IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI TUESDAY, THE 5TH FEBRUARY 2008 / 16TH MAGHA 1929 WP(C).No. 4010 of 2008(B) ------------------------- PETITIONER: -------------------- P.R. VIJAYALAL, AGED 48 YEARS, S/O. P.RAJAPPAN, ASSISTANT PUBLIC RELATIONS OFFICER, VEGETABLE AND FRUIT PROMOTION COUNCIL, KERALA, KAKKANAD, KOCHI-37. BY ADV. SRI.T.RAMPRASAD UNNI SMT.SARITHA DAVID CHUNKATH SMT.SMITHA GEORGE SRIMANU TOM RESPONDENTS: ------------------------- 1. THE AGRICULTURAL PRODUCTION COMMISSIONER GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. VEGETABLE AND FRUIT PROMOTION COUNCIL KERALAM, MYTHRI BHAVAN, NEAR DOORDARSHAN KENDRA, KAKKANAD, KOCHI-682 037, REPRESENTED BY ITS CHIEF EXECUTIVE OFFICER. 4. THE RESIDENT COMMISSIONER, KERALA HOUSE, JANTAR, MANTER RAOD, NEW DELHI. WP(C).No. 4010 of 2008 :: 2 :: 5. THE SECRETARY TO GOVERNMENT, DEPARTMENT OF TOURISM, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. R1, R2 & R5 BY GOVERNMENT PLEADER SRI.BEJOY CHANDRAN R3 BY ADVS.SRI.N.SUGATHAN SRI.S.PRASANTH (AYYAPPANKAVU) THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05/02/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.4010 of 2008 ------------------------- Dated this the 5th day of February, 2008. JUDGMENT While working as a Telephone Operator in the Kerala House under the Department of Tourism, on the request of the petitioner, he was sent on deputation to the 3rd respondent with effect from 20.7.2004 as per G.O.(Rt)NO.1047/04/AD dated 20.7.2004. The deputation was originally for a period of one year. As per G.O.(Rt)No.1491/05/AD dated 18.10.2005, the said period of deputation was extended by another one year on 7.8.2005. During the currency of the said deputation, the petitioner represented to the 3rd respondent for absorbing him in permanent service. Apparently, the petitioner's request in that regard was considered by the Board of Directors in their 25th meeting held on 28.4.2006. Apparently, the Board discussed the matter to absorb the petitioner also in the 3rd respondent. According to the 3rd respondent, this Board resolution required the approval of the W.P.(C).NO.4010/08 :: 2 :: Government. But, in the meanwhile, by Ext.P2 order, the petitioner was intimated that he was appointed as Assistant Public Relations Officer (Assistant Manager Grade II) and that he was offered appointment on permanent basis. 2. It seems that the 3rd respondent sought for approval of the Board resolution dated 28.4.2006 and addressed the Government in this regard. According to the 3rd respondent such approval is yet to be obtained. In the meanwhile on 4.8.2006, the Board, in its 27th meeting, inter alia, resolved that the question of permanent appointment of the petitioner and another person could be deferred and that they will be engaged in the 3rd respondent on deputation basis. The permanent absorption was to be considered later. 3. I note here that the final decision as to the permanent absorption of the petitioner is yet to be taken by the Board. 5. On 5.8.2006, the petitioner sought for continuance of the deputation. As per G.O.(Rt) W.P.(C).NO.4010/08 :: 3 :: No.762/07/AD dated 7.5.2007, the Government accorded sanction for extension of the term of deputation for a further period of one year from 5.8.2006 on usual terms and conditions. Again, within the extended period, the petitioner sought a further extension for a period of six months by his representation dated 02.8.2007 when his term was to expire on 5.8.2007. Since extension of the period of deputation of the petitioner required concurrence from the Resident Commissioner, Kerala House, such concurrence was obtained under letter dated 27.11.2007. But it was made clear therein that further extension will not be granted. The extension of further period of six months from 5.8.2006 was conveyed to him as per G.O.(Rt) No.18/08/AD dated 4.1.2008. 6. Since the aforementioned period is to expire on 5.2.2008, apparently, the petitioner sought for extension of the period of deputation and also absorption in the regular establishment by Ext.P3 dated 17.1.2008. I will straight away note W.P.(C).NO.4010/08 :: 4 :: that there is a dispute as to whether Ext.P3 has been received by the respondents. According to the learned counsel for the 3rd respondent, it was actually received in the 3rd respondent only after the institution of the writ petition. 7. Petitioner approached this court for a declaration that the proposed termination of the service of the petitioner from the 3rd respondent is unconstitutional. He also seeks a mandamus to the respondents to continue him as a permanent employee in the post of Assistant Public Relations Officer in the 3rd respondent. He further seeks a direction to the 3rd respondent forbearing from expatriating him to any other department or office. 8. On notice being served on Mr.Sugathan, learned counsel for the 3rd respondent, I had requested him to get instructions. He produced the files containing the Board resolutions, the representations filed by the petitioner referred to above, and to the Government Orders, by which the petitioner's deputation was extended from time to W.P.(C).NO.4010/08 :: 5 :: time, as mentioned above. I should also note that the writ petition is silent regarding the petitioner's request for extension of the deputation made by him on more than one occasion. The writ petition essentially proceeds on the premise that under Ext.P2, the petitioner was absorbed into permanent service and now he is repatriated back to the parent department. 9. I heard learned senior counsel Sri.K.Ramakumar and Sri.N.Sugathan, learned counsel for the 3rd respodnent. 10. The petitioner's contention that he shall not be repatriated back to his parent department is eligible to be accepted only if he is actually absorbed into the permanent service of the 3rd respondent. Now, Ext.P2 indicates that the petitioner was appointed as the Public Relations Officer. But the same refers to the 25th Board meeting held on 28.4.2006. I would have normally accepted Ext.P2 as evidencing an appointment of the petitioner into the permanent service of the 3rd W.P.(C).NO.4010/08 :: 6 :: respondent, but for two reasons. Firstly, even the petitioner acknowledges in Ext.P3, that though based on the petitioner's representation the Board of Directors of the 3rd respondent decided in its 25th meeting to absorb him in permanent service, and he was served with the appointment orders it was not implemented as such. 11. He further acknowledges the fact that he was asked to serve the council on deputation basis. The second factor, which I am constrained to take note of, is the fact that the petitioner had sought for extension of the deputation on two occasions subsequent to Ext.P2 order firstly on 5.8.2006 and thereafter for 2.8.2007. Obviously, if it was the petitioner's case that he had already been absorbed into the permanent service of the 3rd respondent, there was no reason for him to seek an extension of his deputation. Again, I am constrained to take note of the fact that the writ petition is silent about this fact completely. I have mentioned the above facts only on the W.P.(C).NO.4010/08 :: 7 :: submissions made by the 3rd respondent with reference to the files, which was made available for my perusal. 12. In the result, I cannot accept the case of the petitioner that he was absorbed into the permanent service of the 3rd respondent. 13. If that be so, then obviously, the petitioner continues on deputation from the Tourism Department. The extension of the period of his deputation ends by 5.2.2008. Petitioner cannot resist his repatriation back to his parent department in circumstances where the Government has not extended the period of deputation as such. But, I take note of the fact that the Board of Directors of the 3rd respondent have not taken any final decision as regards the petitioner's absorption in the permanent establishment of the 3rd respondent as is evident from the minutes of the 27th meeting of the Board of Directors, to which I have already made a reference. It is stated therein that the consideration of the said aspect has been W.P.(C).NO.4010/08 :: 8 :: deferred. Therefore, it is only fair and reasonable that the petitioner be told whether he is absorbed into the service permanently or not. 14. In the result, the writ petition is disposed of directing the 3rd respondent to take a final decision as to the appointment of the petitioner as Assistant Publications Officer, within a period of three months from the date of receipt of a copy of this judgment. I also make it clear that if the decision requires the approval of the Government, such approval shall also be sought for within the aforementioned period of three months and the time frame will, therefore, be applicable to the Government also. I further make it clear that the cessation of the deputation of the petitioner with effect from 5.2.2008 shall not influence the decision to be taken by the 3rd respondent as aforementioned or the approval of the Government. I make it clear that I have not expressed any opinion on the merits of the claim made by the petitioner in this regard. It is upto W.P.(C).NO.4010/08 :: 9 :: the 3rd respondent and the Government to take appropriate decision. The 3rd respondent may also consider whether the petitioner's deputation should continue. Subject to these directions, the writ petition is disposed of. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge