R. Vijayakumar v. State of Kerala and others

1 OP(KAT) No.286 of 2024 ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT ``` ``` THE HONOURABLE MR. JUSTICE ANIL K.NARENDRAN ``` ``` & ``` ``` THE HONOURABLE MR. JUSTICE HARISANKAR V. MENON ``` ``` WEDNESDAY, THE 17[TH] DAY OF JULY 2024 / 26TH ASHADHA, 1946 ``` ``` OP(KAT) NO.286 OF 2024 ``` ``` AGAINST THE ORDER DATED 24.07.2023 IN OA NO.1058 OF 2018 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ------ ``` ## **`PETITIONER:`** ``` R.VIJAYAKUMAR, AGED 42 YEARS, S/O.K.RAMACHANDRAN, CLERK, NEDUMPANA GRAMA PANCHAYATH, KOLLAM - 691576, POTTAKULAM VEEDU, PUNNAMOODU, VARKALA, THIRUVANATHAPURAM, PIN – 695141. ``` ``` BY ADV.RAJESH.R ``` ## **`RESPONDENTS:`** - **`1 STATE OF KERALA, REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.`** - **`2 STATE OF KERALA, PUBLIC WORKS DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANATHAPURAM. (PRINCIPAL SECRETARY TO GOVERNMENT, WATER RESOURCES DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM) (THE SECOND RESPONDENT SUBSTITUTED AS PER ORDER DATED 06.03.2019 IN M.A 481/2019), PIN – 695001.`** - **`3 CHIEF ENGINEER (IRRIGATION & ADMINISTRATION, PUBLIC OFFICE COMPLEX, THIRUVANANTHAPURAM, PIN – 695033.`** 2 OP(KAT) No.286 of 2024 - **`4 DIRECTOR OF PANCHAYATHS, PUBLIC OFFICE COMPLEX, THIRUVANANATHAPURAM, PIN – 695033.`** - **`5 DEPUTY DIRECTOR OF PANCHAYATS, O/O DEPUTY DIRECTOR OF PANCHAYAT, KOLLAM, PIN – 691013.`** ``` BY SENIOR GOVERNMENT PLEADER, SMT.VINITHA B. ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 08.07.2024, THE COURT ON 17.07.2024 DELIVERED THE FOLLOWING: ``` 3 OP(KAT) No.286 of 2024 ## **JUDGMENT** Harisankar V. Menon, J. The unsuccessful applicant in O.A.No.1058 of 2018 before the Kerala Administrative Tribunal at Thiruvananthapuram is the petitioner in this original petition filed under Article 227 of the Constitution of India. 2. The short facts leading to this original petition are as follows: The petitioner has joined the Government Service in the post of Clerk in the Irrigation Department on 16.04.2010. Later, he made a request for an inter-departmental transfer to the Panchayat Department. Pursuant to his request for interdepartmental transfer, by Annexure A2 order dated 17.11.2016 issued by the 4[th] respondent-Director of Panchayaths, the petitioner is transferred to the Panchayath Department as a Clerk. It is stated that pursuant to Annexure A2, the petitioner is relieved from the Irrigation Department on 17.01.2017 and he joined duty in Nedumpana Grama Panchayath, Kollam on 18.01.2017. The petitioner points out that he was granted promotion as Senior Clerk (UD Clerk) with effect from 16.01.2017 as evidenced by Annexure-A6 dated 27.09.2017. Therefore, the petitioner 4 OP(KAT) No.286 of 2024 contended that by virtue of the inter-departmental transfer effected by Anenxure-A2, the petitioner is being transferred to a lower post in the Panchayat Department when he was entitled to be placed in the scale of pay of that of the promotion post. In such circumstances, the petitioner has submitted Annexure A7 dated 04.10.2017, pointing out the pay scale in which he is now posted in the Panchayath Department and the pay scale that he would have enjoyed by virtue of promotion in the Irrigation Department. The petitioner also made reference to the Government Order dated 06.02.2013 wherein at paragraph 3 (iii), it is stated that even an inter-department transferee is entitled to come back to the old Department, if his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him. But by Annexure A8 dated 05.04.2018, the request made by the petitioner is rejected holding that the petitioner on his own has opted for inter-departmental transfer and he has therefore, lost his lien and permanency in the Irrigation Department. It is also held that the petitioner is not entitled to the benefits under Rule 8 of the Kerala State and Subordinate Services Rules, 1958 (for short, the “KS & SSR”). 5 OP(KAT) No.286 of 2024 3. In the above circumstances, the petitioner filed O.A.No.1058 of 2018 before the Kerala Administrative Tribunal challenging the orders at Annexure A8 referred above. The Tribunal by its order dated 24.07.2023, produced as Exts.P4, has dismissed the original application. The Tribunal found that the petitioner is not entitled for the benefits available under Rule 8 Part II of KS and SSR, since the transfer from the Irrigation Department to the Panchayat Department was on his own application and not in public interest. The Tribunal also found that the petitioner is bound by the conditions imposed under Annexure A9 Government Order dated 06.02.2013, especially when he has not challenged the said Government Order. The Tribunal also found that the scale of pay of the post of Clerk which he is holding in the Panchayat Department and in the parent department-Irrigation Department is on the same line and the petitioner does not have a different case. 4. It is aggrieved by the above order dated 24.07.2023 in O.A.No.1058 of 2018, that the petitioner has filed this captioned original petition. 5. We have heard the learned counsel appearing for the petitioner and the learned Senior Government Pleader appearing 6 OP(KAT) No.286 of 2024 for the respondents herein. 6. The learned counsel for the petitioner would contend that the petitioner was granted promotion as a Senior Clerk in the Irrigation Department with effect from 16.1.2016 where as he was relieved from that Department only on 17.1.2016. Therefore, he contends that the petitioner is losing his chance for promotion by continuing in the entry post in the Panchayath Department. He relies on the Full Bench judgment of this Court in **Balakrishnan Nair v. Ram Mohan Nair [1998 (1) KLT 776]** . He also contended that the petitioner has not relinquished his right in the Irrigation Department and the finding to the contrary is incorrect. It is also pointed out that Annexure A9 does not in any manner forbid the petitioner from seeking repatriation to the parent Department. 7. Per contra, the learned Government Pleader would contend that the judgment of the Full Bench is actually against the claim of the petitioner herein. She relied on the findings under paragraph 8 and 9 of the above judgment. She also relied on Annexure A2, by which the petitioner has been transferred out of the Irrigation Department, dated 17.11.2016 to contend that, with reference to that date, the claim of the petitioner is to be 7 OP(KAT) No.286 of 2024 considered. 8. We have considered the rival contentions and also the relevant records. 9. Admittedly, the petitioner while working in the Irrigation Department as a Clerk made a request for inter-departmental transfer to the Panchayath Department. It is pursuant to his request that Annexure A2 dated 17.11.2016 has been issued. It is only that the petitioner has been relieved on a later date17.01.2017-as evident from Annexure A4. The reliance placed by the learned counsel for the petitioner on the Full Bench judgment of this Court in **Balakrishnan [1998 (1) KLT 776]** is not apposite. The said judgment considered the question as regards the claim under Rule 8, Part II of KS & SSR. Rule 8 enables, a member of a service who is absent from duty in such service to return back to that service if he is not otherwise ineligible. However, under the 4[th] proviso, it is categorically laid down that Rule 8 would not have any application in a case where the absence from duty is on account of his appointment to another service solely on his own application. Here is a case, where the petitioner had made a request for transfer and on that basis, he has been transferred to the Panchayat Department. The Full Bench 8 OP(KAT) No.286 of 2024 of this Court with respect to the facts and circumstances of the case found that the appointment therein was made in the exigencies of public service and therefore, the benefit of Rule 8, Part II of KS & SSR is available. Furthermore, in the present case, the inter-departmental transfer of the petitioner has been carried out pursuant to the application of the petitioner following the guidelines prescribed under Annexure A9 Government Order dated 06.02.2013. Paragraph 3(iii) of the said Government Order reads as under: “(iii). A permanent person is required to relinquish his permanency. He may be permitted to retain his permanent lien in the old post until he is confirmed in the new unit or department, but he can come back to the old department only if and when there is no vacancy for him to continue in the new unit or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him. The benefit of Rule 8 Part II KS & SSRs is not applicable to Inter-departmental transferees since the transfer is on his application or not in public interest.” 10. Thus, by virtue of an inter-departmental transfer, the Government servant is required to relinquish his permanency and he can come back to the old Department only in certain situations laid down therein. The learned counsel for the petitioner points out that since the petitioner’s pay in the parent Department 9 OP(KAT) No.286 of 2024 became higher than the pay in the new post held by him in the Panchayath Department, the petitioner falls within the four corners of paragraph 3(iii) of the above Government Order. This contention cannot be accepted since the comparison to be made under paragraph 3(iii) of the above Government Orde is between the substantive post in the parent Department and the pay of the new post in the Department to which the person has been transferred. As already noted, since the petitioner was transferred to the post of a Clerk in the Panchayath Department from the post of a Clerk in the Irrigation Department, there cannot be any comparison under the above Government Order with the post to which the person has been promoted on a later date, even if it is with retrospective effect. This is because the comparison is to be carried out with reference to the date on which the person is being transferred out. In this case, the certain relevant date is 17.11.2016-the date of Annexure A2. 11. Furthermore, the Tribunal has relied on the judgment of a Division Bench of this Court in W.A.No.113 of 2012 dated 31.01.2013, to reject the petitioner’s claim. That was a case where the appellant sought for reappointment to the Civil Judicial Department, a post on which, according to the appellant, he had 10 OP(KAT) No.286 of 2024 a lien. The Division Bench found that the scale of pay of the post in which the appellant was working was similar to that of the scale of pay in the parent Department and therefore, no interference is required. In the present case also, as rightly found by the Tribunal, the scale of pay to the post of Clerk is the same in both Departments. Therefore, there cannot be any interference in the matter. On the whole, we find that the petitioner is not entitled to any reliefs as claimed for. Hence, we dismiss this original petition. Sd/- ## **ANIL K.NARENDRAN, JUDGE** Sd/- ## **HARISANKAR V. MENON, JUDGE** ln 11 OP(KAT) No.286 of 2024 ## **`APPENDIX OF OP(KAT) 286/2024`** ## **`PETITIONER’S ANNEXURES:`** ``` ANNEXURE A1 THE TRUE COPY OF ORDER NO.B3-4499/2010 DATED 21.4.2010 OF THE 3RD RESPONDENT. ``` ``` ANNEXURE A2 THE TRUE COPY OF ORDER NO. E6/25040/2016 DATED 17.11.2016 OF THE 4TH RESPONDENT. ``` ``` ANNEXURE A3 THE TRUE COPY OF ORDER NO. E2-272/16 DATED 23.11.2016 OF THE 5TH RESPONDENT. ``` - **`ANNEXURE A4 THE TRUE COPY OF ORDER NO.E1-114/12 DATED 17.01.2017 OF THE EXECUTIVE ENGINEER, KAP (LB) DIVISION NO.5, KOLLAM.`** - **`ANNEXURE A5 THE TRUE COPY OF LETTER NO.A4-825/2017 DATED 24.01.2017 OF THE SECRETARY, NEDUMPANA GRAMA PANCHAYATH TO THE EXECUTIVE ENGINEER.`** - **`ANNEXURE A6 THE TRUE COPY OF THE ORDER NO: B331695/2016 DATED 27.09.2017 ISSUED BY THE 3RD RESPONDENT.`** - **`ANNEXURE A7 THE TRUE COPY OF THE REPRESENTATION DATED 04.10.2017 SUBMITTED BY THE APPLICANT BEFORE THE 3RD RESPONDENT.`** - **`ANNEXURE A8 THE TRUE COPY OF COMMUNICATION NO.285/EPA1/17/LSGD DATED 05.04.2018 OF THE 1ST RESPONDENT`** - **`ANNEXURE A9 THE TRUE COPY OF G.O(P) NO.05/2013/P&ARD DATED 6.2.2013.`** - **`EXHIBIT P1 THE TRUE COPY OF THE ORIGINAL APPLICATION FILED AND NUMBERED AS O.A1058/2018.`** - **`EXHIBIT P2 THE TRUE COPY OF THE REPLY STATEMENT FILED BY THE FIRST RESPONDENT.`** 12 OP(KAT) No.286 of 2024 ``` EXHIBIT P3 THE REJOINDER FILED TO THE REPLY STATEMENT OF THE FIRST RESPONDENT. ``` ``` EXHIBIT P4 THE TRUE COPY OF THE ORDER DATED 24.07.2023 IN O.A 1058 / 2018 OF THE HON'BLE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. ```