Dismissed

State of Kerala, v. Aneesh Francis

Kerala HC27 Feb 2024OP(KAT)/12/2024

Case brief

AI extract

What is this about?

The High Court of Kerala considered an appeal regarding a government servant's seniority and grade upon repatriation. The court held that repatriation to a parent department invokes Service Rules rather than the Pay Revision Order, thus the respondent is entitled to reckon seniority in the original post.

What did the court decide?

The original petition filed by the State was dismissed, holding the respondent entitled to claim higher grade based on seniority reckoned in the parent department.

State of Kerala, Vs Aneesh Francis — Pension and Retirement Benefits | Kerala HC (2024)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT

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THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE

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THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN

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TUESDAY, THE 27^TH DAY OF FEBRUARY 2024 / 8TH PHALGUNA,

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1945

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OP(KAT) NO. 12 OF 2024

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AGAINST THE ORDER DATED 28.11.2022 IN OA (EKM) 1624/2022 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONERS/RESPONDENTS IN OA:

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1 STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, REVENUE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN – 695 001

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2 THE LAND REVENUE COMMISSIONER, OFFICE OF THE LAND REVENUE COMMISSIONER, REVENUE COMPLEX, PUBLIC OFFICE BUILDING, MUSEUM JUNCTION, THIRUVANANTHAPURAM, PIN – 695 033

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3 THE DISTRICT COLLECTOR, ERNAKULAM, CIVIL STATION, KAKKANAD, ERNAKULAM DISTRICT, KERALA, PIN – 682 030

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BY ADV GOVERNMENT PLEADER

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ADV. VINITHA B SR GP

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RESPONDENT/APPLICANT IN OA:

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ANEESH FRANCIS, S/O. FRANCIS, AGED 41 YEARS, VILLAGE FIELD ASSISTANT, OFFICE OF SPECIAL TAHASILDAR(LA1), KOCHI METRO RAIL PROJECT, CIVIL STATION, KAKKANAD, ERNAKULAM-682 030., RESIDING AT MOOLAN HOUSE, GOTHURUTH P.O., NORTH PARAVUR, ERNAKULAM, KERALA., PIN – 683 516

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BY ADV SANDESH RAJA K

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O.P.(KAT)No.12 of 2024

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THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 27.02.2024, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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O.P.(KAT)No.12 of 2024

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J U D G M E N T

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A. Muhamed Mustaque, J.

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This original petition is filed by the State. The issue is covered against the State in the light of judgment of this Court in O.P (KAT) No.540 of 2023 and also several orders of the tribunal itself. The tribunal also referred to those orders. However, an attempt has been made by the learned Government Pleader to distinguish this case by pointing out the pay revision order. This argument has also been found in favour of the Government by the tribunal. But noting that the cases have already been decided with reference to Rule 8 of Part II KS&SSR, the tribunal allowed the respondent's claim.

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The short issue is whether on repatriation to parent department, a government servant is entitled to claim higher grade or not. This Court, in O.P (KAT) No.540 of 2023 noting the lien as the same confers right of a Government Servant to claim seniority in the original service, found that by length of service, he is entitled for higher grade.

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O.P.(KAT)No.12 of 2024

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The point is whether the situation is covered by pay revision order or not. A copy of the pay revision is made available as Annexure A7. The relevant portion of the pay revision order in paragraph 17 reads thus:

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“The term 'entry post' shall be defined as the post to which an employee is initially appointed in Government service by direct recruitment by the competent authority. Appointments made by PSC, “by transfer”from other categories will also be treated as equivalent to direct recruitment for allowing the benefit of Time Bound Higher Grade. An employee who has been initially appointed in a post in one department gets appointment subsequently by direct recruitment (PSC) or by other means in another post in the same/other department, his entry post will be the newly appointed post, in such cases Time Bound Higher Grade Promotion will be granted based on the new entry post only. Service in different posts having same scale will not be treated as qualifying service. Similarly, in the case of employees who get inter departmental transfer (interdepartmental transferees), their prior service in the entry post in the former department will also be reckoned as qualifying service for time bound higher grade. Those who get regular promotion or appointment to higher posts within the period specified for each Time Bound Higher Grade, will not be granted further Time Bound Higher Grade during that period.”

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Having adverted to paragraph 17 extracted above, the situation which is now the subject matter of the challenge before the tribunal, is not covered by paragraph 17 . This is not a case where the respondent entered into a new post in the same department. This is a case where the respondent/applicant came back to the original post after his three years of tenure in another department. He was

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O.P.(KAT)No.12 of 2024

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originally working as Field Assistant in the Revenue Department and then he joined at the Technical Education Department. Before his probation is declared, he came back to his parent department. Such situation is covered under Rule 8 of Part I of KS&SSR. It is true that higher grade is granted as per the pay revision. But if all the situation is not covered by the pay revision order, necessarily, it has to be conducted with reference to KS&SSR and other relevant Rules.

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The learned Government Pleader further points out to Annexure A1, the proceedings of District Collector, Ernakulam, by which the respondent was allowed to repatriate to parent department. In that order, it was mentioned that repatriation shall be treated as a new entrant for the purpose of declaring the seniority.

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Having perused paragraph 17, we are of the view that this situation is not covered by the pay revision order and the observation in this regard by the tribunal, according to us, is unwarranted. Thus, the original petition is dismissed.

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It is to be noted that though there is no challenge as against the above Government Order, but this order is legally

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O.P.(KAT)No.12 of 2024

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unsustainable as the repatriation to parent department is a right available to the government servant under Rule 8 of KS&SSR, it cannot be diluted to an administrative order treating that he is a new entrant. Therefore, even ignoring such a condition imposed, he would be entitled to claim higher grade, in view of the fact that he is entitled to reckon his seniority rendered in the parent department.

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Sd/-

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A.MUHAMED MUSTAQUE JUDGE

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Sd/-

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SHOBA ANNAMMA EAPEN JUDGE

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O.P.(KAT)No.12 of 2024

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APPENDIX OF OP(KAT) 12/2024

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PETITIONER ANNEXURES

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AnnexureA1 TRUE COPY OF THE ORDER NO E2-15/2012 DATED 19.02.2013 ISSUED BY THE 3RD RESPONDENT AnnexureA2 TRUE COPY OF THE ORDER NO E228/2015(19) DATED 18.02.2016 OF THE 3RD RESPONDENT AnnexureA3 TRUE COPY OF REPRESENTATION DATED 10.12.2021 OF APPLICANT OT TAHASILDAR, ALUVA AnnexureA4 TRUE COPY OF COMMUNICATION NO.DCEKM/1823/2022-E2 DATED 24.04.2022 OF 3RD RESPONDENT TO 2ND RESPONDENT AnnexureA5 TRUE COPY OF COMMUNICATION NO.LR/5250/2022-LR(N4) DATED 26.05.2022 OF 2ND RESPONDENT TO 3RD RESPONDENT AnnexureA6 TRUE COPY OF G.O.(P0 NO.19/2013/P&ARD DATED 14.07.2013 AnnexureA7 TRUE COPY OF PARA 17 OF G.O.(P) NO.27/21/FIN DATED 10.02.2021 AnnexureA8 TRUE COPY OF ORDER IN OA(EKM) NO.1860 OF 2016 DATED 02.12.2016. AnnexureA9 TRUE COPY G.O.(RT) NO.886/2018/REVENUE DATED 13.03.2018. ExhibitP1 TRUE COPY OF THE OA (EKM) NO. 1624/2022 ExhibitP2 A TRUE COPY OF THE REPLY STATEMENT DATED 21.11.2022 FILED BY THE 3RD

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O.P.(KAT)No.12 of 2024

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RESPONDENT

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ExhibitP3 TRUE COPY OF THE ORDER DATED 28.11.2022 IN OA (EKM) NO.1624/2022

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RESPONDENT EXHIBITS

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Exhibit R1 true copy of the Order No.A1-9/23 dated 21/1/2023 of the Special Tahasildar [LA1] Exhibit R 1(a) true copy of the Order dated18/1/2023 issued by the 3rd respondent exhibit R1 (b) true copy of the judgment dated 6/6/2023 in O.P. [KAT] No.540/2023

State of Kerala, v. Aneesh Francis

Case brief

What is this about?

What did the court decide?

State of Kerala, v. Aneesh Francis

Case brief

What is this about?

What did the court decide?

What the court decided

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