Sureshkumar R. v. Chief Judicial Magistrate, Kalpetta, and others (WP(C) No. 23921 of 2012)

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU** ## **WEDNESDAY, THE 26TH DAY OF NOVEMBER 2014/5TH AGRAHAYANA, 1936** ## **WP(C).No. 23921 of 2012 (R)** **--------------------------------------** ## **PETITIONER(S):** **-----------------------** **SRI.SURESHKUMAR R., SARASWATHY BHAVAN, KANDIYOOR, THATTARAMBALAM (P.O.) MAVELIKKARA, PIN. 690 103 ALAPPUZHA DISTRICT.** **BY ADVS.SRI.P.K.MADHUSOODANAN SRI.P.M.BINOY KRISHNA** **RESPONDENT(S):** **-------------------------** **1. THE CHIEF JUDICIAL MAGISTRATE, OFFICE OF THE CHIEF JUDICIAL MAGISTRATE, KALPETTA, WAYANAD DISTRICT - 673 121.** **2. JUDICIAL FIRST CLASS MAGISTRATE-II, SULTAN BATHERY, WAYANAD DISTRICT - 673 592.** **3. THE REGISTRAR, SUBORDINATE JUDICIARY, HIGH COURT OF KERALA, ERNAKULAM - 682 031.** **R3 BY ADV. SRI.K.R.B.KAIMAL (SR.) R1 & R2 BY ADVS. SRI.B.UNNIKRISHNA KAIMAL SRI.ANTONY MUKKATH GOVERNMENT PLEADER SMT.LOWSY A.** **THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 26-11-2014, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **msv/** **WP(C).No. 23921 of 2012 (R)** **---------------------------------------** ## **APPENDIX** ## **PETITIONER(S)' EXHIBITS:** ## **--------------------------------------** **EXHIBIT-P1 - TRUE COPY OF THE PROCEEDINGS OF THE 1ST RESPONDENT VIDE ORDER NO.C-10471/2011 DATED 17-11-2011** **EXHIBIT-P2 - TRUE COPY OF THE OFFICE ORDER DATED 6-3-2012 ISSUED BY THE GENERAL MANAGER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD ALAPPUZHA.** - **EXHIBIT-P3 - TRUE COPY OF THE REPRESENTATION DATED 13-3-2012 SUBMITTED THROUGH PROPER CHANNEL TO THE 1ST RESPONDENT** - **EXHIBIT-P4 - TRUE COPY OF THE ORDER NO.C-10471/2011, DATED 20-3-12 OF THE 1ST RESPONDENT** - **EXHIBIT-P5 - TRUE COPY OF THE ORDER NO.1161/2012, DATED 21-3-2012 OF THE 2ND RESPONDENT** **EXHIBIT-P6 - TRUE COPY OF THE REPRESENTATION DTD.24-4-2012 TO THE GENERAL MANAGER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA.** **EXHIBIT-P7 - TRUE COPY OF THE OFFICE MEMO DATED 20-4-2012 BY THE GENERAL MANAGER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA.** **EXHIBIT-P8 - TRUE COPY OF THE LETTER DATED 28-6-2012 OF THE 1ST RESPONDENT ADDRESSED TO THE GENERAL MANAGER, ALAPPUZHA DISTRICT CO-OPERATIVE BANK LTD., ALAPPUZHA.** **EXHIBIT P9: TRUE RELEVANT EXTRACT OF NOTIFICATION DATED 1.1.2009 OF THE KSPC DISTRICT OFFICER, WAYANAD.** **EXHIBIT P10: TRUE COPY OF G.O.(P) NO.154/2009/FIN, DATED 24.4.2009.** **EXHIBIT P11: TRUE COPY OF THE ORDER NO.A2-8114/2011/DMOH (K) DTD.16/11/2011 BY THE DISTRICT MEDICAL OFFICER OF HEALTH, KOTTAYAM.** **EXHIBIT P12: TRUE COPY OF THE ORDER NO.A3-16977/11/DMOHK/DTD/215/2012 BY DISTRICT MEDICAL OFFICER OF HEALD, KOLLAM.** **EXHIBIT P13: TRUE COPY OF ORDER O.JS-II-457/2013 DATED 14.1.2013 BY THE DISTRICT JUDGE, KOTTAYAM.** **EXHIBIT P14: TRUE COPY OF THE G.O.(P) NO.262/2009/FIN., DATED 4.7.2009.** **msv/** **-2-** **-2WP(C).No. 23921 of 2012 (R) -------------------------------------RESPONDENT(S)' EXHIBITS: -----------------------------------------** **==> picture [141 x 80] intentionally omitted <==** **----- Start of picture text -----**<br> NIL<br>//TRUE COPY//<br>P.S.TO JUDGE<br>**----- End of picture text -----**<br> Ms **v/** ## DAMA SESHADRI NAIDU, J. ---------------------------------- W.P. (C) No. 23921 of 2012 ---------------------------------Dated this the 26[th] day of November, 2014 ## JUDGMENT In this writ petition, the petitioner, claiming to be a member absent from duty in the service of the 1[st] respondent, seeks in terms of Rule 8 of Kerala State & Subordinate Services Rules, 1958 (KS & SSR), reappointment in his former post as Lower Division Clerk, coming back from the service of the District Co-Operative Bank, Alappuzha. 2. The facts in brief are that the petitioner, being a graduate with B.Sc (Maths), had his name reflected in Ext.P9 rank list issued by the Kerala Public Service Commission (PSC) with rank No. 342 to be advised in terms of the notification issued by it earlier. In course of time, the District Officer of PSC on 09.11.2011 advised the petitioner for appointment in the service of the 1[st] respondent. Accordingly, as could be seen from Ext.P1, the petitioner joined the service of Criminal Judicial Department on 17.11.2011 as Lower Division Clerk. He actually joined duty on 25.11.2011. W.P.(C) No.23921/2012 -2- 3. Since the petitioner also responded to another notification issued by the PSC, in a subsequent rank list published by it, his name was also reflected. Based on the said rank list, on 04.02.2012, PSC advised the petitioner to be appointed in the post of Peon/Watchman in the Alappuzha District Co-Operative Bank. In terms of the second advice, the petitioner got relieved through Ext.P4 dated 20.03.2012 from the service of the 1[st] respondent and joined the District CoOperative Bank on 26.03.2012. 4. Since the General Manager of the Bank insisted, as a pre-condition of service in the respondent Bank, that the petitioner mobilise funds to the tune of ` 15,00,000/-, finding himself unable to meet the target, the petitioner is said to have made Ext.P6 representation, through proper channel, seeking his return to the parent department, i.e., the 1[st] respondent. Though his request was duly forwarded by the General Manager of the District Co-Operative Bank, on its consideration, the 1[st] respondent issued Ext.P8 proceedings rejecting his claim. W.P.(C) No.23921/2012 -3- Aggrieved thereby, the petitioner filed the present writ petition. 5. The learned counsel for the petitioner has contended that the petitioner in terms of Rule 8 of KS & SSR is eminently suited to be repatriated or reappointed in his parent Organisation i.e., the 1[st] respondent. Drawing my attention to Ext.P8, the learned counsel would contend that the 1[st] respondent cited only two reasons for the rejection of his claim: that the application has not been routed through proper channel and that in terms of proviso 4 to Rule 8(c) of KS & SSR, the claim is not maintainable. 6. The learned Counsel has strenuously contended that proviso (4) to Rule 8 of KS & SSR does not contain any impediment to the claim of the petitioner. According to the learned Counsel, there is no manner of doubt concerning the proposition that the District Co-Operative Bank is a State or at least an instrumentality of State in terms of Article 12 of the Constitution of India. In support of his submissions, the learned counsel has placed reliance on an unreported judgment of a W.P.(C) No.23921/2012 -4- learned Division Bench of this Court in Suveen S. Kamath v. State of Kerala, a judgment rendered on 11.04.2014 in O.P(KAT) No. 2369 of 2012. Summing up his submissions, the learned counsel has urged this Court to allow the writ petition. 7. The learned Standing Counsel for the respondents has strenuously opposed the claims and contentions of the petitioner. He has initially submitted that Ext.P1 clearly records that the petitioner was appointed on a temporary basis in a supernumerary vacancy. Expatiating on his submissions, the learned Standing Counsel would contend that to claim any benefit under Rule 8 of KS & SSR, the post which he occupied earlier ought to have been a substantive one. In the alternative, the learned counsel has also submitted that by the time Ext.P8 order was passed by the 2[nd] respondent, the legal position prevailed in the filed then was that a Co-Operative Bank was not an instrumentality of the State. Thus, based on both the aspects, contends the learned Standing Counsel, there was every justification for the 1[st] respondent to reject the petitioner’s W.P.(C) No.23921/2012 -5- claim. 8. In reply thereto, the learned counsel for the petitioner has submitted that neither Rule 8 nor Rule 2, especially clauses (9) and (15) thereof, mandates that the post should be a substantive one and that the incumbent ought to have been working on a permanent basis. With specific reference to clause 9 of Rule 2, the learned counsel would contend that ‘Member of a Service’ having been defined therein, no such limitation, as has been canvassed by the learned counsel for the petitioner, is incorporated in the said definition. He has further contended that having rejected the claim of the petitioner through Ext.P8 on the singular ground that in terms of proviso 4 to Rule 8 (c) of KS & SSR, the claim of the petitioner is not maintainable, the respondents are estopped from supplying subsequent reasons during the course of adjudication of the issue raised by the petitioner. 9. Heard the learned counsel for the petitioner and the learned Standing Counsel for the respondents, apart from W.P.(C) No.23921/2012 -6- perusing the record. 10. The singular issue required to be determined in the present writ petition is whether the petitioner has any indefeasible right to claim repatriation or reappointment to his former service in the first respondent establishment, especially in terms of Rule 8 of KS & SSR. 11. Since much turns upon what Rule 8 of KS & SSR says, it is appropriate to extract the same and it is as follows: 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 - 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 W.P.(C) No.23921/2012 -7- 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 © 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 does not have retrospective effect so as to disturb the decisions taken by the Travancore -Cochin Government in respect of the Travancore -Cochin 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. 12. Insofar as the present case is concerned, the facts are not in dispute: initially the petitioner joined the service of the 1[st] respondent through Ext.P1 on 17.11.2011 and later in terms of another advice issued by the PSC, he joined the service of the District Co-Operative Bank on 26.03.2012. In this process, through Ex.P4 dated 20.03.2012, the 1[st] respondent relieved him. It is pertinent to observe that it is not a case of resigning W.P.(C) No.23921/2012 -8- and leaving service. It is only getting relieved and joining another service in the light of the second advice made by the PSC. When proviso (4) to Rule 8 is examined, it is evident that the absence from duty in the service by reason of his appointment to another service, not being military service, solely on his own application, cannot be considered for reappointment. It is, however, made clear therein that if such subsequent appointment is made in the exigencies of public service, the said employee is entitled to the claim. In fact, Note (1) provides necessary clarification regarding what is meant by exigency of public service. “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.” 13. In the present instance, the petitioner secured his first appointment based on the advice of the PSC. Later, the same PSC published another rank list, after due process, based on another subsequent notification. As such, when Note (1) is W.P.(C) No.23921/2012 -9- viewed along with the ratio decided in the judgment of the learned Division Bench in Suveen S. Kamath, it leaves no manner of doubt regarding the justifiability of the claim of the petitioner. 14. At this juncture, adverting to Suveen S. Kamath, it is to be stated that the learned Division Bench has considered the issue whether the District Co-Operative Bank is a State or instrumentality of State. The learned Division Bench, indeed, has laid down that the District Co-Operative Bank is an instrumentality of State for the purpose of Rule 8 of KS & SSR. 15. Now we may have to consider whether the factum that the petitioner has not been borne on permanent cadre of the 1[st] respondent, and, in fact, he was working initially in a supernumerary post, would come in the way of the petitioner. I am of the view that there is some force in the contention of the learned counsel for the petitioner that that particular ground never weighed with the 1[st] respondent while issuing Ext.P8. In any event, going by clauses (9) and (15) of Rule 2 of KS & SSR, W.P.(C) No.23921/2012 -10- there is no such distinction made when it comes to claiming a right for repatriation or reappointment in terms of Rule 8. 16. In a conspectus, this Court is of the opinion that Ext.P8 had been issued while the issue whether the District CoOperative Bank is a State or not was not definitively decided. In the light of the ratio in Suveen S. Kamath, that issue is no longer res integra. 17. In the facts and circumstances, Ext.P8 is set aside with a consequential direction to the 1[st] respondent to consider the claim of the petitioner for re-appointment in its service, provided he meets all other statutory requirements. With the above observations, this writ petition stands allowed. Needless to observe that the 1[st] respondent may take an appropriate decision in this regard as expeditiously as possible at any rate within two months from the date of receipt of a copy of this judgment. sd/- DAMA SESHADRI NAIDU, JUDGE. rv W.P.(C) No.23921/2012 -11-