IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 22ND JUNE 2010 / 1ST ASHADHA 1932 WP(C).No. 18573 of 2009(N) --------------------------------------- PETITIONER(S): ----------------------- PRATHAPAN G., OVERSEER GRADE III, IRRIGATION DEPARTMENT, LSGD, VEMBAYAM GRAMA PANCHAYATH, THIRUVANANTHAPURAM DISTRICT, RESIDING AT SREE NILAYAM, POOVVAR, THIRUVANANTHAPURAM. BY ADV. SRI.GOPAKUMAR R.THALIYAL, SRI.N.P.PRAJEESH. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE INSPECTOR GENERAL OF POLICE, ARMED POLICE BATTALIONS, THIRUVANANTHAPURAM. 3. THE DIRECTOR GENERAL OF POLICE, POLICE HEADQUARTERS, THIRUVANANTHAPURAM. 4. THE CHIEF ENGINEER, IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM. R1 TO R4 BY GOVT. PLEADER MR.NANDAKUMAR. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/06/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 18573/2009-N APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE MEMO OF APPOINTMENT DATED 28/02/2005. EXT.P2: COPY OF THE RELIEVING ORDER DATED 11/04/2005. EXT.P3: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 28/04/2008. EXT.P4: COPY OF THE COVERING LETTER DATED 26/05/2008. EXT.P5: COPY OF THE COMMUNICATION ISSUED BY THE 2ND RESPONDENT DATED 21/06/2008. EXT.P6: COPY OF THE REPLY ISSUED BY THE 4TH RESPONDENT DATED 20/08/2008. EXT.P7: COPY OF THE COMMUNICATION ISSUED BY THE DEPUTY INSPECTOR GENERAL OF POLICE DATED 18/11/2008. EXT.P8: COPY OF THE LETTER SENT BY THE 4TH RESPONDENT DATED 24/12/2008. EXT.P9: COPY OF THE REPLY SENT BY THE 4TH RESPONDENT DATED 29/01/2009. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. ------------------------------- W.P.(C) No. 18573 of 2009 ------------------------------- Dated this the 22nd day of June, 2010 J U D G M E N T On being advised by the PSC, the petitioner was appointed as police constable in the Armed Police Battalion, with effect from 1.8.1990. Subsequently, he was promoted as Assistant Sub Inspector of Police with effect from 11.1.2005. While so, the petitioner was advised for appointment to the post of Overseer Grade III in the Irrigation Department and was appointed to that post by Ext.P1 order, dated 28.2.2005. Accordingly, by Ext.P2 order, he was relieved from the post of Assistant Sub Inspector of Police and immediately thereafter, he joined the Irrigation Department. 2. While continuing so, he submitted Ext.P3 representation to the second respondent, requesting to repatriate him to the Armed Police, however, on the ground that the petitioner's probation in the Overseer Grade III was declared with effect from 12.4.2007. Although he was found suitable for repatriation, he was not repatriated. But, in Ext.P9, 4th W.P.(C) No.18573/2009 2 respondent has stated that the petitioner was not confirmed in the post of Overseer Grade III, and hence he was repatriated to the parent department. It is in these circumstances, the writ petition has been filed. 2. The case of the respondents is that the petitioner having got his probation declared from 12.4.2007 as Overseer Grade III, he is eligible to be confirmed in the post and therefore, he cannot seek repatriation to the parent department. 3. As rightly pointed out by the learned counsel for the petitioner, the petitioner is entitled to succeed, in view of the Full Bench decision of this Court in Balakrishnan Nair v. Ram Mohan Nair (1998 (1) KLT 766 (FB), which was confirmed by the Apex Court in Ali v. State of Kerala (2003 (2) KLT 922 (SC). In paragraph 13 of the Full Bench judgment, the argument that on completion of the probation, a person should be deemed to be substantively appointed to a permanent post, and therefore, lost his lien in the parent department has been dealt with. That contention was rejected by the Full Bench W.P.(C) No.18573/2009 3 referring to Rule 24 of K.S.S.R., and it was held that even in respect of an approved probationer, an order has to be passed appointing him as a Full Member of service on a substantive vacancy and that an order of confirmation is necessary for conferment of full membership of the service in the class or category for which a person is selected. Thereafter, referring to Rajmohanan v. Asst. General Manager (ILR 1985 (1) Kerala 488), it was held that the mere fact that an employee is allowed to continue in the post after the expiry of the specific period of probation, it cannot be held that he should be deemed to have been confirmed in service. Therefore, the Full Bench held that in view of the provisions in K.S.S.R & K.S.R., there is no inhibition for a member of a service who got appointment in another service, to come back to the parent department, provided, he should not have lost his lien in the parent Department. 4. In this case, though the petitioner is an approved probationer, he has not been confirmed in the Irrigation Department. In such a case, he has not lost his lien in the W.P.(C) No.18573/2009 4 parent department, viz., the police department. That apart, at the time when the writ petition was admitted, this Court also passed an order, dated 3.7.2009, directing that the petitioner shall not be confirmed in the Irrigation Department and that position continues even as on date. 5. In the circumstances, in view of the Full Bench judgment, which was confirmed by the Apex Court as such, the petitioner is entitled to succeed. Therefore, the writ petition is disposed of directing the respondents to permit the petitioner to go back to the Parent Department, viz., Police Department. Orders in this regard shall be passed, as expeditiously as possible, at any rate, within 8 weeks of date of production of a copy of this judgment. Needless to say that the petitioner will be entitled to get all consequential benefits. The petitioner shall produce a copy of this judgment before the respondents for compliance. ANTONY DOMINIC, JUDGE. W.P.(C) No.18573/2009 5 nj.