Kerala High Court
State Of Kerala vs K.M.Mohammed Basheer on 22 July, 2011
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HON'BLE ACTING CHIEF JUSTICE MRS.MANJULA CHELLUR
&
THE HONOURABLE MR.JUSTICE A.M.SHAFFIQUE
FRIDAY, THE 29TH DAY OF JUNE 2012/8TH ASHADHA 1934
WA.No. 1414 of 2011 ( ) IN WPC/38052/2007
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AGAINST THE ORDER/JUDGMENT IN WPC.38052/2007 DATED 22-07-2011
APPELLANT(S)/RESPONDENTS:
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1. STATE OF KERALA
PRINCIPAL SECRETARY TO GOVERNMENT
GENERAL ADMINISTRATION DEPARTMENT
GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.
2. THE COMMISSIONER FOR RURAL DEVELOPMENT
COMMISSIONERATE OF RURAL DEVELOPMENT
L.M.S COMPOUND, VIKAS BHAVAN, THIRUVANANTHAPURAM.
BY ADV. GOVERNMENT PLEADER SRI.C.S. MANILAL
RESPONDENT(S)/PETITIONER:
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K.M.MOHAMMED BASHEER
ASSISTANT PROJECT OFFICER (P&M), DRDA, COLLECTORATE
ERNAKULAM, 682 030.
BY ADV. SRI.R.SRINATH
BY ADV. SRI.B.RAGUNATHAN
THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29-
06-2012, ALONG WITH W.A. NOS. 1385, 1825 & 1823/2011, THE
COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
Manjula Chellur,Ag. CJ.,
&
A.M. Shaffique, J.
.................................................
W.A. Nos. 1414, 1385, 1825 & 1823 of 2011
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Dated: 29-06-2012
JUDGMENT
Manjula Chellur,Ag. CJ., Writ Appeal Nos. 1414/2011 and 1385/2011 are between the parties in the original application before the learned Single Judge .
2. Writ Appeal Nos.1825 /2011and 1823/2011 are filed by third parties seeking leave of the court to file appeals contending that they are aggrieved by the directions of the learned Single Judge in the impugned judgment.
3. The brief facts lead to the filing of W.A. Nos.1414 and 1385 of 2011 are as under:-
The party respondents in these appeals were the writ W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:2:- petitioners before the learned Single Judge. It is not in dispute that writ petitioners were appointed initially as Assistant Grade- II in the Administrative Secretariat, and later on, they were appointed by recruitment by transfer to the post of Block Development Officer ("BDO" for short) in the Rural Development Department by order dated 28-09-1993. According to the writ petitioners, after they were transferred to the Rural Development Department, probation in the said department was declared with effect from the respective dates communicated to them.
Subsequently, they represented for repatriation from Rural Development Department to Administrative Secretariat ("parent department" for short). But the said representations were not considered on the ground that in SLP 14996 of 1998, matter was pending before the Apex Court and their request cannot be considered during the pendency of the said SLP.
4. It is not in dispute, against the Full Bench W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:3:- Judgment of this Court in Balakrishnan Nair v. Ram Mohan Nair - 1998 (1) KLT 766 (FB), the Special Leave Petition was filed. As could be seen from the records placed before the Court, SLP against the judgment of the Full Bench came to be dismissed upholding the view of the Full Bench. Apparently, these Writ Petitioners were not parties to the Special Leave Petition, but they were similarly situated persons. According to the petitioners, by virtue of initial appointments to the Administrative Secretariat, they have a lien in the parent department and, only if, they are confirmed in accordance with the regulations in the transferee department, they would lose their lien in the parent department. It is further contented, as long as no such confirmation in the transferee department is made, they shall continue to hold their lien in the parent department and, therefore, having submitted their applications for repatriation to the parent department, there was no justification for confirmation of them in the W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:4:- transferee department hurriedly, and it was done only to overcome the law declared by the Full Bench which came to be confirmed with the dismissal of SLP.
5. It is also the case of the petitioners that after their initial appointments, against a substantive permanent vacancy, lien will be held by the appointee in such parent department and in order to become a full member as per Rule 24 of Kerala State and Subordinate Services Rules (KS & SSR for short) Part II one has to be declared having completed the probation period as satisfactory, and then only they could be considered as full members. It is their further contention that unless they are full members, the question of confirmation in the transferee department or parent department, would not arise. So far as, these two writ petitioners are concerned, as on the date of issuing confirmation order without considering their representations for repatriation, they had not completed the period of two years of probation, therefore, even W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:5:- declaration of probation could not have been done, hence question of considering them as full members would not arise in the facts and circumstances of the case.
6. Aggrieved by such confirmation, the writ petitioners approached the learned single judge with the present Writ Petitions. The learned Single Judge referring to the earlier judgment, exactly in identical circumstances, proceeded to hold that the confirmation in the transferee department was not in accordance with the procedure contemplated and, therefore, the ratio in W.P. C. No. 38046 of 2007 squarely applies to the facts of the case. In terms of the decision in the said W.P. (C), the Writ Petitions were allowed directing the respondents to repatriate the Writ Petitioners to the Administrative Secretariat with all consequential benefits. Two months' time was also granted to comply with the above exercise from the date of receipt of a copy of the judgment. Aggrieved by this, the State has come up in appeal with W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:6:- the above two Appeals.
7. According to learned Government Pleader, unless a person becomes a full member and declared as such in accordance with Rule 24, question of seeking repatriation to the parent department having lien will not arise and in the present case the Writ Petitioners were not even full members, therefore, question of seeking repatriation would not arise at all. On the other hand, according to him, their probation was declared in the transferee department, but they were not admitted as full members in contemplation of Rule 24. As against this, learned counsel for the Writ Petitioners/respondent brought to the notice of the Court Rules 8, 19, 21 and 24 of KS & SSR Part - II so also Rules 16 and 18 of K.S.R. Part I so far as the lien and the consequential action. According to learned counsel for the respondents in order to become full members, first their probation has to be declared and then they must be confirmed as full members in accordance with Rule 24 of W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:7:- K.S. & SSR. So far as this aspect, there is no dispute.
8. So far as the respondent in W.A. No. 1414 of 2011, probation in the post of Block Development Officer in the Rural Development Department was declared with effect from 20-10-1995. Surprisingly, he was confirmed as full member, much prior to the declaration of probation with effect from 1-10-1994. Subsequently, the date of confirmation was again revised as 31-10-1994. So far as the Writ Petition pertaining to 1385 of 2011, probation in the post of BDO was declared with effect from 7-10-1995. But he was confirmed as a full member on 1-6-1994 but revised again as 31-08-1994. In both these cases, much prior to the declaration of probation, they were admitted to the status of full members as contemplated in Rule 24 which is nothing but in violation of procedure contemplated because unless they are approved probationers, there cannot be admission to the status of full members.
9. Rule 8 of Part II KS & SSR is very relevant as it W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:8:- would decide who are all entitled for lien and how that lien would operate in case of members absent from duty and who could all be termed as members absent from duty. Rule 8 reads as under:-
"8. Members absent from duty - 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 for his absence;
Provided that subject to the provisions of rule 18 he shall satisfactorily complete the period of probation on his his return;
Provided further that a member of a service who is W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:9:- 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. Rule 16 refers to acquisition of lien whenever an officer is appointed against a substantive appointment to any permanent post. Rule 16 reads as under:
R. 16 . Unless in any case it be otherwise provided in these rules, an officer on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.
Rule 18 refers to suspension of lien under different circumstances depending upon the nature of the post they hold which reads as under :-W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:10:-
"18 (a) The Government shall suspend the lien of an officer on a permanent post which he holds substantively if he is appointed in a substantive capacity -
1) to a permanent post outside the cadre on which he is borne, or
2) provisionally to a post on which another officer would hold a lien had his lien not been suspended under this rule.
(b) The Government may, at their option, suspend the lien of an officer on a permanent post which he holds substantively, if he is transferred to foreign service or in circumstances not covered by clause (a) of this rule, is transferred, whether in a substantive or officiating capacity to a post in another cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years".
Rule 19 of KS & SSR refers to suspension /termination or extension of probation depending upon the circumstances of each case with reference to the procedure contemplated in the said rule, which reads as under:-
"19. Suspension, termination or extension of probation:- (a) Where the Special Rules of any service prescribe a period of probation for appointment as a full member of the service or where such period of probation has been extended under General Rule 21, the Appointing Authority may, at any time before the expiry of the prescribed period of probation or the extended period of probation, as the case may be -
(i) suspend the probation of a probationer and discharge him for want of vacancy, or
(ii) at its discretion, by order, either, terminate the probation W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:11:- of a probationer and discharge him or in case the probation has not been extended under General Rule 21 extend the period of his probation, after giving him a reasonable opportunity of showing cause against the action proposed to be taken in regard to him;
Provided that where a probationer has been given a reasonable opportunity of showing cause against the imposition on him of any of the penalties specified in items (iv), (vii) and (ix) of rule 11 of the Kerala Civil Services (Classification, Control and Appeal) Rules and at the conclusion of the disciplinary proceedings, a tentative conclusion is arrived at to terminate his probation, a further opportunity of showing cause specifically against termination of his probation need not be given to him.
Explanation.- An opportunity to show cause may be given after the Appointing Authority arrives at a provisional conclusion on the suitability or otherwise of the probationer for full membership of the service, either by such authority himself or by a subordinate authority who is superior in rank to the probationer.
(b) (i) If within the period of probation a probationer fails to acquire the special qualifications or to pass the special tests, if any, prescribed in the Special Rules, or to acquire such other qualifications as may be declared by the State Government or by the Appointing Authority with the approval of the State Government to be equivalent to the said special qualifications or special tests, the Appointing Authority shall, by order, discharge him unless the period of probation is extended under rule 21.
(ii) If within the period of probation prescribed in the Special Rules for the service or within the extended period of probation, as the case may be, a probationer has appeared for any such tests or for any examinations in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has so appeared are not known before the expiry of such period, he shall continue to be on probation until the publication of the results of the tests or examinations for which he has appeared or th W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:12:- first of them in which he fails to pass, as the case may be.
In case the probationer fails to pas any of the tests or examinations for which he has so appeared, the appointing authority shall by order discharge him.
Provided that where a probationer has appeared for any tests or examinations within the period of probation prescribed in connection with the acquisition of any such qualifications and the results of the tests or examinations for which he has appeared and passed are known only after the expiry of the prescribed period of probation, he shall be deemed to have satisfactorily completed his probation on the date on which he has completed the prescribed period of probation".
Rule 21 refers to extension of declaration of probation under certain circumstances which reads as under:-
"21. Extension of probation.- In case of any probationer falling under sub-rule (b) of rule 19 or sub-rule (c) of rule 20, the Appointing Authority may extend his probation for a maximum period of one year to enable him to acquire special qualifications or pass the prescribed tests, as the case may be, or to enable the appointing authority to decide whether the probationer is suitable for full membership or not. Extension of probation beyond one year may, however, be ordered by Government if found necessary. In cases where the probation of a probationer is extended a condition shall, unless there are special reasons to the contrary, be attached to the order of extension of probation that the probationer's increment shall be stopped until he is declared to have satisfactorily completed his probation. Such stoppage of increment shall not be treated as a penalty but only as a condition of extension of probation and shall not have the effect of postponing future increments after he has passed the prescribed tests or examinations or after he is declared to have satisfactorily completed his probation".W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:13:-
Then we come to Rule 24 which refers to confirmation of full members if they are approved probationers which reads as under:-
"24. Appointment of full members.- (a) Subject to the provisions of rule 8 an approved probationer shall be appointed to be a full member of the service in the class or category for which he was selected, at the earliest possible opportunity, in any substantive vacancy which may exist or arise in the permanent cadre of such class or category and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from the date or, as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category:
Provided that where more than one approved probationer is available for such appointment as full member, the senior most approved probationer on the date of the vacancy shall be appointed:
Provided further that notwithstanding anything contained in this sub-rule, a candidate who is recruited direct to a post in any service, class, category or grade reserved for members of Scheduled Castes and Scheduled Tribes shall, on satisfactory completion of probation, be appointed to any substantive vacancy which may exist in the permanent cadre or such service, class, category or grade, or if no such vacancy exists, to the first such vacancy which may arise after the satisfactory completion of probation".
Reading of these two Rules would indicate that so far as acquisition of a lien, only when an officer is appointed substantively against a permanent post he acquires lien in W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:14:- the said post. Similarly, in order to become a full member unless he is an approved probationer and unless he holds a substantive permanent post, he will not be entitled to full member status as contemplated under Rule 24 of Part II K.S& SSR. Having regard to the above Rules, one has to see whether the Writ Petitioners were entitled to get repatriation to the parent department and whether the authorities concerned were justified in confirming them to the status of full members even before declaration of their probation.
10. Admittedly, their initial appointment was to the Administrative Secretariat and later by way of recruitment by transfer they were sent to Rural Development Department as the option was exercised by the officials. It is not in dispute applications were called for recruitment by transfer and such applications were submitted to Public Service Commission through the Administrative Secretariat and thereafter, they were sent as recruitee W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:15:- transferees to the Rural Development Department. None of the rules referred to above would indicate there is cessation of lien once they are recruited by transfer to other department from Administrative Secretariat. The exercise of lien would squarely come into operation as contemplated in the above rules and so also declaration of probation and confirmation to the status of full member have to be done in accordance with the Rules referred to above. Apparently, there is no dispute that these writ petitioners were not appointed as against the substantive permanent post. However, their probation was not declared prior to their transfer to the Rural Development Department by Recruitment. Subsequently, in the transferee department, their probation was declared in the years stated above. The fact remains before they were declared as approved probationers, they were confirmed as full members. Therefore, the very declaration of probation was erroneous when they were admitted as full members W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:16:- as per Rule 24.
11. In the absence of becoming an approved probationer, question of confirming to the status of full member would not arise. Therefore, there is justification in the argument of the Writ Petitioners that it was a premature confirmation of status of full members as their probation was not yet declared. In that view of the matter, the learned Judge was justified by referring the earlier Full Bench decision of this Court in 1998 (1) KLT 766 (supra) and also the earlier judgment of the learned Single Judge. In that view of the matter, we are of the opinion, the stand of the Government in these appeals cannot be accepted and accordingly, appeals deserve to be dismissed.
12. Then coming to the appeals filed by the 3rd party appellants, the common appellants in W.A. Nos. 1823/2011 and 1825/2011, are the employees of the Administrative Secretariat who had gone away from the Administrative Secretariat and then came back to the Administrative W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:17:- Secretariat. The first appellant was the one who had gone away from the Administrative Secretariat to All India Radio and then came back to the Administrative Secretariat. We need not go into the question of justification of the first appellant coming back to the Administrative Secretariat from All India Radio, as there is no such challenge. The challenge by the appellants in these petitions is, in case the representations of the Writ Petitioners are considered favourably, at the time of repatriation to the parent department, appellants' would be at risk. Therefore, they have come up in these appeals. According to them, the word used as "such service" would refer to State Service and Subordinate Service. So far as the said issue is concerned, it would be premature for us to anticipate the result of consideration of the representations of the Writ Petitioners.
13. Keeping in mind the prevailing Rules, apart from several directions given by virtue of various decisions of W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:18:- the Full Bench and also the learned Single Judge of this Court referred to above, it is relevant to mention that the Writ Petitioners who approached this Court and obtained favourable orders by virtue of the judgment of the Full Bench, were also consequently admitted to the benefits in accordance with the Rules, as per the directions of the Courts. Subsequently, various other Government servants also approached this Court and the law laid down in the Full Bench Judgment was followed. All these facts have to be kept in mind while considering the representations of the respondents/writ petitioners.
However, it is needless to say that the authorities who consider the representations for repatriation of the respondent/writ petitioners, have to take into account the relevant Rules, keeping in mind the State service and Subordinate service. Therefore, we are of the opinion, no positive direction could be granted so far as W.A. Nos. 1823 and 1825/2011. So far as the other two appeals, we W.A. Nos. 1414, 1385, 1825 & 1823 of 2011 -:19:- have already said, nothing remains for us to consider in those appeals. Accordingly, all the appeals are dismissed.
Dated this the 29th day of June, 2012.
Manjula Chellur, Acting Chief Justice.
A.M. Shaffique, Judge.
ani.