A. Ajith Kumar, Deputy Ranger, Paruthippally Range, Thiruvananthapuram v. State Of Kerala, Represented By The Secretary To Government, Forest And Wildlife Department
2020-02-27
K.VINOD CHANDRAN, P.V.KUNHIKRISHNAN
body2020
DigiLaw.ai
JUDGMENT : Vinod Chandran, J. The petitioner was the applicant before the Tribunal and is aggrieved with the rejection of his claim. The claim before the Tribunal was for seniority and promotion on his being repatriated to the Department from which he moved, on exigency of service, to another Department. 2. The incumbency details of the applicant is as follows: The applicant was appointed as a Forester on 16.03.1991. By Ext.P1 order dated 31.07.1993 his probation was declared with effect from 25.03.1993. Later he obtained appointment as a Lower Division Clerk (LDC) in the Archives Department as L.D Typist as advised by the Kerala Public Service Commission (for short “KPSC”). Later he went over to the Tourism Department on inter-departmental Transfer as LDC on 16.11.1996. In the year 2002, he sought repatriation to the parent Department, ie, the Forest Department. By Ext.P4 dated 17.12.2004 the petitioner was repatriated to the parent department. 3. In the parent department he sought promotion as in the case of his immediate junior in service, while he was continuing as Forester. The petitioner was promoted as Deputy Ranger on 12.05.2006 but the retrospective claim, from the date of promotion of his immediate junior, was declined as per Ext.P9 dated 14.02.2007. There was an appeal filed before the Tribunal, in which Ext.P11 order was passed. The applicant before the Tribunal claimed that he has to be promoted with effect from 29.11.2002 as a Deputy Ranger as was done in the case of his immediate junior in the cadre of Forester as also the monitory benefits paid to him from 12.05.2006 on which date he was promoted as a Deputy Ranger in the Forest Department. The Tribunal relied on the second proviso to Rule 8(c) and applied the principle insofar as the applicant having been transferred to the third department and thus dis-entitled for the benefit under Rule 8. 4. The learned Counsel for the petitioner claimed the benefit as has been granted by the Full Bench in 1998(1) KLT 766 (FB) (Balakrishnan Nair v. Ram Mohan Nair). The Full Bench decision has been approved by the Hon'ble Supreme Court in [ (2003)2 KLT 922 ] Ali v State of Kerala. 5.
4. The learned Counsel for the petitioner claimed the benefit as has been granted by the Full Bench in 1998(1) KLT 766 (FB) (Balakrishnan Nair v. Ram Mohan Nair). The Full Bench decision has been approved by the Hon'ble Supreme Court in [ (2003)2 KLT 922 ] Ali v State of Kerala. 5. The learned Government Pleader specifically points to Ext.P11 to contend that he was never made a full member of the service and in the absence of such an order under Rule 24 of Kerala State & Subordinate Services Rules [for short 'KS&SSR'] going by Paragraph 13 of Balakrishnan Nair there could be no consideration of retrospective promotion. 6. We do not think Exhibit P11 can be sustained on the ground that the petitioner was not a full member of the service in the Forest Department. We have already referred to the order declaring his probation with retrospective effect, on which date he becomes a full member. 7. Rule 8 has been elaborately considered by the Full Bench and we quote the following: The above Rule enables a member of a service who is absent from duty in such service to return back to that service, if he is not otherwise ineligible. On return, he is eligible for 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; (2) for promotion from a lower to a higher category; and (3) for appointment to any substantive or officiating vacancy. The Rule contemplates a situation when the member is absent from duty on leave, on foreign service, or on deputation or for any other reason. The fourth proviso to R.8 is as follows: “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”. The proviso noticed hereinabove itself stands against the claim of the petitioner, since his departmental transfer was not on exigency of service.
The proviso noticed hereinabove itself stands against the claim of the petitioner, since his departmental transfer was not on exigency of service. On a consideration of Rule 8 it was found that when in exigencies of service a repatriation is made to a parent department, the Government servant is entitled to all the benefits in the parent department as if he had not been absent from the service. In fact, the general understanding of the word public exigencies would have prompted this Court, to opine that it could only be on administrative exigencies, when the movement from one department to the other is at the instance of the Government. However, the Full Bench noticed Note 1 to Rule 8, which deems any appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority on behalf of the Government, as an appointment made in the exigencies of public service. 8. The petitioner moved from the Forest Department as an LDC to the Archives Department on an advice issued by the KPSC which is a recruitment by the said agency on behalf of the Government. Hence his movement from the Forest Department to the Archives Department would be on exigency of service as has been stipulated in Note 1 Rule 8 of the KS&SSR. However, his further movement to Tourism Department, was not on exigency of service and was on inter-departmental transfer, by reason of a voluntary application made. 9. Now we come to the question of the second proviso to Rule 8(c) which is as follows: “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.” The Tribunal found that on applying the principle in the extracted proviso there could be no retrospective promotion granted to the petitioner since he had moved into a third service.
The proviso is very clear insofar as when a person has moved from X service to Y service on exigency of service and again moves to Z service, the appointment in Z service can only be after relinquishment of his claim in the earlier service i.e. the Y service. When the claim in Y service is relinquished, he no longer can claim the benefit of appointment to that service on public exigency, for repatriation under Rule 8. The petitioner who moved from the Forest Department to the Archives Department, on exigency of service, as contemplated in Rule 8 of KS&SSR, exercised option for inter-departmental transfer and moved to the Tourism Department. While continuing in the Tourism Department he could not have claimed repatriation to the Archives Department for reason of both the second and fourth provisos to Rule 8. Any request made for repatriation to the Archives Department would not be permissible since the movement from Archives Department to the Tourism Department was not on exigency of service and on an application made by the petitioner. A request for repatriation to the Forest Department as was made in the present case also was not permissible since the petitioner having moved from Archives Department to Tourism Department, by operation of both the second and fourth provisos makes inapplicable Rule 8, in the petitioners case. 10. However, the Government has granted him such repatriation. The petitioner is not entitled to be repatriated, since he had moved from the second department where he was moved on exigency of service as defined under Note 1 to Rule 8, by making a voluntary application for inter-departmental transfer to the Tourism Department. The petitioner then relinquished his earlier lien and also the benefit under Rule 8. 11. The learned Counsel for the petitioner also relies on 2006(3) KLT 873 (Saifuddin v. State of Kerala). Paragraph 11 of the judgment explains the expression 'any other reasons'. We do not think the same has any application herein because we found that there is a specific bar in the fourth proviso to Rule 8. In the present case, the last movement being on application made for inter departmental transfer, there is no application of Rule 8. The Government erroneously repatriated the petitioner though he was not entitled to the same. The petitioner would not get the benefit flowing from Rule 8, though he had been erroneously repatriated.
In the present case, the last movement being on application made for inter departmental transfer, there is no application of Rule 8. The Government erroneously repatriated the petitioner though he was not entitled to the same. The petitioner would not get the benefit flowing from Rule 8, though he had been erroneously repatriated. We fully agree with the order of the Tribunal. Original Petition (KAT) would stand dismissed. No order as to costs.