IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WP(C).No. 27029 of 2008(P) ---------------------------------------- PETITIONER(S): ------------------------ MATHAI.M.J., BLOCK DEVELOPMENT OFFICER, DOWN HILL P.O., MALAPPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL ADMINISTRATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE PRINCIPAL SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVT.SECRETARIAT, THIRUVANANTHAPURAM. 3. THE COMMISSIONER FOR RURAL DEVELOPMENT, COMMISSIONERATE OF RURAL DEVELOPMENT, L.M.S.COMPOUND, VIKAS BHAVAN, THIRUVANANTHAPURAM. R1 TO R3 BY GOVERNMENT PLEADER SRI. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.27029/2008 P APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ADVICE MEMO DTD. 19/12/1987 ISSUED TO THE PETITIONER. P2: COPY OF THE ORDER (MEMO) DTD. 12/02/1988 ISSUED BY THE GOVT. P3: COPY OF THE ORDER (MEMO) DTD. 20/02/1988 ISSUED BY THE GOVT. P4: COPY OF THE ORDER (MEMO) DTD. 10/11/1988 ISSUED BY THE GOVT. P5: COPYOF THE ORDER G.O.(RT) NO.6326/90 GAD DTD. 20/07/1990 ISSUED BY THE GOVT. P6: COPY OF THE ORDER DTD. 12/08/1991 ISSUED BY THE GOVT. P7: COPY OF THE ORDER NO.92/95/GAD DTD. 13/09/1995 ISSUED BY THE GOVT. P8: COPY OF THE ORDER NO.28/01/01/GAD DTD. 27/03/2001 ISSUED BY THE GOVT. P9: COPY OF THE ADVICE MEMO DTD. 2/05/2002 ISSUED TO THE PETITIONER BY THE P.S.C. P10: COPY OF THE ORDER (MEMO) DTD. 26/06/2002 ISSUED THE GOVT. P11: COPY OF THE PROCEEDINGS DTD. 28/06/2002 ISSUED BY THE ASST. DEVELOPMENT COMMISSIONER, ALAPPUZHA. P12: COPY OF THE REPRESENTATION DTD. 24/06/2006 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P13: COPY OF THE REPRESENTATION DTD. 14/07/2006 FILED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P14: COPY OF THE REPRESENTATION DTD. 8/11/2006 FILED BY THE PETITIONER BEFORE THE 1ST RESPONDENT. P15: COPY OF THE ORDER G.O.(MS) NO.1020/96/LEG. DTD. 25/10/1996 ISSUED BY THE GOVT. P16: COPY OF THE ORDER G.O.(RT) NO.915/2003/ID DTD. 1/09/2003 ISSUED BY THE GOVT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.S.TO JUDGE Kss S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 27029 of 2008 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 10th day of June, 2011. J U D G M E N T The petitioner was originally recruited through Public Service Commission and appointed in the Administrative Secretariat of the Government of Kerala as Assistant Grade II. Thereafter, he was promoted as Assistant Grade I, Senior Grade Assistant and Selection Grade Assistant. While so, the petitioner was selected and appointed as Block Development Officer in the Development Department of the Government of Kerala. According to the petitioner, although the period of probation is already over, the petitioner has not been confirmed in the Development Department and therefore the petitioner's lien continues in the Administrative Secretariat. The petitioner applied for repatriation to his parent department, which has not been acceded to by the respondents. It is under the above circumstances the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to repatriate the petitioner to the Administrative Secretariat and grant him all consequential promotions and benefits in the said Department in accordance with his seniority in the category of Selection Grade Assistant. ii) Issue a writ of mandamus or any other appropriate writ, order or direction declaring that the petitioner is entitled to be repatriated to the Administrative Secretariat and he is also entitled to be granted all consequential benefits in accordance with his seniority in the category of Selection Grade Assistant. iii) Issue a writ of mandamus or any other appropriate writ, order or direction, directing the respondents to repatriate the petitioner to the Administrative Secretariat and grant him all consequential promotions with effect from the date of promotion of his immediate junior in the category of W.P(C) No. 27029 of 2008 -: 2 :- Selection Grade Assistant. iv) Issue a writ of mandamus or any other appropriate writ, direction or injunction restraining the respondents from confirming the petitioner in the category of Block Development Officer in the Development Department.” The petitioner relies on the decisions of this Court in Balakrishnan Nair v. Ram Mohan Nair, 1998(1) KLT 766 (FB) and the decision of the Supreme Court in Ali v. State of Kerala, 2003(2) KLT 922 in support of his case. 2. No counter affidavit has been filed in this case. But, the learned Government Pleader orally submitted that the petitioner had actually been confirmed in service prior to his application for repatriation. But, insofar as no counter affidavit has been filed in answer to the averments in the writ petition and the specific averment in the writ petition supported by an affidavit is that the petitioner has not been confirmed in the latter department, I cannot take into account the oral submission of the learned Government Pleader. 3. The law on the subject has been settled by the decisions relied on by the petitioner noted supra. Going by those decisions, if the petitioner has not been confirmed in the latter department, the petitioner is entitled to seek repatriation to his parent department. Insofar as there is no counter affidavit controverting the affidavit of the petitioner that the petitioner's service in the Development Department has not been confirmed till his application for repatriation, I am satisfied that the petitioner is entitled to the reliefs prayed for. W.P(C) No. 27029 of 2008 -: 3 :- Accordingly, the writ petition is allowed. The respondents are directed to repatriate the petitioner to the Administrative Secretariat, his parent department, with all consequential benefits. Orders in this regard shall be passed as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/