IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 16TH SEPTEMBER 2009 / 25TH BHADRA 1931 WP(C).No. 29 of 2008(C) ----------------------- PETITIONER(S): --------------- K.S.ANIL RAJ, ASSISTANT, FINANCE (GIMC) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1. BY ADV. DR.K.P.SATHEESAN SRI.K.K.GOPINATHAN NAIR SRI.M.R.JAYAPRASAD SRI.P.MOHANDAS (ERNAKULAM) RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE ADDITIONAL CHIEF SECRETARY (FINANCE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 1. 2. KERALA PUBLIC SERVICE COMMISSION, REPRESENTED BY ITS SECRETARY, PATTOM, THIRUVANANTHAPURAM - 4. 3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTOM, THIRUVANANTHAPURAM - 4. ADV. SRI.ALEXANDER THOMAS,SC,KPSC FOR R2,3 GOVERNMENT PLEADER SRI.DILEEP MOHAN FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/09/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.29/2008 APPENDIX PETITIONER'S EXHIBITS EXT.P1: TRUE COPY OF THE APPOINTMENT ORDER DATED 24.8.2001. EXT.P2: TRUE COPY OF THE ORDER DATED 18.8.2003 PROMOTING THE PETITIONER AS ASSISTANT GRADE I. EXT.P3: TRUE COPY OF THE PAY FIXATION ORDER DATED 14.10.2003. EXT.P4: TRUE COPY OF THE RELEVANT PAA OF THE ORDER GO(MS) NO.4/61/PD DATED 2.1.1961. EXT.P5: TRUE COPY OF THE ORDER GO(MS) NO.341/2007/FIN. DATED 31.7.2007. EXT.P6: TRUE COPY OF THE ORDER NO.ESTT.II(3) 23786/06/GW DATED 7.8.2007 ISSUED BY THE 2ND RESPONDENT. EXT.P7: TRUE COPY OF the ORDER NO.19540/ADMN.A2/07/FIN DATED 17.8.2007 ISSUED BY THE JOINT SECRETARY(FINANCE) EXT.P8: TRUE COPY OF THE REPRESENTATION FILED BY THE PETITIONER BEFORE THE FIRST RESPONDENT DATED 23.8.2007. EXT.P9: TRUE COPY OF THE LETTER WRITTEN BY THE 1ST RESPONDENT TO THE 2ND RESPONDENT DATED 26.9.2007. EXT.P10: TRUE COPY OF THE REPLY GIVEN by the 2ND RESPONDENT TO THE FIRST RESPONDENT AS PER LETTER NO.ESTT/II(3) 22542/06/GW DATED 19.11.2007. EXT.P11: TRUE COPY OF THE REPLY GIVEN BY THE FIRST RESPONDENT TO THE PETITIOENR AS PER LETTER NO.70764/ADMN.A2/07/FIN. DATED 15.12.2007. EXT.P12: TRUE COPY OF THE PAY SLIP FOR THE MONTH OF AUGUST 2007 DRAWN BY THE PETITIONER WHILE IN THE PUBLIC SERVICE COMMISSION. EXT.P13: TRUE COPY OFHTE SALARY SLIP FRO THE MONTH OF NOVEMBER,2007 OF THE PETITIONER IN THE FINANCE DEPARTMENT. EXT.P14: TRUE COPY OF THE ORDER NO.ESTT/II(3) 2871/05/GW DATED 21.5.2005 ISSUED BY THE PSC. EXT.P15: TRUE COPY OF THE ORDER NO.ESTT.II(3) 12118/05/GW DATED 31.7.2006 ISSUED BY THE PSC. WPC NO.29/2008 -2- EXT.P16: TRUE COPY OF THE GOVERNMENT ORDER GO(P) NO.48/81/GAD DATED 18.2.1981. EXT.P17: TRUE COPY OF THE QUESTION AND ANSWER GIVEN AT THE LEGISLATIVE ASSEMBLY BY THE CHIEF MINISTER OF KERALA DATED 26.2.2009. EXT.P18: TRUE COPY OF THE QUESTION AND ANSWER GIVEN BY THE HON'BLE CHIEF MINISTER OF KERALA AT THE LEGISLATIVE ASSEMBLY DATED 26.2.2009. EXT.P19; TRUE COPY OF THE ORDER ISSUED BY THE 2ND RESPONDENT DATED 23.4.2008. EXTS. OF R2 EXT.R2(a): TRUE COPY OF THE PETITIONER'S REQUEST DATED 7.8.2007. EXT.R2(b): TRUE COPY OF THE SAID PROCEEDINGS DATED 7.8.2007. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 29 OF 2008 (C) ===================== Dated this the 16th day of September, 2009 J U D G M E N T The prayers sought in this writ petition are to quash Exts.P10 and P11 and to direct the 2nd respondent to allow the petitioner to rejoin in the Public Service Commission with due seniority reckoning his entire service as service in the PSC. 2. Petitioner was appointed as Assistant Grade II in the PSC as per Ext.P1 order dated 24/8/2001. He was promoted as Assistant Grade I as per Ext.P2 and was again promoted as Senior Grade Assistant thereafter. While so, based on Ext.P4 Government order dated 2nd of January, 1961, petitioner requested for inter departmental transfer to Finance Department, Government of Kerala. Clause 2 of Ext.P4 being relevant is extracted below for reference: A permanent person need to be required to relinquish his permanency. He may be permitted to retain his permanent lien in the old post until he is confirmed in the new unit or department: but he can come back to the old unit or department only if and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him. 3. The request was considered and as per Ext.P5, among WPC 29/08 :2 : others, petitioner's request for inter departmental transfer was also allowed. 4. Thereupon, as per Ext.R2(a) declaration submitted by the petitioner, he sought reversion to the lower grade of Assistant and sought relief from the PSC. Accordingly, Ext.P6 order was issued reverting the petitioner as Assistant in the PSC and relieving him of duties w.e.f. 7/8/07. It was further provided in Ext.P6 that the relief was subject to the condition that employees will not be allowed to reenter the PSC under any circumstances. Accordingly, the petitioner was relieved and from Ext.P7, it would appear that he was permitted to join duty in the Finance Department as Assistant w.e.f. 8/8/07. Soon thereafter, on 23/8/2007, petitioner submitted Ext.P8 requesting that he be permitted to go back and join services of the PSC. Thereupon, by Ext.P9, the Government sought the views of the PSC whether it was willing to offer reappointment to the petitioner. PSC considered the request made in Ext.P9 and by Ext.P10 informed the Government that it was not willing to reappoint the petitioner in their office. Accordingly, by Ext.P11, the 1st respondent informed the petitioner that since PSC is unwilling to WPC 29/08 :3 : accommodate him, Ext.P8 request was rejected. It was thereupon that this writ petition was filed. 5. Petitioner submits that in view of the provisions contained in Rule 8 of KSSR, he is entitled to be reverted back to the PSC as long as lien survives in that Department. It is also his case that the requests made by similarly situated employees were favourably considered by the PSC as per Exts.P14 and P15. 6. The PSC on the other hand submits that in view of the conditions in Ext.P4 Government order and also the provisions contained in the 4th proviso to Rule 8 of KSSR, the petitioner is not entitled to be reappointed in the PSC. In the additional affidavit filed by the PSC in pursuance to order dated 6/8/09, it is also explained that the beneficiaries of Exts.P14 and P15 were entitled to the benefit of Note 1 to Rule 8 of KSSR. 7. While considering the contention raised by the counsel for the petitioner, it should be remembered that admittedly it was on the petitioner's own volition that the petitioner made an application for inter departmental transfer based on Ext.P4. Ext.P4 itself provides that an employee who avails of the benefit of the said order can come back to the parent department only if WPC 29/08 :4 : and when there is no vacancy for him to continue in the new unit, or if for any reason his pay in the substantive post in the parent department becomes higher than the pay of the new post held by him. Petitioner has no case that there was no vacancy in the Finance Department for him to continue. Even though it is the case of the petitioner that his pay got substantially reduced on his joining the Finance Department, the same occurred as the petitioner had voluntarily accepted reversion to the lower post and not for the reason stated in Ext.P4. Both the circumstances provided for in Ext.P4 are absent in this case. Therefore, the case of the petitioner is outside the purview of clause 2 of Ext.P4 order. 8. In so far as Rule 8 of KSSR is concerned, as held by the Full Bench of this Court in Balakrishnan Nair v. Ram Mohan Nair (1998(1) KLT 766)(FB), which has been confirmed by the Apex Court in the judgment in Ali v. State of Kerala (2003(2) KLT 922)(SC), employees whose cases are covered by Note I to the said Rule are eligible to come back to the parent Department if the other circumstances provided in the Rule are made out. 9. However, in so far as the case in hand is concerned, admittedly, the petitioner was posted in the Finance Department, WPC 29/08 :5 : solely on his own application and not on the basis of applications invited or sponsored by the PSC or any other agency. Such a case is covered by the 4th proviso to Rule 8, which reads as under: Provided also that this rule shall not apply in the case of a member whose absence from duty in such service is by reason of his appointment to another service not being Military Services, solely on his own application, unless such appointment is made in the exigencies of public service. If that be so, the petitioner cannot claim the benefit of Rule 8 as well. 10. In so far as Exts.P14 and P15 are concerned, these documents were produced by the petitioner along with the reply affidavit. When these documents were produced before this Court, by order dated 6/8/09, the PSC was directed to explain why the petitioner is not entitled to similar benefit. Accordingly PSC has filed an additional affidavit and in paras 3 and 4, the contention of the petitioner has been answered. It is stated in para 3 that Sri.Saju S.R, the person mentioned in Ext.P14 was selected and appointed as HSST Senior pursuant to the selection notification issued by the PSC. It is also stated that Sri.S.AjaiKumar, in whose case Ext.P15 was issued, was selected and appointed as Sales Tax Officer in similar circumstances based WPC 29/08 :6 : on the notification issued by the PSC. It is stated that such being the case, they were eligible for the benefit of Note 1 to Rule 8 and their reappointment was on that basis. As already stated, since the petitioner's case is covered by the 4th proviso to Rule 8, his case stands on a different footing and therefore, the petitioner cannot plea parity in treatment relying on Exts.P14 and P15. 11. For these reasons, I am not satisfied that the PSC has committed any illegality in Ext.P10. Writ petition fails and therefore will stand dismissed. ANTONY DOMINIC, JUDGE Rp