State of Kerala v. S. Rajendran

## IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.C.N.RAMACHANDRAN NAIR & THE HONOURABLE MR. JUSTICE K.VINOD CHANDRAN TUESDAY, THE 8TH NOVEMBER 2011 / 17TH KARTHIKA 1933 WA.No. 965 of 2011() -------------------AGAINST THE JUDGEMENT/ORDER IN WPC.29755/2008 Dated 23/03/2011 .................... APPELLANT(S)/RESPONDENTS IN THE WP(C) ----------------------------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE TRANSPORT COMMISSIONER, THIRUVANANTHAPURAM. BY MS.D.MEERA, GOVERNMENT PLEADER RESPONDENT(S): /PETITIONER ------------------------------------ S.RAJENDRAN, ASSISTANT MOTOR VEHICLES INSPECTOR, REGIONAL TRANSPORT OFFICE, PALAKKAD, PIN - 678 001. ADV. SRI.KRB.KAIMAL, SENIOR ADVOCATE FOR R1 SRI.B.UNNIKRISHNA KAIMAL FOR R1 THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 08/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## C.N.RAMACHANDRAN NAIR, Ag.CJ. & K.VINOD CHANDRAN, J. .................................................................... W.A. No.965 of 2011 .................................................................... Dated this the 8[th] day of November, 2011. ## J U D G M E N T ## Ramachandran Nair, Ag.CJ. This Writ Appeal is filed against the judgment of the learned Single Judge directing the appellants to repost the respondent as Head Accountant in the Motor Vehicles Department. 2. We have heard learned Government Pleader for the appellants and learned Senior counsel Shri.K.R.B.Kaimal for the respondent. 3. The facts leading to the controversy are the following. The respondent was appointed as Lower Division Clerk in the Motor Vehicles Department in the year 1984 and he became Upper Division Clerk in 1987. He became Head Accountant in the year 2001 and while continuing so he applied for appointment to the executive cadre of the same Department, i.e. as Assistant Motor Vehicles Inspector (AMVI). W.A.No.965/2011 2 His claim for appointment from the ministerial cadre of Head Accountant to the executive cadre of AMVI is in the quota reserved in the ratio of 4:1 in the recruitment of AMVI in the Department. He was appointed by transfer as AMVI on 17/12/2002 and after working as AMVI for two years on probation, he was confirmed in the post on 18/05/2005. While holding the post of AMVI, the respondent made an application to the appellants for reversion as Head Accountant, where from he was posted on transfer at his own request in 2002 as AMVI. The Department declined the same on the ground that once promoted to a higher post in the executive cadre, the respondent has no right to ask for reversion and reposting in the ministerial post, where from he was promoted. Even though the respondent initially applied on medical ground for reversion and reposting in the ministerial post originally held by him, he later took the stand that under Rule 8 of the KS&SSR he is entitled to reversion to the ministerial post and so much so reliance on medical ground was given up. The learned Single Judge declared respondent's W.A.No.965/2011 3 eligibility for reversion and reposting under Rule 8, and based on the same, direction was issued to the appellants to pass appropriate orders reverting the respondent to the post of Head Accountant in the ministerial cadre. Further relief granted to the respondent based on his prayer is to place him in the seniority list as Head Accountant above the person who was junior to him as Head Accountant on the date on which the respondent left that post to become AMVI in 2002. It is against this judgment, the State has filed this appeal. 4. Learned Government Pleader raised the contention that Rule 8 has no application in a case where a person in the ministerial cadre, in the quota reserved for that category has applied for and got selection for a higher post in the executive cadre, where he is trained and confirmed as AMVI. So much so, according to the learned Government Pleader, Rule 8 does not provide for reversion and reposting of a person from the executive cadre to the ministerial cadre at his own request. Shri.K.R.B.Kaimal, learned Senior counsel appearing for the respondent on the other hand relied on the Full Bench W.A.No.965/2011 4 judgment of this Court in Balakrishnan Nair v. Ram Mohan Nair, reported in 1998(1) KLT 766, which is confirmed by the Supreme Court in the case of Ali v. State of Kerala, reported in 2003(2) KLT 922 and contended that Rule 8 applies to the respondent and he is entitled to be reverted and reposted as Head Accountant in the ministerial cadre. However on going though the judgments, what we notice is that the case decided by this Court i.e. confirmed by the Supreme Court is one where a person from the Rural Development Department was transferred to the Co-operative Department and before his confirmation in the Co-operative Department he requested for re-transfer to the original cadre, which was declined against which writ was filed. This Court held that under Rule 8 the person is entitled to be transferred back to the parent Department. However, we do not know how this judgment applies to the respondent because the respondent on being promoted at his own request in the quota reserved for ministerial staff was given training and worked as a probationer for two years and on completion of probation he W.A.No.965/2011 5 was appointed on regular basis and confirmed in the cadre of AMVI. We do not find anything in the Rule entitling a person who has gone on transfer to a higher cadre to request for reversion and transfer from the executive cadre to the ministerial cadre. If the respondent's prayer is allowed upholding the judgment of the learned Single Judge, then the consequence would be that the person who has taken the position left by the respondent on his joining higher post will be displaced and if there is no vacancy such person will have to be demoted. It may so happen that the post left by the respondent would have been filled up by promoting a person from the lower cadre and such lower cadre post may have been even filled up by direct recruitment. In other words, the consequence of the relief granted by the learned Single Judge would be displacement of several persons, who are holding positions in the ministerial cadre. We do not think this contingency is visualised by the Supreme Court or this Court in the above judgments rendered. We do not find any substance in the contention of the respondent that as a matter W.A.No.965/2011 6 of right under Rule 8 he is entitled to be reverted and reposted in the ministerial cadre. 5. The opening paragraph of Rule 8 is extracted hereunder for easy reference:- “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.-” From the above, what we notice is that the benefit provided is only to cover cases of absence of persons from service either going on leave for taking up employment on foreign service or on deputation or for any other reason. In our view, in order to comply with the above Rule the post left by the applicant in the first place should be available for him to join back when he applies for return. Nothing obliges the appellants to retain the post left by the respondent to be kept vacant for him to return any time. Further the last proviso to this Rule makes it clear that the Rule does not apply to a case where a person left the W.A.No.965/2011 7 service is appointed to another service on his own application, and in this case the respondent himself exercised option and obtained a higher post in the executive cadre and left the ministerial service of the same Department to join there, where he was confirmed. So much so, we do not find that the respondent's case is covered by Rule 8. Consequently, we allow the Writ Appeal by vacating the judgment of the learned Single Judge and by upholding the decision taken by the appellants not to grant reversion applied for by the respondent. (C.N.RAMACHANDRAN NAIR, ACTING CHIEF JUSTICE) (K.VINOD CHANDRAN, JUDGE) jg