The Kerala High Court has ruled that an individual who voluntarily relinquishes their right to an appointment or promotion based on seniority cannot later claim precedence over others who were appointed in their place. The ruling was delivered by a division bench comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar.
The court emphasized that as per Rule 38 of the Kerala State & Subordinate Service Rules (KS&SSR), once a right or privilege is relinquished in writing, it ceases to be recognized.
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"If a person is eligible for appointment or promotion based on seniority and relinquishes this privilege in writing, he cannot later assert a claim for seniority over those who have been appointed in the meantime."
Key Judicial Observations
The High Court clarified that when an officer voluntarily gives up the right to be appointed in the Armed Reserve based on seniority, they also forfeit their claim to seniority over those appointed in their absence.
"Otherwise, it would amount to granting the benefit of the initial appointment that the officer had relinquished. Once the right or privilege is relinquished, it cannot be reclaimed in the future when another appointment opportunity arises."
Case Background
The case was filed by a group of police constables, including Petitioner No. 13, who had initially joined the Armed Police Battalion and later sought a transfer to the Armed Reserve. The petitioner had, however, previously relinquished his right to this transfer in writing.
He was subsequently appointed to the Armed Reserve on May 11, 2010, following a request. Meanwhile, the government issued an order on December 10, 2010, integrating the Armed Reserve with the District Local Police, thereby forming the "Kerala Civil Police."
In the revised seniority list, the petitioner’s seniority was determined based on the date of his appointment to the Armed Reserve rather than his initial joining date in the Armed Police Battalion. Displeased with this, he approached the Kerala Administrative Tribunal (KAT), arguing that his seniority should be calculated from his original appointment date in the Armed Police Battalion, in line with Rule 3(2) of the Kerala Police Subordinate Service Rules, 1980.
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Tribunal and High Court Findings
The Kerala Administrative Tribunal dismissed the petition, stating that the petitioner’s transfer to the Armed Reserve after integration should be treated as a new appointment to the Kerala Civil Police and governed by the KS&SSR, not the Special Rules.
The petitioner subsequently challenged this decision in the Kerala High Court.
The court ruled that:
- Special Rules Do Not Override Relinquishment: Once a right is relinquished in writing, it cannot be reinstated under Rule 38 of KS&SSR.
- Seniority Forfeiture: Relinquishing the right to appointment by transfer also results in a loss of seniority.
- Special Rules vs. General Rules: Rule 38, which explicitly addresses relinquishment, prevails over Rule 3 of the Special Rules, which does not include a provision for relinquishment.
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"Rule 38 of KS&SSR makes it clear that if an employee relinquishes any right or privilege in writing, it need not be recognized subsequently, even if later amendments attempt to include appointment by transfer."
Final Verdict
The High Court upheld the Kerala Administrative Tribunal’s decision, ruling that Petitioner No. 13 and similarly placed officers could not claim seniority over those appointed during the period of relinquishment. The court, however, allowed the plea to assign seniority based on their date of advice and instructed the department to comply within two months.
"If a Police Constable relinquishes his right to transfer to the Armed Reserve, he cannot later claim seniority over those who were appointed before him."
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
