OP(KAT) Nos. 31 & 36 of 2022 (Kerala High Court)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS &** ## **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM** **THURSDAY, THE 5[TH] DAY OF MAY 2022 / 15TH VAISAKHA, 1944 OP(KAT) NO. 31 OF 2022** **AGAINST THE ORDER DTD.23.09.3021 IN OA (EKM) 776/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **PETITIONER/5TH RESPONDENT:** **SUMESH V.S.,AGED 35 YEARS,SON OF V.K. SURENDRAN, RESIDING AT VALAPPIL HOUSE, PUTHIYEDOM, KANOOR P.O., ALUVA-683575, ERNAKULAM DISTRICT.** **BY ADV B.ASHOK SHENOY** ## **RESPONDENTS/APPLICANTS & RESPONDENTS NOS.1 TO 4:** - **1 RAJITH T.A.,AGED 39 YEARS,SON OF ARUMUGHAN P.V., BEAT FOREST OFFICER, FLYIG SQUAD RANGE, THALAKKODE, KOTHAMANGALAM, ERNAKULAM686693, RESIDING AT THENATHIL HOUSE, ALAM THURUTHU, VADAKKEKKARA P.O., NORTH PARAVOOR, ERNAKULAM-683522.** - **2 ANOOP M.N.,AGED 38 YEARS,SON OF NARAYANAN M.A., BEAT FOREST OFFICER, THUNDATHIL FOREST RANGE OFFICE, BHOOTHATHANKETTU-686681, RESIDING AT MANCHADUKKAL HOUSE, CHERAI P.O., ERNAKULAM-685514.** - **3 ANILKUMAR G.,AGED 47 YEARS,SON OF GOPALAN L., SECTION FOREST OFFICER, NILAMBUR DIVISION, EDAVANNA RANGE, NILAMBUR P.O., MALAPPURAM-679329, RESIDING AT GREENS, MEEYANA P.O., OYOOR (VI A), KOLLAM-691510.** - **4 STATE OF KERALA,REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, FOREST AND WILD DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001.** - **5 KERALA PUBLIC SERVICE COMMISSION,REPRESENTED BY ITS SECRETARY, PATTOM P.O., THIRUVANANTHAPURAM-695004.** - **6 THE PRINCIPAL CHIEF CONSERVATOR OF FORESTS, FOREST HEADQUARTERS, VAZHUTHACAUD, THIRUVANANTHAPURAM-695014.** - **7 THE DIVISIONAL FOREST OFFICER,DIVISIONAL FOREST OFFICE, FOREST OFFICE ROAD, KODANAD, PERUMBAVOOR, ERNAKULAM-683544.** - **BY ADVS.S.PRASANTH (AYYAPPANKAVU),VARSHA BHASKAR, THRESSY THOMAS ANUPAMA JOHNY ADV.P.C SASIDHARAN, SC FOR KPSC** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON** **08.03.2022, ALONG WITH OP(KAT).36/2022, THE COURT ON 05.05.2022 DELIVERED THE** **FOLLOWING:** OP(KAT) Nos.31 & 36 of 2022 2 **IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS &** **THE HONOURABLE MR.JUSTICE VIJU ABRAHAM THURSDAY, THE 5[TH] DAY OF MAY 2022 / 15TH VAISAKHA, 1944 OP(KAT) NO. 36 OF 2022** **AGAINST THE ORDER IN OA (EKM) 1472/2021 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** **SUMESH V. S.,AGED 35 YEARS,SON OF V. K. SURENDRAN, RESIDING AT VALAPPIL HOUSE, PUTHIYEDOM, KANJOOR P. O., ALUVA - 683 575, ERNAKULAM DISTRICT.** **BY ADVS.B.ASHOK SHENOY,P.S.GIREESH,ARJUN R NAIK** ## **RESPONDENTS/RESPONDENTS:** - **1 THE KERALA PUBLIC SERVICE COMMISSION,REPRESENTED BY ITS SECRETARY, PATTOM P. O., THIRUVANANTHAPURAM - 695 004.** - **2 THE DIVISIONAL FOREST OFFICER,DIVISIONAL FOREST OFFICE, FOREST OFFICE ROAD, KODANAD, PERUMBAVOOR, ERNAKULAM - 683 544.** - **3 STATE OF KERALA,REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY, KERALA FOREST AND WILD DEPARTMENT, VAZHUTHACAUD, THIRUVANANTHAPURAM - 695 001.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR** **ADMISSION ON, 08.03.2022 ALONG WITH OP(KAT).31/2022, THE COURT ON 05.05.2022 DELIVERED THE FOLLOWING:** OP(KAT) Nos.31 & 36 of 2022 3 ## **(CR)** # **ALEXANDER THOMAS & VIJU ABRAHAM, JJ.** ## **................................................................. O.P.(KAT) No.31 of 2022** _[Arising out of the impugned final order dated 23.09.2021 in O.A.(EKM)No.776 of 2021 on the file of the KAT, EKM Bench] &_ ## **O.P.(KAT) No.36 of 2022** _[Arising out of the impugned final order dated 23.09.2021 in O.A.(EKM)No.1472 of 2021 on the file of the KAT, EKM Bench]_ **.................................................................** Dated this the 5[th] day of May, 2022 ## **JUDGMENT** ## **Viju Abraham, J.** O.P.(KAT) No.31 of 2022 is filed by the 5[th] respondent in O.A.(EKM) No.776 of 2021 and O.P.(KAT) No.36 of 2022 is filed by the applicant in O.A.(EKM) No.1472 of 2021 (5[th] respondent in O.A. (EKM) No.776 of 2021) before the Kerala Administrative Tribunal, Thiruvananthapuram, Ernakulam Bench aggrieved by the common order dated 23.09.2021, disposing of both the Original Applications, whereby O.A.(EKM) No.776 of 2021 was allowed and O.A.(EKM) No.1472 of 2021 was dismissed. Since the issue involved in both these original petitions is the same, they are heard and disposed of together. 2. Brief facts necessary for the disposal of the above Original Petitions are as follows: OP(KAT) Nos.31 & 36 of 2022 4 ## **OP(KAT)No.31 of 2022** 3. Respondents 1 to 3 are the applicants in O.A.(EKM) No.776 of 2021 who are employees included as rank Nos.39, 40 and 44 respectively in the ranked list for by-transfer appointment to a post of Range Forest Officer in category No.213/2016. The grievance raised by the said applicants in the O.A. was regarding the issuance of a lien certificate in favour of the 5th respondent, the petitioner herein, even though he has been confirmed in service in the Airport Authority of India and consequential inclusion of the 5[th] respondent in the ranked list by accepting the said lien certificate, by the 2[nd] respondent Public Service Commission. Annexure-A1 is the notification dated 03.08.2016 issued by the 2[nd] respondent for selection to the post of Range Forest Officers earmarked for recruitment by transfer from Forest Officers. In fact, the 5th respondent was relieved as per Annexure-A2 order dated 30.05.2017 to join the Airport Authority of India. The 5[th] respondent in the Original Application approached the Tribunal earlier by filing O.A.(EKM) No.1886 of 2020 praying for issuance of a lien certificate. The Tribunal as per Annexure-A3 interim order dated 12.01.2021 directed the Divisional Forest Officer, Kodanadu to issue OP(KAT) Nos.31 & 36 of 2022 5 certificate regarding his lien in the post of Beat Forest Officer within a period of one week from the date of receipt of a copy of the order and further directed that on the production of the said certificate, the Public Service Commission shall consider the same for the purpose of inclusion of the 5th respondent in the ranked list to be prepared in pursuance to Annexure-A1 notification. Annexure-A4 is the ranked list published on 28.01.2021 by the 2[nd] respondent Public Service Commission wherein the applicants were included as rank Nos.39, 40 and 44 respectively. It is averred that by Annexure-A5 order dated 09.02.2021 in a similar matter, O.A.(EKM) No.290 of 2021, the Tribunal issued an interim order directing that since the earlier order passed by the Tribunal for issuance of a lien certificate has not been complied with, the earlier order passed as per Annexure-A7 therein should be strictly complied with. In O.A. (EKM) No.1886 of 2020 filed by the 5[th] respondent, Annexure-A6 dated 24.02.2021 was issued wherein the Divisional Forest Officer, Kodanadu was directed to ensure that a proper lien certificate as per the directions in Annexure-A3 order may be issued. Consequently, Annexure-A7 lien certificate dated 03.03.2021 was issued in favour of the 5[th] respondent/petitioner herein. A further interim order OP(KAT) Nos.31 & 36 of 2022 6 dated 05.03.2021 was issued in O.A.(EKM) No.1886 of 2020 as Annexure-A8, wherein a direction was issued to the Public Service Commission to take a decision on accepting the lien certificate and initiate action for inclusion of the 5[th] respondent/petitioner herein in Annexure-A6 ranked list by issuing an addendum notification. While so, the 3[rd] applicant in the present O.A. filed an application for getting himself impleaded. Though the same was allowed, O.A. (EKM) No.1886 of 2020 was closed as per the order dated 25.03.2021 recording the submission of the Kerala Public Service Commission that a decision has been taken to accept the lien certificate issued in favour of the 5th respondent and expeditious steps are being taken to include him in the ranked list and that consequent addendum notification was issued by the Public Service Commission on 03.04.2021 as Annexure-A11 whereby the 5[th] respondent was included as rank No.15A. It is the case of the applicants in the O.A. that the 5[th] respondent has concealed material facts while filing O.A.(EKM) No. 1886 of 2020 especially the fact of declaration of his probation, as well as the confirmation in service of the Airport Authority of India as per Annexure-A10, Airport OP(KAT) Nos.31 & 36 of 2022 7 Authority of India (General Conditions of Service and Remuneration of Employees) Regulation, 2003, and therefore, the 5[th] respondent who was relieved from the Forest Department on 30.05.2017 and who has completed four years in Airport Authority of India and had his probation declared and confirmed, has no right to claim for by-transfer appointment to a post in the Forest Department. Further based on Annexures-A12 and A13 communications issued under the Right to Information Act obtained from the Airport Authority of India, the applicants contended that the 5[th] respondent's probation has been declared and confirmed, and later he was promoted to a higher post also. Even though Annexure-A9 order passed by the Tribunal in O.A.No. (EKM) No.1886 of 2020 was challenged by filing O.P.(KAT) No.112 of 2021, the same was disposed of as per Annexure-R5(a) judgment dated 17.05.2021 reserving the right of the applicant therein who is the 3[rd] applicant herein to ventilate his grievances before the Tribunal if aggrieved by the decision of the appointing authority in issuing a lien certificate in favour of the 5[th] respondent in the O.A. It is in the said circumstances the present Original Application was filed. OP(KAT) Nos.31 & 36 of 2022 8 4. A detailed reply statement was filed by the 5[th] respondent in the O.A mainly contending that there is no merit in the contention raised by the applicants that he has lost the lien by virtue of promotion/declaration of probation in the Airport Authority of India and the said contention goes against Rule 12(9) of the KSR as well as Rule 2(15) and Rule 8 of Part II KS & SSR. The appointment in the Airport Authority of India being a foreign service on the strength of the permission granted as per AnnexureA2, the 5[th] respondent retains the lien by virtue of Rule 17(b). As the applicants are rank Nos. 39, 40 and 44 and whereas the 5[th] respondent was placed at rank No.15A there is no chance for the applicants to get an appointment even if the 5[th] respondent is disturbed. It is also contended that the attempt is to make a selection of the better meritorious candidate and if the attempt of the applicants becomes successful it will only result in less meritorious candidates getting appointment overlooking the better claims of other candidates like the 5[th] respondent and therefore prayed for an order dismissing the O.A. 5. **O.P (KAT) No.36 of 2022** is filed by the 5[th] respondent in O.A.(EKM) No.776 of 2021 challenging Annexure-A4 OP(KAT) Nos.31 & 36 of 2022 9 certificate to the extent it is stated therein that the applicant shall hold lien in the Forest Department and he is eligible for reappointment as Beat Forest Officer only until the appointment in the Airport Authority of India as Assistant (Office) has been confirmed. O.A.was filed challenging the said rider in Annexure-A4 certificate and in Annexure-A5 proceedings pursuant to which Annexure-A4 was issued. 6. The Tribunal after considering the various contentions raised by both sides disposed of both the Original Applications whereby O.A.(EKM) No.776 of 2021 was allowed by setting aside Annexure-A4 lien certificate issued in favour of the 5[th] respondent as well as his inclusion in the ranked list by way of Annexure-A11 addendum notification holding that the 5[th] respondent does not retain a lien in the Forest Department on his substantive appointment as Assistant in the Airport Authority of India and on his declaration of probation and confirmation in terms of AnnexureA10 Regulations, 2003. In the light of the decision in O.A.(EKM) No.776 of 2021 that the applicant therein does not retain his lien in the Forest Department, O.A.(EKM) No.1472 of 2021 was accordingly dismissed. It is aggrieved by the said common order of OP(KAT) Nos.31 & 36 of 2022 10 the Tribunal dated 23.09.2021 that the present original petitions are filed. 7. The main contention raised in both these original petitions is that going by Rule 8 of Part II KS&SSR, the petitioner's absence from duty consequent to Annexure-A2 relieving order does not render him ineligible in his turn for appointment to the post of Range Forest Officer to which he was selected and ranked pursuant to the selection process in terms of Annexure-A1 notification and therefore Ext.P4 order which is issued in violation of Rule 8 of Part II KS&SSR is erroneous in law and therefore liable to be interfered with. Further contention taken by the petitioner is that by Annexure-A2 order the petitioner is only relieved from the service of the Forest Department to join the Airport Authority of India and that he is still retained his lien in the parent department, ie. Forest Department and therefore the finding of the learned Tribunal to the contrary, is without taking note of the relevant facts. 8. The question now to be considered is as to whether the petitioner who has left the service of the Forest Department for taking appointment in the Airport Authority of India retains his lien in the Forest department so as to make him eligible for by-transfer OP(KAT) Nos.31 & 36 of 2022 11 appointment as Range Forest Officer. It is an admitted fact that the petitioner while working as Beat Forest Officer applied to the post of Assistant in the Airport Authority of India, a wholly-owned Government of India undertaking, and got selected to the said post and by Annexure-A2 dated 30.05.2017 he was relieved from the Forest Department so as to enable him to join the Airport Authority of India. It is also not in dispute that after the appointment of the petitioner in the Airport Authority of India his probation was declared and was confirmed in service and was also granted subsequent promotion to the post of Senior Assistant. It is while working so, that the notification for conducting an interview was issued in continuation of Annexure-A1 selection notification for bytransfer appointment to the post of Range Forest Officer, for which the petitioner had applied. Since the petitioner was working in the Airport Authority of India, the 1[st] respondent Kerala Public Service Commission insisted that a lien certificate from the 2[nd] respondent Divisional Forest Officer, Kodanadu should be obtained and subsequently Annexure-A4 certificate was issued by the 2[nd] respondent which specifically certified that the petitioner still holds lien in the Forest Department and that he is eligible for OP(KAT) Nos.31 & 36 of 2022 12 reappointment as Beat Forest Officer until the appointment in the Airport Authority of India as Assistant (Office) has been confirmed. The petitioner filed O.A.(EKM) No.1472 of 2021 aggrieved by the said rider that the lien in the Forest Department is retained only until his appointment in the Airport Authority of India is confirmed. Whereas O.A(EKM) No.776 of 2021 is filed by the other applicants seeking for by-transfer appointment to the post of Range Forest Officer aggrieved by the issuance of Annexure-A7 lien certificate (Annexure A4 in O.A(EKM) No. 1472 of 2021) in favour of the petitioner holding that he does not retain his lien in the Forest Department since he has been relieved from the said department for joining the Airport Authority of India and having later confirmed in the said post of Assistant (Office) and granted further promotion to the post of Senior Assistant. 9. Petitioner heavily relies on Rule 8 of Part II KS&SSR to contend for a position that his absence from duty consequent to Annexure A2 relieving order does not render him ineligible in his turn, for by-transfer appointment to the post of Range Forest Officer as he is still retaining his lien in the Forest Department. The petitioner also relies on the judgment of the Full Bench of this Court OP(KAT) Nos.31 & 36 of 2022 13 in _**Balakrishnan Nair v. Ram Mohan Nair [1998(1) KLT 766]**_ which was later confirmed by the Apex Court in _**Ali M.K. and Others v. State of Kerala and Others [(2003) 11 SCC 632]**_ . It is profitable to extract Rule 8 of Part II KS&SSR: _“_ _**Rule 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 allowance granted and availed of as per Appendix XII A, Appendix XII B or Appendix XII C of Part I of Kerala Service Rules] 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 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 return; 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 TravancoreCochin Government in respect of the Travancore-Cochin_ OP(KAT) Nos.31 & 36 of 2022 14 ## _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 5[by Government or other competent authority on behalf of the Government] shall be deemed to be an appointment made in the exigencies of Public service for the purpose of this rule._ _(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._ _(3) A member of a service appointed to another service in the exigencies of public service in the manner as specified in Note (1) above shall, unless otherwise specified by the Government at the time of relief, be eligible for the benefits in respect of seniority, probation and appointment as full member in such service as envisaged under this rule, only in the event of his reappointment to such service of the parent Department is before the confirmation of his service in the latter Department or within five years from the date of his relief from the Parent Department whichever is earlier. In respect of reappointment after the said period, he shall be eligible to rejoin the service of parent Department as the junior most in the class, category, grade or post in which he was a probationer or an approved probationer on the date of his relief.”_ _(emphasis supplied)_ On the strength of the said Rule, the petitioner would contend that the absence of a member of the service from duty in such service on foreign service or on deputation or for any other reason whether his lien in the post borne on the cadre of such service is suspended or OP(KAT) Nos.31 & 36 of 2022 15 not, shall not, if he is otherwise fit, render him ineligible in his turn, for reappointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer or for getting promotion from a lower to a higher category in such service, as the case may be, in the same manner as if he has not been absent and that he shall be entitled to all the privileges in respect of the appointment, seniority, probation and an appointment as a full member in which he would have enjoyed but for his absence. The by-transfer appointment is from the post of Wild Life Assistant, Deputy Ranger, Forester and Beat Forest Officer in the Forest Department. But in the present case, the appointment of the petitioner in the Airport Authority of India was pursuant to an application made by him and it is not in dispute that his probation in the said post in the Airport Authority of India has been confirmed and later he was promoted to the higher post also. Annexure-A10 is the Airport Authority of India (General Conditions of Service and Remuneration of Employees) Regulations, 2003 which governs the service conditions of the employees of the Airport Authority of India. The clauses relevant for consideration of this case are clauses 10(1), (5) and (6) of Annexure-A10, which read as OP(KAT) Nos.31 & 36 of 2022 16 ## follows: _“_ _**10.Probation and Confirmation.-** Unless otherwise provided in the terms or or any other agreement or award, the probation and confirmation of the service of employees, shall be governed in the manner provided in this regulation, namely:-_ _(1)Every person appointed on regular basis by the Authority, other than on deputation, shall be on probation for a period of one year from the date of appointment, which may extend for such period as the Authority may specify but which shall not exceed one year;_ _provided the Authority may, for reasons to be recorded in the order extend the period of probation for a period of one year._ _xxxx xxxx xxxx_ _(5)Every employee appointed in the service of Authority shall be issued a formal order of confirmation on satisfactory completion of probation period or the extended period of probation, as the case may be._ _(6)An order relating to confirmation or extension of probation shall normally be issued within one month from the date of completion of the probationary period or the extended period of probation. Non-compliance of this stipulation shall, however, result in automatic confirmation of the employee._ _…...... …............ …..........”_ _(emphasis supplied)_ As per clause 10(1), every person appointed on a regular basis in the Airport Authority shall be on probation for a period of one year, which may be extended for such period by the Authority but shall not exceed one year. Clause 10(5) mandates that every employee OP(KAT) Nos.31 & 36 of 2022 17 appointed in the service of Authority shall be issued a formal order of confirmation on satisfactory completion of the probation period or the extended period of probation, as the case may be. Going by clause 10(6) of Annexure-A10 Regulation, an order relating to confirmation or extension of probation shall normally be issued within one month from the date of completion of the probationary period or the extended period of probation. The said clause further mandates that non-compliance of the said stipulation shall, however, result in automatic confirmation of the employee. So going by the said clauses an employee appointed on a regular basis by the authority shall be on probation for a period of one year, and that an order relating to confirmation or extension of probation shall normally be issued within one month on the date of completion of the probation and the said Rules further stipulates that noncompliance of issuance of a formal order will result in automatic confirmation of the employee. 10. This is a case where the applicant was appointed in the Airport Authority of India as early as in 2017 and admittedly he has been promoted to higher post also. So there cannot be any doubt that the petitioner has been confirmed in the service of the Airport OP(KAT) Nos.31 & 36 of 2022 18 Authority of India after the declaration of his probation. Rule 26 of Part II KS&SSR clearly stipulates that no person shall at the same time be a full member of more than one service and a probationer, approved probationer or a full member of one service who is appointed to be a full member of another service shall cease to be a member of the former service. Rule 26 of Part II KS&SSR is extracted below for easy reference: - _**“Rule 26:- Membership of more than one service** .- No person shall at the same time be a full member of more than one service._ _A probationer, approved probationer or full member of one service who is appointed to be a full member of another service shall cease to be a member of the former service._ ” It is also profitable to refer to Rule 16 of Part I KSR which reads as follows: - _“_ _**Rule 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.”_ The said Rule clearly mandates that 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. A reading of these provisions will clearly show that an employee in the Government service is appointed to any permanent post to any OP(KAT) Nos.31 & 36 of 2022 19 other institution ceases to hold any lien previously acquired to in any other post and that on being a full member of that institution cannot have any lien or be a member of the previous service. Therefore, the petitioner on being appointed in the Airport Authority of India as Assistant (Office) and on his confirmation therein his lien in the Forest Department ceases to exist as he acquired a lien in the Airport Authority of India. In Annexure-A4 lien certificate it is clearly mandated that the petitioner will retain the lien in the Forest Department until he is confirmed in the Airport Authority of India and that it is only in the said circumstance that he will be eligible for reappointment as Beat Forest Officer. Thus, when the petitioner was confirmed in the Airport Authority of India as per the provision of Annexure-A10 Regulations, the petitioner is not entitled for the benefit of Rule 8 of Part II KS&SSR and therefore not eligible for participation in the selection process for by-transfer as Range Forest Officer since his lien in the Forest Department ceases to exist. The petitioner mainly relies on the Full Bench decision of this Court in _**Balakrishnan Nair**_ 's case (supra) and contends that a member of a service on getting appointment in another service on the basis of applications OP(KAT) Nos.31 & 36 of 2022 20 invited by the Government or when he is considered or recommended by the Government, he is entitled to get the benefit of the main section. The Full Bench was considering the issue as to when can a lien attached to the post could be held to be lost by an employee and held that the lien of a member of a service to a post in the parent department is not lost automatically when he joins another department and that the lien can be terminated only after hearing the concerned person and further held that mere completion of probation by itself, it cannot be said that a person has been substantively appointed to a permanent post. On the above findings, the Full Bench held that unless a person is confirmed under Rule 24 of KS&SSR it cannot be said that the person has been substantively appointed to a permanent post. The Full Bench entered such a finding on the facts of that case as the appellants therein have not been confirmed in the post in the Co-operative Department, ie., the subsequently appointed post, and therefore the appellants have no lien in the Co-operative Department and since the lien in the earlier department, ie., Rural Development Department has not been terminated in accordance with law, it was held that the appellants therein are entitled to go back to their OP(KAT) Nos.31 & 36 of 2022 21 parent department. This view taken by the Full Bench was confirmed by the Apex Court in _**Ali M.K.**_ 's case (supra). But the facts of the present case are different from the case considered by the Full Bench inasmuch as in the present case the appointment of the petitioner in the new organisation (Airport Authority of India) has been confirmed and he secured a lien in the said post and he has been subsequently granted promotion also. So in the light of Rule 16 of Part KSR and Rule 26 of Part II KS&SSR no person shall at the same time be a full member of more than one service and on substantive appointment to any permanent post the employee acquires a lien in that post and ceases to hold any lien previously acquired on any other post. Since the petitioner has already acquired a lien in the post in the Airport Authority of India, going by the above said provisions, the petitioner shall cease to be a member of the former service ie in the Forest Department and cease to hold any lien in the post previously held. In view of the same, the claim of the petitioner that he is entitled for being considered for appointment by-transfer as Range Forest Officer in his parent department, ie., Forest Department cannot be accepted. A similar issue was considered by the Apex Court in _**Ramlal Khurana**_ OP(KAT) Nos.31 & 36 of 2022 22 ## _**(dead) by Lrs. v. State of Punjab and Others [1989 KHC 970**_ ] and held as follows: _“8. The other contention urged for the appellant that he was not confirmed in the Excise Department and unless confirmed, he acquired no lien cannot also be accepted. Lien is not a word of art. It just connotes the right of a civil servant to hold the post substantively to which he is appointed. Generally when a person with a lien against a post is appointed substantively to another post, he acquires a lien against the latter post. Then the lien against his previous post automatically disappears. The principle being that no Government servant can have simultaneously two liens against two posts in two different cadres. It is a well accepted principle of service jurisprudence.”_ ## The Apex Court in a subsequent judgment in _**State of Rajasthan and another v. S.N.Tiwari and others [2009 KHC 4848]**_ has considered a similar issue and held thus: _“13. It is very well settled that when a person with a lien against the post is appointed substantively to another post, only then he acquires a lien against the latter post. Then and then alone the lien against the previous post disappears. Lien connotes the right of a civil servant to hold the post substantively to which he is appointed. The lien of a government employee over the previous post ends if he is appointed to another permanent post on permanent basis. In such a case the lien of the employee shifts to the new permanent post. It may not require a formal termination of lien over the previous permanent post. This court in Ram Lal Khurana v. State of Punjab, 1989 (4) SCC 99 observed that lien is not a word of art. It just connotes the right of a civil_ OP(KAT) Nos.31 & 36 of 2022 23 _servant to hold the post substantively to which he is appointed.”_ ## This Court had also occasion to consider a similar issue in _**Radhakrishnan Nair v. Secretary to Government [2014**_ ## _**(3) KLT 433]**_ and held thus: _“17. Order dated 8.7.2004 is an order appointing the petitioner as a full member in accordance with R.24(a). R.26 provides that no person shall at the same time be a full member of more than one service. The petitioner had become full member of service under Rural Development Department, hence he could not have remained member of any other earlier service. R.26 further states that a member probationer or full member of one service, who is appointed to be a full member of another service shall cease to be member of the former service. It clearly means that on appointment of a full member to another service he shall cease to have any lien in earlier service. Thus, lien is lost in earlier service by appointment of a full member to another service. The petitioner having been confirmed as Block Development Officer in Rural Development Department, he lost his lien, if any, in earlier service and had acquired a lien in the Rural Development Department. Thus, the State Government did not commit any error in passing Exhibit P16 order rejecting the claim of the petitioner for repatriation to the Law Department.”_ In the light of the Rules as above quoted and categoric declaration of law by the Apex Court and by this Court in the decisions referred above, we have no hesitation to hold that the OP(KAT) Nos.31 & 36 of 2022 24 petitioner is not entitled to participate in the selection process for by-transfer appointment as Range Forest Officer in the Forest Department inasmuch as the petitioner on being appointed in the Airport Authority of India and being confirmed in the said post cannot retain his lien in the parent department, ie., Forest Department. We find no reason to interfere with the wellconsidered order passed by the Kerala Administrative Tribunal in O.A.(EKM) Nos.776 and 1472 of 2021. Therefore, the above Original Petitions are accordingly dismissed. Sd/- **ALEXANDER THOMAS JUDGE** Sd/- **VIJU ABRAHAM JUDGE** cks OP(KAT) Nos.31 & 36 of 2022 25 ## **APPENDIX OF OP(KAT) 31/2022** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|TRUE COPY OF ORIGINAL APPLICATION-| ||OA(EKM)<br>NO.776/2021<br>FILED<br>BY| ||RESPONDENTS NOS. 1 TO 3 BEFORE KERALA| ||ADMINISTRATIVE<br>TRIBUNAL,<br>ERNAKULAM| ||BENCH ALONGWITH THE COPY EACH OF| ||ANNEXURES A1 TO A13 AND APPLICATION| ||UNDER<br>RULE<br>4(4)(A)<br>OF<br>KERALA| ||ADMINISTRATIVE TRIBUNAL, (PROCEDURE)| ||RULES 2010, ATTACHED THEREWITH DATED| ||23/05/2021.| |Annexure A1|TRUE COPY OF NOTIFICATION FOR THE POST| ||OF RANGE FOREST OFFICER IN CATEGORY| ||NO.213/2016 PUBLISHED IN KERALA GAZETTE| ||DATED 30/08/2016.| |Annexure A2|TRUE COPY OF ORDER NO. E1-4450/2017| ||DATED 30/05/2017.| |Annexure A3|TRUE COPY OF INTERIM ORDER DATED| ||12/01/2021 IN OA (EKM) NO. 1886/2020| ||BEFORE<br>THE<br>HON'BLE<br>KERALA| ||ADMINISTRATIVE TRIBUNAL.| |Annexure A4|TRUE COPY OR RANKED LIST NO. 40/2021/SS| ||VI FOR CATEGORY NO.213/2016 ISSUED BY| ||THE 2ND RESPONDENT AND BROUGHT INTO| ||FORCE WITH EFFECT FROM 28/01/2021.| |Annexure A5|TRUE COPY OF ORDER DATED 09/02/2021 IN| ||OA(EKM) NO.290/2021 BEFORE THE HON'BLE| ||KERALA<br>ADMINISTRATIVE<br>TRIBUNAL,| ||ERNAKULAM BENCH.| |Annexure A6|TRUE COPY OF INTERIM ORDER DATED| ||24/02/2021 IN MA (EKM) NO.397/2021 IN| ||OA(EKM) NO.1886/2020 BEFORE THE HON'BLE| ||KERALA<br>ADMINISTRATIVE<br>TRIBUNAL,| ||ERNAKULAM BENCH.| OP(KAT) Nos.31 & 36 of 2022 26 |Annexure A7|TRUE COPY OF CERTIFICATE|NO. E1-| |---|---|---| ||8504/2021 DATED 03/03/2021|ISSUED BY| ||DIVISIONAL FOREST OFFICER,|MALAYATTOOR| ||DIVISION TO THE PETITIONER.|| |Annexure A8|TRUE COPY OF INTERIM ORDER DATED|| ||05/03/2021 IN OA(EKM) NO.1886/2020|| ||BEFORE<br>THE<br>HON'BLE|KERALA| ||ADMINISTRATIVE<br>TRIBUNAL,|ERNAKULAM| ||BENCH.|| |Annexure A9|TRUE COPY OF ORDER DATED 25/03/2021 IN|| ||OA(EKM) NO. 1886/2020 BEFORE THE|| ||HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,|| ||ERNAKULAM BENCH.|| |Annexure A10|TRUE COPY OF AIRPORTS AUTHORITY OF|| ||INDIA (GENERAL CONDITIONS|OF SERVICE| ||AND<br>REMUNERATION<br>OF|EMPLOYEES),| ||REGULATIONS, 2003.|| |Annexure A11|TRUE COPY OF NOTIFICATION NO. SS|| ||VI/RANGE FOREST OFFICER(B/T)/KERALA|| ||FOREST<br>DEPARTMENT/RL/21|DATED| ||03/04/2021<br>ISSUED<br>BY|THE<br>5TH| ||RESPONDENT.|| |Annexure A12|TRUE COPY OF OFFICE|NOTE NO.| ||AAI/SR/M/RTI/EH/R&P DATED|07/05/2021| ||ISSUED BY THE ACTING GENERAL MANAGER|| ||(HR), AIRPORTS AUTHORITY OF INDIA IN|| ||RESPONSE TO THE ONLINE RTI|APPLICATION| ||NO. AAICH/R/E/21/00033 DATED|10/04/2021| ||GIVEN BY THE 2ND RESPONDENT.|| |Annexure A13|TRUE COPY OF OFFICE|NOTE NO.| ||AAI/SR/M/RTI/EH/R&P DATED|07/05/2021| ||ISSUED BY THE ACTING GENERAL MANAGER|| ||(HR), AIRPORTS AUTHORITY OF INDIA IN|| ||RESPONSE TO THE ONLINE RTI|APPLICATION| ||NO. AAICH/R/E/21/00036 DATED|15/04/2021| ||GIVEN BY THE 2ND RESPONDENT.|| |Exhibit P2|TRUE COPY OF REPLY STATEMENT DATED|| OP(KAT) Nos.31 & 36 of 2022 27 12/09/2021 FILED BY RESPONDENTS NOS.1 TO 3 IN OA (EKM) NO.776/2021, BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH WITH ANNEXURE R5(A) BEING TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT ATTACHED THEREWITH. ||THE HON'BLE KERALA ADMINISTRATIVE<br>TRIBUNAL, ERNAKULAM BENCH WITH ANNEXURE<br>R5(A) BEING TRUE COPY OF THE JUDGMENT<br>OF THIS HON'BLE COURT ATTACHED<br>THEREWITH.| |---|---| |Annexure R5(A)|TRUE COPY OF JUDGMENT DATED 17/05/2021| ||IN OP(KAT) NO.112/2021 OF THIS HON'BLE| ||COURT.| |Exhibit P3|TRUE COPY ORIGINAL APPLICATION OA(EKM)| ||NO.1472/2021 FILED BY PETITIONER| ||HON'BLE KERALA ADMINISTRATIVE TRIBUNAL,| ||ERNAKULAM BENCH ALONGWITH TRUE COPY| ||EACH OF ANNEXURES A1 TO A8 ATTACHED| ||THEREWITH, DATED 12/09/2021.| |Annexure A1|TRUE COPY OF NOTIFICATION DATED| ||30/08/2016 IN CATEGORY NO. 213/2016| ||ISSUED BY 5TH RESPONDENT.| |Annexure A2|TRUE COPY OF RELIEVING ORDER DATED| ||30/05/2017 ISSUED BY 7TH RESPONDENT TO| ||PETITIONER.| |Annexure A3|TRUE COPY OF SERVICE CERTIFICATE DATED| ||02/12/2020 ISSUED BY DIVISIONAL FOREST| ||OFFICER, MALAVATTOOR TO PETITIONER.| |Annexure A4|TRUE COPY OF CERTIFICATE NO. E1-| ||8504/2020 DATED 03/03/2021 ISSUED BY| ||7TH RESPONDENT.| |Annexure A5|TRUE COPY OF PROCEEDINGS ORDER NO. E1-| ||8504/2020 DATED 03/03/2021 PASSED BY| ||7TH RESPONDENT.| |Annexure A6|TRUE COPY OF COMMON ORDER DATED| ||25/03/2021 IN OA(EKM) NOS.1886/2020,| ||56/2021 & 290/2021 BEFORE THE HON'BLE| ||KERALA<br>ADMINISTRATIVE<br>TRIBUNAL,| ||ERNAKULAM BENCH.| OP(KAT) Nos.31 & 36 of 2022 28 Annexure A7 TRUE COPY OF JUDGMENT DATED 17/05/2021 IN OP(KAT) NO.112/2021 OF THIS HON'BLE COURT. Annexure A8 TRUE COPY OF INTERIM ORDER DATED 02/03/2021 IN MA(EKM) NO.1154/2021/ IN OA(EKM) NO.776/2021 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. Exhibit P4 TRUE COPY OF COMMON ORDER DATED 23/09/2021 IN OA(EKM) NO. 776/2021, CP(CIVIL)(EKM) NO. 26/2021 AND OA(EKM)NO.1472/ PASSED BY KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. - Exhibit P5 TRUE COPY OF LETTER NO. RIA(3)/GW DATED // ISSUED BY 5TH RESPONDENT TO PETITIONER. Exhibit P6 /TRUE COPY OF ADVICE MEMO NO. RA(3) /GW DATED // ISSUED BY 5TH RESPONDENT. OP(KAT) Nos.31 & 36 of 2022 29 ## **APPENDIX OF OP(KAT) 36/2022** |PETITIONER EXHIBITS|PETITIONER EXHIBITS| |---|---| |Exhibit P1|TRUE COPY ORIGINAL APPLICATION O.A.| ||(EKM) N.1472 OF 2021 FILED BY| ||PETITIONER<br>HON'BLE<br>KERALA| ||ADMINISTRATIVE<br>TRIBUNAL,<br>ERNAKULAM| ||BENCH.| |ANNEXURE A1|TRUE COPY OF NOTIFICATION DATED| ||30.08.2016 IN CATEGORY NO.213/2016| ||ISSUED BY 1ST RESPONDENT.| |ANNEXURE A2|TRUE COPY OF RELIEVING ORDER DATED| ||30.05.2017 ISSUED BY 2ND RESPONDENT TO| ||PETITIONER.| |ANNEXURE A3|TRUE COPY OF SERVICE CERTIFICATE DATED| ||02.12.2020 ISSUED BY DIVISIONAL FOREST| ||OFFICER, MALAVATOOR TO PETITIONER.| |ANNEXURE A4|TRUE COPY OF CERTIFICATE NO.E1-| ||8504/2020 DATED 03.03.2021 ISSUED BY| ||2ND RESPONDENT.| |ANNEXURE A5|TRUE COPY OF PROCEEDINGS ORDER NO.E1-| ||8504/2020 DATED 03.03.2021 PASSED BY| ||2ND RESPONDENT.| |ANNEXURE A6|TRUE COPY OF COMMON ORDER DATED| ||25.03.2021 IN OA(EKM) NOS. 1886/2020.| ||56/2021 & 290/2021 BEFORE THE HON'BLE| ||KERALA<br>ADMINISTRATIVE<br>TRIBUNAL,| ||ERNAKULAM BENCH.| |ANNEXURE A7|TRUE COPY OF JUDGMENT DATED 17.05.2021| ||IN OP(KAT) NO.112 OF 2021 OF THIS| ||HON'BLE COURT.| |ANNEXURE A8|TRUE COPY OF INTERIM ORDER DATED| ||2.3.2021 IN MA(EKM) NO.1154/2021 IN| ||OA(EKM) NO.776/2021 BEFORE THE HON'BLE| ||KERALA<br>ADMINISTRATIVE<br>TRIBUNAL,| ||ERNAKULAM BENCH.| OP(KAT) Nos.31 & 36 of 2022 30 Exhibit P2 TRUE COPY OF ORIGINAL APPLICATION OA(EKM) NO.776 OF 2021 FILED BY RAJITH T. A. AND 2 OTHERS BEFORE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A1 TRUE COPY OF NOTIFICATION FOR THE POST OF RANGE FOREST OFFICER IN CATEGORY NO.213/2016 PUBLISHED IN KERALA GAZETTE DATED 30.08.2016. ANNEXURE A2 TRUE COPY OF ORDER NO.E1-4450/2017 DATED 30.05.2017 ISSUED BY DIVISIONAL FOREST OFFICER, MALAYATTOOR. ANNEXURE A3 TRUE COPY OF INTERIM ORDER DATED 12.01.2021 IN OA (EKM) NO.1886/2020 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A4 TRUE COPY OF RANKED LIST NO.40/2021/SS VI FOR CATEGORY NO.213/2016 ISSUED BY THE 1ST RESPONDENT AND BROUGHT INTO FORCE WITH EFFECT FROM 28.01.2021. ANNEXURE A5 TRUE COPY OF ORDER DATED 9.2.2021 IN OA(EKM) NO.290/2021 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A6 TRUE COPY OF INTERIM ORDER DATED 24.02.2021 IN MA(EKM) NO.397/2021 IN OA(EKM) NO.1886/2020 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A7 TRUE COPY OF CERTIFICATE NO.E18504/2020 DATED 03.03.2021 ISSUED BY THE DIVISIONAL FOREST OFFICER, MALAYATTOOR TO PETITIONER. ANNEXURE A8 TRUE COPY OF INTERIM ORDER DATED 05.03.2021 IN OA(EKM) NO.1886/2020 OP(KAT) Nos.31 & 36 of 2022 31 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A9 TRUE COPY OF ORDER DATED 25.03.2021 IN OA(EKM) NO.1886 OF 2020 BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE A10 TRUE COPY OF AIRPORTS AUTHORITY OF INDIA (GENERAL CONDITIONS OF SERVICE AND REMUNERATION OF EMPLOYEES) REGULATIONS, 2003. ANNEXURE A11 TRUE COPY OF NOTIFICATION NO.SS VI/RANGE FOREST OFFICER (B/T) /KERALA FOREST DEPT./RL/21 DATED 03.04.2021 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A12 TRUE COPY OF OFFICE NOTE NO.AAI/SR/M/RTI/EH/R&P DATED 7.5.2021 ISSUED BY THE ACTING GENERAL MANAGER (HR), AIRPORTS AUTHORITY OF INDIA IN RESPONSE TO THE ONLINE RTI APPLICATION NO.AAICH/R/E/21/00033 DATED 10.04.2021 GIVEN BY MR. ANOOP M. N. ANNEXURE A13 TRUE COPY OF OFFICE NOTE NO.AAI/SR/M/RTI/EH/R&P DATED 7.5.2021 ISSUED BY THE ACTING GENERAL MANAGER (HR), AIRPORTS AUTHORITY OF INDIA IN RESPONSE TO THE ONLINE RTI APPLICATION NO.AAICH/R/E/21/00036 DATED 15.04.2021 GIVEN BY MR. ANOOP M. N. EXHIBIT P3 TRUE COPY OF REPLY STATEMENT DATED 12.09.2021 FILED BY PETITIONER IN O.A. (EKM) NO.776 OF 2021, BEFORE THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. ANNEXURE R5(a) TRUE COPY OF JUDGMENT DATED 17.05.2021 IN OP(KAT) NO.112 OF 2021 OF THIS OP(KAT) Nos.31 & 36 of 2022 32 HON'BLE COURT. - Exhibit P4 TRUE COPY OF COMMON ORDER DATED 23.09.2021 IN OA (EKM) NO.776 OF 2021 CP(CIVIL)(EKM) NO.26 OF 2021 AND OA(EKM) NO.1472 OF 2021 PASSED BY KERALA ADMINISTRATIVE TRIBUNAL, ERNAKULAM BENCH. Exhibit P5 TRUE COPY OF LETTER NO.RIA(3)10557/2015/GW DATED 21.12.2021 ISSUED BY 1ST RESPONDENT TO PETITIONER. Exhibit P6 TRUE COPY OF ADVICE MEMO NO.RIA(3)10557/2015/GW DATED 21.12.2021 ISSUED BY 1ST RESPONDENT.