appointed as a Lower Division Clerk in the Department of Museums and Zoos, Trivandrum in J 949. She was confirmed in that post in 1950. The !st respm1dent was appointed as .a Lower Division Clerk in the same Department in 1955 and was confirmed in 1963. On April 9, 1962 the appellant, on her own request, was transfered to the Department of Agriculture. That was an inter-departmental trn.isfcr. Though on transfer the appellant became the junior-most employee in the Department of Agriculture, her rank .and lien were maintained in the Department of Museums and Zoos.
In course of time a vacancy arose in the post of the Upper Division Clerk in the Department of Museums •,md Zoos. One M. S. Pillai was the scniormost Lower Division Clerk in that Department but when the post of promotion was offered to him he declined it on the ground <>f ill-health. The appellant was next in order of seniority amongst the Lower Division Clerks in the Department of Museums n:.icl Zoos and since her rank and lien in that Department were maintained, she was offered the post of the Upper Division Clerk. She conveyed her inability to accept that post for the time being and thereupon the !st respondent, who was next in order of seniority, was appointed provisionally as an Upper Div;s;nn Clerk. His appointment was made w;thout prejudice to the claims of the senior~ in the Department of Museums and Zoos. On the retirement of M. S. Pillai, a permanent \•aeancy in the post of the Upper Division Clerk arose in the Department of Museums a:.id Zoos. On July 6, 1970 the appellant, who was working in the Department of Agriculture, conveyed her willingness to accept that post. By an order dated March 18, l 971 she was appointed as an Upper Division Clerk -and later on May 3, 1971 she was further promoted as a Senior Superinte.idertt. Both of these appointments as also the order by which his representation was rejected by the Government, were challenged in the Writ Petition by the 1st respondent.
The High Court of Kerala allowed the writ petition holding that under the relevant rules, the appeJlant was not entitled to be re-transferred to her parc'at department and without a valiil order of re-transfer she could not be appointed as an Upper Division Clerk in that Department. The High Court therefore quashed the order elated March 18. 1971 by which the appellant was appointed as an Upper Division Clerk and the orders consequent upon it.
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D
E
F
G
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II
v. A. SUBHADRA v. A. SATYAVAN (Chandraclrud, !.) 377
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F
(1976] 1 s.c.R.
SUPREME COURT REPORTS
378
iitlached to the post substantively held by the employee on the date of transfer to another department. Since the substantive post held by the appellant on the date of her transfer to the Department of Agriculture was that of a Lower Division Clerk, what must be considered is whether the pay which the appellant would have drawn in that post, had she continued in her pawat department, had ior any reason become higher than the pay drawn by her in the post held by her in the Department of Agriculture. It is undisputed that the pay which the appellant would have drawn as an Upper Division Clerk in her parent department on March 18, 1971 was not higher than the pay which she was drawing in the Department of Agriculture. Since under Paragraph 2. an employee can come back to his old unit or department, "only if and when" either of the two conditions is satisfied, the _!lPpellant was not entitled to return to her parent department. Unless she could validly revert to her old umt·, she could not be appointed to a post higher than the one substantively held by her in that unit on the date of her transfer.
It is urged on behalf of the appeiiant that the pay which she would draw in the post of an Upper Division Clerk ia tile parent department, after her re-transfer to that department, would be higher than the pay which she was drawing m the post which she was holding in the Department of Agriculture and therefore she would be entitled to return to her parent dep•artment u.1der the second of the two conditions mentioned above. It is impossible to accept this contention. TI1e substantive post held by the appellant, apart from the impugned order of promotion, was that of a Lower Division Clerk in the Department of Museums oand Zoos. The comparisO'a therefore has to be between the pay of that post and the pay of the post which the appellant was holding in the department to which she was transferred.
The order dated March 18, 1961 by which the appellant was appointed as an Upper Division Clerk in the Department of Museums and Zos is therefore illegal and was rightly quashed by the High Court. The order dated May 3, 1971 further promoting the appellant as a Senior Superint.1dent must faii with that order. The appeal is accordingly dismissed.
A
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B
• ,.,_ • c
D
E
F
Civil Appeal No. 248 of 1975 : ·
This appeal is filed by the State of Kerala against the soame judgment of the High Court which gave rise to the appeal just disposed of by us. In accordance with the view taken by us in C.A. No. 247 of l 975, this appeal must be dismissed.
G ..
While admitting these two appeals, this Court had directed tlral the Government of Kerala shall pay the costs of the 1st respondent, A. Satyavan, in any event. Accordingly, the Government of Kerala shall pay the costs of the 1st respondent. Costs shall be in one set only.
P.B.R.
Appeal dismissed. H
1 issue framed by the court
Whether the appellant was entitled under paragraph 2 of the Kerala notification of January 2, 1961 to revert to her parent department and be appointed Upper Division Clerk.
1 provisions across 1 enactments
V. A. Subhadra
A. Satyavan
State of Kerala
A. N. Ray
K. K. Mathew
Y. V. Chandrachud
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
