The Secretary to Government Department of Health & Family Welfare & Anr. vs K.C. Devaki

18 years, and thereafter, the seniority list was released – Challenged by the respondent on the ground that the seniority must be fixed as per the initial appointment as Staff Nurse in 1979 and not on the basis of the entry into the new cadre in 1989 as First Division Assistant – Application allowed by the tribunal – Said order upheld by the High Court – Correctness: Held: Invocation of r.16 of the 1977 Rules is an exception – However, if the power is exercised, it would operate notwithstanding anything contained in the 1977 Rules or other rules and reason for exercise for such a power must be evidenced in the written text of the record – Officer who by bodily infirmity is permanently incapacitated can be appointed to the new post in relaxation of the existing Rules, such appointment shall not be lower than the one he holds – 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 – On facts, the High Court erred in treating transfer made at the request of the officer on medical grounds as equivalent to transfer in public interest – Respondent accepted the appointment after consenting to be placed below the last person in the transferred post, which position is recorded in the order of 1989 itself, the seniority has to be with effect from 1989 only – Decision of the government in issuance of final seniority list granting seniority w.e.f. 1989 is in consonance with r.16 of the 1977 Rules and r.6 of the 1957 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 – Tribunal as well as the High Court erred 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 has entered service in the cadre of Staff Nurse instead of 1989, when she was appointed in the new cadre of First Division Assistant – Impugned order set aside – Karnataka Civil Services (General Recruitment) Rules, 1977 – r.16 – Karnataka Government Servants (Seniority) Rules, 1957. [Paras 13, 20-22, 24, 25]

Service Law – Transfer – Transfer made in public interest and transfer made at the request of the officer – Difference between: Held: Purpose of transfer, considerations that weigh, the consequences that follow a transfer made in public interest, as against a transfer made at the request of the officer, vary substantially – Purpose and object of transfer in public interest is to ensure effective and efficient administration – It is founded, sourced, and rooted in administrative exigencies and nothing else – On the other hand, where a transfer is sought at the request of the officer and if the government is satisfied with the genuineness of the request, it may accept the request and direct transfer – This is fairness in action as governmental power accommodates, as it must, human needs and vulnerabilities – However, this kind of transfer, does not partake the character of a transfer made in the public interest – 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 – Rationale in assignment of such seniority is to avoid heartburn of existing employees in the transferred cadre. [Paras 15-19]