Sanchayita Lahkar

The Division Bench of the Kerala High Court, comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar, delivered a judgment setting aside the Kerala Administrative Tribunal's order permitting two Assistant Surgeons to relinquish their placement in the Speciality Cadre under the Kerala Health Service (Medical Officers) Special Rules, 2010. The Bench ruled that “when applied to the option for placement of Assistant Surgeons, these provisions directly contradict each other—one allowing relinquishment and the other forbidding it—making them mutually inconsistent or repugnant”. The Court directed the State to consider humanitarian concerns while issuing the new postings.

The judgment arose from two petitions filed by the State of Kerala and its Director of Health Services, challenging the Tribunal's direction allowing Assistant Surgeons to retract their earlier decision to opt for the Speciality Cadre. The High Court's decision recorded that Rule 6 of the Special Rules would take precedence over Rule 38 of the Kerala State & Subordinate Service Rules (KS&SSR), 1958, stating that “the provisions in the Special Rules will prevail over the repugnant part of the general rules”.

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The Bench ordered that the respondents' request to relinquish their placement under Rule 38 of KS&SSR could not be permitted due to the overriding nature of Rule 6, which states that “option once exercised shall be final”. The Court, however, directed the government to consider the respondents' concerns over transfer locations, noting that such issues should be addressed on humanitarian grounds.

The present petitions originated from grievances raised by two Assistant Surgeons currently serving at Primary Health Centres in Thiruvananthapuram district. Both respondents, Dr. Chitra S. and Dr. Chitra Revi, opted in 2013 to be placed under the Speciality Cadre of the Kerala Health Service as per the Special Rules of 2010. However, in 2024, when the government initiated steps to post them into Speciality Cadre positions, both doctors submitted written requests seeking to relinquish their previously exercised option. They cited personal inconveniences, including the apprehension of being transferred away from their hometowns.

The government rejected these requests based on Rule 6 of the Special Rules, which prohibits withdrawal of the option once exercised. Consequently, the respondents approached the Kerala Administrative Tribunal, which, by a common order dated 25 June 2024, accepted their plea and held that their relinquishment request could be accommodated under Rule 38 of Part II KS&SSR, notwithstanding the bar under Rule 6 of the Special Rules.

In response, the State and the Director of Health Services filed the present original petitions challenging the Tribunal’s decision. The State, represented by Government Pleader Sunilkumar Kuriakose, contended that Rule 6 of the Special Rules must prevail over Rule 38, as provided by Rule 2 of Part II KS&SSR. Counsel argued that both rules operate within the same field and are repugnant to each other, necessitating the application of the Special Rules.

The respondents, represented by Advocate M. Fathahudeen, submitted that there was no repugnancy between the two provisions. They relied on Rule 7 and Rule 9 of the Special Rules to assert that Rule 6 should not bar relinquishment where formal posting had not yet occurred.

The Court examined multiple annexures and statutory documents, including Government Orders from 2010 and subsequent notifications issued by the Directorate of Health Services. The respondents presented their representations, seniority lists, and salary details to substantiate their reluctance to take up Speciality Cadre postings. Among the documents submitted were the proceedings No. ES-7(HR CELL)-20523/2017/DHS dated 29 January 2018 and the final seniority list reflecting their inclusion under the Speciality Cadre.

The petitioners countered by producing a series of government circulars and rejection orders issued in early 2024, including order No. EA2-151/2023/H&FWD dated 09 January 2024 and other departmental notices, arguing that relinquishment was impermissible after the completion of probation and exercise of option.

The Division Bench examined Rule 5, Rule 6, and Rule 7 of the Special Rules, alongside Rule 38 and Rule 2 of Part II KS&SSR. The Court recorded that Rule 5 mandates that Assistant Surgeons exercise their option for placement in the Administrative or Speciality Cadres during probation. Rule 6 declares that “option once exercised shall be final”, while Rule 7 clarifies that those who do not exercise their option are deemed to continue in the General Cadre.

The Court noted that “while Rule 38 of the general rules permits officials to relinquish any right or privilege to which they are entitled... Rule 6 of the Special Rules explicitly prohibits such relinquishment once the option for placement has been exercised”. Observing the direct conflict between the two provisions, the Bench held that “these provisions directly contradict each other—one allowing relinquishment and the other forbidding it—making them mutually inconsistent or repugnant”. The Court applied the test under Rule 2 of Part II KS&SSR, which dictates that special rules take precedence when general and special provisions are repugnant.

Rejecting the Tribunal’s view that Rule 6 and Rule 38 operated on different planes, the Court observed, “we find ourselves unable to accept the conclusions of the Tribunal”. The Bench further remarked that reliance on Rule 7 and Rule 9 by the respondents was misplaced since both provisions deal with different aspects of cadre placement unrelated to the prohibition under Rule 6.

The Court found that both respondents had exercised their option in 2013 and could not now retract it merely because posting orders had not been implemented until 2024. “Even if they are not so far posted in the Speciality Cadre, they are not entitled to relinquish their rights or privileges, if any, by virtue of the express bar contained in Rule 6”, the Court stated.

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The judgment also noted the timing of the relinquishment requests, recording that they were made in 2024 after the government commenced action to implement their cadre placement, primarily due to concerns over being transferred far from their home stations.

Concluding the matter, the Court set aside the Kerala Administrative Tribunal’s order and allowed the original petitions filed by the State. The Court directed that “the petitions are allowed and the impugned order is set aside”. However, the Bench added a direction to the State, stating that “as the respondents have raised concerns about being posted far from their hometown, on humanitarian grounds, the Government shall consider these grievances when assigning them to the Speciality Cadre”.

Advocates Representing the Parties

For Petitioners: Government Pleader Sunilkumar Kuriakose
For Respondents: M. Fathahudeen, Advocate; Jelson J. Edampadam, Advocate

Case Title: State of Kerala & Another v. Dr. Chitra S. & State of Kerala and Another v. Dr. Chitra Revi
Neutral Citation: 2025:KER:22856
Case Number: OP(KAT) Nos. 420 & 422 of 2024
Bench: Justice A. Muhamed Mustaque, Justice P. Krishna Kumar

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