Holding

The seniority of a government servant transferred on his own request is to be computed from the date of his joining the new unit, and the proviso to Rule 27(a) applies to all such transfers, rendering the High Court’s prospective direction invalid.

Summary

The case concerned Lower Division Clerks (LDCs) recruited in different districts of Kerala, some of whom were transferred on their own request to another district and placed below the junior‑most local LDCs. The dispute arose over whether the seniority of these transferred LDCs for promotion to Upper Division Clerk (UDC) should be calculated from their original appointment date or from the date they joined the new district, and whether the High Court could make the applicable rule operate only prospectively. The Supreme Court examined the Kerala State and Subordinate Service Rules, particularly Rule 27 and its proviso introduced by G.O. 13‑1‑1976, and held that the proviso unequivocally mandates seniority to be reckoned from the date of joining the new unit for "own‑request" transfers. It further ruled that earlier executive orders could not override the statutory rule and that the High Court had no authority to impose prospective operation of the rule. Consequently, the revised seniority lists of 1990 and 1997, which applied the proviso, were upheld. The Court allowed the appeals, set aside the High Court’s prospective direction, and dismissed the writ petitions of the transferred LDCs.

Issues considered

Whether seniority of a government servant transferred on his own request should be computed from the date of his original appointment or from the date of his transfer to the new district.
Whether the High Court could direct that the proviso to Rule 27(a) and the 1961 Government Order be applied only prospectively.
Whether clause (c) of Rule 27 affects the operation of the proviso to Rule 27(a).
Whether prior executive instructions (G.O. 2‑1‑1961 and 27‑5‑1971) continue to apply after the statutory amendment introducing the proviso.

Legislation cited

Constitution of Indias. Article 309
Kerala Public Services Act, 1968s. Section 3

Subjects

seniorityinter‑district transferown‑request transferRule 27Kerala State Subordinate Service Rulesprospective applicationpromotionLDCUDC

Judgment

K.P. SUDHAKARAN AND ANR. A
v.
STATE OF KERALA AND ORS.

MAY II, 2006

[B.N. SRIKRISHNA AND R.V. RA VEENDRAN, JJ.) B
Service Law

Kera/a State and Subordinate Service Rules. 1958-Seniority-Recruits
in one district transferred to same post in another district on their own
request, and taking rank below junior-most local employee in that post in c
that district-However, in a State-wise seniority list for promotions to next
post, seniority of transferred employee shown with reference to their first
appointment and not with reference to dates of their joining in district to
which they were transferred-High Court holding that in view of proviso to
Rule 27 seniority of transferred employee was to be reckoned from date of D
their joining at the district to which they were transferred, but fi1rther
directing that above proviso to be applied prospectively and promotions
made with reference to seniority list were not be disturbed-Validity of-
Held-Proviso to Rule 27(a) providing that seniority of employee getting
transferred at his own request was to be determined with reference to date
ofhis joining duty in new department, applied and it was exception to general E
rule that seniority was to be determined by date of his first appointment-
Effect of Rule 27(c) was only to clarify the date with reference to which
seniority should be reckoned when initial appointment was on advice ofPSC,
and it had no affect on operation ofproviso to Rule 27(a)-High Court had
no power to direct that a Rule which has been in force for several years, F
will be operated only prospectively, that too in a proceeding where the
validity of the Rule was not in challenge-,Though matter had been
continuously under litigation for long, delay in disposal cannot defeat the
rights of employees-Section 3, Kera/a Public Services Act, 1968-Artic/e
309, Constitution of India, 1950.
G
Administrative /aw-Statutory rules governing the field-Prior executive
instructions cease to apply in such a case.

Interpretation of statutes-Exceptions from statuto1y rule-Held-
Jntention behind a provision cannot be used to defeat expre~s words of H
291
292 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A pruvisiun--Once a srarutury rule is made, withuur providing any exceplions,
it is not possible to carve out exceptions to such rule, by judicial
inrerprerariun- -Nor can an exemplion from application of a clear and
specific rule be claimed un the ground uf hardship or similar reasons.

Administration of justice- Matter continuously under litigation for
B lung. -Held-Delay in disposal cannot defeat the rights of parties.

The appellants and respondents were recruited as Lower Division
Clerks (LDCs) in the Registration Department of State. The former were
recruited in district X and the latter, though recruited in other different
C districts, were transferred, on their own request to district X. On their
transfer, they took the rank below the junior-most local LDCs in that
district. However, in a State-wise seniority list drawn up for the purpose
of promotions to post of Upper Division Clerks (UDC), the seniority of
the transferred LDCs were shown with reference to the dates of their first
appointment as LDCs and not with reference to the dates of their joining
D
in the district to which they were transferred having regard to the fact
that they were recruited prior to the local LDCs. On consideration of
objections regarding same, a revised seniority list of LDCs was issued
wherein the positions of transferred LDCs were shown with reference to
the date of their joining the new district, by excluding the service rendered
E till then in their old district. The transferred LDCs challenged this before
High Court wherein it was held, having regard to G.O. dated 2.1.1961
and Rule 27 of Kerala State and Subordinate Service Rules, 1958, that
the seniority of the transferred LDCs will have to be reckoned only from
the date of their join mg at the district to which they were transferred on
their own request. However, it was directed that the position of the
F transferred LDCs should not be disturbed and above G.O. and proviso
to Rule 27(a) of the Rules were to be applied prospectively, and that the
promotions made with reference to the seniority list should not be
disturbed. Hence the present appeal.

G Appellants contended that the High Court having accepted the legal
position as per relevant rules and Government Orders (GOs.), it had no
power to direct that they be applied prospectively.

Respondents contended that (1) eventhough the posts of LDCs are
H District-wise, their promotion to UDCs is State-wise, the provisions of
K.P. SUDHAKARAN v. STATE 293

G.O. dated 2.1.1961 will not apply, in view of clause (iv) of G.O. dated A
27.5.1971 (2) the proviso to clause (a) of Rule 27 was not applicable in
view of exclusion clause(c), and also because where the promotion post
is State-wise, the seniority of the existing employees in the district to
which the outside employee is transferred, will not be affected (3) the
parties to proceedings have all got further promotions and the matter
should not be unsettled after such a long time. B

Allowing the appeals, the Court

HELD : 1.1. The proviso to Ruic 27(a) of the Rules categorically
provided that the seniority of an employee getting transferred at his own C
request to another unit within the same department or to another
department will be determined with reference to the date of his joining
duty in the new department. This proviso is an exception to the general
rule (contained in clause (a) of Rule 27) that seniority of a person shall
be determined by the date of the order of his first appointment.
[301-G-H, 302-A) D
1.2. The respondents were senior to the appellants with reference
to their date of appointment as LDCs . But with reference to the date on
which they were transferred to the new district, they will become juniors
to the appellants. When the proviso to Rule 27(a) of the Service Rules
is applied, the seniority of the transferred LDCs has to be reckoned only
E
from the date of their joining duty in the new unit (or district) and they
are not entitled to count their service prior to the date of their transfer
on their request. [302-B-C)

1.3. It is unnecessary to examine whether clause (iv) of G.O. dated F
27.5.1971 excludes the applicability ofG.O. dated 2.1.1961, as neither the
G.O. dated 27.5.1971 nor the G.O. dated 2.1.1961 governed the effect of
'<iwn request' transfers, after Rule 27(a) of the Service Rules was amended
by introducing a proviso providing for the consequences of'own request'
transfers. Where Statutory Rules govern the field, prior executive
instructions cease to apply. [302-E-F) G

2. A careful reading of clause (c) of rule 27 shows that it did in no
way affect the contents of proviso to clause (a) of Rule 27 inserted by
amendment by G.O. dated 13.1.1976. The effect of clause [cl is to clarify
the date with reference to which seniority should be reckoned when they H
294 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A are initially appointed on the advice of PSC. It only means that where
the appointments are from the selection list published by the PSC, their
seniority will be reckoned/determined by the first effective advice made
for such appointment by the PSC and not by the actual date of his
appointment by the appointing authority Clause (c) has therefore no
effect or application, over the proviso which regulates subsequent 'own
B request' transfers. 1303-B, E-F)

3. The alleged intention behind a provision, cannot be used to defeat
the express words of the provision. Once a statutory rule is made, without
providing exceptions, it is not possible to carve out exceptions to such
rule, by judicial interpretation. Nor can an exemption from application
c of a clear and specific rule be claimed on the ground of hardship or
similar reasons. The proviso to Rule 27(a) of the Rules is categorical and
applies to all employees transferred on own request. It does not make
distinction between employees whose promotion post is a State-wise post
and those where the promotion posts are district-wise posts. (304-A-B)
D 4. The Division Bench having held that the transferred LDCs would
take rank below the junior most in the category in the district to which
they were transferred, could not have held that the seniority list prepared
on 7.11.1984 should not be disturbed and proviso to Rule 27{a) should
be given effect prospectively. The High Court has no power to direct that
E a Rule which has been in force for several years, will be operated only
prospectively, that too in a proceeding where the validity of the Rule was
not in challenge. 1304-E-F)

5.1. The Matter has been continuously under litigation ever since
1990 and the dela)' in disposal cannot defeat the rights of appellants.
F (304-C-D)

5.2. Revised seniority lists dated 13.11.1990 and 22.9.1997 under
whiCh seniority of transferred LDCs. (inter-district transferees) is counted
only from the date of their joining the new district, excluding the previous
service, are proper and do not call for interference. As a result of giving
G effect to the seniority list dated 13.11.1990 and 22.9.1997, if the positions
of the transferred LDCs. are altered to their disadvantage, no
consequential recovery shall be made from them, on the ground of excess
payment. 1304-G-H, 305-B-C)

CIVIL APPELLATE JURISDC!TION Civil Appeal No. 9527 of
H 2003
K.P. SUDHAKARAN v. STATE [RA VEENDRAN, J.] 295

From the Judgment and Order dated 14.8.2002 of High Court ofKerala A
at Emakulam in W.A. No. 1178 of 1997 (C).

Raju Ramachandran, Sr. Adv., G. Prakash, Adv. with him for the
Appellants and Proforma Respondents in all the Civil Appeals.

C.S. Rajan, Sr. Adv., A. Raghunath, Kartikey Singh for K.R. Sasiprabhu
B
and Romy Chacko, Advs. with him for the Respondents.

The Judgment of the Court was delivered by

RAVE END RAN, J. :These appeals by special leave against the C
jl!dgments dated 14.8.2002 of the High Court of Kerala in W.A. No.1178/
1997, WA No.1170/1997 and WA No. 1135/1997 involve common questions
of fact and law.

2. The appellants and the private respondents were recruited as Lower D
Division Clerks (LDCs) in the Registration Department, in different districts
of the State of Kerala. In the cadre hierarchy, the promotion post for LDCs
is that of Upper Division Clerk ('UDC' for short). The post of LDC is a
district-wise post and the post of UDC is a State-wise post. In other words,
the unit for recruitment of LDCs is the district, and the unit for recruitment
ofUDCs is the entire State. A State-wise seniority list ofLDCs is maintained E
for promotion to the post of UDCs.

3. The Appellants were recruited as LDCs in district X. The contesting
private respondents were recruited as LDCs in other districts (say, district
Y or district Z) and were transferred, on their own request to district X. (For F
convenience, we will refer to the appellants as 'Local LDCs' and the
contesting private respondents as 'transferred LDCs'). The transferred
LDCs., on own request transfers, were permitted to join as LDCs in district
X by taking the rank below the junior-most local LDCs in the district.

4. On 7.11.1984, the State Government drew up a State-wise seniority G
list of LDCs with reference to their date of first appointment to the service
as LDCs, for the purpose of effecting promotions to the next higher post
(UDC). In Kerala, this is stated to be with effect from date of first effective
advice made by PSC for their appointment to the service. The seniority of
the transferred LDCs were shown in the said list, with reference to the dates H
296 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A of their first appointment as LDCs and not with reference to the dates of their
joining in the district to which they were transferred on their own request.
Having regard to the fact that they were recruited as LDCs. prior to the local
LDCs, the transferred l.DCs were placed above the local LDCs. If the
seniority of the transf~rn:d LDCs had been fixed with reference to the date
of transfer to the district to which they were transferred, they would have
B been placed at the bottom of the seniority list on the date of transfer and their
position/rank would have been below that of local LDCs.

5. After considering the representations received in respect of the said
provisional seniority list dated 7.11 1984, the Inspector General of Registration,
c Kera la (' IG-Regn.' for short) by memorandum dated 6.4.1987 finalised the
state-wise seniority list of LDCs as on 1.11.1983. On the basis of the said
seniority list of LDCs, a provisional seniority list of UDCs. as on 22.2.1986
was also prepared. vide General Memorandum dated 9.12.1987. The said
seniority list of LDCs as also the provisional seniority list of UDCs were
D challenged in O.P. No.420411990 before the High Court. The High Court by
order dated 8.5.1990 dbposed of the said petition, by directinf, the IG-Regn.
to consider the representation given by the petitioner therein for re-fixation
of his seniority.

E 6. Thereafter, the Inspector General of Registration issued a revised
provisional seniority list ofLDCs d<1ted 13.11.1990. In the s1id seniority list,
the positions of transferred LDCs were shown with reference to the date of
their joining the new district, by excluding the service rendered till then in
their old district. The transferred LDCs objected to the said change. The
objections were rejected by IG-Regn. The provisional list dated 13.11.1990
F
and the order of IG-Regn. rejecting the objections, were challenged by the
contesting private respondents and other similarly placed transferred LDCs
in O.P. No.11194/1990 and connected cases.

7. A learned Single Judge of the High Court disposed of the said
G pi:titions by order dated 24.3.1997. holding as follows : (i) the transferred
LDCs were not entitled to seniority with reference to the initial date of
appointment as LDCs. and their seniority in the post of LDCs. has to be
reckoned only from the date of their joining in the new district to which they
v.ere transferred on 'own requesf: (ii) having regard to the fact that the
H recruitment of LDCs was district-wise and not State-wise, th'! transferred
K.P. SUDHAKARAN v. STATE [RA VEENDRAN, J.] 297

LDCs cannot contend that all LDCs in the State formed one unit for the A
purpose of seniority, nor claim any benefit in excess of what the rules
conferred on them; and (iii) there was no merit in the challenge to the
provisional seniority list dated 13.11.1990. However, as the JG-Regn, had
not disposed of the objections filed by the transferred LDCs., by a reasoned
order, the Single Judge directed the JG-Regn. to consider their objections as
also other objections, if any, received in regard to the provisional seniority
B
list dated 13 .11.1990 and pass appropriate orders considering each of the
objections and finalise the seniority list. He also directed that the promotions,
if any, n:ade on the basis of the seniority list dated 7.11.1984 and further
promotions shall be reviewed based on the seniority list to be finalized. In
compliance with the said direction, the IG-Regn. considered the objections C
again and by ;)rder dated 22.9 .1997 rejected the objections of the transferred
LDCs. He also issued a final seniority list of LDCs dated 22.9 .1997 on that
basis.

8. In the meanwhile, the order of the learned Single Judge was D
challenged by the transferred LDCs in W.A. No.1178/1997 and connected
appeals. The State resisted the appeals by relying on the G.0. dated 2.1.1961
and Rule 27 of Kerala State and Subordinate Service Rules, 1958 ('Rules'
for short) to contend that transferred LDCs. had to be treated as junior-most
in the new district and the list dated 22.9.1967 was finalized by applying the
E
said rule. The Division Bench which heard the appeals, held that having
regard to GO dated 2.1.1961 and Rule 27, the seniority of the transferred
LDCs will have to be reckoned only from the date of their joining at the
District to which they were transferred on their own request. It however, felt
that the seniority list finalized in 1984 and the position of the transferred
LDCs should not be disturbed. It held that G.O. dated 2.1.1961 and the F
proviso to Rule 27(a) should be given effect prospectively. It, therefore,
allowed the appeals filed by the transferred LDCs by order dated 14.8.2002
with the following observations :
• "This is a case where inter-district transfers were effected before G
1984 and they were all included in the final seniority list of L.D.
Clerks giving seniority from the date of which they joined duty in
the parent district. We are of the view at this distance of time there

- is no justification in disturbing the said situation. In such
circumstances we hold that the direction given by first and second H
298 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A respondents to revise the final seniority list published \ ide office
General Memorandum No. E4-34 l 54/84 dated 7.11.1984 is illegal.
Promotions on the basis of the said list be not disturbed and G.O.
(Ms) 4/61/PD dated 2.1.1961 and the proviso to General Rule 27
of the Kerala State and Subordinate Services Rules would apply
only prospectively without unsettling the rank and position of the
B petitioners. It is so declared and Ext. P7 order (orderiseniority list
dated 13.11.1990), would stand quashed. Rights of the parties will
be regulated accordingly. Judgment of the learned single judge will
stand set aside. All the writ appeals and original petitions are
disposed of as above."
c
9. The said order of the Division Bench is challenged by the appellants
who are the "local' LDCs. They contend that having regard to the relevant
rules and the Government Orders (GOs.), a Government servant who is
transferred from om: district to another on his own request, cannot claim
D seniority from his initial date of recruitment in the post but only from the
date on which he is transferred on his own request to the new district. As
a consequence, when a common State-wise seniority list of LDCs. is
prepared for promotion to the post of UDC, the rank of transferred LDCs.
should be shown with reference to the date of their transfer to the new district
on their own request, and not when with reference to the date when they were
E initially appointed as LDCs. They contend that tl1e Division Bench of the
High Court having accepted the said legal position, had no power to direct
that G.O. dated 2.1.1961 and proviso to Rule 27(a) of the Rules to be applied
prospectively. They submit that the Division Bench having held that the
transferred LDCs. should take rank below the junior-most local LDCs. as per
F Rules, committed an error in not giving effect to the said finding.

10. On the contentions urged, the following two points arise for
consideration :

(i) Whether the seniority of transferred LDCs (transferred on own
G request to another unit (district) in the same department)
should be reckoned from the date of their initial appointment
to the post. or from the date on which they were transferred
to the new district. Whether the lower post (LDC) being a
district-wise post and the promotion post (UDC) being a state-
H wise post, would make any difference to the position
K.P. SUDHAKARAN v. STATE [RA VEENDRAN, J.] 299

(ii) Whether the Division Bench was justified in holding that the A
GO dated 2.1.1961 and proviso to Rule 27(a) of the Rules
should only be applied prospectively in the case of the
transferred LDCs. (that is from the date of the judgment of the
Division Bench), thereby giving benefit of the past service
(from the date of initial appointment up to date of transfer),
to transferred LDCs, contrary to the said rules and GO and
B
denying to the local clerks the benefit of a higher position in
the seniority list.

Re: Point No. I :
c
11. In service jurisprudence, the general rule is that if a Government
servant holding a particular post is transferred to the same post in the same
cadre, the transfer will not wipe out his length of service in the post till the
date of transfer and the period of service in the post before his transfer has
to be taken into consideration in computing the seniority in the transferred
post. But where a Government servant is so transferred on his own request,
D
the transferred employee will have to forego his seniority till the date of
transfer, and will be placed at the bottom below the junior-most employee
in the category in the new cadre or department. This is because a government
servant getting transferred to another unit or department for his personal
considerations, cannot be permitted to disturb the seniority of the employees E
in the department to which he is transferred, by claiming that his service in
the department from which he has been transferred, should be taken into
account. This is also because a person appointed to a particular post in a
cadre, should know the strength of the cadre and prospects of promotion on
the basis of the seniority list prepared for the cadre and any addition from F
outside would disturb such prospects. The matter is, however, governed by
the relevant service Rules.

12. We may next refer to the relevant rules and GOs having a bearing
on the subject. The service of State Government servants in State of Kerala
are governed by the Kerala Public Services Act, 1968. Section 3 provides
G
that all Rules made under the proviso to Article 309 regulating the
recruitment and conditions of service of persons appointed to Government
service and in force immediately before 17.9.1968, shall be deemed to have
been made under the said Act and shall continue to be in force unless and
until they are superseded by Rules made under the Act. The Kerala State and H
300 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A Subordinate Services Rules, 1958 ('Rules' for short) were made in exercise
of power conferred under proviso to Article 309. The said statutory Rules
governed seniority and transfer of Government servants. The said Rules as
they originally stood, did not provide for ·own request transfers' and
consequences thereof.

B I 2.1. The State Government issued a GO dated 2.1.196 I in consultation
with the Kerala Public Service Commission ('PSC' for short), laying down
the conditions subject to which mutual or inter-departmental transfers of
Government servants from one unit to another within the same department,
or from one department to another within the same subordinate service, can
C be ordered by the appointing authorities concerned, on request. Two of the
conditions which are relevant are extracted below :

"(I) A person transferred to a new unit will take rank below the
juniormost in the category in the new unit or department. He will
D not be allowed to count his previous service towards seniority. Such
transfers should not be prejudicial to the legitimate interest of
anyone in the department to which he is transferred. But he may
be allowed to count his previous service towards increment, leave,
pension, gratuity, etc. He will not be n:quired to undergo fresh
probation, if he has already completed probation.
E
xxxxx

(4) Persons transferred from one department to another or from one
unit to another in the same department due to proved administrative
F reasons will retain all their rights in the old unit or department, as
their case may be."

12.2. The State Government issued another G.0. dated 27.5.1971
providing for recruitment to the lower Ministerial cadres at district level, in
consultation with the Public Service Commission. The said GO directed that
G the recruitment at district level through the district recruitment boards would
be made subject to the following conditions :-

"(i) No transfers will be allowed from the District to another within
a period of five years from the date of commencement of continuous
H service;
K.P. SUDHAKARAN v. STATE [RA VEENDRAN, J.] 301

(ii) Such inter-district transfers will be allowed only after five years A
and subject to the conditions laid down in G.O. MS. No.4/PD dated
2-1-61.

xxxxx

(iv) This will not affect the existing procedure where State-wise B
promotions are involved."

12.3. Rule 27 of the Rules relating to seniority was amended by G.O.
dated 13 .1.1976 (Gazetted on 3.2.1976) inserting a proviso to clause (a),
providing for the consequences of an 'on request' transfer. The note to the C
said proviso stated that the amendment shall be deemed to have come into
force with effect from 28.12.1960. Relevant portions of Rule 27 as amended,
are extracted below :

"27. Seniority.-(a) Seniority ofa person in a service, class, category
or grade shall, unless he has been reduced to a lower rank as D
punishment, be determined by the date of the order of his first
appointment to such service, class, category or grade.

xxxxxxx
E
Provided that the seniority of persons on 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 requests from such persons shall be determined with
reference to the dates of their joining duty in the new unit or
department." F

12.4. The executive instructions contained in the Government Orders
dated 2.1.1961and27.5.1971 in so far as 'own request' transfers, ceased to
apply, once a provision therefor was made the statutory service rules, by
amendment. The proviso to Rule 27(a) of the Rules categorically provided G
that the seniority of an employee getting transferred at his own request to
another unit within the same department or to another department will be
determined with reference to the date of his joining duty in the new
department. This proviso is an exception to the general rule (contained in
clause (a) of Rule 27) that seniority of a person shall be determined by the H
302 SUPREME COURT REPORTS [2006] SUPP. 2 S.C.R.

A date of the order of his first appointment.

13. The following facts are not in dispute : (i) The contesting private
respondents are transferee LDCs who were transferred from the district in
which they were appointed to another district, in the same department on
their own request. (ii) The appellants are the existing employees, that is local
B LDCs of the said department in the district to which the transferee LDCs
were transferred. (iii) The transferred LDCs (contesting private respondents)
were senior to the appellants with reference to their date of appointment as
LDCs. But with reference to the date on which they were transferred to the
new district, they will become juniors to the local LDCs (appellants). When
C the proviso to Rule 27(a) of the Service Rules is applied, as rightly held by
the learned single Judge and the Division Bench, the seniority uf the
transferred LDCs has to be reckoned only from the date of their joining duty
in the new unit (or district) and they are not entitled to count their service
prior to the date of their transfer on their request.
D
14. The transferred LDCs. (contesting private respondents) contended
that the GO dated 27.5.1971 stated that it will not affect the existing
procedure where State-wise promotions are involved. They point out that
though the posts of LDCs. are District-wise, as the promotion of LDCs to
UDCs is State-wise, the provisions of G.O. dated 2.1.1961 will not apply,
E in view of clause (iv) ofG.O. dated 27.5.1971. It i; unnecessary to examine
whether clause (iv) of G.O. dated 27.5. I 971 excludes the applicability of
G.O. dated 2. l.1961, as neither the G.O. dated 27.5. I 971 nor the G.O. dated
2.1.1961 governed the effect of ·own request' transfers, after Rule 27(a) of
the Service Rules was amended by introducing a proviso rroviding for the
F consequences of 'own request' transfers. Where Statutory Rules govern the
field, prior executive instructions cease to apply.

15. The transferred LDCs. next submitted that the proviso to clause (a)
of Rule 27 will not apply, having regard to the exclusion contained in clause
..
(c) of Rule 27 which reads as under : -
G
[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 n:duced to a lower rank as punishment, be determined by
H the date of first effective advice made for his appointment to such
;
K.P. SUDHAKARAN v. STATE [RA VEENDRAN, J.] 303

class, category or grade and when two or more persons are included A
in the same list of candidates advised, their relative seniority shall
be fixed according to the order in which their names are arranged
in the advice list."

A careful reading of clause [c] shows that it did in no way affect the contents
of proviso to clause (a) of Rule 27 inserted by amendment by G.O. dated B
13.1.1976. Clause (a) of Rule 27 provided that seniority of a person in a
service, class, category or grade shall be determined by the date of the order
of his first appointment to such service, class, category or grade. Clause (b)
provides that the appointing authority shall, at the time of passing an order
appointing two or more persons simultaneously to a service, fix the order c
of preference among them, and seniority shall be determined in accordance
with it. Clause [c] made it clear that notwithstanding anything contained in
clauses (a) and (b), where a person is appointed to a class, category or grade
in a service on the advice of the Commission, the seniority of such person
shall be determined by the date of first effective advice made for his
D
appointment to such class, category or grade and when two or more persons
are included in the same list of candidates advised, their relative seniority
shall be fixed according to the order in which their names are arranged in
the advice list. The effect of clause [c] is to clarify the date with reference
to which seniority should be reckoned when they are initially appointed on
the advice of PSC. It only means that where the appointments are from the E
selection list published by the PSC, their seniority will be reckoned/
determined by the first effective advice made for such appointment by the
PSC and not by the actual date of his appointment by the appointing
authority. Clause [c] has therefore no effect or application, over the proviso
which regulates subsequent 'own request' transfers. F
16. The transferred LDCs next submitted that the intention of making
a provision that a person on an 'own request' transfer will be ranked as the
juniormost in the new district or new unit, is to ensure that the seniority of
the existing employees in the category in the new unit or district is not G
affected by a senior person coming from outside by transfer. It is contended
that where the promotion post is State-wise, the seniority of the existing
employees in the district to which the outside employee is transferred, will
not be affected and, therefore, where the promotion is to a state-wise post,
proviso to Rule 27(a) which requires those who are transferred on 'own
H
304 SUPREME COURT REPORTS l2006] SUPP. 2 S.C.R.

A request', to give up their seniority, will not apply. We cannot agree. The
alleged intention behind a provision, cannot be used to defeat the express
words of the provision. Once a statutory rule is made, without providing any
exceptions, it is not possible to carve out exceptions to such rule, by judicial
interpretation. Nor can an exemption from application of a clear and specific
rule be claimed on the ground of hardship or similar reasons. The proviso
B to Rule 27(a) of the Rules is categorical and applies to all employees
transferred on own request. It does not make distinction between employees
whose promotion post is a State-wise post and those where the promotion
posts are district-wise posts.

C 17. The learned counsel for the contesting private respondents lastly
submitted that by now the appellants and the contesting private respondents
have all been promoted from the posts of LDC to UDC and several of them
have also been promoted as Sub-Registrars and the matter should not be
unsettled after such a long time. We find that the matter has been continuously
D under litigation ever since 1990 and the delay in disposal cannot defeat the
rights of appellants.

Re : Point l'io. 2 :

18. The Division Bench having held that the transferred LDCs would
E
take rank below the juniormost in the category in the district to which they
were transferred, could not have held that the seniority list prepared on
7.11.1984 (wrongly giving transferred LDCs seniority from the date of initial
appointment as LDCs) should not be disturbed and proviso to Rule 27(a)
should be given effect prospectively. The High Court has no power to direct
F that a Rule which has been in force for several years, will be operated only
prospectiv.:ly, that too in a proceeding where the validity of the Rule was
not in challenge.

Conclusion
G
19. In view of the above, we find that the revised seniority lists dated
13.11.1990 and 22.9.1997 under which seniority of transferred LDCs. (inter-
district transferees) is counted only from the date of their joining the new
district, excluding the previous service, are proper and do not call for
interference.
H
'

K.P. SUDHAKARAN v. STATE [RA VEENDRAN, J.] 305

-
-< 20. These appeals are accordingly allowed. The judgment of the
Division Bench of the High Court, to the extent it directs that G.O. dated
2.1.1961 and proviso to Rule 27(a) of the Rules will apply prospectively,
A

and that the promotions made with reference to the seniority list dated
7 .11.1984 should not be disturbed, is set aside. The writ petitions filed by
the transferred LDCs. are dismissed. As a result of giving effect to the
B
seniority list dated 13.11.1990 and 22.9.1997, if the positions of the
transferred LDCs. are altered to their disadvantage, we direct that no
consequential recovery shall be made from them, on the ground of excess
payment.

v.s. Appeals allowed. C