ANSHO KURIAKOSE v. STATE OF KERALA, KERALA BOOKS AND PUBLICATIONS SOCIETY (KBPS) and ITS CHAIRMAN AND MANAGING DIRECTOR

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MRS. JUSTICE ANU SIVARAMAN** **TUESDAY, THE 22ND DAY OF DECEMBER 2020 / 1ST POUSHA, 1942** ## **WP(C).No.26299 OF 2019(J)** ## **PETITIONER:** **ANSHO KURIAKOSE AGED 38 YEARS S/O. K.S.KURIAKOSE, KUDIYATHU HOUSE, CHATHARI, NADAMA VILLAGE, TRIPUNITHURA P.O., PIN-682 301.** **BY ADVS. SRI.ABRAHAM P.GEORGE SMT.M.SANTHY** ## **RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY THE SECRETARY, PRINTING AND STATIONERY, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 KERALA BOOKS AND PUBLICATIONS SOCIETY (KBPS) KAKKANAD, KOCHI-682 030 REPRESENTED BY ITS CHIARMAN AND MANAGING DIRECTOR** - **3 THE CHAIRMAN AND MANAGING DIRECTOR KERALA BOOKS AND PUBLICATIONS SOCIETY, KAKKAND, KOCHI-682 030.** ## **R2-3 BY ADV. SMT.LATHA ANAND GP- SRI. SUNIL KURIAKOSE** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22.12.2020, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** WP(C).No.26299 OF 2019(J) -: 2 :- ## **JUDGMENT** ## **Dated this the 22nd day of December 2020** This writ petition is filed seeking the following reliefs :- - “(a) Declare that the petitioner has lien in the post of Manager (Personnel & Administration) under the 2[nd] respondent till he is confirmed in the present post under IREL (India) Ltd or for 5 years as provided in Note 3 Rule 8 of Kerala State and Subordinate Services Rule Part II. - (b) Call for the entire records leading to the issuance of Ext.P6 notification issued by the 3[rd] respondent, set aside the same and the proceedings thereunder as it violates the lien/protection entitled to the petitioner as per Note 3 of Rule 8 of Kerala State & Subordinate Services Rules Part II by issuing a writ of certiorari or such other appropriate writ or direction. - (b)(a) pass an order directing the 2[nd] and 3[rd] respondents to allow the petitioner to rejoin to the post of Manager (Personnel & Administration) with the 2[nd] respondent forthwith allowing the Ext.P20 representation submitted by the petitioner.” ## 2. Heard the learned counsel for the petitioner and the learned counsel appearing for respondents 2 and 3. 3. It is submitted by the learned counsel for the petitioner that the petitioner was appointed as Manager (Personnel & Administration) in the 2[nd] respondent Society from 25.3.2011 to 21.1.2019. He was relieved from service for taking up appointment under the IREL (India) Ltd. as Deputy Manager WP(C).No.26299 OF 2019(J) -: 3 :- (HRM). It is submitted that by Ext.P1, the 3[rd] respondent had issued a No Objection Certificate permitting the petitioner to attend the interview. By Ext.P5, the petitioner was relieved to take up the post of Deputy Manager (HRM) in the IREL. It is submitted by the learned counsel for the petitioner that the petitioner's service under the IREL has not been confirmed. While so, the petitioner had made a request for being posted back as Manager (Personnel & Administration) in the 2[nd] respondent Society. The said request was rejected by Ext.P9 letter. Thereafter, proceedings were initiated to make fresh appointment to the post of Manager (Personnel & Administration) in the 2[nd] respondent. 4. The learned counsel for the petitioner submits that the petitioner is entitled to seek repatriation to the service of the 2[nd] respondent in terms of Rule 8 of Part II of the KS & SSR. It is submitted that the Rule provides that a member of a service who leaves such service to take up employment in another service would be entitled to retain his lien in the former service until he is confirmed in the latter service. It is stated that when the appointment is made in the exigencies of public service, the lien would not be forfeited unless the employee is confirmed in the latter service. It is submitted that the contention that the rule is not applicable to the 2[nd] respondent is completely untenable since WP(C).No.26299 OF 2019(J) -: 4 :- the petitioner's initial appointment was by a Government Order and that the 2[nd] respondent being a Government Organisation, cannot contend that the rules applicable to Government employees are not applicable to it. 5. The learned counsel for the petitioner also relies on the judgments of this Court in OP (KAT) No.2369/2012 dated 11.04.2014 and WP(C) No.23921/2012 dated 26.11.2014 in support of his contention. It is contended that where Government employees had left Government service to join the District Cooperative Bank, Alappuzha, which is admittedly not governed by the KS & SSR, this Court had specifically held that even though the latter employer is not strictly covered by the provisions of the KS & SSR, the request for retention of lien must be accepted in view of the fact that the service in the District Co-operative Bank would also fall within the term 'another service' contained in the 4[th] proviso to Rule 8. It was held that the finding of the Tribunal that District Co-operative Bank service which is not governed by Rule 8 of the KS & SSR will not be another service for the purpose of Rule 8 is untenable. 6. A counter affidavit has been placed on record by respondents 2 and 3. It is contended therein that the KS & SSR has not been made applicable to the 2[nd] respondent Society and WP(C).No.26299 OF 2019(J) -: 5 :- that the petitioner, who had been relieved from service on his own request and had been paid all benefits including gratuity under the Payment of Gratuity Act, is not entitled to claim that he retains his lien in the Kerala Books & Publications Society. 7. A detailed additional counter affidavit has also been filed by the respondent producing the staff regulation for managerial personnel under the 2[nd] respondent and contending that the provisions of the recruitment rules and the staff regulations govern the service conditions of managerial personnel in the 2[nd] respondent and that the provisions of the KS & SSR are not applicable to the 2[nd] respondent. It is further contended by the learned counsel for the respondents that the decision of the Apex Court in **Ajit Kumar Nag** v. **General Manager, Indian Oil Corporation Ltd., Haldia and others** [(2005) 7 SCC 764] where it was specifically held that the service under the Governmental Organizations (in that case, the Indian Oil Corporation) would not be service in a civil post under the Government in terms of Articles 309 or 311 of the Constitution of India. 8. I have considered the contentions advanced. The claim of the petitioner is with regard to retention of lien in the post held by him in the 2[nd] respondent. According to me, the question of retention of lien would arise only if the provisions of Part II of the WP(C).No.26299 OF 2019(J) -: 6 :- KS & SSR are applicable to service under the 2[nd] respondent. The 2[nd] respondent has set up a specific case that the KS & SSR has not been made applicable to the 2[nd] respondent and that the petitioner was governed by the staff regulations governing managerial personnel. The learned counsel for the petitioner would contend that since Kerala Books & Publications Society is admittedly a Governmental organisation and since appointments are made under clear instructions from the Government, the petitioner should be treated as a Government employee. Having considered the contentions advanced, I am unable to accept the proposition that service under the Kerala Books & Publications Society would amount to service in a civil post under the Government of Kerala. The concept of Government service is clearly established and it is only if a person holds a civil post under the Government that he would be governed by the provisions of the Rules framed under Article 309 of the Constitution of India. In the above legal perspective, I am of the opinion that the question whether the petitioner had been relieved on his own request or in public interest is not required to be considered in this writ petition. Though the learned counsel for the petitioner relies on decisions of this Court, I find that the factual position was that the employees had initially joined Government service and had left WP(C).No.26299 OF 2019(J) -: 7 :- such service to take up employment under the Alappuzha District Co-operative Bank. It was on their seeking to return to Government service that the question of application of Rule 8 arose in those writ petitions. The situation there was that the service to which they sought repatriation was specifically a service where Rule 8 was applicable since it was Government employment in both the cases. It was in the above factual situation that this Court had held that the service in the Alappuzha District Co-operative Bank could also be reckoned as “other service” for the purpose of proviso 4 under Rule 8. In the instant case, I am faced with a situation where the initial appointment of the petitioner was in a service to which the KS & SSR and specifically Rule 8 thereof did not apply. In the above factual situation, I am of the opinion that the contentions of the petitioner cannot be accepted. In the above situation, the prayers sought for cannot be granted. The writ petition fails and the same is, accordingly, dismissed. Sd/- **ANU SIVARAMAN JUDGE** Jvt/1.1.2021 WP(C).No.26299 OF 2019(J) -: 8 :- ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **EXHIBIT P1 TRUE PHOTOCOPY OF NO OBJECTION CERTIFICATE ISSUED BY THE 3RD RESPONDENT DATED 25.9.2018 PERMITTING THE PETITIONER TO ATTEND THE INTERVIEW.** - **EXHIBIT P2 TRUE PHOTOCOPY OF THE APPLICATION/REQUEST DATED 24.10.2018 SUBMITTED BY THE PETITIONER REQUESTING TO RELIEVE HIM FROM 2ND RESPONDENT.** - **EXHIBIT P3 TRUE PHOTOCOPY OF THE APPLLICATION/REQUEST DATED 10.11.2018 SUBMITTED BY THE PETITIONER REQEUSTING TO RELIEVE HIM FROM 2ND RESPONDENT.** - **EXHIBIT P4 TRUE PHOTOCOPY OF THE APPLICATION/REQUEST DATED 26.11.2018 SUBMITTED BY THE PETITIONER REQUESTING TO RELIEVE HIM FROM 2ND RESPONDENT.** - **EXHIBIT P5 TRUE PHOTOCOPY OF THE RELIEVING LETTER DATED 21.1.2019 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER.** - **EXHIBIT P6 TRUE PHOTOCOPY OF THE NOTIFICATION DATED 26.2.2019 PUBLISHED BY THE 2ND RESPONDENT FOR THE SELECTION OF CANDIDATE TO THE POST OF MANAGER (PERSONNEL & ADMINISTRATION).** - **EXHIBIT P7 TRUE PHOTOCOPY OF THE E-MAIL COMMUNICATION DATED 30.4.2019 TO THE 3RD RESPONDENT.** - **EXHIBIT P8 TRUE PHOTOCOPY OF THE LAWYER NOTICE DATED 29.7.2019 ISSUED TO THE 3RD RESPONDENT.** - **EXHIBIT P9 TRUE PHOTOCOPY OF THE REPLY NOTICE DATED 10.8.2019 ISSUED BY THE 3RD RESPONDENT THROUGH HIS COUNSEL.** - **EXHIBIT P10 TRUE COPY OF THE SANCTION ORDER GO(RT) 349/11/H.EDN.DATED 01.03.2011 ISSUED BY THE GOVERNMENT OF KERALA.** - **EXHIBIT P11 THE TRUE PHOTOCOPY OF THE GO(P) NO.48/81/GAD DATED 18.2.1981.** - **EXHIBIT P12 THE TRUE PHOTOCOPY O THE G.O(P) NO.893/78/FIN.DATED 30.12.2011.** WP(C).No.26299 OF 2019(J) -: 9 :- **EXHIBIT P13 TRUE COPY OF THE GOVERNMENT ORDER GO(RT) NO.2454/2011/G.EDN.DATED 29.6.2011. EXHIBIT P14 TRUE COPY OF THE LETTER NO.9009/A3/2015/IMG DATED 14/12/2015. EXHIBIT P15 TRUE PHOTOCOPY OF THE LETTER NO.9009/A3/2015/IMG DATED 14.12.2015.** - **EXHIBIT P16 TRUE PHOTOCOPY OF THE REMINDER DATED 3/10/2016** **EXHIBIT P17 TRUE COPY OF THE GOVERNMENT ORDER NO428/2018 DATED 11.4.2018.** - **EXHIBIT P18 THE PHOTOCOPY OF THE CIRCULAR NO.4619/R1/2016/PAND ARD DATED 18/5/2016** - **EXHIBIT P19 EXTRACT OF MALAYALA MANORAMA DAILY DATED 28.9.2019** - **EXHIBIT P20 TRUE PHOTOCOPY OF E-MAIL COMMUNICATION DATED 21.03.2019** ## **RESPONDENT'S EXHIBITS:** - **EXHIBIT R3(a): TRUE COPY OF THE APPLICATION FOR TRATUITY DATED 21/01/2019.** - **EXHIBIT R3(b): TRUE COPY OF THE AUTHORISATION LETTER DATED 21/01/2019 SUBMITTED BY THE PETITIONER.** - **EXHIBIT R3(c): TRUE COPY OF THE PAYMENT VOUCHER DATED 28/01/2019 EVIDENCING PAYMENT.** - **EXHIBIT R3(d): TRUE COPY OF LETTER DATED 21/01/2019 SUBMITTED BY THE PETITIONER AUTHORISING TO ADJUST THE ADVANCE AMOUNT.** **EXHIBIT R3(e): TRUE COPY OF STAFF REGULATION FOR MANAGERIAL PERSON EXHIBIT R3(f): TRUE COPY OF THE GOVERNMENT ORDER DATED 22/10/2020** **EXHIBIT R3(g): TRUE COPY OF THE OFFER LETTER DATED 22/10/2020**