Officer Relinquishing Right To Be Appointed To A Post Based On Seniority, Can't Later Claim To Be Senior To Those Superseding Him: Kerala HC

“If a person is eligible to be placed to any other grade/ post/ cadre or service on the basis of his seniority or such other criteria, it is a right or privilege conferred upon him, irrespective of whether it is by promotion or appointment by-transfer. If he relinquishes the privilege/ right in writing, he cannot later on change his stance and say that he should be considered senior to those who have been placed on such grade/ post/ cadre or service (by promotion or appointment by transfer) in the meanwhile.”

Officer who gives up right can't claim seniority over those superseding him

"When an officer relinquishes his right or privilege to get appointed in the Armed Reserve based on his seniority, essentially he relinquishes his right/privilege based on the seniority. Hence, he cannot later claim seniority over those who were appointed superseding him. Otherwise, it would amount to conferring him the benefit of the initial appointment, which he had relinquished. When he relinquishes the incidents of his seniority, viz., a right or privilege, he cannot later turn around and claim it back on getting by transfer appointment in a future turn. In such circumstances, Rule 38 would hinder him from claiming seniority relying on the provisions of the Special Rules, as against those who have been appointed during the interregnum period," the court underscored.

Background

The petitioner (petitioner no. 13) a police constable had joined the service in the Armed Police Battalion. On completion of a few years of service, the petitioner was entitled to get a transfer to their respective Armed Reserve. However, the petitioner relinquished his right for posting in the Armed Reserve in writing.

He was later appointed to Armed Reserve on 11.5.2010 on a subsequent request made by him along with other petitioners. Subsequently, on 10.12.2010, the Government issued an order integrating the Armed Reserve with the District Local Police with effect from 01.04.2010 thereby creating a common cadre named “Kerala Civil Police'. In the seniority list prepared by the Police Department, the seniority of the petitioner along with other petitioners was calculated from the date of joining the Armed Reserve and not from the date of joining the Armed Police Battalion.

This was challenged before the Kerala Administrative Tribunal. The petitioners pointed out that Rule 3 of Kerala Police Subordinate Service Rules, 1980 (Special Rules) will apply in this case and their seniority would be decided as per the date of appointment. As per Rule 3(2) of the Special Rules, notwithstanding anything contained in Rule 27 of the General Rules of KS&SSR, the seniority of a police constable appointed to a District Armed Reserve from an Armed Police Battalion shall be determined from the first effective advice of the PSC to the post of Police Constable in Armed Police Battalion.

The Tribunal however rejected this argument. The Tribunal held that as per the Government order dated 10.12.2010, the integration took effect from 01.04.2010. Therefore, their transfer to Armed Force Reserve on 11.5.2010 can be considered only as a transfer to Kerala Civil Police. Therefore, the tribunal held that they would be governed by the Kerala State & Subordinate Service Rules (KS&SSR) and not the Special Rules.

Against this, petition was filed before High Court.

Findings

Special rules will not be deemed to grant recognition which was relinquished

With respect to the present petitioner the bench noted that his position is different

"By producing Annexure R2(a), the respondents contended that petitioner No.13 relinquished his rights for posting in the Armed Reserve, in writing. The difference in his case is that, unlike the other petitioners who claimed that they were unable to give the option for by transfer appointment to Armed Reserve on previous occasions, due to some personal inconveniences, the petitioner No.13 had relinquished his right to be appointed, in writing," the bench noted. 

Referring to Rule 38, the bench held that it states that "if an employee relinquishes in writing any right or privilege to which he is entitled under the KS&SSR or the Special Rules applicable to him, it is not required to recognize any right or privilege to the extent to which it has been so relinquished". 

The court observed that when a Constable is appointed in the Armed Reserve, he would be entitled to get the benefit of Rule 3 (2) of the Special Rules for reckoning seniority on the basis of his date of advice.

But when he relinquishes his right to be appointed in the Armed Reserve in writing, Rule 38 of KS&SSR mandates that nothing contained in the Special Rules shall be deemed to require the recognition to the extent to which it has been so relinquished.

Special rules don't deal with relinquishment of right, KS&SSR will be applicable

The petitioner argued that the general provision contained in Rule 38 would be overridden by Rule 3 of the Special Rules. The Court said that under the Special Rules, there is no specific provision for relinquishment of the rights of an employee whereas Rule 38 of KS&SSR specifically deals with relinquishment of rights/ privileges. The Court said that since there is no specific provision related to relinquishment in the Special Rules, Rule 38 will be applicable.

An explanation clause was added to Rule 38 in 1982 saying that a relinquishment of right of promotion under Rule 38 shall also entail loss of seniority. By the latest amendment, “appointment of transfer” was added into the explanation. The Court said that even though the words “appointment by transfer” was added recently, it would not mean Rule 38 will apply to appointment by transfer after that amendment only. The Court pointed that the main part of the Rule is constructed widely with terms like 'any rights or privilege' and it cannot be restricted to relinquishment of promotion alone.

"Therefore even if the term 'appointment by transfer' is added to the Explanation clause only recently, the wider operation of the principal clause cannot be limited from the date of the new amendment alone.Thus it is to be concluded that if a Police Constable has relinquished his right to get appointed in the Armed Reserve through by transfer method, he cannot claim seniority over those persons who have been appointed prior to his joining the said cadre later," the court said. 

The Court however had conferred the benefit of Rule 3(2) of the Special Rules on other petitioners who were integrated into the Kerala Civil Police and who did not give their option for appointment to the Armed Reserve initially when they became eligible. The Court said that unlike them, petitioner had relinquished his right to appointment in writing. 

Thus the court allowed the plea (O.P.(KAT)No.68/2022) and asked the Department to assign seniority to the petitioners (including petitioner 13) on the basis of their date of advice, within 2 months. It however said that the petitioners are not entitled to claim seniority over any persons who have been appointed to the Armed Reserve or Local Police during the period of relinquishment, if any, made by the petitioners in writing.

Counsel for the Petitioners: Advocates V. M. Krishnakumar, P. S. Sidharthan

Counsel for Respondents: Advocates Sunilkumar Kuriakose (GP), Pooja Sunil

Case No: OP (KAT) 68 of 2024

Case Title: Sunithkumar S. and Others v State of Kerala and Others

Citation: 2025 LiveLaw (Ker) 207

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