# Geetha V.M. & Ors v. Rethnasenan K. & Ors

- **Citation:** 2025 INSC 33
- **Court:** Supreme Court of India
- **Decided:** 2025-01-03
- **Case number:** Civil Appeal Nos. 3994-3997 of 2024
- **Bench:** J.K. Maheshwari, Rajesh Bindal
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/geetha-v-m-ors-v-rethnasenan-k-ors-38844
- **Pages:** 27

## Headnote

Whether the option exercised by Directorate of Health Services
(DHS) employees to join Directorate of Medical Education (DME)
pursuant to a policy decision of the State of Kerala ought to be
considered as an option for absorption or a request for transfer
under proviso to Rule 27(a) of Kerala State and Subordinate
Service Rules, 1958 and in that situation, the inter-se seniority of
such employees in the DME shall be reckoned from which date.
Headnotes†
Kerala State and Subordinate Service Rules, 1958 - Proviso
to r.27(a) - Kerala Service Rules, 1959 - r.36 - Transfer of
the appellants-absorbed employees by way of absorption as
per the policy decision of the Government of Kerala, if would
attract the proviso to r.27(a):
Held: No - The proviso of r.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 exception
is not attracted in a case of transfer by way of absorption made
in public interest or in administrative exigencies - Transfer of an
employee is an incidence of service if it is in public interest -
Government is the best judge to decide how to distribute and
utilise the services of an employee - However, if employee
makes a request due to some hardship and if the authority or
the Government on being satisfied, posts such employee as per
request, such transfer is not a transfer in public interest as it is
on the request of the employee and not in the exigencies of the
public administration - In the present case, the transfer was made
by way of absorption on the basis of option and not on the basis
of request which was in furtherance to a policy decision of the
Govt. to abolish the dual control system enhancing the efficiency
* Author
516
[2025] 1 S.C.R.
Digital Supreme Court Reports
of the administration of medical colleges and attached hospitals
thereto giving it to DME withdrawing from DHS - Therefore, the
transfer by way of absorption on exercise of option as specified
in Appendix I and II contained in G.O. dtd. 25.10.2008 does not
attract the proviso to r.27(a) 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 - Appellants exercised the option
for absorption by transfer from DHS to DME in line with the policy
decision and thus, it cannot be considered as a case of transfer
based on their own request, volition or voluntary choice - Proviso
to r.27(a) is not attracted in case of a transfer by way of absorption
done by the Department in furtherance to the policy decision of the
Govt. - Transfer by way of absorption in public interest cannot be
equated with the transfer on request in contingencies as specified
in proviso to r.27(a) or applied mutually - Further, seniority of the
absorbed employee cannot be disturbed applying the proviso
of r.27(a) - Their seniority and inter-se seniority be maintained
as per r.27(a) and 27(c) of Part II of 1958 Rules r/w clarificatory
letter dated 24.04.2010 with reference to r.8 of Appendix I to G.O.
dated 25.10.2008 - Impugned judgment set aside. [Paras 37, 39,
47, 51-53]
Words and Phrases - 'Transfer'; 'option'; 'absorb'; 'absorption' -
Discussed.

## Text

_Characters 0–39,762 of 59,814. This is a partial read: ask again with offset=39762 for what follows._

[2025] 1 S.C.R. 515 : 2025 INSC 33
Geetha V.M. & Ors.
v.
Rethnasenan K. & Ors.
(Civil Appeal No(s). 3994-3997 of 2024)
03 January 2025
[J.K. Maheshwari* and Rajesh Bindal, JJ.]
Issue for Consideration
Whether the option exercised by Directorate of Health Services
(DHS) employees to join Directorate of Medical Education (DME)
pursuant to a policy decision of the State of Kerala ought to be
considered as an option for absorption or a request for transfer
under proviso to Rule 27(a) of Kerala State and Subordinate
Service Rules, 1958 and in that situation, the inter-se seniority of
such employees in the DME shall be reckoned from which date.
Headnotes†
Kerala State and Subordinate Service Rules, 1958 - Proviso
to r.27(a) - Kerala Service Rules, 1959 - r.36 - Transfer of
the appellants-absorbed employees by way of absorption as
per the policy decision of the Government of Kerala, if would
attract the proviso to r.27(a):
Held: No - The proviso of r.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 exception
is not attracted in a case of transfer by way of absorption made
in public interest or in administrative exigencies - Transfer of an
employee is an incidence of service if it is in public interest -
Government is the best judge to decide how to distribute and
utilise the services of an employee - However, if employee
makes a request due to some hardship and if the authority or
the Government on being satisfied, posts such employee as per
request, such transfer is not a transfer in public interest as it is
on the request of the employee and not in the exigencies of the
public administration - In the present case, the transfer was made
by way of absorption on the basis of option and not on the basis
of request which was in furtherance to a policy decision of the
Govt. to abolish the dual control system enhancing the efficiency
* Author
516
[2025] 1 S.C.R.
Digital Supreme Court Reports
of the administration of medical colleges and attached hospitals
thereto giving it to DME withdrawing from DHS - Therefore, the
transfer by way of absorption on exercise of option as specified
in Appendix I and II contained in G.O. dtd. 25.10.2008 does not
attract the proviso to r.27(a) 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 - Appellants exercised the option
for absorption by transfer from DHS to DME in line with the policy
decision and thus, it cannot be considered as a case of transfer
based on their own request, volition or voluntary choice - Proviso
to r.27(a) is not attracted in case of a transfer by way of absorption
done by the Department in furtherance to the policy decision of the
Govt. - Transfer by way of absorption in public interest cannot be
equated with the transfer on request in contingencies as specified
in proviso to r.27(a) or applied mutually - Further, seniority of the
absorbed employee cannot be disturbed applying the proviso
of r.27(a) - Their seniority and inter-se seniority be maintained
as per r.27(a) and 27(c) of Part II of 1958 Rules r/w clarificatory
letter dated 24.04.2010 with reference to r.8 of Appendix I to G.O.
dated 25.10.2008 - Impugned judgment set aside. [Paras 37, 39,
47, 51-53]
Words and Phrases - 'Transfer'; 'option'; 'absorb'; 'absorption' -
Discussed.
Case Law Cited
K.P. Sudhakaran and Another v. State of Kerala and Others (2006)
5 SCC 386 - held inapplicable.
Kartar Singh v. State of Punjab, 1989 SCC OnLine P&H 482 -
approved.
Books and Periodicals Cited
P. Ramanatha Aiyar's Advanced Law Lexicon, 7th Edition; Corpus
Juris Secundum; Merriam-Webster Dictionary; Black's Law
Dictionary.
List of Acts
Kerala State and Subordinate Service Rules, 1958; Kerala Service
Rules (KSR), 1959.
[2025] 1 S.C.R.
517
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
List of Keywords
Transfer; Transfer by way of absorption; Exercise of option;
Absorbed employees; Request for transfer; Transfer on request;
Mutual request; Seniority; Inter-se seniority; Directorate of Health
Services (DHS); Administrative control of DHS; Directorate of
Medical Education (DME); State of Kerala; Primary Health Centres
(PHCs); Community Health Centres (CHCs); Taluk Hospitals;
District Hospitals; Specialty Hospitals; Policy decision; Public
interest; Transfer in public interest; Dual control system; Hospitals;
Administration of medical colleges; Administrative exigency; public
administration; Clarificatory letter; transfer applied mutually; 'Option';
'Absorb'; 'Absorption'.
Case Arising From
CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 3994-3997
of 2024
From the Judgment and Order dated 13.03.2019 of the High Court of
Kerala at Ernakulam in WA Nos. 1418, 1525, 1527 and 1652 of 2010
Appearances for Parties
V. Giri, Jayanth Muth Raj, Sr. Advs., Krishna Dev Jagarlamudi,
Alim Anvar, Harshed Sundar, Mohammed Sadique T.A., Advs. for
the Appellants.
Jaideep Gupta, Raghenth Basant, Sr. Advs., C. K. Sasi,
Ms. Meena K Poulose, Riddhi Bose, Ms. Racheeta Chawla,
Ms. Rishi Agarwal, Ms. Sampriti Bakshi, Siddharth Banerjee,
Dileep Poolakkot, Ms. Hima Bhardwaj, K. Rajeev, Arvind Gupta,
Advs. for the Respondents.
Judgment / Order of the Supreme Court
Judgment
J.K. Maheshwari, J.
1.
The present appeals have been filed impugning the order passed
by High Court of Kerala at Ernakulam on 13.03.2019 in W.A.
Nos. 1418, 1525, 1527 and 1652 of 2010, reversing the judgments
dated 29.06.2010 and 30.06.2010 passed by learned Single Judge
518
[2025] 1 S.C.R.
Digital Supreme Court Reports
in W.P. (C) Nos. 4599, 12381 and 14091 of 2010 and W.P. (C) No.
20269 of 2010 respectively.
2.
Appellants herein are the employees who were working in the
Directorate of Health Services (the "DHS"), later absorbed on
furnishing option as demanded, in the Directorate of Medical
Education (the "DME") on account of abolition of dual control system
of the staff in medical colleges under the policy decision of the State
of Kerala. The rival claims of inter-se seniority between the original
employees of DME (hereinafter referred as 'original employees')
and absorbed employees from DHS in the respective categories of
DME (hereinafter referred to as 'absorbed employees') made by
both were decided by the order impugned.
3.
Writ Petition No. 4599/2010 was filed by the absorbed employees
contending that they are entitled to retain their existing seniority
even on absorption in the DME in terms of Rule 8 of Appendix I of
the G.O. (P) No. 548/2008/H&FWD dated 25.10.2008. 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.
4.
In the meantime, the Government of Kerala issued clarificatory letter
No. 8195/K1/10/H&FWD dated 24.04.2010 (the "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
clarificatory letter was assailed by filing Writ Petitions Nos. 12381 and
14091 of 2010 by the original employees. The case set out was that
once the absorbed employees were transferred after exercising their
'option', in terms of G.O. (P) No. 548/2008/H&FWD dated 25.10.2008,
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 Rule 27(a) and Rule 27(c) of 'Kerala State
and Subordinate Service Rules, 1958 (in short "KS&SS Rules").
5.
Learned Single Judge decided the writ petitions of the original and
absorbed employees by passing the common judgment and relying
upon Rule 8 of Appendix I of G.O. dated 25.10.2008 opined that
seniority of staff who opted to join DME will be maintained as per
Rule 27(a) and 27(c) of Part II, KS&SS Rules and the clarificatory letter
[2025] 1 S.C.R.
519
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
dated 24.04.2010. The Writ petition filed by the absorbed employees
was allowed and the Writ Petitions of the original employees were
dismissed holding that absorbed employees would be entitled to
retain their past service rendered in DHS and their seniority in DME
shall be reckoned from the date of initial appointment in DHS.
6.
On filing Writ Appeal by the original employees of DHS, the Division
Bench by the order impugned set-aside the judgment of learned
Single Judge and observed that once absorbed employees had joined
DME on their own request opting for inter-departmental transfer,
proviso to Rule 27(a) of Part II of KS&SS Rules, would attract and
the seniority of the absorbed employees will be determined with
reference to their date of joining in the DME. The said order is under
challenge in these appeals.
Factual Background
7.
Prior in time, DME was formed w.e.f. 10.05.1983, to manage and
coordinate Medical Colleges and Collegiate Hospitals in the State of
Kerala. Hospitals attached to medical colleges were under the control
of the DME, while Primary Health Centres (PHCs), Community Health
Centres (CHCs), Taluk Hospitals, District Hospitals and Specialty
Hospitals were under the control of DHS. Before formation of the
DME, medical colleges were operated independently but under the
administrative control of DHS and the 'Principal' was the head of
the department. After formation of DME, the authority of Principal
was transferred to DME, however, the 'nursing, paramedical, and
ministerial staff' associated with hospitals and affiliated institutions
continued to remain under the administrative control of DHS which
also included the power of appointment. This resulted in 'dual control',
where even though administrative authority of the medical colleges
and collegiate hospitals was shifted to DME, but the staff continued
to remain under the control of DHS, due to which significant delay
and administrative difficulties were being faced in ensuring timely
assignment/posting of Staff Nurses, Nursing Assistants, Technicians,
Attendants, Cleaning Staff, and other categories of Paramedical Staff
at Medical College Hospitals and affiliated institutions. Additionally,
Superintendents of Medical Colleges and Heads of Clinical
Departments were encountering tremendous hardship to maintain
discipline amongst staff inter-se departments. Resultantly, it posed
as an extreme impediment for the Government of Kerala to ensure
smooth functioning of both the Departments.
520
[2025] 1 S.C.R.
Digital Supreme Court Reports
8.
Elaborating on further challenges, particularly regarding appointments,
majority of the hospital staff was appointed either by the DHS or the
District Medical Officer. Although Hospital Superintendents had the
power to initiate disciplinary action, yet the power for appointments,
transfers, promotions, and discipline for these employees continued
to remain with the DHS or District Medical Officer. Identifying the
issues, the Government of Kerala formed several committees that
recommended elimination of dual control system in Medical Colleges
as a corrective measure, aimed for benefiting the public at large. To
cite few examples, as per Indian Medical Council regulations, "All the
teaching hospitals shall be under the academic, administrative and
disciplinary control of Dean / Principals of Medical Colleges or Medical
Institutions"; as per State Planning Board's Working Group report
on Health, Nutrition and Sanitation on 10th Five Year Plan (2002 -
2007), the Principals / Superintendent of Medical Colleges have no
administrative or disciplinary control over the staff. Therefore, all the
above categories of paramedical and ministerial staff in Medical College
Hospitals and attached other hospitals have to be appointed directly
by DME and the existing staff must be given freedom to opt for either
DHS or DME and all new appointments must be done separately.
9.
Further, the 'Estimates Committee' (1998 - 2000) of Kerala Legislature
in its 28th Report recommended that the employees working in the
Medical Colleges such as Nurses, Paramedical Staff are to be
bifurcated from DHS and are to be brought under the control of DME
and the existing staff should be given an opportunity to exercise
option. Subsequent thereto, 'Estimates Committee' (2001 - 2004) of
the Kerala Legislature reiterated that employees working in medical
colleges shall be brought under the control of DME and staff which at
present is in existing control of DHS should be afforded an opportunity
to furnish options either of DHS or DME. The State Government
after examining the recommendations in public interest accorded
sanction to abolish the dual control system for the Staff attached to
the Medical Colleges and Hospitals and brought them out from the
administrative and disciplinary control of DHS by issuing the G.O.
(MS) No. 124/2007/H&FWD dated 01.06.2007.
10. While according sanction, the State decided to ask for the options
from existing employees of the DHS to move to the posts which
stood transferred to DME. The relevant clauses of the said G.O. for
understanding are quoted herein below -
[2025] 1 S.C.R.
521
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
"1.
The sanctioned posts of all categories of staff
(except doctors in Primary Health Centres who are
appointed by the Health Services Department) such
as Nursing, Paramedical and Ministerial Staff in the
hospitals under the Director of Medical Education will
stand shifted to the service of Directorate of Medical
Education w.e.f. 01.06.2007.
2.
The employees of the Health Services Department
now working against these shifted posts shall be
treated as on deputation to the Directorate of Medical
Education, until further orders.
3.
The existing employees of Health Services Department
will be given an opportunity to exercise opinion (sic)
to move to the posts transferred to the Director of
Medical Education. A committee will be constituted
under the Chairmanship of Secretary (Health),
with Director of health Services, as Convener for
discussions with service organizations regarding
rules for exercising of option, the arrangements to
be made in the Health Service Department due to
the transfer of these posts, promotion and other
service matters and for submitting recommendations
to Government.
4.
The appointing authority of the transferred categories
of posts (except last grade service posts) will be
Director of Medical Education. The Principal will be
the appointing authority of last grade service posts.
5.
(i) The appointment to the category / post of Nursing
Assistant now transferred to Directorate of Medical
Education shall be made by direct recruitment and
the special rules will be changed accordingly. The
Director of Medical Education will submit proposals
for qualification for direct recruitment to the post of
Nursing Assistant.
(ii) However, the existing vacancies of Nursing
Assistants are to be filled up by promoting the eligible
Hospital attendants after giving them training. Direct
recruitment as per 5 (i) above shall be done only to
522
[2025] 1 S.C.R.
Digital Supreme Court Reports
the remaining vacancies, after giving promotion to
all the eligible Hospital - Attendants.
(iii) Considering the acute shortage of staff, the Last
grade service special rules shall be deemed to be
modified in the public interest in the case of Directorate
of Medical Education only and the Principals are
permitted to make temporary appointment through
Employment Exchange to all the vacant posts in
the categories of Nursing Assistant and Hospital
Grade - I and II, except the vacancies to be kept
apart for promotion of eligible hands in these posts.
(iv) The Secretary (Health) is authorized to obtain
remarks from PSC if required for the implementation
of any of the above decisions and submit proposals.
(v) The steps to transfer of budget allotment for salary
and other items from Director of Health Services to
Director of Medial (sic) Education will be taken up in
consultation with Finance Department."
xx xx xx xx
11. From the aforementioned G.O., it is also evident that State actively
intended to identify the issues and decided to address them involving
all the stakeholders. After extensive deliberations with all, the
Government of Kerala by G.O. (Ms.) No. 163/07/H&FWD, dated
16.07.2007, constituted a Committee under the Chairmanship of
Additional Secretary (Health) to resolve the issues related to abolition
of dual control system. A meeting was convened on 10.10.2007 with
all the stakeholders inviting their views and suggestions. During
the meeting, highlighting the recommendations of the Estimates
Committee (1998-2000) and Estimates Committee (2001-2004),
consensus was reached to implement the same. After extensive
discussions, the committee framed the 'Draft Rules' for options,
'Draft Option form', and the qualifications required and method of
appointment for the categories other than the common categories
in DHS and DME, which were required to be absorbed.
12. The Government of Kerala vide G.O. (Rt.) No. 1273/08/H&FWD, dated
07.04.2008, and G.O. (Rt.) No. 2321/08/H&FWD, dated 05.07.2008,
also nominated Administrative Officer, Kerala Heart Foundation along
[2025] 1 S.C.R.
523
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
with Nodal Officers from DHS and DME to coordinate and oversee
the implementation of abolition of dual control system. Based on the
aforesaid, the Committee submitted the 'Draft Rules' and also the 'Draft
Form of option' to the Government for consideration and approval.
13. Having considered these recommendations, the State Government
issued G.O. (P) No. 548/2008/H&FWD dated 25.10.2008, partially
modifying the G.O. dated 01.06.2007 and directed that all the
ministerial staff, nurses, paramedical staff, including last grade
staff under the establishment of DHS working with the DME, shall
be brought under the administrative control of the DME, subject to
furnishing options as specified in the rules contained in 'Appendix I'
and form contained in 'Appendix II'.
14. Appendix I of the G.O. dated 25.10.2008 is titled as 'Rules for filing
option by the staff, on abolition of dual control systems'. Rule 8
therein governs the seniority of staff who have opted for the DME.
This Rule is central to the present dispute and extracted for ready
reference below -
".....8. The seniority of the staff opted to Department of
Medical Education will be maintained as per Rule 27(a)
and Rule 27(c) of Part II, KS & SS Rules."
15. Appendix II of the said G.O. was for option which is in shape of a
form required details of the employee and declaration. The declaration
is relevant, which is extracted hereinbelow for ready reference -
"

DECLARATION
I, .... hereby opt to be absorbed / continued in the
Department of Medical Education and if my option is
accepted, I will not put forth any claim in future to return
to Health Services Department under any provisions.
Place:

Signature:
Date:

Name and Designation"
xx xx xx xx
16. In furtherance of the G.O. dated 01.06.2007 and G.O. dated
25.10.2008, an 'Option Cell' with officers from DHS and DME both
was constituted to scrutinize the option forms submitted by the existing
524
[2025] 1 S.C.R.
Digital Supreme Court Reports
employees from DHS. After scrutiny, 3072 options against 6022
transferred posts were found valid, and the list of 3072 employees
'seniority wise' and 'category wise' was forwarded by DHS for
switching them to DME. In continuance, State Government vide
G.O. (P) No. 56/2009/H&FWD dated 27.02.2009, directed that 6022
posts under DHS establishment will be 'shifted' to DME. It was also
made clear vide Order No. PLA1-2462/05/DHS dated 28.02.2009
that lien of the employees whose names were forwarded shall stand
transferred from DHS to DME.
17. In the meantime, since the model code of conduct for the General
Elections of 2009 came into effect from 02.03.2009, therefore, the
said two G.O.s mentioned above could not be implemented. After
elections and on formation of new Government, in supersession of
the previous G.O.s dated 27.02.2009 and 28.02.2009, the G.O. (P)
No. 167/2009/H&FWD dated 17.06.2009 was issued directing that
3096 posts in 57 categories will be forthwith transferred to the DME,
and the DHS will issue orders transferring those employees category
wise and station wise. As such, the employees of DHS included in
the list be continued in DME, as per their options. The employees
of DHS not included in the list of DME were allowed to continue on
deputation as per G.O. 01.06.2007 until further orders.
18. In the meantime, clarifications were sought by the DME about
fixation of seniority of staff who opted for DME from DHS. The State
Government vide its clarificatory letter dated 24.04.2010 clarified
that the seniority of the staff who opted for DME, will be reckoned
as per Rules 27(a) & 27(c) of Part II, KS&SS Rules, i.e., as per
date of order of promotion in case of promotees and as per date
of first effective advice in case of direct recruits (entry cadre) in the
respective categories in the DHS.
Relevant Rules
19. In reference to the various G.O.s, the KS&SS Rules referred above
are also relevant, therefore, extracted here as under -
"27. Seniority - (a) Seniority of a person in a service,
class, category or grade shall, unless he has been reduced
to a lower rank as punishment, be determined by the date
of the order of his first appointment to such service, class,
category or grade.
[2025] 1 S.C.R.
525
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
Explanation - For the purposes of this sub-rule,
"appointment" shall not include appointment under rule 9
or appointment by promotion under Rule 31.
This amendment shall be deemed to have come into force
with effect on and from the 17th December, 1958, but shall
not affect the seniority of any member of a service settled
prior to the date of publication of this amendment in the
Gazette:
Provided that the seniority of persons on mutual or interunit or inter-departmental transfer from one Unit to another
within the same Department or from one Department
to another, as the case may be, on requests from such
persons shall be determined with reference to the dates
of their joining duty in the new Unit or Department. In the
case of more than one person joining duty in the same
grade in the same Unit or Department on the same date,
seniority shall be determined, -
(a) if the persons who join duty belong to different unit
or different departments, with reference to their age,
the older being considered as senior, and
(b)
if the persons who join duty belong to the same category
of post in the same department, in accordance with
their seniority in the Unit or Department from which
they were transferred.......
(b) (This sub-rule is not relevant for the case)
(c) Notwithstanding anything contained in clauses (a)
and (b) above, the seniority of a person appointed to
a class, category or grade in a service on the advice
of the Commission shall, unless he has been reduced
to a lower rank as punishment, be determined by the
date of first effective advice made for his appointment
to such class, category or grade and when two
or more persons are included in the same list of
candidates advised, their relatives seniority shall be
fixed according to the order in which their names are
arranged in the advice list:
526
[2025] 1 S.C.R.
Digital Supreme Court Reports
Provided that the seniority of candidates who have been
granted extension of time to join duty beyond three months
from the date of the appointment order, except those who
are undergoing courses of study or training which are
prescribed as essential qualification for the post to which
they are advised for appointment, shall be determined by
the date of their joining duty:......."
20. From contextual perusal of Rule 27(a), the seniority of a person will
be determined from the date of the order of his first appointment to
such service, class, category or grade. Proviso to it deals with the
contingency where an employee asks for transfer mutually or interunit or inter-departmental from one unit to another within the same
Department or from one Department to another as the case may
be. On such transfers, the seniority of the person who requested,
shall be determined from the date of joining and as per clause (a)
and (b) of the said proviso.
21. Thus, accompanying proviso only contemplates determination
of seniority when transfer as specified therein has been sought
mutually and on request. It is relevant to clarify that the language
of the proviso does not deal with the transfers of employees due
to administrative exigencies or their transfer by way of absorption
under the policy decision of the Government bifurcating the dual
control system of the staff.
22. So far as Rule 27(c) is concerned, it deals with the relative seniority
of the employees, by which the inter-se seniority of the employees
appointed to a class, category or grade shall be fixed according
to the order in which their names are arrayed in the first advice
list for his appointment to such class, category or grade. For clear
understanding, we can say the order of recommendations in the
selection list by Commission or Selection Board, at the time of their
selection, shall be relevant for maintaining the relative seniority as
specified in the final advice memo of the Commission or Board as
the case may be.
Findings recorded by learned Single Judge reversed by the
Division Bench
23. The absorbed employees succeeded before learned Single Judge.
The Court referring to Rule 8 of Appendix I of the G.O. dated
[2025] 1 S.C.R.
527
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
25.10.2008, held that seniority of the staff opted for joining DME will
be maintained as per Rules 27(a) and 27(c) of Part II, KS&SS Rules
and they will be entitled to get seniority including their past service
under the DHS in terms of the aforementioned rules. The relevant
findings are reproduced for ready reference as under -
"5.
It was thereupon that WP(C) No. 12381/10 and
14091/10 were filed by persons, who were employees
of the DME. According to them, on exercising option
and coming over to DME, the optees should rank
junior most in seniority, and therefore, the clarification,
as contained in Ext. P5 referred to above is illegal.
Therefore, the only question that arises is whether
the optees of DHS who have come over to DME are
entitled to retain their seniority for their prior service
in DHS.
6.
In my view, the issue can be answered with reference
to Clause 8 of Appendix I of Ext. P1 order dated
25/10/2008, which provides that seniority of staff
opted to Department of Medical Education will be
maintained as per Rule 27(a) and Rule 27(c) of Part II
KS&SSR. This precisely is what is reiterated in Ext. P5
and this order does not introduce anything which is
not provided in Ext. P1. Clause 8 of Appendix 1 of
Ext. P1 is also not under challenge in WP (C) Nos.
12381/10 or 14091/10. If that be so, necessarily,
optees like the petitioners in WP(C) No.4599/10
and the additional party respondents in WP(C) No.
14091/2010 are entitled to seniority for their prior
services under the DHS in terms of Rules 27(a)
and (c) of Part II KS&SSR.
xx xx xx xx
9.
In view of the above, the challenge against Ext. P5
order referred to above dated 24.04.2010 raised in
WP(C) Nos. 12381/10 and 14091/2010 will stand
repelled. The claim of the petitioners in WP(C) No.
4599/10 for maintaining seniority for their service prior
to exercising option, is upheld, in view of Clause 8
of Appendix 1 of Ext. P1 Government Order dated
528
[2025] 1 S.C.R.
Digital Supreme Court Reports
25/10/2008 and Ext. P5 dated 24.4.2010 referred
to above. The Directorate of Medical Education is
directed to finalise the inter se seniority list of the
optees and the existing employees of the Department
in accordance with law and as expeditiously as
possible.
24. Being aggrieved, the original employees filed Writ Appeal, which was
allowed and the Division Bench vide impugned judgment set aside
the order of the Single Bench. The findings as returned by Division
Bench are reproduced below for ready reference -
"The dual control system of hospital staff attached to
the Directorate of Medical Education and Directorate of
Health Services was abolished by Government Order
dated 25.10.2008 and clause 8 of Appendix I of thereto
is as follows:
"8. The seniority of the staff opted to Department
of Medical Education will be maintained as per
Rule 27(a) and Rule 27(c) of Part II, KS&SSR".
2. Many employees in the Department of Health Services
opted for transfer to the Department of Medical Education
and necessarily therefore the proviso to Rule 27(a) of Part
II of KS&SSR extracted below applies:
"Provided that the seniority of persons of mutual
or inter unit or inter departmental transfer from
one unit to another within the same department
or from one department to another, as the case
may be, on request from such persons shall be
determined with reference to the dates of their
joining duty in the new unit or department".
(emphasis supplied)
3. The seniority of those employees who have opted from
the Department of Health Services can only be determined
with reference to the dates of their joining duty in the
Department of Medical Education. The fact that they
have given their option for an inter-departmental transfer
indicates that it was on their request attracting the proviso
to Rule 27(a) of Part II of KS&SSR.
[2025] 1 S.C.R.
529
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
4. The learned Single Judge has obviously overlooked the
rigour of the proviso to Rule 27(a) of Part II of KS&SSR
which springs into action the moment there is an interdepartmental transfer on request. We therefore direct that
the seniority of the optees aforesaid shall be determined
with reference to the proviso to Rule 27(a) of Part II of
KS&SSR and the inter se seniority list finalised....."
25. The Division Bench held that once an employee has furnished his/
her option, it should be termed as 'inter-departmental' transfer on
'request', hence, proviso to Rule 27(a) of Part II of KS&SS Rules will
be attracted. The said proviso contemplates that seniority of such
employees can be determined with reference to his/her date of joining
duty in DME, which was not duly considered by the learned Single
Judge. These findings of the Division Bench have been assailed
before us in these Appeals.
Rival Contentions
26. We may now refer the submissions of the parties. Learned Senior
Advocate Mr. V. Giri appearing on behalf of absorbed employees
submitted as follows -
26.1 In the present case, the State by a 'policy decision' abolished
the 'dual control' system of the 'hospital staff' between DHS
and DME. The administrative control was given to DME,
however, certain categories such as 'Nursing, Paramedical and
Ministerial Staff' were under the governance of DHS. To do away
with the anomaly, State by G.O. dated 25.10.2008 directed
that all ministerial staff, nurses, paramedical staff (including
last grade staff) working under DHS shall be brought under
the administrative control of the DME. The G.O. specifically
stipulated that seniority of the persons who opt for absorption
in DME will be maintained and their 'lien' will be shifted.
26.2 Pursuant thereto, out of 12044 posts, as many as 6022 posts
(50%) were 'shifted' to DME. DHS employees were given an
option either to retain their post with DHS or opt for DME on the
very same post which they occupied in DHS. After examination,
options of 3072 employees were found to be valid.
26.3 State vide G.O. dated 27.02.2009, directed that the Director
of Heath Service will issue orders transferring the 'lien' of
530
[2025] 1 S.C.R.
Digital Supreme Court Reports
those 3072 employees at the disposal of DME. Further, it was
submitted that, essentially, it was never an 'inter-departmental'
transfer of the employees on their 'request'. They were given a
'choice' to exercise an 'option' by the State in furtherance of a
policy decision. Making such a choice would not fall within the
ambit of 'request' as stipulated in the proviso to Rule 27(a) of
KS&SS Rules and seniority of the absorbed employees cannot
be reckoned from the date, they joined DME.
26.4 The entire exercise was carried out by a committee set up by
the State after due consultation and by transferring lien to DME,
the service of the absorbed employees rendered in DHS was
specifically protected.
27. Learned Senior Counsel Mr. Raghenth Basant appearing on behalf
of the original employees straight away drew our attention to the
proviso to Rule 27(a) of KS&SS Rules and contended that when any
inter-departmental transfer is made on the 'request' of an employee,
then in such case, his/her seniority must be reckoned from the date
of joining the new department. To further buttress, he submitted that -
27.1 Out of 6022 posts that stood transferred to DME from DHS,
only 3072 posts were filled by transferring absorbed employees
from DHS to DME. The remaining posts were filled on
deputation. Even though the inter-departmental transfer was an
administrative decision of the State, the Appendix II - 'Form of
Option' annexed with G.O. dated 25.10.2008 reveals that the
absorbed employees had to give a declaration as to 'Stations
requested for posting' before getting transferred.
27.2 Once it is settled that it is a case of inter-departmental transfer
subject to filling up of request for posting, proviso to Rule
27(a) of KS&SS Rules will automatically attract for determining
seniority of the transferred employees and as provided, it shall
be from the date of joining duty in the new Unit. Rule 27(c) has
no applicability in the lis at hand.
27.3 This Hon'ble Court in 'K.P. Sudhakaran and Another Vs. State
of Kerala and Others1' while dealing with issue of seniority and
applicability of Rule 27(a) of KS&SS Rules, has categorically
1
(2006) 5 SCC 386
[2025] 1 S.C.R.
531
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
held that on transfer, the employee has to forego his past service
and his seniority will be determined from the date of his joining
duty in the new department/unit.
27.4 Lastly, if the seniority of the original employees vis-à-vis absorbed
employees is reckoned from the date of initial appointment of
absorbed employees, then it will cause grave prejudice since
original employees were never given an option.
28. Learned Senior Counsel Mr. Jaideep Gupta appearing on behalf of
the State, argued in support of the appellants - absorbed employees
and at the outset submitted that there is no question of prejudice
being caused to original employees for the reason that, after the
abolition of dual control system, the original posts in DHS along
with their promotional posts in respective category were transferred
to DME. In other words, effectively additional posts as they existed
in DHS were shifted to DME. The options were exercised by the
absorbed employees only on the premise of assured seniority and
on absorption to DME, if they are placed at the bottom of seniority
list in the respective category, they will have to forego their previous
service. This was never the intention of the Government of Kerala
while taking the policy decision.
29. Generally, in inter-departmental transfers, only the employee is
transferred to the respective post, however, in the present case, the
post itself along with the employee have been shifted. DHS employees
were given an option to switch to DME after policy decision and
transfer of posts to DME. The said option was never in the nature
of request as contemplated under proviso to Rule 27(a) of KS&SS
Rules. Hence, the said proviso has no bearing on the inter-se seniority
between the original employees and absorbed employees.
Analysis of contentions and reasonings
30. After hearing learned counsel for the parties at length, in our view
the short question which falls for consideration is 'whether the
option exercised by DHS employees to join DME pursuant to a
policy decision of the State of Kerala ought to be considered as
an option for absorption or a request for transfer under proviso
to Rule 27(a) of KS&SS Rules and in that situation, the inter-se
seniority of such employees in the DME shall be reckoned from
which date?'
532
[2025] 1 S.C.R.
Digital Supreme Court Reports
31. Having perused the material placed, it is luculent that in furtherance
to the policy decision of the Government and on account of abolition
of the dual control system, employees of the DHS were required to
be transferred by way of absorption to DME in public interest looking
to the administrative exigency. In furtherance as per G.O. (Ms.)
No. 124/07/H&FWD dated 01.06.2007, existing staff of DHS were
required to be switched to DME for implementation of the said
decision. In this connection, the Government first decided to identify
the issues and invited the stakeholders to deliberate. A meeting
was convened under the Chairmanship of the Additional Secretary,
Health, on 10.10.2007 and taking note of the recommendations of
the Estimates Committees 1998-2000 and 2001-2004, it was decided
to abolish the dual control system to increase the efficiency of public
administration. In furtherance, the Committee framed the 'Draft Rules
for Option' and 'Draft Option Form.' As per the Government order
vide G.O. (Rt.) No. 1273/08/H&FWD dated 07.04.2008 and G.O. (Rt.)
No. 2321/08/H&FWD dated 05.07.2008, the Government nominated
nodal officers of the DHS and DME and the Administrative Officer
from the Kerala Heart Foundation to coordinate the activities in
connection with the implementation of abolition of dual control system.
They prepared the list of such staff of various categories and grade
working under their control and also the list of employees along with
the posts for transfer to the DME. On receiving the information, the
Government examined those in detail and was of the view that the
existing qualification and method of appointment for the posts in
DHS will be followed for appointment to the post after shifting them
to DME and modification, if any, shall be considered separately.
32. In consequence, the Government after partial modification in
G.O. (Ms.) No. 124/07/H&FWD dated 01.06.2007, issued the
G.O. (P) No. 548/2008/H&FWD dated 25.10.2008, and the
recommendations made therein are enumerated as under -
(i)
All the ministerial staff, nurses, paramedical staff
including the last grade staff under the establishment
of Director Health Services and now working in the
Medical Education Department will be brought under
the administrative control of Director of Medical
Education subject to filing of option in accordance
with the Rules for option. The Rules of option is
given in Appendix-I and Form of option is given in
[2025] 1 S.C.R.
533
Geetha V.M. & Ors. v. Rethnasenan K. & Ors.
Appendix II. The category-wise list and number of
post as above is given in Appendix Ill. The persons
who opt for the Medical Education Department from
the Health Services Department will be allotted to
the Medical Education Department based on the
seniority in service. The option will be applicable
only for the staff of Health Services Department. The
staff of Health Services Department now working
under Director of Medical Education also will have
to file option if they wish to continue in the Medical
Education Service.
(ii)
The staff of Health Services Department will file
option in the prescribed form in Appendix-II.