For 'Recruitment By Transfer', Condition Prescribed In Notification Must Be Scrupulously Followed Until Appointment: Kerala High Court

The petitioner was excluded from Annexure A6 ranked list for the reason (as explained in Annexure A7) that he was not eligible for recruitment through by transfer method in view of note 2 of Rule 8(c) of Part II of Kerala State & Subordinate Services Rules, 1958. The respondents said that the applications were invited only from low-paid employees and thus the said eligibility for recruitment by transfer has to be maintained until a candidate is finally appointed to the post.However, during verification, it was found out that he was promoted to Drive Grade II (HG) with a scale of pay of Rs. 20000-45800. As his pay scale became higher than post to be recruited, his name was excluded from the rank list.

He challenged his exclusion before the Kerala Administrative Tribunal which rejected his claim. Against the order of the Tribunal, the petitioner approached the High Court.

The petitioner claimed that the eligibility is to be examined with reference to the last date of receiving application unless the notification prescribes otherwise. He pointed towards a series of Supreme Court judgments which laid down that the eligibility of a candidate has to be fixed with reference to the last day of submitting the application unless there is a contrary rule or provision in the notification itself. It was argued that if the Public Service Commission contentions are accepted, an employer can very well defeat the rights of an eligible candidate by delaying the process of appointment, which will result in disastrous consequences.

The Counsel for Kerala Public Service Commission argued that as per Rule 2(13) of Part I of Kerala State and Subordinate Service Rules (KS & SSR), a person can be recruited by transfer only if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service.He argued that applications were invited from low-paid employees and that eligibility condition ought to have been maintained until the appointment is completed, unlike in the case of appointment by direct recruitment, wherein the crucial point of time would be the date of notification inviting application. 

Referring to various Supreme Court decisions the division bench said, "Apex Court held that if a qualification is prescribed, that shall be obtained before the last date fixed for submitting the application, and the subsequent acquisition of the qualification has no relevance". However, it noted that these decisions were dealing with direct recruitment and the question was related to acquisition of some essential qualifications subsequent to the last date fixed. The Court said that those decisions have no relevance in this case, wherein the eligibility for recruitment by transfer method is in question.

It thereafter said, "The method of recruitment by transfer is entirely a different process. As a general rule, the method provides an opportunity for change of post or category to low-paid employees or persons in a pay scale not higher than the post to which the applications are invited. Through by transfer appointment, existing employees in one post/category will be appointed to another post/category, which is not in the direct line of promotion, but it may carry a higher or identical scale of pay, and not lesser scale of pay".

"Rule 2(13) of Part I of KS & SSR specifically provides that a candidate is said to be recruited by transfer to a service if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service, subject to certain other conditions. When it was explicitly stated in the notification that the candidature is expected from persons holding low-paid posts in the Government Services, the said qualification of the candidate is certainly expected to be of the same nature until he is finally appointed to the post, as the appointment by transfer does not envisage appointment of a person with a higher scale of pay," the court added. 

Referring to the rule the court said that evidently the said recruitment by transfer can be made from persons holding low paid posts which is a "concomitant element" to be attached to the employee till the appointment takes effect.

Accordingly, the petition was dismissed.

Case Title: Binumon KP v Kerala Public Service Commission and Another

Counsel for the Petitioners: Advocates Kaleeswaram Raj, Thulasi K. Raj, Chinnu Maria Antony, Aparna Narayan Menon

Counsel for the Respondents: Adv. Nisha Bose (Sr.GP)

Case No: OP(KAT) No. 293 of 2024

Citation: 2024 LiveLaw (Ker) 747

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