IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 19TH MAY 2010 / 29TH VAISAKHA 1932 WP(C).No. 312 of 2010(L) ------------------------ PETITIONER(S): --------------- R.BALACHANDRAN, RATIONING INSPECTOR (UNDER ORDERS OF DEPUTATON) TALUK SUPPLY OFFICE, RANNI, PATHANAMTHITTA DISTRICT. BY ADV. SRI.R.RAJASEKHARAN PILLAI SMT.SABINA JAYAN RESPONDENT(S): --------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY, FOOD AND CIVIL SUPPLIES DEPARTMENT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER, FOOD AND CIVIL SUPPLIES, THIRUVANANTHAPURAM. 3. THE DIRECTOR, FOOD AND CIVIL SUPPLIES THIRUVANANTHAPURAM. 4. THE TALUK SUPPLY OFFICER, RANNI, PATHANAMTHITTA. GOVERNMENT PLEADER SRI.ANTONY MUKKATH-R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/02/2010, THE COURT ON 19/05/2010 DELIVERED THE FOLLOWING: W.P.(C).NO.312/2010 APPENDIX PETITIONER's EXHIBITS: P1: True copy of the judgment dated 21.12.2009 in W.P.(C).No.3681/09 of this Hon'ble Court. P2: True copy of the representation dated 22.12.2009 submitted by the petitioner before the first respondent. P3: True copy of the letter dated 1.01.2010 of the District Supply Officer Pathanamthitta to Taluk Supply Officer, Ranni. P4: True copy of the G.O.(MS)No.35/2009 dated 17.11.2009. P5: True copy of the G.O.(Rt)No.41/2009/F&CSD dated 26.12.2009. RESPONDENTS' EXHIBITS: NIL C.T. RAVIKUMAR, J. -------------------------------------------- W.P.(C). NO.312 OF 2010 -------------------------------------------- Dated this the 19th day of May, 2010 JUDGMENT The petitioner is a Rationing Inspector under the Civil Supplies Department. The challenge in this Writ Petition is against Ext.P5 order dated 26.12.2009 by which the petitioner was relieved for the purpose of joining the Civil Supplies Corporation, on deputation. Later, the very order by which the petitioner was deputed to the Civil Supplies Corporation viz., order dated 26.12.2009 was also produced. Further prayer of the petitioner is for a direction to consider Ext.P2 after providing an opportunity of being heard and also for a direction restraining respondents 2 and 3 from deputing him to the Civil Supplies Corporation considering his age. 2. The contentions in the Writ Petition would reveal that, in essence, the grievance of the petitioner pertains to his deputation to the Civil Supplies Corporation. Earlier, the petitioner had a case that he was on the verge of getting promotion to the post of Assistant Taluk Supply Officer and therefore, he was not liable to be deputed to the Civil Supplies W.P.(C) NO.312/2010 2 Corporation from the category of Rationing Inspector. That claim and contention of the petitioner was ultimately dismissed by the Hon'ble Apex Court in C.A..No.2764/2002. Subsequently, the petitioner had again approached this Court when he was about to be deputed to the Civil Supplies Corporation by filing W.P.(C).No.2154/2008 and it was disposed of with a direction to consider his appeal, a per judgment dated 28.1.2008. In fact, the subject matter therein pertained to the liability fixed against the petitioner for the loss alleged to have been sustained by the Civil Supplies Corporation during his earlier period of deputation. Again, the petitioner had approached this Court challenging the action on the part of the respondents in deputing him to the Civil Supplies Corporation by filing W.P.(C) No.30277/2008. That Writ Petition was dismissed by judgment dated 10.12.2009 on the ground that the Civil Appeal No.2764/2002 was dismissed by the Hon'ble Apex Court. The petitioner had again unsuccessfully attempted to avert the action of deputation by filing W.P. (C).No.36817/2009 and it was disposed of by Ext.P1 judgment dated 21.12.2009. It is evident from Ext.P1 itself that the petitioner had prayed for two reliefs in the said Writ Petition. The first one was pertaining to the grievance with respect to the fixation of liability against which he preferred the appeal which was directed to be disposed of on the earlier W.P.(C) NO.312/2010 3 occasion. It was contended that despite the direction in the judgment in W.P.(C).No.2154/2008, no order was passed on the appeal. Considering the fact that the appeal preferred by the petitioner and was then pending before the second respondent, the second respondent was directed to consider and pass orders on Ext.P16 therein with notice to the petitioner. However, Ext.P1 would reveal that the attempt of the petitioner to avoid deputation was again repelled by this Court and it was held that he is liable to be deputed. Now, this is the fifth round of litigation as far as the petitioner is concerned. The contention of the petitioner is that the deputation ordered as per Ext.P5 is against the specific norms framed by the first respondent in G.O(MS) No.57/2000/F & CSD dated 30.12.2000 especially paragraph 12(d) of the said G.O dated 30.12.2000. At any rate, it is submitted that the norms declared as per G.O. Dated 30.12.2000 do not permit an isolated order of deputation as has been done as per Ext.P5. 3. The first respondent has filed a counter affidavit in this Writ Petition. It carries specific averments justifying the action in Ext.P5. The essence of the contentions raised in the counter affidavit is that in the light of the judgment in W.P.(C).No.30277/2008 and Ext.P1, the petitioner is not entitled to raise any grievance against Ext.P5 order. In fact, he is not W.P.(C) NO.312/2010 4 having any legal right to challenge Ext.P5 in the light of the said judgments. Learned Government Pleader brought to my notice the provisions under paragraph 12 (d) of the said G.O dated 30.12.2000 which, in fact, was relied on by the petitioner as well. 4. The said paragraph which is relevant for the purpose of deciding the issue involved in this case reads thus: “every employee who by virtue of leave of any kind or stay order from any court or any other order from any authority abstains from deputation to the Corporation shall be liable for deputation irrespective of his usual seniority in the deputation list as soon as such leave period expires or stay order is vacated or order is revoked” 5. In this case, admittedly, the petitioner was able to abstain from deputation by virtue of interference by this Court, though ultimately, his contentions were repelled. In other words, evidently, the petitioner would have been deputed to the Corporation much earlier, but for the interference of this Court. Therefore, in the light of specific provision under the G.O dated 30.12.2000, the petitioner cannot escape from the liability to go on deputation to the Civil Supplies Corporation. 6. The petitioner also contends that he is not liable to be deputed even in the aforesaid circumstances, on account of the norm 13 of the W.P.(C) NO.312/2010 5 aforesaid G.O. dated 30.12.2000. But the said contention of the petitioner was also strongly refuted by the respondents. In the case of persons who attained the age of 53 years during the period of deputation there is specific provision under the aforesaid G.O itself and therefore, the petitioner's case can be considered only in the light of the said relevant provisions under the aforesaid G.O. Dated 30.12.2000 even on his completion of 53 years during the period of deputation. The mere completion of the age of 53 years would not enable the petitioner get exemption from deputation to the Civil Supplies Corporation in the light of the aforementioned contentions. At any rate, that is a matter for which the petitioner has to approach the respondent. 7. Though the petitioner has raised a contention that his deputation to Kerala State Civil Supplies Corporation in the case of the petitioner is punitive in nature, the petitioner has failed to establish the same. Indisputably, the employees working in different cadres under the Civil Supplies Department are bound to go on deputation during their tenure of service under the Department. When that be the position, the petitioner cannot contend that his deputation is punitive in nature. Though the petitioner has alleged mala fides and arbitrariness in the action on the W.P.(C) NO.312/2010 6 part of the respondents, he has not succeeded in establishing the said contention. It is a settled position that in the absence of firm factual foundations and failure to establish such pleadings adverse inference cannot be drawn with respect to mala fides in an official action. The long and short of the above discussions is that the petitioner cannot contend that he is not liable to be deputed to the Civil Supplies Corporation in the light of the orders issued for that regard by the Civil Supplies Department. This Writ Petition is, therefore, liable to fail. However, the petitioner will be at liberty to approach the respondents pointing out the factum of his crossing the age of 53 years. In case, he approaches the respondents with such a prayer, appropriate orders shall be passed thereon, within a period of one month. Subject to the above, this Writ Petition is dismissed. (C.T. RAVIKUMAR, JUDGE) spc W.P.(C) NO.312/2010 7 C.T. RAVIKUMAR, J. CRL. M.C. NO. O R D E R 3rd June, 2009 W.P.(C) NO.312/2010 8