S. Rajendran v. State of Kerala and Transport Commissioner

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE S.SIRI JAGAN** **WEDNESDAY, THE 23RD MARCH 2011 / 2ND CHAITHRA 1933** **WP(C).No. 29775 of 2008(T)** **--------------------------** **PETITIONER:** - **-------------------** **S.RAJENDRAN, ASSISTANT MOTOR VEHICLES INSPECTOR, REGIONAL TRANSPORT OFFICE, PALAKKAD.** **BY ADVS. SRI.KRB.KAIMAL, SENIOR ADVOCATE SRI.B.UNNIKRISHNA KAIMAL** **RESPONDENT(S):** **--------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT OF KERALA, TRANSPORT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM.** **2. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM.** **R1 & R2 BY GOVERNMENT PLEADER SMT.SMITHA KAIMAL** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 29775 of 2008(T)** **---------------------------------------** ## **APPENDIX** **---------------** ## **PETITIONER'S EXHIBITS** **-----------------------------------** **EXT.P1. COPY OF THE ORDER NO.A3/38799/TC/2002 DATED 17.12.2002 ISSUED BY THE 2ND RESPONDENT.** **EXT.P2. COPY OF THE LETTER NO.A3/7422/TC/06 DATED 11.9.2006 OF THE 2ND RESPONDENT TO THE REGIONAL TRANSPORT OFFICER, PALAKKAD.** **EXT.P3. COPY OF THE REPRESENTATION DATED 12.3.2007 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **EXT.P4. COPY OF THE CIRCULAR NO.768/R1/2004/P&ARD DATED 15.7.2004 ISSUED BY THE GOVERNMENT.** **EXHIBIT.P5. COPY OF THE LETTER NO.A3/7422/TC/2006 DATED 1.6.2007 OF THE 2ND RESPONDENT TO THE REGIONAL TRANSPORT OFFICER PALAKKAD.** **EXT.P6. COPY OF THE SPECIAL RULES ISSUED IN G.O.(P) NO.16/2008/TRANS. DATED 7.4.2008.** **EXT.P7. COPY OF THE JUDGMENT DATED 5.7.08 OF THIS HON'BLE COURT IN WP(C) NO.23948/07.** ## **EXT.P8. COPY OF THE REPRESENTATION DATED 4.9.2008 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT.** **ET.P9. COPY OF THE ORDER NO.A3/7422/TC/2006 DATED 18.82008 ISSUED BY THE 2ND RESPONDENT.** ## **RESPONDENT'S EXHIBITS : NIL** **--------------------------------------** **/ TRUE COPY /** ## **P.A. TO JUDGE** **VK** ## **S. SIRI JAGAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - W.P.(C)No. 29775 of 2008** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 23[rd] day of March, 2011** ## **J U D G M E N T** The petitioner joined the Government Service as Lower Division Clerk in the Kerala Motor Vehicles Department. Later he was promoted as Upper Division Clerk and still later as Head Accountant/Head Clerk. Subsequently, the petitioner was appointed by transfer as Assistant Motor Vehicles Inspector (A.M.V.I.) by Ext.P1 order dated 17.12.2002. At the time of his appointment, the appointment to the post of AMVI was governed by the Special Rules for the Kerala Transport Subordinate Service Rules. As per the Special Rules for Kerala Transport Subordinate Service Rules in force at the time of appointment of the petitioner, persons appointed as AMVI were precluded from seeking reversion to the Ministerial Services notwithstanding Rule 8 of Part II of KS & SSR, unless such reversion is for want of vacancy or on the ground that the person is found unfit to continue as AMVI. W.P.(C)No. 29775 of 2008 **-2-** By Ext.P3 application dated 12.03.2007 the petitioner sought reversion to the ministerial service on the ground that on account of an accident suffered by him, he is unable to perform the duties of the post of AMVI. By Ext.P5 dated 01.06.2007 the Transport Commissioner rejected the application of the petitioner on two grounds. First is that, such reversion can be only from one department to another and since the petitioner seeks reversion from one service to another in the same department he is not eligible for such reversion. Second is that, the petitioner has not produced any supporting documents to prove his unfitness to continue in the cadre of AMVI. The petitioner challenged Ext.P5 order by filing W.P. (C) No.23948/2007. While that writ petition was pending, the Government replaced the Special Rules for the Kerala Transport Subordinate Services by new rules, copy of which is produced as Ext.P6. In the new rules, the prohibition in the earlier rule against reversion was omitted. The new rules were also given retrospective operation from 26.06.1995. In view of the coming into force W.P.(C)No. 29775 of 2008 **-3-** of the new rules with retrospective effect, this court by Ext.P7 judgment disposed of W.P. (C) No.23948/2007 directing that if the petitioner files a fresh application for repatriation to the ministerial wing, it shall be considered in terms of the new rules untrammelled by the observations in Ext.P5 order. Pursuant to the same, the petitioner has filed Ext.P8 representation and by Ext.P9 order the Transport Commissioner again rejected his application on two grounds. First is that, no reversion is possible from one service to another service in the same department and secondly that in view of omission of Note 2 under Rule 2 in the earlier rules there is no provision for such reversion. The petitioner is challenging that order seeking the following reliefs: - “i. a writ of certiorari quashing/setting aside Ext.P-9 order. ii. a writ of mandamus to the 2[nd] Respondent to reconsider Ext.P-8 representation and to grant reversion to the petitioner to the Ministerial Service and to grant all promotions due to the petitioner in that service as if he was never absent from the Ministerial Service. iii. A writ of mandamus to the 2[nd] Respondent to grant all promotions with effect from the dates of promotions to the categories of Junior Superintendent and Senior W.P.(C)No. 29775 of 2008 **-4-** Superintendent granted to his immediate junior in the Ministerial Service.” 2. The petitioner contends that, the question of reversion has to be considered in terms of Rule 8 of Part II of KS & SSR which contemplates reversion from one service to another and not from one department to another. In the decisions in **Balakrishnan Nair v. Ram Mohan Nair (1998 (1) KLT 766),** which was confirmed by the Hon'ble Supreme Court in **Ali v. State of Kerala (2003 (2) KLT 922** ), the scope of Rule 8 of Part II of KS & SSR was considered and settled. Since in that decision, the question involved was from one department to another there was no occasion for this court to consider specifically whether reversion can be from one service to another of the same department. The petitioner submits that, that decision has to be read in the context of Rule 8 of Part II of KS & SSR which deals only with reversion from one service to another service, which need not necessarily be from one department to another and it can certainly be from one service to W.P.(C)No. 29775 of 2008 **-5-** another service in the same department also. He also refers to the definition of 'service' in Section 2 (15) of the KS & SSR and the description of various subordinate services in Schedule II to the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960 wherein item No.22 is the Kerala Ministerial Subordinate Service and item No.31 is the Kerala State Transport Subordinate Service. The petitioner contends that he applied for appointment bytransfer to the post of AMVI pursuant to a circular No.A3/7551/TC/2001 dated 25.06.2001 and therefore the petitioner comes squarely within the scope of Rule 8. Therefore, the 2[nd] respondent could not have validly rejected the petitioner's claim insofar as on coming into force of Ext.P6 special rules with retrospective effect from 26.06.1995, there is no embargo for the petitioner from seeking reversion to his original service in terms of Rule 8 of Part I of KS & SSR, insofar as the petitioner has not been confirmed in the Kerala Transport Subordinate Service. W.P.(C)No. 29775 of 2008 **-6-** 3. A counter affidavit has been filed by the 2[nd] respondent supporting Ext.P9 order and the action of the respondents in the matter. The learned Government Pleader vehemently argued in support of the impugned order. According to her, in view of the judgment of the Full Bench which has been confirmed by the Hon'ble Supreme Court, the reversion contemplated in Rule 8 can only be from one department to another and not from one service to another service in the same department. Apart from the same, the learned Government Pleader would point out that Rule 8 does not apply to the petitioner because of the 4[th] proviso wherein in the case of appointment to the latter service solely on the application of the persons seeking reversion, Rule 8 is expressly made inapplicable. The contention is that as is clear from Ext.P1 appointment order itself, the appointment of the petitioner as AMVI was not pursuant to a notification inviting applications for such appointment. The contention is that as is clear from Ext.P1 order dated 17.12.2002 the petitioner acquired the W.P.(C)No. 29775 of 2008 **-7-** qualification of working experience subsequent to the circular dated 25.6.2001 insofar as his working experience was for the period from 02.07.2001 to 15.11.2001. Therefore, according to the learned Government Pleader, the application pursuant to which the petitioner was appointed as AMVI was not pursuant to any notification inviting applications but the petitioner on his own filed an application pursuant to which Ext.P1 appointment order was issued. Therefore, according to the learned Government Pleader, the petitioner does not come within the purview of Rule 8 of Part II of KS & SSR. 4. I have considered the rival contentions in detail. Rule 8 of Part II of KS & SSR reads thus: **“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 W.P.(C)No. 29775 of 2008 **-8-** (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 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 Travancore-Cochin Government in respect of the TravancoreCochin 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 exigences of public service. **Note 1** .- An appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of public service for the purpose of this rule. **Note 2** .- The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service.” Rule 2 (15) of Part I of KS & SSR defines 'service' as follows: W.P.(C)No. 29775 of 2008 **-9-** “(15) “Service“ means a group of persons classified by the State Government as a State or a Subordinate Service as the case may be. **Note** :- Where the context so requires “service” means the period during which a person holds a post or a lien on a post or is a member of a service as above defined.” Going by the Schedule II of the Kerala Civil Services (Classification, Control & Appeal) Rules, 1960, there are two definite services by name Kerala Ministerial Subordinate Service and the Kerala State Transport Subordinate Service. Admittedly, prior to being appointed by transfer as AMVI, the petitioner was borne on the Kerala Ministerial Subordinate Service, working in the Motor Vehicles Department. Rule 8 contemplates going from one service to another and not from one department to another. As rightly pointed out by the learned counsel for the petitioner, in the Full Bench decision referred to above, this question was not specifically considered only because there what was being considered was reversion from one department to another. That does not mean that, Rule 8 relates to only going from one department to another. The ## W.P.(C)No. 29775 of 2008 **-10-** said decision has to be understood in the light of Rule 8 only. Rule 8 specifically refers to going from one service to another and not from one department to another. Such shifting can be from one service to another service in the same department as well. Therefore, I am of opinion that for seeking benefits of Rule 8, it need not necessarily be the reversion should be from one department to another. Here, admittedly the petitioner was in the Kerala Ministerial Service prior to being appointed by transfer as AMVI. The post of AMVI is borne on the Kerala Transport Subordinate Service. Therefore, the petitioner had gone from the Kerala Ministerial Subordinate Service to the Kerala Transport Subordinate Service although both were in the Motor Vehicles Department. Insofar as Rule 8 contemplates going from one service to another the petitioner does not become ineligible for reversion to the Kerala Ministerial Subordinate Service as claimed by him. 5. The Kerala Transport Subordinate Service Rules which related to appointment by transfer to the post of W.P.(C)No. 29775 of 2008 **-11-** ## AMVI as it stood at the time of appointment of the petitioner as AMVI, reads as follows: “1. **Constitution** - The service shall consist of Assistant Motor Vehicles Inspectors. 2. **Appointment.** - Appointment to the service shall be made by direct recruitment or recruitment by transfer from among members of the ministerial service employed in the Motor Vehicles Department. Appointment by transfer and direct recruitment shall be made in the ratio 1:4 **Note 1** :- The ratio of 1:4 for appointment by transfer and direct recruitment shall be applied taking into account the total cadre strength of the Assistant Motor Vehicles Inspectors in the Department and nor merely the vacancies which may arise from time to time. If sufficient number of qualified candidates is not available for recruitment by transfer, the vacancies thus left unfilled shall also be filled up by direct recruitment. **Note 2** :- Every person, who is selected for appointment on a regular basis as Assistant Motor Vehicles Inspector by transfer shall relinquish his right for reversion to the ministerial service at the time of his appointment as Assistant Motor Vehicles Inspector. Notwithstanding anything contained herein and in rule 8 of the General Rules of the Kerala State and Subordinate Services Rules, 1958 , such transferees shall have a right for appointment to the Ministerial Service in the Department for want of vacancy, or when the person is found unfit to continue in the cadre of Assistant Motor Vehicles Inspector. Provided that a person already appointed as Assistant Motor Vehicles Inspector by transfer, shall be deemed to have relinquished his right for reversion to the ministerial service, unless otherwise requested by him, within thirty days from the date of publication of this notification in the Gazette.” It is true that the petitioner was appointed under the said rules and therefore at the relevant time the embargo ## W.P.(C)No. 29775 of 2008 **-12-** on reversion to the original service was applicable to the petitioner. But since the said rules were replaced by Ext.P6 Rules which does not contain the notes attached to Rule 2 that too with retrospective effect from 26.06.1995 that embargo does not apply to the petitioner any longer, and must be deemed to have been inapplicable to the petitioner even at the time of his appointment as AMVI. It is also not disputed before me that although the probation of the petitioner in the post of AMVI was declared he was not confirmed in that service. Therefore the petitioner cannot be denied reversion to the Kerala Ministerial Subordinate Service simply because the petitioner sought reversion from one service to another in the same department. 6. Coming to the other contention of the learned Government Pleader, I am of opinion that, that contention is counter-productive. That contention of the learned Government Pleader specifically does not appear either in Ext.P9 order or in the counter affidavit also. But the learned Government Pleader would contend that in W.P.(C)No. 29775 of 2008 **-13-** paragraph 7 of the counter affidavit it is specifically stated that the application of the petitioner for appointment as AMVI by transfer was not in response to any notification issued by these respondents. According to the learned Government Pleader, reading the same together with paragraph 6 of Ext.P1 dated 17.12.2002, it can be clearly seen that the appointment of the petitioner as AMVI was not pursuant to any notification inviting such applications. I am unable to countenance that contention, because I cannot assume that the Government would make such appointments without inviting applications from all eligible persons. Recruitment by transfer as AMVI is from persons borne on the ministerial service in the Motor Vehicles Department having necessary qualifications. Therefore, it is incumbent on the Government to see that all eligible persons are given opportunity to compete for such employment. That can be either by inviting applications from the employees in the ministerial service in the Motor Vehicles Department or by considering the case of all W.P.(C)No. 29775 of 2008 **-14-** eligible persons for such consideration in the department by the appointing authority. Simply because one employee files an application, the appointing authority cannot without considering the claims of all other qualified persons appoint that person. Therefore, I am unable to countenance the contention of the learned Government Pleader that the petitioner was not appointed pursuant to any invitation of applications. If I countenance that contention, that would tantamount to upholding an illegality committed by the Government. I am not inclined to assume that the Government would make such an illegal appointment. Consequently, I must necessarily assume that the appointment of the petitioner was either pursuant to a notification inviting applications or that the appointing authority had considered all the eligible persons and made the appointment in order to satisfy the quota prescribed in the Special Rules. If construed so, the appointment of the petitioner can only be in the exigencies of public service as contemplated in the 4[th] proviso and Note I of Rule 8. W.P.(C)No. 29775 of 2008 **-15-** Consequently, the petitioner is entitled to be reverted to the ministerial service as before in accordance with his application insofar the embargo for seeking such reversion has been deleted with retrospective effect from 26.06.1995. 7. The ground mentioned in Ext.P9 that on deletion of Note 2 to the erstwhile Rules there is no provision for such reversion also does not appeal to me. The very fact that in the erstwhile Note 2 it is specifically stated that the persons selected for appointment as AMVI by-transfer shall relinquish their right for reversion to the ministerial service, notwithstanding anything contained in Rule 8 of the General Rules of the Kerala State and Subordinate Service Rules itself makes it abundantly clear that but for that Note 2, Rule 8 would have been applicable to Assistant Motor Vehicles Inspectors appointed as per the said special rules. Even apart from that, as I have already stated above, insofar as the Note 2 is no longer in the new Rules which has taken effect from 26.06.1995 retrospectively, the petitioner is entitled to be considered under Rule 8 of Part W.P.(C)No. 29775 of 2008 **-16-** II of KS & SSR. In the above circumstances, I do not find any merit in any of the three reasons put forward by the respondents to deny the petitioner the benefits of Rule 8. Therefore I declare that the petitioner is eligible for the benefit of Rule 8 of Part II of KS & SSR in the matter of reversion from the post of AMVI in the Kerala Transport Subordinate Service to the Kerala Ministerial Subordinate Service in the Motor Vehicles Department with all the consequential benefits contemplated in Rule 8. Accordingly Exts.P5 & P9 are quashed. The 2[nd] respondent is directed to pass fresh orders in accordance with the findings herein above as expeditiously as possible, at any rate, within one month from the date of receipt of a copy of this judgment. The writ petition is allowed as above. Sd/S. SIRI JAGAN JUDGE //True copy// P.A. TO JUDGE shg/