Petitioner sought to quash rejection of his request to rejoin Public Service Commission after voluntary transfer to Finance Department. Court held petitioner was ineligible as transfer was voluntary, not exigency-based, denying reappointment relief.
Rejected petitioner's request to rejoin Kerala Public Service Commission with seniority.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT :
THE HONOURABLE MR. JUSTICE ANTONY DOMINIC
WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931
WP(C).No. 29 of 2008(C) -----------------------
PETITIONER(S): ---------------
K.S.ANIL RAJ, ASSISTANT, FINANCE (GIMC) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1.
BY ADV. DR.K.P.SATHEESAN
SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM)
RESPONDENT(S):
---------------
1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1.
2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 4.
3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 4.
ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2,3 GOVERNMENT PLEADER SRI.DILEEP MOHAN FOR R1
THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
WPC NO.29/2008
APPENDIX
PETITIONER'S EXHIBITS
EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 24.8.2001.
EXT.P2: TRUE COPY OF THE ORDER DATED 18.8.2003 PROMOTING THE PETITIONER AS ASSISTANT GRADE I.
EXT.P3: TRUE COPY OF THE PAY FIXATION ORDER DATED 14.10.2003.
EXT.P4: TRUE COPY OF THE RELEVANT PAA OF THE ORDER GO(MS) NO.4/61/PD DATED 2.1.1961.
EXT.P5: TRUE COPY OF THE ORDER GO(MS) NO.341/2007/FIN. DATED 31.7.2007.
EXT.P6: TRUE COPY OF THE ORDER NO.ESTT.II(3) 23786/06/GW DATED 7.8.2007 ISSUED BY THE 2ND RESPONDENT.
EXT.P7: TRUE COPY OF the ORDER NO.19540/ADMN.A2/07/FIN DATED 17.8.2007 ISSUED BY THE JOINT SECRETARY(FINANCE)
EXT.P8: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 23.8.2007.
EXT.P9: TRUE COPY OF THE LETTER WRITTEN BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 26.9.2007.
EXT.P10: TRUE COPY OF THE REPLY GIVEN by the 2ND RESPONDENT TO THE FIRST RESPONDENT AS PER LETTER NO.ESTT/II(3) 22542/06/GW DATED 19.11.2007.
EXT.P11: TRUE COPY OF THE REPLY GIVEN BY THE FIRST RESPONDENT TO THE PETITIOENR AS PER LETTER NO.70764/ADMN.A2/07/FIN. DATED 15.12.2007.
EXT.P12: TRUE COPY OF THE PAY SLIP FOR THE MONTH OF AUGUST 2007 DRAWN BY THE PETITIONER WHILE IN THE PUBLIC SERVICE COMMISSION.
EXT.P13: TRUE COPY OFHTE SALARY SLIP FRO THE MONTH OF NOVEMBER,2007 OF THE PETITIONER IN THE FINANCE DEPARTMENT.
EXT.P14: TRUE COPY OF THE ORDER NO.ESTT/II(3) 2871/05/GW DATED 21.5.2005 ISSUED BY THE PSC.
EXT.P15: TRUE COPY OF THE ORDER NO.ESTT.II(3) 12118/05/GW DATED 31.7.2006 ISSUED BY THE PSC.
WPC NO.29/2008
-2-
EXT.P16: TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.48/81/GAD DATED 18.2.1981.
EXT.P17: TRUE COPY OF THE QUESTION AND ANSWER GIVEN AT THE LEGISLATIVE ASSEMBLY BY THE CHIEF MINISTER OF KERALA DATED 26.2.2009.
EXT.P18: TRUE COPY OF THE QUESTION AND ANSWER GIVEN BY THE HON'BLE CHIEF MINISTER OF KERALA AT THE LEGISLATIVE ASSEMBLY DATED 26.2.2009.
EXT.P19; TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 23.4.2008.
EXTS. OF R2
EXT.R2(a): TRUE COPY OF THE PETITIONER'S REQUEST DATED 7.8.2007. EXT.R2(b): TRUE COPY OF THE SAID PROCEEDINGS DATED 7.8.2007.
//TRUE COPY//
P.A. TO JUDGE
Rp
ANTONY DOMINIC, J. ================ W.P.(C) NO. 29 OF 2008 (C)
=====================
Dated this the 16th day of September, 2009
J U D G M E N T
The prayers sought in this writ petition are to quash Exts.P10 and P11 and to direct the 2nd respondent to allow the petitioner to rejoin in the Public Service Commission with due seniority reckoning his entire service as service in the PSC.
A permanent person need to be required to relinquish his permanency. He may be permitted to retain his permanent lien in the old post until he is confirmed in the new unit or department: but he can come back to the old unit or department only if and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him.
WPC 29/08
:2 :
others, petitioner's request for inter departmental transfer was also allowed.
WPC 29/08
:3 :
accommodate him, Ext.P8 request was rejected. It was thereupon that this writ petition was filed.
:4 :
WPC 29/08
and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him. Petitioner has no case that there was no vacancy in the Finance Department for him to continue. Even though it is the case of the petitioner that his pay got substantially reduced on his joining the Finance Department, the same occurred as the petitioner had voluntarily accepted reversion to the lower post and not for the reason stated in Ext.P4. Both the circumstances provided for in Ext.P4 are absent in this case. Therefore, the case of the petitioner is outside the purview of clause 2 of Ext.P4 order.
WPC 29/08
:5 :
solely on his own application and not on the basis of applications invited or sponsored by the PSC or any other agency. Such a case is covered by the 4th proviso to Rule 8, which reads as under:
Provided also that this rule shall not apply in the case of a member whose absence from duty in such service is by reason of his appointment to another service not being Military Services, solely on his own application, unless such appointment is made in the exigencies of public service.
If that be so, the petitioner cannot claim the benefit of Rule 8 as well.
WPC 29/08
:6 :
on the notification issued by the PSC. It is stated that such being the case, they were eligible for the benefit of Note 1 to Rule 8 and their reappointment was on that basis. As already stated, since the petitioner's case is covered by the 4th proviso to Rule 8, his case stands on a different footing and therefore, the petitioner cannot plea parity in treatment relying on Exts.P14 and P15.
Writ petition fails and therefore will stand dismissed.
ANTONY DOMINIC, JUDGE
Rp
2 issues framed by the court
Whether a respondent who voluntarily accepted inter departmental transfer falls within the exception to Rule 8 of KSSR allowing reappointment in the parent department.
Whether the petitioner is entitled to parity in treatment with other employees granted reappointment under Note 1 to Rule 8 of KSSR.
Colour shows how this judgement treated each authority
Balakrishnan Nair v. Ram Mohan NairReferred¶67
Balakrishnan Nair v. Ram Mohan Nair (1998(1) KLT 766)(FB)
Ali v. State of KeralaDistinguished¶67
Ali v. State of Kerala (2003(2) KLT 922)(SC)
2 provisions across 1 enactments
K.S. Anil Raj
State of Kerala
Kerala Public Service Commission
Anton Dominic
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
