Sunilkumar V and others v State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON & THE HONOURABLE MRS. JUSTICE SHIRCY V.** **TUESDAY, THE 18TH DAY OF JULY 2017/27TH ASHADHA, 1939** **OP(KAT).No. 2649 of 2013 (Z)** **-----------------------------** **AGAINST THE ORDER/JUDGMENT IN OA 1042/2013 of KERALA ADMINISTRATIVETRIBUNAL, THIRUVANANTHAPURAM DATED 29-05-2013** ## **PETITIONER(S)/PETITIONER :** **-------------------------** **1. SUNILKUMAR.V** - **S/O. P.P.KARUNAKARAN NAIR, ASSISTANT ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, KAYYUR CHEEMENI GRAMA PANCHAYAT, PILICODE P.O., KASARAGOD DISTRICT-671 359.** ## **2. THE CHIEF ENGINEER** **PWD DESIGN & ADMN., PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 033.** **3. THE CHIEF ENGINEER** **LOCAL SELF GOVERNMENT DEPARTMENT, 3RD FLOOR, REVENUE COMPLEX, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695 033.** ## **BY ADVS.SRI.M.SASINDRAN SRI.S.SHYAM KUMAR** ## **RESPONDENTS** ## **--------------** **1. STATE OF KERALA- REPRESENTED BY SECRETARY TO GOVERNMENT PUBLIC WORKS DEPARTMENT. GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695001** **2. THE CHIEF ENGINEER, P.W.D. DESIGN & ADMN. PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM -695033** **3. THE CHIEF ENGINEER, LOCAL SELF GOVERNMENT DEPARTMENT, 3RD FLOOR, REVENUE COMPLEX, PUBLIC OFFICE BUILDING, THIRUVANANTHAPURAM-695033** **R1 BY ADV. GOVERNMENT PLEADER (Sr) SRI.B.VINOD** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 18-07-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **OP(KAT).No. 2649 of 2013 (Z)** **-----------------------------** ## **APPENDIX** **PETITIONER(S)' EXHIBITS -----------------------** **EXT P1 : COPY OF THE ORDER IN OA NO.1042/2013 DTD.29.5.2013 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM. EXT. P2 : COPY OF THE ORIGINAL APPLICATION, (OA NO.1042/2013) FILED BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ALONG WITH ANNEXURES. RESPONDENT(S)' EXHIBITS ----------------------NIL** ## **TRUE COPY** **P.A TO JUDGE** ## **SMM** ## **P.R. RAMACHANDRA MENON & SHIRCY V.,JJ.** ## **------------------------------------------------------** ## **O.P(KAT)No.2649 of 2013** ## **------------------------------------------------------** ## **Dated this the 18[th] day of July, 2017** ## **JUDGMENT** ## **P.R. Ramachandra Menon, J.** Whether an employee who has opted to join another Department and has completed the probation in the latter Department, followed by promotion obtained in the said Department, is eligible to come back to the parent Department, with reference to his lien stated as existed in the parent Department, is the subject matter of consideration in this Original Petition. 2. The factual matrix reveals that the petitioner was initially appointed as a 1[st] Grade Draftsman in the PWD on 27.11.2003, in the 'Building Section'. Subsequently, a new Department known as 'LSG Department' was formed in the Government and option was called for from willing Technical employees who were desirous of joining the newly formed Department; which was given by the O.P(KAT)No.2649/2013 2 petitioner. After considering the same, the respondents passed Annexure A2 order on 1.7.2008, whereby the petitioner was absorbed as 1[st] Grade Draftsman, and he joined the newly formed Department. In the course of time, the probation was satisfactorily completed in the latter Department and the petitioner was promoted to the post of Assistant Engineer on 22.6.2010. But thereafter, the petitioner felt that it would be more proper and better for him to go back to the parent Department, more so since, he was never confirmed in the latter Department despite the completion of probation and the promotion given to him. It was accordingly, that an application was preferred in this regard, which however came to be rejected by the Department as per Annexure A4 order dated 3.5.2013, referring to the date of declaration and granting of promotion in the latter Department. 3. The petitioner felt aggrieved, who approached the Tribunal by filing the Original Application with the following prayers: O.P(KAT)No.2649/2013 3 i) issue orders to set aside Annexure A4 orders. ii) issue orders directing the respondents that the applicant is entitled for reappointment in the Public Works Department. iii) issue orders that the 2[nd] respondent is duty bound to issue orders reappointing the applicant in the Public Works Department as per Rule 8, Part II of K.S and SSR.” It is seen than the respondents did not file any reply statement. The matter was heard in detail and the Tribunal passed Ext.P1 order, virtually accepting the stand of the Department as reflected from Annexure A4. It was held by the Tribunal that, by virtue of mandate of Rule 8 of Part II of the K.S and SSR , the applicant was not entitled to go back to the Department; more so when the post was stated as abolished in the PWD. This in turn is under challenge in this Original Petition. 4. Heard the learned counsel for the petitioner and also the learned Government Pleader appearing for the respondents. 5. The learned counsel for the petitioner points out O.P(KAT)No.2649/2013 4 that the basic requirement as envisaged under Rule 24 of Part II of the K.S and SSR ie; as to the giving of confirmation in the latter Department was omitted to be taken note of by the Tribunal while dealing with issue with reference to Rule 8 of Part II of the K.S and SSR. It is pointed out that, unless the person who has joined the latter Department is confirmed in service, it is quite open for the person to go back to the parent Department by virtue of the lien stated as existing in the parent Department. In other words, merely by completion of probation or on granting promotion, it cannot be said that the lien will stand terminated accordingly. Reliance is sought to be placed on the verdict passed by the Full Bench of this Court as reported in _**Balakrishnan Nair v. Ram Mohan Nair [1998 (1) KLT 766];**_ paragraph 26 of which reads as follows: “26. Thus, on the basis of the above decisions and the relevant Rules in the KSR and K.S.S.R., we are of the view that the lien of a member of a service to a post in the parent Department is not lost O.P(KAT)No.2649/2013 5 automatically when he joins another Department. The lien can be terminated only after hearing the concerned person. By mere completion of probation it cannot be said that a person has been substantively appointed to a permanent post. Unless a person is confirmed under R.24 of K.S.S.R, it cannot be said that the person has been substantively appointed to a permanent post. In the present case, we find that the appellants have not been confirmed in the Cooperative Department. Hence they have no lien in the Co-operative Department. Their lien in the Rural Development Department has not been terminated. In that view of the matter, sending them back to the parent Department is legal.” 6. It is brought to the notice of this Court that the law declared by the Full Bench as above has been affirmed by the Apex Court as per the decision reported in _**Ali v. State of Kerala 2003 (2) KLT 922);**_ paragraph 19 of which reads as follows:- “19. A faint attempt was made to submit that the non-official respondents had lost their lien as they were appointed to posts of substantive nature. Reference was made to R.28 to submit that on completion of probation and in case of promotion, it is to be presumed that there was substantive appointment. The Full Bench has recorded a factual O.P(KAT)No.2649/2013 6 finding that non-official respondents have not been confirmed in the posts in the Co-operative Department. It has been specifically recorded that no material was placed to show that any order has been passed by the Co-operative Department confirming the concerned employees in their posts. With reference to R.24 it was noted that mere completion of probation does not result in automatic confirmation. It is a settled position in law that a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier. See Triveni Shankar Saxena v. State of U.P. (1992 (64) FLR 630 (SC) and Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36)” 7. A counter affidavit has been filed by the third respondent before this Court; which is virtually to the effect that the post had been abolished in the PWD, with corresponding creation of new post in the newly formed LSGD, and as such, the petitioner cannot aspire to come back to the PWD. However, no such case was ever put up before the Tribunal, as no reply statement was filed by the Department/State. That apart, the submission now made by the learned Government Pleader across the bar O.P(KAT)No.2649/2013 7 that, if at all the person was continuing in the PWD (parent Department), he would have faced the threat of retrenchment, also does not find any support as it does not form part of Annexure A2 order and no such pleading was raised before the Tribunal, at the first instance. The law has been declared in crystal-clear terms by a Full Bench of this Court (cited supra) and it stands affirmed by the Apex Court as mentioned above. As such, the eligibility of the petitioner requires to be considered afresh. This is more so, since the Department, even now, does not have a case that the petitioner was confirmed in service, in terms of Rule 24 of Part II of the KS & SSR. 8. In the said circumstance, we set aside Ext.P1 order passed by the Tribunal and also Annexure A4 and remit the matter to be considered afresh by the first respondent, in accordance with the relevant provisions of law and also with reference to the rulings rendered by this Court and also by the Apex Court as referred to above. The said exercise shall be completed after O.P(KAT)No.2649/2013 8 affording an opportunity for hearing to the petitioner; which shall be done at the earliest at any rate, within 'three months' from the date of receipt of a copy of this judgment. The Original Petition is allowed to the said extent. ## **P.R. RAMACHANDRA MENON** **JUDGE** **SHIRCY.V JUDGE** smm