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2010 DIGILAW 383 (KER)

N. v. Devadas VS State Of Kerala

2010-05-28

P.N.RAVINDRAN

body2010
Judgment : 1. The petitioner entered service as Village Extension Officer in the Rural Development Department on 25-1-1985. His probation in the category of Village Extension Officer was declared. In the meanwhile the Kerala Public Service Commission invited applications from various categories of employees for appointment by transfer to the category of Junior Inspector of Co-operative Societies in the Co-operation Department. The petitioner applied and he was selected and appointed as Junior Inspector of Cooperative Societies. While the petitioner was thus working as Junior Inspector of Cooperative Societies, he moved the Registrar of Co-operative Societies seeking repatriation to his parent department by submitting a representation dated 22-5-2006. The said request was granted and resultantly the Commissioner of Rural Development ordered his repatriation to the parent department. Thereupon, Ext.P6 order dated 10-11-2006 was issued by the Senior Administrative Officer in the Commissionerate of Rural Development permitting the petitioner to rejoin duty in the Rural Development department. He was also posted as General Extension Officer, which is a post higher than the post of Village Extension Officer. 2. Ext. P6 was challenged by two of the petitioner's former juniors by filing W.P(C) No.31432 of 2006. After hearing the petitioner and the other parties, this Court held that Ext.P6 order posting the petitioner in a higher post cannot be sustained. On the ground that there was procedural impropriety in posting the petitioner herein as General Extension Officer this Court quashed Ext.P6 to the extent the petitioner herein (4th respondent in W.P(C) No.31432 of 2006) was given a posting as General Extension Officer and the Rural Development Commissioner was directed to reconsider the petitioner's claim for posting back to the parent department. The Rural Development Commissioner reconsidered the matter and passed Ext.P10 order declining the request of the petitioner on the short ground that as he is eligible for confirmation in the cooperation department he cannot be repatriated to the parent department. 3. Aggrieved by Ext.P10 the petitioner filed in this Court. By Ext.P11 judgment delivered on 13-11-2007 this Court disposed of the said writ petition with a direction to the petitioner to move the Government. The Government was directed to take a decision within two months from the date of receipt of the representation from the petitioner. This Court also directed that till the Government takes a decision in the matter the petitioner shall not be confirmed in the co-operation department. The Government was directed to take a decision within two months from the date of receipt of the representation from the petitioner. This Court also directed that till the Government takes a decision in the matter the petitioner shall not be confirmed in the co-operation department. As directed in Ext.P11 judgment the petitioner submitted a detailed representation dated 30.11.2007 seeking repatriation to the parent department. The Government considered the petitioner's request and passed Ext.P12 order dated 25.1.2008 rejecting the said request. The Government took the stand that as the petitioner is eligible for confirmation in the co-operation department as Junior Inspector his request for repatriation cannot be considered. Exts.P10 and P12 are under challenge in this writ petition wherein the petitioner seeks a direction to the respondents to repatriate and post him as Village Extension Officer in the Rural Development department. He also seeks a direction to the respondents to promote him as General Extension Officer notionally with effect from 10-11-2006 and as Joint Block Development Officer with effect from 30-5-2007 with all attendant and consequential benefits. 4. The respondents have filed a counter affidavit resisting the writ petition. Besides reiterating the grounds stated in the impugned orders it is also contended that the petitioner is not entitled to retain his lien in the parent department in view of rule 18 of Part I KSR. 5. I heard Sri. N. Nagaresh, learned counsel appearing for the petitioner and Sri.P. N. Manoj, learned Government Pleader appearing for the respondents. Exts.P10 and P12 disclose that the only ground on which the petitioner's request for repatriation to the parent department under rule 8 Part II of the KS & SSR is declined is that he is eligible to be confirmed in the co-operation department as Junior Inspector. A Full Bench of this Court has in Balakrishnan Nair v. Ram Mohan Nair, 1998 (1) KLT 766 (FB) held that unless an order of confirmation has been issued under rule 24 of Part II of the KS & SSR an employee is entitled to seek repatriation to his parent department. The decision of the Full Bench was affirmed by the Apex Court in Ali v. State of Kerala, 2003 (2) KLT 922 (SC). In the light of the authoritative pronouncements on the subject by the Apex Court and this Court the stand taken by the Government in Exts.P10 and P12 cannot be sustained. The decision of the Full Bench was affirmed by the Apex Court in Ali v. State of Kerala, 2003 (2) KLT 922 (SC). In the light of the authoritative pronouncements on the subject by the Apex Court and this Court the stand taken by the Government in Exts.P10 and P12 cannot be sustained. The respondents have no case that the petitioner was not appointed as Junior Inspector of Co-operative Societies in the co-operation department in the exigencies of service. The only ground on which the Government have denied the petitioner's request for repatriation to his parent department is that he is eligible to be confirmed in the co-operation department. As held by the Full Bench of this Court in Balakrishnan Nair v. Ram Mohan Nair (supra) and by the Apex Court in Ali v. State of Kerala (supra) unless an employee is confirmed in service under Rule 24 of Part II KS & SSR he is entitled to seek repatriation to the parent department. 6. In the instant case, the petitioner has not been confirmed in service. Therefore, he was entitled to be repatriated to the parent department. That request was denied on the ground that as he is eligible to be confirmed in the post of Junior Inspector in the cooperation department. I am afraid the respondents have ignored rule 24 of Part II of the KS & SSR and the law laid down by this Court in Balakrishnan Nair v. Ram Mohan Nair (supra) and by the Apex Court in Ali v. State of Kerala (supra) when they denied the petitioner's request for repatriation. By virtue of the directions issued by this Court in Ext.P11 judgment and the directions in the interim order passed by this Court, the respondents were restrained from confirming the petitioner in the co-operation department. Though by Ext.P7 judgment Ext.P6 was quashed on the ground of procedural impropriety, this Court had held that in the event of the petitioner being given a posting back to his parent department its retrospectivity shall not be earlier than 10.11.2006. In the view that I have taken the respondents will necessarily have to post him in his parent department with effect from 10-11-2006. In the view that I have taken the respondents will necessarily have to post him in his parent department with effect from 10-11-2006. His request for promotion as General Extension Officer and as Joint Block Development Officer can be considered only after he is repatriated to the parent department as Village Extension Officer, the post which he was holding when he went over to the co-operation department. For the reasons stated above I allow the writ petition, quash Exts.P10 and P12 and direct the respondents to issue orders repatriating the petitioner to his parent department, namely the Rural Development department. The petitioner shall be posted back as Village Extension Officer in the Rural Development department with effect from 10-11-2006. Orders in that regard shall be issued within one month from the date on which the petitioner produces a certified copy of this judgment before the Rural Development Commissioner. After orders are issued repatriating the petitioner to the Rural Development department, the Commissioner for Rural Development shall consider his claim for promotion to the higher categories of posts, without further delay.