Kerala High Court
Santhosh T.N vs High Court Of Kerala on 28 August, 2014
Author: P.V.Asha
Bench: P.V.Asha
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE SMT. JUSTICE P.V.ASHA
THURSDAY, THE 18TH DAY OF JANUARY 2018 / 28TH POUSHA, 1939
WP(C).No. 37006 of 2016
PETITIONER:
SANTHOSH T.N,
LOWER DIVISION CLERK, PIRAYIRI GRAMA PANCHAYAT,
KODUNTHIRAPPULLI, PALAKKAD DISTRICT, PIN-678 004.
BY ADVS.SMT.N.SANTHA
SRI.K.A.BALAN
SRI.V.VARGHESE
SRI.PETER JOSE CHRISTO
SRI.S.A.ANAND
SMT.K.N.REMYA
SMT.L.ANNAPOORNA
SRI.S.DEEPAK
RESPONDENT(S):
1. HIGH COURT OF KERALA,
REPRESENTED BY ITS REGISTRAR (SUBORDINATE JUDICIARY),
ERNAKULAM, KOCHI, PIN-682 031.
2. THE DIRECTORS OF PANCHAYATS,
DIRECTORATE OF PANCHAYATS,
THIRUVANANTHAPURAM, PIN-695 033.
3. DEPUTY DIRECTOR OF PANCHAYATS,
PALAKKAD, PIN-678 001.
R1 BY ADV. SRI.V.A.MUHAMMED
R2 & R3 BY GOVERNMENT PLEADER SRI.B.UNNIKRISHNA KAIMAL
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD
ON 12-01-2018, THE COURT ON 18-01-2018 DELIVERED THE
FOLLOWING:
sts
WP(C).No. 37006 of 2016 (R)
APPENDIX
PETITIONER(S)' EXHIBITS
EXHIBIT P1 TRUE COPY OF THE SERVICE DETAILS OF THE
PETITIONER ARE CERTIFIED BY THE SECRETARY TO
VADAVANNOOR GRAMA PANCHAYAT.
EXHIBIT P2 TRUE COPY OF THE APPOINTMENT ORDER NO.E2- 1683/14
DATED 28-08-2014 OF THE DEPUTY DIRECTOR OF
PANCHAYATS, PALAKKAD.
EXHIBIT P3 TRUE COPY OF THE ORDER NO.A1-05033/2014 DATED
23-09-2014 OF THE DISTRICT JUDGE, PALAKKAD.
EXHIBIT P4 TRUE COPY OF THE REPRESENTATION DATED 17-12-2014
SUBMITTED BY THE PETITIONER BEFORE THE 1ST
RESPONDENT.
EXHIBIT P5 TRUE COPY OF THE LETTER NO.C1-18616/2015 DATED
28-05-2015 OF THE 1ST RESPONDENT.
EXHIBIT P6 TRUE COPY OF THE EXPLANATION DATED 22-06-2015
FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.
EXHIBIT P7 TRUE COPY OF THE LETTER NO.C1-18616/2015 DATED
19-10-2016 OF THE 1ST RESPONDENT.
RESPONDENT'S EXHIBITS: NIL
/TRUE COPY/
P.A.TO JUDGE
sts
"CR"
P.V.ASHA, J.
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W.P.(C) No.37006 of 2016
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Dated this the 18th day of January, 2018
JUDGMENT
The question arising in this case is whether a person appointed through Public Service Commission initially as a Police Constable, thereafter as Last Grade Servant in Civil Judicial Department and thereafter as LD Clerk in the Panchayat Department, all by way of direct recruitment can be denied re-appointment in the Civil Judicial Department under the 2nd Proviso to Rule 8 of Kerala State and Subordinate Service Rules, 1958 (hereinafter referred to as 'KS&SSR').
2. The service details of the petitioner are the following: Based on advice memo dated 06.07.1998 issued by the Kerala Public Service Commission ('PSC' for short) petitioner was appointed as Police Constable in Kerala Police Subordinate Service. On appointment, he joined duty on 1.12.1998. While working there, he got advice memo for appointment as Last Grade Servant in the Last Grade Service of the Civil Judicial Department on 20.09.2000. On appointment he joined on 20.11.2000. He got promotion as Process Server on 31.01.2001. Further promotion was as Attender Grade II in the Civil Judicial Subordinate Service in June 2007. He continued in that post from 27.06.2007 upto 08.01.2008. He got further promotion and joined as Attender Grade I on 09.01.2008 and continued in that post till his W.P.(C) No.37006/16 :2: promotion as Amin. While working as Amin from 04.09.2008 he got promotion as LD Clerk as per order dated 13.10.2013. He joined as LD Clerk on 28.10.2013. While so he was appointed as LD Clerk in Panchayath Department as per Ext.P2 order dated 28.08.2014, through PSC. As per Ext.P3 order dated 23.09.2014, the District Judge, Palakkad relieved him with effect from 24.09.2014 to join duty as LD Clerk in the Panchayat Department.
3. While working in Panchayath Department, petitioner submitted Ext.P4 application before the 1st respondent, through proper channel, requesting to allow him to rejoin as LD Clerk in Palakkad District in the Civil Judicial Department, under Rule 8 of Part II KS&SSR. But as per Ext.P5 letter dated 28.05.2015, the 1st respondent informed the 2nd respondent that petitioner is not entitled to re-appointment in Civil Judicial Department under Rule 8 in the light of the 2nd proviso to that rule, according to which petitioner's lien was only in the Police Department. It was stated that as per that proviso a member of service appointed to another service and is a probationer or approved probationer in the latter service shall not be appointed under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service. It was stated that as per the 2nd proviso petitioner's lien was only in the Police Department. The 2nd respondent W.P.(C) No.37006/16 :3: was asked to inform the same to the petitioner and to obtain objection if any on it from him. Petitioner thereupon submitted Ext.P6 objection pointing out that his lien continued in the Civil Judicial Department only; alternatively he stated that he was liable to be confirmed in the category of LD Clerk in the Civil Judicial Department and therefore in the light of the amendment effected to Rule 8 in the year 2013, he was not liable to relinquish his membership in Civil Judicial Department. But it was rejected as per Ext.P7 order. Writ petition is filed challenging Ext.P7 order and seeking direction to the 1st respondent to re-appoint him in Civil Judicial Department as LD Clerk .
4. The 1st respondent filed a counter affidavit stating that the benefit of Rule 8 is only for appointment in the parent Department in which the employee 1st got appointment in exigencies of public service; if the employee wants to take a third appointment he has to forego his rights in the 2nd Department; therefore petitioner could join duty in the Panchayath Department only if he relinquished his membership in the Judicial Department where he received 2nd appointment through PSC; by accepting appointment in Panchayath Department, the 3rd appointment through PSC, his membership in the Judicial Department ceased to exist; Rule 8 protects only the rights in the parent Department (1st Department); the petitioner was not confirmed in the Civil Judicial Department of W.P.(C) No.37006/16 :4: Palakkad District at the time when he was relieved; on account of the promotions he got in the Department, it cannot be said that he became a full member; the amendment carried out to Rule 8 in the year 2013 also does not help the petitioner, as it only provides that a member of service appointed to a service under the exigencies of service shall be eligible for reappointment under Rule 8 with protection of seniority only if his re- appointment is within the prescribed period of 5 years. It is stated that there were 159 LD clerks in the Department as against 64 posts. Even if the seniors of petitioner were confirmed against those 64 posts petitioner could not have been confirmed.
5. Sri.Varghese, the learned Counsel for the petitioner argued that Rule 2(15) of KS&SSR as well as Rule 2(f) of Kerala Civil Service (Classification Control &Appeal) Rules, 1960 defines service as a group of persons classified by the State Government as a State or Subordinate Service, as the case may be. In this case petitioner's first appointment was to the Police Subordinate Service as Police Constable. Thereafter his appointment was to Last Grade Service in Civil Judicial Department. Last Grade Service is not one classified under the KCS(CC&A) Rules or KS&SSR. Therefore according to him the 2nd appointment cannot be said to be 'to another service'. When he got promotion as Attender Gr.II, he became a member of Subordinate Service. As he got further promotions W.P.(C) No.37006/16 :5: in that Subordinate Service upto LD Clerk, he was a full member of that service. He got appointment in Panchayat Subordinate Service when he was working as LD Clerk in a Subordinate Service. Since the appointments were to Subordinate Service itself it was not necessary for him to relinquish his membership.
6. The Learned Counsel for the first respondent asserted that petitioner cannot come back to the 2nd Department since his 3rd appointment was on deemed relinquishment in the Judicial Department and therefore he can seek re-appointment only in the first Department.
7. In order to determine the issue it is necessary to examine the 2nd Proviso to Rule 8 of KS&SSR, based on which the impugned orders are issued. The 2nd proviso reads as follows:
"Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under clause C to any other service for which he may be an approved candidate unless he relinquishes membership in the latter service in which he is a probationer or an approved probationer. "
8. Petitioner's appointment in each of the Departments was on account of appointment by direct recruitment from open market through PSC. He never got any appointment either by virtue of his membership in any of these services. As per Rule 2(9) of Part I of KS&SSR, a member W.P.(C) No.37006/16 :6: of service means a person appointed to that service and who has not been substantively transferred or reduced to another service, who has not resigned, retired, removed not dismissed. Under Rule 2(13) of Part I KS&SSR, a person is said to be recruited by transfer if his appointment to the service is in accordance with the orders issued or rules prescribed for recruitment by transfer to the service and if at the time of his first appointment thereto (a) he is a full member of or an approved probationer in any other service, the rules for which prescribed a period of probation for members thereof or (b) he is the holder of a post in any other service for which no probation is prescribed and has put in satisfactory service in that post for two years on duty within a continuous period of three years. Therefore when the 2nd proviso to Rule 8 refers to a member of service who is appointed to another service and continues to be a probationer or approved probationer in the "another service", the words and expressions "appointed to another service can only mean appointed by transfer to another service. Such an appointment to another service can only if the rules governing the method of appointment to that "another service" provides for the same and in that case a member of service who has completed probation can be appointed to the "another service". In this case petitioner's appointment from the post of Police Constable to the Last Grade Service was not an appointment by transfer.
W.P.(C) No.37006/16 :7:The further conditions in 2nd proviso is that if such a member of service who got appointed to "another service" continues as a probationer or an approved probationer in that "another service" and he wants an appointment to yet another service under clause (c), he has to relinquish his membership in the "another service".
9. Now it is necessary to have a look at clause (c) of Rule 8. Rule 8 of KS&SSR , reads as follows:
"8. The absence of a member of a service from duty in such service, whether on leave, other than leave without allowances for taking up other employment, on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn,-
(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;
(b) for promotion from a lower to a higher category in such service; and
(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate; as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but W.P.(C) No.37006/16 :8: for his absence:
Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or an approved probationer:
Provided further that this rule shall not have retrospective effect so as to disturb the decisions taken by the Travancore - Cochin Government in respect of the Travancore - Cochin personnel:
Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service not being Military service, solely on his own application, unless such appointment is made in the exigencies of public service. Note 1..An appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of Public Service for the purpose of this rule.
Note 2..The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service.
10. Appointment through Public Service Commission is an W.P.(C) No.37006/16 :9: appointment in exigency of service as per Note 1 of the Rule. Therefore Rule 8 is applicable to those who are absent on account of appointment through PSC, as held by this court in the judgment in Balakrishnan Nair V Ram Mohan Nair : 1998(1) KLT 766 and affirmed by the Apex Court in in Ali V State of Kerala & others : 2003(2)KLT 922 (SC). For the purpose of this case, clause (C) of Rule 8 can be read as :
The absence of a member of a service from duty in such service, whether on leave, or----on any other reason [(on appointment through PSC (in exigency of service)] shall not, if he is otherwise fit, render him ineligible in his turn,-
(a) xxxx(b) xxxxx
(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate;
as the case may be, in the same manner as if he has not been absent.
xxxx
11. In effect clause (c) only provides for an appointment by transfer to another service. Absence of a member on account of an appointment through PSC will not stand in the way of his right to be appointed by transfer to another service in case he is eligible for such a transfer for which he is an approved candidate. Such a re-appointment is envisaged only for the members of a service. The eligibility for a transfer to another service by virtue of his membership in a service will not be lost on W.P.(C) No.37006/16 :10: account of his absence.
12. The benefit of Rule 8 is for 3 different types of appointments. Even if a member of service is absent on account of the reasons stated therein which includes on appointment through PSC to another post, the absence will not render him ineligible for (1) reappointment to the very same service in the class or grade (2) promotion in that service (3) for appointment in a substantive vacancy in another service for which he may be an approved candidate.
13. Now it is necessary to have a look at the 2nd proviso to Rule 8. It can be seen that the restriction is only for an appointment under clause
(c) ie for appointment to yet another service for which he would have been eligible in his capacity as a member of the 1st service, had he continued without absenting himself either by availing leave or by deputation or by appointment in exigency of service (through PSC). That appointment can only be an appointment by transfer.
"Provided further that a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under clause C to any other service for which he may be an approved candidate unless he relinquishes membership in the latter service in which he is a probationer or an approved probationer.
14. A reading of the Rule 8 as a whole with reference to the W.P.(C) No.37006/16 :11: definition of 'member of service', 'appointed to the service', and 'recruited by transfer' given under the provisions contained in sub rule (9),(1) and (13) of Rule 2 of KS&SSR, would show that appointments to different services-all by way of direct recruitment do not require any relinquishment from any of the services in order to join another/3rd service. The contention that Civil Judicial Department is his 2nd service and petitioner got appointment to the 3rd service - the Panchayat Department only on deemed relinquishment of his membership in the 2nd service is unsustainable. Petitioner never got any such appointment as envisaged under the 2nd proviso or under Rule 8 so far. Petitioner seeks only a re-appointment in Civil Judicial Department to the very same post in which he was working. Even now he does not seek an appointment even to any other post to which he would have been eligible had he continued there. Originally he was a member of service in the Police Department. He got relieved and joined the Civil Judicial Department not by virtue of the fact that he was a member of service of the Police Department. He did not seek any re-appointment or promotion or appointment to another service by coming back to Police Subordinate Service. He became a member of service in Civil Judicial Department through Public Service Commission. By that appointment alone it cannot be said that he was appointed to another service as envisaged in Rule 8 W.P.(C) No.37006/16 :12: or clause C. He did not become an approved candidate to another service by virtue of his membership in Police Department. His next appointment in Panchayat Department was also not on account of the fact that he was a member of service in either the Civil Judicial Department or the Police Department. His appointment in Panchayat Department was also through PSC based on direct recruitment from open market, as in the case of his appointment as Police as well as Last Grade Servant. That appointment to Panchayat Department was not one made under clause (c) of Rule 8 of KS&SSR. Though he was appointed in the Last Grade Service in the Civil Judicial Department, he got further promotions/appointment in the Subordinate Service of the Civil Judicial Department. His appointment to Panchayat department was not on account of his membership in the service of the Civil/Judicial Department under clause (c) of Rule 8. He got relieved from the Civil Judicial Department and joined Panchayat Department, on his 3rd appointment based on direct recruitment through PSC. Within one year of his appointment in the Panchayat Department he requested for re- appointment in Civil Judicial Department under Rule 8.
15. The question of relinquishment did not arise in the case of the petitioner to join the Panchayat Department since it was not an appointment under clause (c) of Rule 8 or any of the provisions in Rule W.P.(C) No.37006/16 :13: 8; it was not an appointment by transfer but by direct recruitment. Even when the petitioner requested for a re-appointment, he did not seek an appointment under clause (c); his request was only for allowing him to re-join as LD Clerk, which comes under clause (a). The restriction under the 2nd proviso will apply in a case where an employee who got appointment in another service and continuing as probationer/approved probationer 'in that another service', wants appointment 'in any other service' by virtue of his membership in the first service on account of which he became an approved candidate to that service. In this case petitioner did not get appointment in Panchayat Department because of his membership in any of the service. Relinquishment is necessary only for any appointment under clause (c) of Rule 8. Appointment under clause (c) is only appointment to another service for which member of the first service became eligible. Such a contingency never arose in this case. When the petitioner is not a person 'appointed to Civil Judicial Department' on account of the fact that he was a member of service in the Police Department and his further appointment in the Panchayat Department is also not by virtue of his membership in Police Department or Civil Judicial Department, there was no question of relinquishment or deemed relinquishment as provided in the 2nd proviso as contended by the respondents.
W.P.(C) No.37006/16 :14:16. The request of petitioner is rejected on misinterpretation of rules. As the only reason stated is 2nd Proviso to Rule 8 and that reason is found unsustainable, there cannot be any further objection to allow the request of the petitioner.
Ext.P7 order is therefore quashed. There shall be a direction to the 2nd respondent to pass fresh orders on Ext.P4 representation for re- appointment as LD Clerk in the Civil Judicial Department in accordance with Rule 8 of KS&SSR, within a period of one month from the date of receipt of a copy of the judgment.
Writ Petition is accordingly allowed.
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P.V.ASHA JUDGE rkc