Writ petition seeking reversion to Section Officer and promotion as Assistant Registrar based on seniority and lien. Bench examined applicability of service rules regarding appointment from same service. Held that appointment via selection bars reversion.
Petitioner not entitled to reversion or repatriation; Writ Petition dismissed.
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 SMT. JUSTICE P.V.ASHA
TUESDAY, THE 27TH DAY OF OCTOBER 2015/5TH KARTHIKA, 1937
WP(C).No. 3106 of 2013 (K)
PETITIONER: -----------
PRADEEP BABU AGED 50 YEARS P.S.TO REGISTRAR SREE SANKARACHARYA UNIVERSITY OF SANSKRIT KALADY-683574 BY ADVS.SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH
RESPONDENT(S)/RESPONDENTS:
WP(C).No. 3106 of 2013 (K)
A P P E N D I X
PETITIONER’S EXHIBITS
EXT.P1: TRUE COPY OF ORDER NO.SSUS/ADMN/B/SO/RMT/205/2000 DATED 10.04.2000 ISSUED BY THE UNIVERSITY.
EXT.P2: TRUE COPY OF ORDER NO.Ad.B/3394/2001/SSUS DATED 11.7.2001 ISSUED BY THE UNIVERSITY DECLARING PROBATION OF THE PETITIONER IN THE CATEGORY OF SECTION OFFICER.
EXT.P3: TRUE COPY OF THE ORDER NO.Ad.B/9951/2002/SSUS DATED 17.4.2002 ISSUED BY THE UNIVERSITY.
EXT.P4: TRUE COPY OF ORDER NO.Ad.B/6671(1)ssus/04 DATED 10.5.2005 ISSUED BY THE UNIVERSITY APPOINTING THE PETITIONER AS P.S TO REGISTRAR.
EXT.P5: TRUE COPY OF THE DECISION OF THIS HON’BLE COURT REPORTED IN 1998(1) KLT 766. EXT.P6: TRUE COPY OF THE JUDGMENT DT.12.8.97 IN W.A.NO.689/1989 OF THIS HON’BLE COURT. EXT.P7: TRUE COPY OF THE REPRESENTATION DATED 14.3.2011 SUBMITTED BY THE PETITIONER BEFORE THE UNIVERSITY.
EXT.P8: TRUE COPY OF THE MINUTES OF THE 119TH MEETING SYNDICATE HELD ON 7.8.2012. EXT.P9: TRUE COPY OF THE REPRESENTATION DATED 28.1.2013 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENTS WITHOUT TRANSLATION. EXT.P10: TRUE COPY OF THE ORDER DT.23.3.07 IN SLP NO.(c) NO.20813/2006 OF THE HONOURABLE SUPREME COURT.
2ND RESPONDENT’S EXHIBITS
EXT.R2(a):TRUE COPY OF THE ORDER DATED 4.1.07 IN SPECIAL LEAVE TO APPEAL (CIVIL) NO.20813/2006 OF THE HONOURABLE SUPREME COURT OF INDIA. EXT.R2(b): TRUE COPY OF THE ORDER NO.Ad.B/6671(1)SSUS/04/DATED 26.05.2005. EXT.R2(c): TRUE COPY OF THE ORDER NO.Ad.B.S.O/SSUS(2) DATED 19.04.20097. EXT.R2(d): TRUE COPY OF THE JUDGMENT REPORTED IN 2001(2) KLT 891. EXT.R2(e): TRUE COPY OF THE RELEVANT PORTION OF THE MINUTES OF THE SYNDICATE MEETING HELD ON 1.10.2011. EXT.R2(f): TRUE COPY OF THE REPRESENTATION DATED 6.4.2012 SUBMITTED BY THE PETITIONER.
/TRUE COPY/
P.S TO JUDGE
P.V.ASHA, J.
W.P(c) No.3106 of 2013-K
Dated this the 27th day of October, 2015
JUDGMENT
The petitioner, joined the Sree Sankaracharya University of Sanskrit, Kalady (hereinafter referred to as `University’ for short), as a Section Officer on 10.04.2000, based on appointment after a regular process of selection. He was appointed as P.S to Registrar as per Ext.P4 order dated 10.05.2005. His probation was declared in the post of P.S to Registrar w.e.f 11.5.2006. By Ext.P7 representation, dated 14.03.2011 submitted to Registrar, he requested to revert him as Section Officer so as to enable him to get promoted as Assistant Registrar, which is the promotion post of Section Officer. Alleging inaction on his request he has filed this writ Petition seeking direction to the respondent University to allow his request for reversion as Section Officer and to promote him as Assistant Registrar on the basis of his seniority.
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out that, his junior got promoted as Assistant Registrar on 2.6.2011. Relying on the judgment of the Full Bench in Balakrishnan Nair v. Ram Mohan Nair: 1998(1) KLT 766, petitioner claims promotion as Assistant Registrar after reverting him from the post of P.S to Registrar saying that he is not confirmed so far in that post and therefore his lien continues in the post of Section Officer.
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employees, by advertisement and selection. The minimum qualification for the post of P.S to Registrar is a University Degree and experience as a Section Officer in the University or other experience in a supervisory capacity and in the case of Section Officers, they should have completed 3 years service in the cadre of Section Officer. The petitioner got appointment as P.S to Registrar after a regular process of selection on the basis of application submitted pursuant to the notification issued by the University, calling for applications from among qualified staff of the University and he has been working in that post right from 5/2005, based on his appointment as per Ext.P4.
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P.S to Registrar and earning a higher salary since the year 2005, At this stage it would not be proper to come back at this stage for enjoying the benefit of promotion to the post of Assistant Registrar, the scale of pay of which also is equivalent to the post of P.S to Registrar. More over, it was pointed out that none of the affected parties have been impleaded in the Writ Petition and several of his juniors have already been promoted by this time as Assistant Registrars and got further promotion as Deputy Registrars, etc. and the Writ Petition is filed without impleading any of them. However, additional 3rd respondent got himself impleaded in the Writ Petition and filed counter affidavit opposing the prayers of the petitioner.
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Gracen Charles v. State of Kerala [2001 (2) KLT 891].
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The State of Kerala and another [AIR 1968 Kerala 234], contended that there cannot be any lien on service. The lien can only be on a post. According to the learned counsel, the petitioner has not produced any order confirming him in the post of Section Officer, when he is claiming reversion to the post of Section Officer on the ground that he is not confirmed in the post of P.S to Registrar. He contends that going by the contentions of petitioner, his lien will be only in the post of Section Officer in the M.G University, where he was originally working, before his appoinment in the University, as long as he is not confirmed in the present University in any of the posts; the issue is covered by the Division Bench judgment of this Court in Gracen Charles v. State of Kerala (supra) which affirmed the judgment of the learned Single Judge reported in Gracen Charles v. State of Kerala [2001(1) KLT 72] in which the issue considered was as to the repatriation to another wing of the same service in the Ayurveda Department. This Court held that the benefit of Rule 8 is not available to an officer holding a post in another class or category in the same service, by virtue of note 2 to Rule 8, which specifically provides, that the benefit is not applicable to a person holding a post in any class or category in a service if his
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appointment to that post was from the same service.
8. Members absent from duty.— The absence of a member of a ser from duty in such service, whether on leave, 1 [other than leave withe allowances for taking up other employment,] on foreign service or on deputatic or for any other reason and whether his lien in a post borne on the cadre of suci 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 member which he would have enjoyed but for his absence: 2 [ *** *** *** ***] 3[Provided that subject to the provisions of rule 18 he shall satisfactorily complete the period of probation on his return;]
4[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:
Provided further that this rule shall 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
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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.
Note.-(l) 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.
(2) The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service.”
Rule 16 Part I KSR reads as follows:
“16. Unless in any case it be otherwise provided in these rules, an officer on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.”
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Rule 16 will in no way help the petitioner's contention that his lien continues until he is confirmed.
“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 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 Co-operative 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”.
The Full Bench was considering the right of employees to return to the parent department, interpreting the provisions contained in Rule 8 of Part II KS&SSR, with reference to Rules 18 to 24 of KS&SSR and Rule 16 of Part I KSR. The cases involving
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application of Note 2 to Rule 8 did not come up before the Full Bench. This is clear from paragraph 8 of the judgment relevant portion of which reads as follows:
“8. xxxxxxxxxxxxxxxxxx “Note 2 denies the benefit to a member of a service when he is appointed to another post in the same service. In the present case, we are not concerned with Note 2 . Learned counsel for the appellants submitted that in view of Note 1 the appellants and similarly situated persons are entitled to the benefit of R. 8, if the conditions in R. 8 are satisfied.”
(emphasis supplied)
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category change, that was challenged and considered in that Writ Petition. The original petition challenging the rejection was allowed declaring that she was entitled to come back to the catetegory of Senior Grade Typist. That judgment was challenged in the Writ Appeal by a third party, whose opportunity for promotion as Senior Grade Typist was affected on account of the judgment, ie. on account of the re-joining of Smt.Chandrika Amma.
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The Division Bench found that it was under those circumstances that, she requested for the second category change from U.D Clerk to Typist, which the department rejected saying that it was in the same service. The Division Bench found that the Chandrika Amma was entitled to be promoted to the cadre of Senior Grade Typist, well before she was granted category change as U.D.C and that benefit was also given to her as per the proceedings issued on 18.11.1986 with retrospective effect. But she could not enjoy it because she had, by that time, joined as U.D.C. In the above circumstances, Ext.P6 judgment will not in any way help the petitioner. Moreover in paragraph 20 of the judgment in Balakrishnan Nair (supra) it was held as follows.
“20. Another judgment relied on was the judgment in W.A. No.486/89. But it is a case of transfer in the same service. According to Note 2 of R. 8 of K.S.S.R., which came into force from 19.8.1986, the benefit of R. 8 is not available to a person holding a post in any class or category in a service if his appointment to that post was from a post in another class or category in the same service. The Division Bench held that the conditions in Note 2 of R. 8 were satisfied. We approve the judgment only to that extent. The other observations in the above judgment regarding R. 8, with great respect, it is submitted, are not correct.”
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post of P.S to Registrar is by appointment from among qualified hands including that of Section Officers. It was not a category change as in the case of Ext.P6 judgment. He got appointment on the basis of a regular process of selection conducted, based on his application for the same when applications were called for and after subjecting him to the process of selection, in accordance with the provisions contained in the first statute. It is after enjoying the benefit of higher post since 2005, he requested for reversion in the year 2011, which is not legally sustainable. Therefore the petitioner is not entitled to get a reversion or repatriation in view of Note 2 to Rule 8 of KS&SSR. 14. There is no provision which enables the petitioner to get a reversion after more than 8-9 years of his appointment in the present post.
In the above circumstances, there is no merit in the contentions and accordingly, the Writ Petition is dismissed.
Sd/-
(P.V.ASHA, JUDGE)
rtr/
/true copy/
P.S to Judge
3 issues framed by the court
Whether a Section Officer appointed to the post of P.S. to Registrar after selection can claim reversion to the lower post upon declaring probation.
Whether Note 2 to Rule 8 of the Kerala State and Subordinate Service Rules, 1958 bars benefit of reversion when appointment is from the same service.
Whether the judgment in Balakrishnan Nair v. Ram Mohan Nair applies when appointment was made via selection from the same cadre.
Colour shows how this judgement treated each authority
Balakrishnan Nair v. Ram Mohan NairExplained¶31
Balakrishnan Nair v. Ram Mohan Nair : 1998(1) KLT 766
Gracen Charles v. State of KeralaExplained¶39
Gracen Charles v. State of Kerala [2001 (2) KLT 891]
K.Ananthan Pillai v. The State of KeralaExplained¶44
K.Ananthan Pillai v. The State of Kerala and another [AIR 1968 Kerala 234] · Who else cites this
UnreportedDistinguished¶78
W.A No.689 of 1989
2 provisions across 2 enactments
Pradeep Babu
The Vice Chancellor/Pro-Vice Chancellor-In-Charge, Sree Sankaracharya University of Sanskrit
The Registrar, Sree Sankaracharya University of Sanskrit
George.C.C.
P.V. Asha
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
