M K JAGADEESH Vs. REGISTRAR GENERAL

JUDGEMENT

(1.) THE appellant is the petitioner in Writ Petition No 8924/ 2007 which was dismissed by the learned single Judge. The respondents in the Writ Ap-peal are the respondents in the Writ Petition.

(2.) WHILE the appellant was working as Stenographer in the Court of Civil Judge (Jr. Dn.)and J. M. F. C. , Tumkur he applied for change of cadre and requested for appointment as First division Assistant on medical grounds. In his representation requesting for change of cadre and appointment as First Division Assistant, he gave an undertaking that he was willing to become junior to the juniormost First Division Assistant in the unit. Rule-16 (a) (iii) of the Karnataka Civil Services (General Recruitment) Rules, 1977 permitted such change of cadre if the employee was willing to become junior to the juniormost in the new cadre. Hence the request of the appellant was granted and he was appointed by transfer to the post of First Division Assistant on medical grounds subject to the condition that he shall become junior to the juniormost official in the changed cadre in Tumkur unit. The request was granted as per Annexure-A order dated 19-8-2000. After accepting the above mentioned change of cadre on the basis of Annexure-A order, the appellant submitted a representation in the year 2007 requesting that his seniority in the cadre of First Division assistant may be reckoned from 23-7-1992 instead of 19-8-2000, the date of Annexure-A order. The said representation was forwarded to the 1st respondent by the District and Sessions Judge, Tumkur along with his letter dated 13-3-2007. As per Annexure-D letter dated 18-4-2007 the 1st respondent informed the 2nd respondent-Prl. District and sessions Judge, Tumkur that the request of the appellant cannot be considered as he was permitted to change the cadre from Stenographer to that of First Division Assistant on medical grounds at his own request and undertaking that he would become junior to the juniormost First Division Assistant in the unit. Aggrieved by the decision contained in Annexure-D, the appellant filed the Writ Petition. The learned Single Judge dismissed the writ Petition both on merits as well as on the ground of delay.

(3.) HAVING heard learned counsel for the appellant and having considered the averments in the memorandum of Writ Appeal and the materials placed on record, we do not find any merit in the Writ Appeal. Having sought change of cadre giving an undertaking to become the junior to the juniormost in the new cadre and having accepted the appointment to the new cadre with the condition that he would be junior to the juniormost First Division Assistant in the unit, it is not open to the appellant to request that his seniority must be reckoned from the original date of appointment as stenographer. Learned counsel for the appellant contended that in view of the decision dated 23-12-2005 of the Karnataka Administrative Tribunal in Application No. 3854/ 2004 that in the case of change of cadre granted under Rule 16 (a) (iii) of the K. C. S. (General Recruitment) Rules on medical grounds the employee need not be required to become junior to the juniormost in the new cadre, the request of the appellant should have been granted by the 1st respondent. Firstly we have our own doubt about the correctness of the view taken by the Karnataka Administrative Tribunal in Application No. 3854/2004. Secondly, the facts stated in the decision in application No. 3854/2004 do not disclose whether the applicant therein had given an undertaking to become junior to the juniormost in the new cadre. Whereas, in this case the appellant had given-a clear undertaking to become junior to the juniormost in the new cadre and it was after considering the said undertaking that his request was granted. Thirdly, the 1st proviso to Rule 6 of the karnataka Government Servants' (Seniority)Rules, 1957 clearly stipulated that where the transfer is made at the request of the officer, he shall be placed in the seniority list of the class or grade of service to which he is transferred below all the officers borne on that class or grade of service on or before the date of the transfer. There is no challenge against the said statutory provision in the Writ Petition. Fourthly, the 1st proviso to Rule-6 of the karnataka Government Servants' (Seniority)Rules, 1957 is incorporated to recognise the service of the employees in the new cadre who have already been appointed and to protect their seniority in that cadre. If the appellant's request is allowed, the persons who were already working as First Division Assistants in the Tumkur unit before the appointment of the appellant as First Division Assistant will be adversely affected, but they are not made parties to the Writ Petition.