IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 26TH JULY 2010 / 4TH SRAVANA 1932 OP.No. 28079 of 1999(R) ---------------------------------- PETITIONER(S): ------------------------ A.PREMAKUMARI, AGED 49 YEARS, D/O. LATE ANANDA PAI, SENIOR CO-OPERATIVE INSPECTOR, KERALASTATECO-OPERATIVERUBBERMARKETING FEDERATIONLTD.,KOCHI,RESIDINGAT ''SRINIVAS'',NO.49/84C-1VIVEKANANDANAGAR, PADAMROAD, ELAMAKKARA, KOCHI26. BY ADV. SRI.GEORGE POONTHOTTAM RESPONDENT(S): ------------------------- 1. STATE OF KERALA REP.BY THE CHIEF SECRETARY, STATE SECRETARIATE, THIRUVANANTHAPURAM. 2. THE REGISTRAR, HIGH COURT OF KERALA, ERNAKULAM. 3. THE DISTRICT JUDGE, ERNAKULAM. 4. THE JOINT REGISTRAR OF CO-OPERATIVE, SOCIETIES (AUDIT), ERNAKULAM. 5. THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TRIVANDRUM. R1,3,4,&5 BY GOVERNMENT PLEADER SRI.SANDESH RAJA R2 BY SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE R2 BY ADVS. SMT.K.RADHAMANI AMMA, SRI.ANTONY MUKKATH, SRI.NIKHIL S.KUMAR. THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 21/10/2009, THE COURT ON 26/07/2010 DELIVERED THE FOLLOWING: OP. 28079/1999 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE REPRESENTATION DTD. 27.11.1987 ADDRESSED TO THE 3RD RESPONDENT. P2:- COPY OF THE LETTER DTD. 7.4.1988 ADDRESSED TO THE 3RD RESPONDENT. P3:- COPY OF THE REPRESENTATION SUBMITTED DURING 3.2.1998. P4:- COPY OF THE REPRESENTATION DTD. 3.7.1998 ADDRESSED TO THE REGISTRAR, HIGH COURT OF KERALA. P5:- COPY OF THE JUDGMENT IN OP. 13760/99 DTD. 8.6.1999. P6:- COPY OF THE LETTER DTD. 9.8.99. P7:- COPY OF THE ORDER BEARING NO.ESTT. A1-25960/96/CRD DTD. 21.9.1998 (iii) ISSEUD BY THE COMMISSIONER. P8:- COPY OF THE CHART INDICATING THE PARTICULARS OF THOSE WHO WERE APPOINTED AS JUNIOR CO-OLPERATIVE INSPECTORS/AUDITORS BY TRANSFER . P9:- COPY OF THE GAZETTE NOTIFICATION BEARING NO.EB529363/86 DTD, 26,6,1986 PUBLISHED ON 28.7.87. P10:- COPY OF THE ORDER DTD. 12,.11.1986 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES TVM NO.EB(2)57638/86. P11:- COPY OF THE ORDER NO.EB(2)57638/86 DTD. 18.12.1987 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES, TVM. P12:- COPY OF THE ORDER NO.EB(4) 13206/89 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES TVM. DTD. 9.3.1989. P13:- COPY OF THE KERALA CO-OPERATIVE SUBORDINATE SERVICE RULES, 1962. P14:- COPY OF THE RELEVANT PORTION OF NOTIFICATION NOTIFYING THE VACANCIES BY TRANSFER FROM UPPER DIVISION CLERK/UPPER DIVISION TYPISTS EMPLOYED IN OTHER DEPARTMENTS. P15:- COPY OF THE RANK LIST OF CANDIDATES SPECIFYING THE METHOD APPOINTMENT PUBLISHED BY THE KERALA GAZETTE. P16:- COPY OF THE ADVICE MEMO SENT BY THE PSC SPECIFYING THE METHOD OF APPOINTMENT. RESPONDENT'S EXHIBITS R2(a:- COPY OF THE LETTER DTD. 21.12.98 OF THE REGISTRAR OF CO-OPERATIVE SOCIETIES NO.EB(2)3827S/98. TRUE COPY P.A. TO JUDGE tss “CR” C.T.RAVIKUMAR, J. ---------------------------- O.P.No.28079 of 1999 ---------------------------- Dated 26th July, 2010 JUDGMENT The claim of retention of lien and consequential request for repatriation to the parent department is yet again crop up for consideration. The petitioner who commenced her career under the State Judical Department on 10.10.1975 as a Copyist got selection for appointment by transfer as Junior Inspector/Auditor of Co-operative Societies. This writ petition has been filed challenging Ext.P6 order whereby the request of the petitioner for repatriation to the parent department and for all consequential benefits including promotion were denied. The further prayer is for issuance of a writ of mandamus commanding respondents 4 and 5 to forthwith repatriate the petitioner to her parent department viz. the State Judicial Department and to grant all consequential benefits including promotion. The service particulars of the petitioner necessary for deciding the entitlement of the petitioner for the aforesaid reliefs are as hereunder:- Initially, the petitioner was appointed as a Copyist under the State Judicial Department on 10.10.1975. She was promoted as O.P.No.28079/1999 2 Upper Division Clerk with effect from 7.7.1982 and she has completed probation in the aforesaid post with effect from 7.7.1983. Later, she was confirmed in the State Judicial Department. While so, she was selected for appointment by transfer to the post of Junior Inspector/Auditor of Co-operative Societies in the Co-operative Department through the Kerala Public Service Commission. Pursuant to such appointment, she joined its service on 31.12.1986. On getting further promotions, she became a Senior Co-operative Inspector. The contention of the petitioner is that, however, she was not confirmed in the Co-operative Department and therefore she still retains lien in the State Judicial Department. Consequently, according to the petitioner, she is entitled to get repatriated to the State Judicial Department with all the benefits including promotion that were granted to her immediate junior in the said department viz., one Smt.K.P.Meenakshi, with effect from the dates on which such benefits were granted to her. 2. As per Ext.P1 representation dated 27.11.1986 the petitioner had requested the third respondent to consider her for promotion, notionally on par with her juniors. On receipt of the same, she was directed to produce certain documents in proof of her appointment to the post of Junior Inspector/Auditor of Co-operative Societies. Though she has submitted the necessary documents for O.P.No.28079/1999 3 that purpose, no further action was taken thereon, it is submitted. It is in the meanwhile that a Full Bench of this Court in Balakrishnan Nair v. Ram Mohan Nair (1998 (1) KLT 766 (FB)) held that the appointees by transfer to other departments are entitled to get repatriated to their respective parent departments with all benefits, including all promotions which would have accrued to them had they continued in their parent departments. In the light of the said Full Bench decision, the petitioner has submitted Ext.P3 representation on 3.2.1998 through proper channel requesting for the benefits flowing from the aforesaid judgment including repatriation to the parent department. For the same benefits the petitioner has submitted Ext.P4 representation to the second respondent requesting for a suitable posting in the appropriate grade. Since they were not acted upon, the petitioner had approached this Court by filing W.P.(C) No.13760 of 1999 and the same was disposed of as per Ext.P5 judgment with a direction to the first respondent to consider Ext.P4 representation submitted by the petitioner in the light of the decision reported in 1998 (1) KLT 766 (FB). Subsequently, in purported compliance of the directions in Ext.P5 judgment, Ext.P6 order dated 9.8.1999 was issued by the second respondent. As per Ext.P6 the request of the petitioner was rejected citing the reason that she was O.P.No.28079/1999 4 regularised with effect from 31.12.1986 in the Co-operative Department as per proceedings No.EB(2)1212/93 dated 11.1.1994 of the Additional Registrar (General) of Co-operative Societies and that on account of such appointment on regular basis against a substantive post she had acquired conferment of full membership in terms of Rule 24 and further that no person shall, at the same time, be a full member of more than one service in the light of Rule 26 of the Kerala State & Subordinate Services Rules. In short, it is held thereunder that the petitioner is not holding a lien in her parent department. According to the petitioner, Ext.P6 order besides being opposed to the dictum laid down by this Court in 1998 (1) KLT 766 (FB) is violative of the equality clauses enshrined under Articles 14 and 16 of the Constitution of India. To canvass the point that Ext.P6 suffers from arbitrariness and hostile discrimination, the petitioner placed reliance on Exts.P7 and P8. Ext.P7 is the copy of the proceedings No.Estt.A1- 25960/96/CRD dated 21.9.1998 of the Commissioner, Rural Development Department granting promotions to certain personnel who secured appointment in the Co-operative Department on their repatriation to the said department based on various judgments of this Court. According to the petitioner, Ext.P7 includes names of appointees to the Co-operative Department as Junior Inspectors before O.P.No.28079/1999 5 and after her entry in its service as Junior Inspector. Ext.P8 is a chart indicating the particulars of such appointees included in Ext.P7. According to the petitioner, as many as 55 persons included in Ext.P7 are her juniors in the Co-operative Department and in respect of them it was submitted on behalf of the Co-operative Department, before this Court in certain earlier writ petitions that they were only officiating in the Co-operative Department. In the said circumstances, the contention that she was regularised in the service of the Co-operative Department cannot be taken as correct, it is further contended. That apart, according to the petitioner, the mere regularisation of her service, if at all such an order was passed, would not and could not amount to confirmation in the service and therefore such a regularisation cannot legally terminate her lien in the State Judicial Department. In short, according to the petitioner, as long as she was not confirmed in the service of the Co-operative Department, she is entitled to get repatriated to the parent department, viz. the State Judicial Department with all consequential benefits including promotion with effect from the date on which her immediate junior one Smt.K.P.Meenakshi was granted such benefits. 3. A counter affidavit has been filed on behalf of respondents 1, 4 and 5. A perusal of the same would reveal that O.P.No.28079/1999 6 virtually they support the case of the petitioner. A scanning of the contentions of respondents 1,4 and 5 would reveal that even after issuing the order regularising the petitioner as Junior Auditor in the Co- operative Department they maintained the stand that such regularisation could not be considered as confirmation in Co-operative Department. 4. The second respondent has filed a statement in this writ petition. The facts that the petitioner commenced her service in the State Judicial Department as a Copyist and subsequently got appointment by transfer in the Co-operative Department have been admitted thereunder. It is further stated that the probation of the petitioner after joining the Co-operative Department was declared with effect from 30.1.1989 and therefore she became an approved probationer in the category of Junior Co-operative Inspector. Further it is stated thereunder that she was subsequently promoted as Senior Auditor as per order dated 18.9.1993. A scrutiny of the contentions raised in the said statement would reveal that the second respondent mainly relies on order No.EB(2)1212/93 dated 11.1.1994 regularising the petitioner as Junior Auditor to canvass the position that the petitioner has been confirmed in the service of the Co-operative Department. It is further contended that by virtue of the said O.P.No.28079/1999 7 regularisation the petitioner acquired a lien on that post under the Co- operative Department and simultaneously lost her lien in the category of Upper Division Clerk in the State Judicial Department by virtue of Rule 16 of Part I of the Kerala Service Rules (for short `KSR'). The further contentions raised thereunder are that the regularisation of service essentially would mean conferment of full membership in terms of Rule 24 of Part II of the Kerala State & Subordinate Services Rules (hereinafter for brevity `KS & SSR' only) and that in the light of Rule 26 thereunder the petitioner ceased to be a member of the Kerala Judicial Subordinate Service. According to the second respondent, in the aforesaid circumstances, the petitioner cannot place reliance on the Full Bench decision of this Court reported in 1998 (1) KLT 766 (FB). Subsequently, a counter affidavit has also been filed by the second respondent virtually carrying the aforementioned contentions. A reply affidavit has been filed by the petitioner in response to the counter affidavit filed by the second respondent. The petitioner has refuted the contentions raised by the second respondent in the said reply affidavit. 5. The incontrovertible facts obtained in this case having relevance in the context of the issue involved in this case, are as follows:- O.P.No.28079/1999 8 The petitioner was initially appointed in the State Judicial Department on 10.10.1975 as a Copyist. Subsequently on getting promotions she became an Upper Division Clerk in the department with effect from 7.7.1982 and she had completed probation in the post with effect from 7.7.1983. It was while working in the State Judicial Department that the petitioner has applied for appointment by transfer as Junior Inspector/Auditor in the Co-operative Department. Pursuant to such selection, she was appointed by transfer as Junior Auditor in the Co-operative Department on 31.12.1986. The said appointment was regularised with effect from 31.12.1986 as per order No.EB(2) 1212/93 dated 11.1.1994. She was promoted as Senior Auditor on 18.9.1993. In the light of the aforesaid admitted facts, the questions as to whether the petitioner had lost her lien in the State Judicial Department and whether she is entitled to get repatriated to the said department with all benefits as if she has been continuing in the department have to be decided. 6. As already held, the claim of the petitioner is founded on the Full Bench decision of this Court in Balakrishnan Nair v. Ram Mohan Nair (supra). After referring to the relevant provisions, viz. Rule 8 of Part I and Rule 24 of Part II of the KS & SSR, Rules 16 and 18 of Part I of the KSR and various decisions of the Hon'ble Apex Court O.P.No.28079/1999 9 and this Court, it was held that a member of a service on getting appointment by transfer in another service did not get automatic confirmation in the latter department unless he is confirmed in the said post even after completion of probation. The entitlement of such appointees to get repatriation to the parent department with all benefits including promotions which they would have obtained had they continued in the parent department, was also upheld. Though appeals were preferred against the aforesaid judgments, they were dismissed by the Hon'ble Apex Court as per the decision in Ali.M.K. & Others v. State of Kerala & Others ((2003 11 SCC 632). In the said circumstances, the learned counsel for the petitioner contended that the petitioner is entitled to the reliefs sought for in this original petition. 7. The learned senior counsel appearing for the second respondent, however, sought to canvass the position that the decision of the Full Bench in Balakrishnan Nair v. Ram Mohan Nair (supra) has lost its binding force. The learned senior counsel attempted to drive home the said point by relying on the doctrine of merger. In the light of the decision of the Hon'ble Apex Court in S.Shanmugavel Nadar v. State of Tamil Nadu ((2002) 8 SCC 361) it is contended that the aforesaid Full Bench decision of this Court in Balakrishnan O.P.No.28079/1999 10 Nair v. Ram Mohan Nair (supra) merged with the decision of the Hon'ble Apex Court in Ali.M.K. & Others v. State of Kerala & Others (supra). After referring to paragraph 17 of the decision in Ali.M.K. & Others v. State of Kerala & Others (supra) it is contended that a perusal of the same would reveal that the decision of the Full Bench of this Court in Balakrishnan Nair v. Ram Mohan Nair (supra) was upheld based only on factual finding. In other words, the decision in Ali.M.K. & Others v. State of Kerala & Others (supra) rests on the factual finding of the Full Bench. Based on the aforesaid decision, the learned senior counsel contended that the Full Bench decision of this Court in Balakrishnan Nair v. Ram Mohan Nair (supra) cannot have binding precedential value any more. As directed earlier, the said position was canvassed by relying on the decision of the Apex Court in S.Shanmugavel Nadar v. State of Tamil Nadu (supra). The key to find out its answer is in fact, given in the said decision itself. Paragraph 15 therein is relevant in this context and it reads thus:- “15. A situation, near similar to the one posed before us, has been dealt in Salmond's Jurisprudence (12 th Ed., at pp.149-50) under the caption - “Circumstances destroying or weakening the binding force of precedent: (perhaps) affirmation or reversal on a different ground.” It sometimes happens that a decision is affirmed or reversed on appeal on a different point. As an example, suppose that a case is decided in the Court of Appeal on ground A, and then goes on appeal to the House of Lords, which O.P.No.28079/1999 11 decides it on ground B, nothing being said upon A. What, in such circumstances, is the authority of the decision on ground A in the Court of Appeal? Is the decision binding on the High Court, and on the Court of Appeal itself in subsequent cases? The learned author notes the difficulty in the question being positively answered and then states: (i) The High Court may, for example, shift the ground of its decision because it thinks that this is the easiest way to decide the case, the point decided in the court below being of some complexity. It is certainly possible to find cases in the reports where judgments affirmed on a different point have been regarded as authoritative for what they decided. (ii) The true view is that a decision either affirmed or reversed on another point is deprived of any absolute binding force it might otherwise have had; but it remains an authority which may be followed by a court that thinks that particular point to have been rightly decided.” (emphasis supplies) Paragraph 17 also equally relevant in the aforesaid context and it has been laid down as under:- “17. We are clearly of the opinion that in spite of the dismissal of the appeals on 10-9-1986 by this Court on the ground of non-joinder of necessary party, though the operative part of the order of the Division Bench stood merged in the decision of this Court, the remaining part of the order of the Division Bench of the High Court cannot be said to have merged in the order of this Court dated 10-9-1986 nor did the order of this Court make any declaration of law within the meaning of Article 141 of the Constitution either expressly or by necessary implication. The statement of law as contained in the Division Bench decision of the High Court in M.Varadaraja Pillai case would therefore continue to remain the decision of the High Court, binding as a precedent on subsequent Benches of coordinate or lesser strength but open to reconsideration by any Bench of the same High Court with a coram of Judges more than two.” (emphasis supplied) A perusal of the judgment of the Apex Court in Ali.M.K. & Others v. O.P.No.28079/1999 12 State of Kerala & Others (supra) would reveal that the law laid down by this Court in Balakrishnan Nair v. Ram Mohan Nair (supra) was not actually interfered with or reversed. True that, it was mainly based on the factual findings of the Full Bench that the appeals were dismissed by the Apex Court. That apart, it would reveal that while confirming the Full Bench judgment of this Court, the Apex Court repelled the contentions raised by the petitioners therein. The attempt on the part of the petitioners therein to submit that the non-official respondents and petitioners in the writ petition had lost their lien as they were appointed to the posts of substantive nature and that in the light of Rule 28 of Part I of the Kerala Service Rules, on completion of probation in the category to which they got appointment by transfer and further on getting promotion, it has to be presumed that the appointment of that person was substantive appointment, were also not accepted by the Hon'ble Apex Court. Further, after referring to the decisions in Triveni Shankar Saxena v. State of U.P. (AIR 1992 SC 496) and Parshotam Lal Dhingra v. Union of India (AIR 1958 SC 36) it was held that a person can be said to have acquired lien in a post only when he has been confirmed and made permanent on that post and not earlier. Further, it was held: “The above being the position, the Full Bench's decision does not suffer from any vulnerability to warrant interference. O.P.No.28079/1999 13 The appeals are dismissed.” Thus, a scanning of the decision of the Apex Court in Ali.M.K. & Others v. State of Kerala & Others (supra) would reveal that the contention that the decision of the Full Bench of this Court in Balakrishnan Nair v. Ram Mohan Nair (supra) had lost its precedential value cannot be accepted. I am of the considered view that with respect to the points involved in this case the Full Bench decision in Balakrishnan Nair's case (supra) is correctly decided and it is still having binding force. The learned senior counsel has also raised certain other contentions based on ejusdem generis. But, I am of the view that once it is found that the Full Bench decision had not lost its binding precedential value, a further observation in the matter to distinguish the same is absolutely unwarranted and in fact, judicial discipline desists me from making any such endeavor. This Court is bound by the Full Bench decision which was confirmed by the Apex Court in Ali.M.K. & Others v. State of Kerala & Others (supra). Hence, I find no reason to repel the contentions raised by the petitioner in this original petition. 8. Now, the question is whether the regularisation of the petitioner as Junior Auditor in the Co-operative Department as per proceedings No.EB(2)1212/93 dated 11.1.1994 of the Additional O.P.No.28079/1999 14 Registrar (General) of Co-operative Societies could be a factor to hold that the petitioner was confirmed in the Co-operative Department. In that context paragraphs 2 and 4 of the counter affidavit filed by respondents 1,4 and 5 are worthwhile to be extracted: “2. It is submitted that the petitioner had joined in Co- operative Department on 3.12.86 and still continuing in service and officiating as Senior Auditor in the same department. She was not confirmed in the cadre up to this time. Since the petitioner has not been confirmed in the Co-operative Department, she has no lien in the Co-operative Department. 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 person be terminated only after hearing the concerned persons as held by this Hon'ble Court in the judgment reported in 1998 (1) KLT 766. 4. As mentioned earlier the petitioner is not seen confirmed in any post in Co-operative Department. The petitioner's appointment as Junior Auditor has been regularized as Junior Auditor as per order No.EB(2)1212/93 dated 11.1.1994 of the Additional Registrar (General) of Co-operative Societies, Thiruvananthapuram. The regularization in a post cannot be considered as confirmation.” Undoubtedly, the said respondents including the very authority who issued the proceedings No.EB(2)1212/93 dated 11.1.1994 admits that regularization in a post cannot be considered as confirmation and that lien of a member of a service to a post in the parent department is not automatically lost when he joins another department on getting appointment by transfer and that lien of such person can be terminated only after hearing the concerned person as held by this O.P.No.28079/1999 15 Court in Balakrishnan Nair v. Ram Mohan Nair (supra). In this context, it is apposite to refer to the decision of the Apex Court in S.Narayana v. MD.Ahmedulla Khan ((2006) 10 SCC 84). After referring to the decisions in B.N.Nagarajan v. State of Karnataka ((1979) 4 SCC 507) and Secy., State of Karnataka v. Umadevi ((2006) 4 SCC 1), it was held that the contention that regularization is the same as confirmation in service could not be accepted. In the light of the aforesaid decisions of the Apex Court it can only be hold that regularisation and confirmation are distinct and different concepts and therefore regularization in a post cannot ipso facto result in confirmation in that post and consequently in that service. 9. In the totality of the circumstances, I am of the view that the petitioner is entitled to succeed in this original petition. But, before parting with the judgment, I am of the considered view that an observation is called for with respect to the inaction or disuse of power to issue order of confirmation. In fact, the failure to issue such orders of confirmation time and again leading to lien related litigations and in certain cases it leads to litigation between employees as well. Therefore, I take this opportunity to impress upon the Government the inevitability in using the power to issue orders of confirmation of employees at the appropriate time. As already noticed above, in most O.P.No.28079/1999 16 of the cases, it is only the disuse of power rather the