IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE V.GIRI WEDNESDAY, THE 30TH JULY 2008 / 8TH SRAVANA 1930 WP(C).No. 19932 of 2008(W) PETITIONER: -------------------- P.MOHANAN, S/O PAZHANIKUTTY, AGED 39 YEARS, U.D. INVESTIGATOR, STATISTICAL INVESTIGATOR GRADE -1, TALUK STATISTICAL OFFICE, REVENUE TOWER CHANGANASSERY. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENTS: ------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT,PLANNING AND ECONOMICS AFFAIRS (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DEPARTMENT OF ECONOMICS AND STATISTICS, THIRUVANANTHAPURAM. 3. THE TALUK STATISTICAL OFFICER, TALUK STATISTICAL OFFICE, REVENUE TOWER, CHANGANASSERY. BY SENIOR GOVERNMENT PLEADER SRI.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: V.GIRI, J. ------------------------- W.P.(C).No.19932 of 2008 W ------------------------- Dated this the 30th day of July, 2008. JUDGMENT The petitioner was initially appointed as High School Assistant (Mathematics) in the Panchayat High School at Perumatti. He worked during the period from 1.6.1998 to 31.3.1999 and was reappointed with effect from 1.6.1999. The petitioner was later appointed in the Department of Economics and Statistics as Lower Division Investigator, pursuant to Ext.P1 memo of advice, as evidenced by Ext.P2 order of appointment. 2. While so, the petitioner was offered appointment as permanent High School Assistant in Perumatti Panchayat acknowledging his claim under Rule 51-A of Chapter XIV-A of the Kerala Education Rules, taking note of his earlier tenure. He opted to join the school and was relieved from the Department of Economics and Statistics on 3.10.2000. But, taking note of the judgment of this court that the benefit of Rule 51-A is not available to Panchayat School employees, after the Government had, taken a W.P.(C).NO.19932/08 :: 2 :: decision to entrust the recruitment of Panchayat schools to the Public Service Commission, the petitioner lost his job in the school. He, therefore, approached the Director of Economics and Statistics for permission to rejoin the department. But, that was not granted. He approached this court in O.P.No.12038/03, which was disposed of directing the 2nd respondent to consider the case of the petitioner. The 2nd respondent rejected the petitioner's claim and he again approached this court for a direction to re-engage him. By Ext.P4 Government Order, the Government, invoking its power under Rule 39 of the General Rules and as a special case, allowed him to join as L.D.Invesitgator in the next arising vacancy. 3. Aggrieved by the condition contained in Ext.P4 regarding the seniority, the petitioner submitted Ext.P5 representation on 25.2.2006. The petitioner's request under Ext.P5 was rejected under Ext.P6 and hence this writ petition. 4. Learned counsel for the petitioner contends that, that part of Ext.P4 where the W.P.(C).NO.19932/08 :: 3 :: petitioner was denied seniority with effect from the date of his original advice is illegal. He contends that under Rule 27(c) of Part II of K.S.S.R., he is entitled to reckon seniority with effect from his first effective advice and that on getting appointment, he has acquired a lien. Reference is made to the decisions in Green charles v. State of Kerala {2001 (1) KLT 72} and the judgment of the Full Bench in Balakrishnan Nair v. Ram Mohan Nair {1998(1) KLT 766}. 5. I heard learned counsel for the petitioner and learned Government Pleader. 6. The petitioner was relieved from the Department of Statistics as per the order of the Deputy Director of Statistics on 3.10.2000. Later, the petitioner had joined the panchayat school, but he was not regularised there. It is not a case where the petitioner was relieved from one Department of the Government to join another department. The service in the panchayat is not governed by Service Rules and cannot be stated to be comprehended by Part II of the KSSR. The question of treating the service in W.P.(C).NO.19932/08 :: 4 :: the Department of Economics and Statistics in terms of Rule 8 Part II of KSSR arises where the relief from the Department of Economics and Statistics was for the purpose of joining another department. The service in a panchayat school cannot be considered as Government service. Consequently Rule 8 of Part II of KSSR has no application. 7. Apart from the same, I do not think it is open to the petitioner to challenge the condition contained in Ext.P4. It is an order which is passed by the Government invoking its power under Rule 39 of Part II of the KSSR and the petitioner was allowed to re-join the department. The condition imposed will have to be treated as part of exercise of the power under Rule 39 of Part II of the KSSR. The condition is not so arbitrary as to render it unconstitutional. Nor is it otherwise in violation of any plenary statutes. It is not open to the petitioner to challenge the order, of which he is the beneficiary. I do not find any error in the stand taken by the Government in Ext.P6. W.P.(C).NO.19932/08 :: 5 :: In the result, the writ petition is bereft of merit and the same is, therefore, dismissed. Sd/- (V.GIRI) JUDGE sk/ //true copy// P.S. To Judge