Indian Kanoon - Search engine for Indian Law

The Judgment of the Court was delivered by `CHANDRACHUD, 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 The respondent A. Satyavan against the State of Kerala, the Director of the department of Museums and Zoos, Trivandrum and the appellant Smt. V. A. Subhadra. The main relief sought by the Ist respondent was that the order passed by 1 the State of Kerala on March ]8, 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 ill the Department of Museums and Zoos, Trivandrum in 1949. She was confirmed in that post in 1950. The Ist respondent was appointed as a Lower Division Clerk in The same Department in 1955 and was confirmed ill 1963. On April 9, 1962 the appellant, on her own request-department transfer to the Department of Agriculture. her rank was an inter- departmental transfer. 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 vacancy arose in the post of the Upper Division Clerk in the Department of Museums and zoos. One M. S. Pillai was the senior most Lower Division Clerk in that Department but when The post of promotion was offered to him he declined it on the ground of ill-health. The appellant was next in order of seniority amongst the Lower Division Clerks ill the Department of Museums and 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 1st respondent, who was next in order of seniority, was appointed provisionally as an Upper Division Clerk. His appointment was made without prejudice to the claims of the seniors in the Department of Museums and Zoos.

The High Court of Kerala allowed the writ petition holding that under the relevant rules, the appellant was not entitled to be re-transferred to her parent department and without a valid order of re-transfer she could not be appointed as an Upper Division Clerk in that Department. The High Court therefore quashed the order dated March 18. ;1 1971 by which the appellant was appointed as an Upper Division Clerk and the orders consequent upon it.

There are two things in favour of the appellant and they must first be mentioned. The order dated April 9, 1962 passed by the Director of Museums and Zoos by which the appellant was transferred to the Department of Agriculture expressly mentions that her lien and rank will be maintained in the Department of Museums and zoos. It is therefore plain that if and when the appellant rejoined the Department of Museums and Zoos in conformity with the rules and regulations, she would occupy the rank which she would have occupied but for her transfer to the Department of Agriculture. Secondly, the order dated April 4, 1968 passed by the Director of Museums and Zoos by which the 1st respondent was appointed as an Upper Division Clerk in the Department of Museums and Zoos mentions expressly that he was appointed in the higher post for the time being only and that the appointment was made without prejudice to the claims of his seniors. In the Department of Museums and Zoos the appellant was senior to the 1st respondent and therefore her claim of seniority would not be affected by the appointment of the 1st respondent as an Upper Division In spite of this position, the appellant's appointment as an Upper Division Clerk in the Department of Museums and Zoos is invalid because such an appointment could be made only if, in the first place, the appellant was entitled under the relevant rules to return to her parent . department. It was common ground that the appellant's right to re turn to the Department of Museums and Zoos was governed by the notification issued by the Government of Kerala on January 2, 1961. Paragraph 2 of that notification reads thus: