IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 31ST AUGUST 2011 / 9TH BHADRA 1933 WP(C).No. 3283 of 2006(R) --------------------------------- PETITIONER(S): ------------------- C.KUNHIKRISHNAN, UD CLERK, CHILD DEVELOPMENT PROJECT OFFICE, PAYYANUR, NOW WORKING AS UD CLERK ON DEPLOYMENT BASIS AT KADANNAPPALLI PANAPUZHA GRAMA PANCHAYATH, KADANNAPPALLY, KANNUR DISTRICT. BY ADV. SMT.P.V.ASHA RESPONDENT(S): --------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, HOME DEPARTMENT, THIRUVANANTHAPURAM. 2. THE REGISTRAR GENERAL, SUBORDINATE JUDICIARY HIGH COURT OF KERALA, ERNAKULAM. * ADDL. R3 IMPLEADED 3. P. GOPINATHAN, JUNIOR SUPERINTENDENT, MUNSIFF COURT, KANNUR, RESIDING AT PANAYADAN HOUSE, P.O. PAYYANNUR, KANNUR DISTRICT. * IS IMPLEADED AS ADDL R3 AS PER ORDER DATED 30/05/2006 IN I.A. NO.6586/2006. R1 BY GOVT. PLEADER SRI.ANTONY MUKKATH R2 BY ADV. SRI.ELVIN PETER P.J. R3 BY ADV. SRI. P.M.PAREETH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 31/08/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: svs W.P.(C). NO. 3283/2006 APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE REPRESENTATION DATED 25/09/2003 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P2: COPY OF THE ORDER ISSUED BY 2ND RESPONDENT DATED 05/04/2004. P3: COPY OF THE REVIEW PETITION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DATED 06/05/2004. P4: COPY OF THE ORDER DATED 25/10/2004 ISSUED BY THE 2ND RESPONDENT TO THE PETITIONER. P5: COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT DATED 03/11/2004. P6: COPY OF THE ORDER DATED 29/04/2005 ISSUED BY THE 1ST RESPONDENT. P7: COPY OF THE NON-CONFIRMATION CERTIFICATE DATED 28/02/2004 ISSUED BY THE SOCIAL WELFARE DEPARTMENT. P8: COPY OF THE NON CONFIRMATION CERTIFICATE DATED 26/02/2004 ISSUED BY THE LABOUR DEPARTMENT. P9: COPY OF THE CERTIFICATE ISSUED BY THE PROJECT OFFICER, SOCIAL WELFARE DEPARTMENT DATED 25/02/2004. P10: COPY OF THE CERTIFICATE ISSUED BY THE LABOUR DEPARTMENT DATED 29/05/2004. P11: COPY OF THE G.O.(MS) NO.4/61/PD DATED 02/01/1961. P12: COPY OF THE G.O.(Rt) NO.1407/99 GAD DATED 16/02/1999. P13: COPY OF THE JUDGMENT IN W.A. NO.2644/2000 DATED 06/01/2004. P14: NIL P15: NIL P16: NIL svs ...........2/-... ..2.. WPC. NO.3283/2006 P17: COPY OF PROCEEDINGS BEARING ORDER NO.E6-3974/94 DATED 09/08/94 OF THE ADMINISTRATIVE OFFICER, OFFICE OF LABOUR COMMISSIONER, THIRUVANANTHAPURAM. P18: COPY OF REQUEST DATED 27/08/94 ADDRESSED TO THE HONOURABLE DISTRICT JUDGE, THALASSERY SUBMITTED BY THE PETITIONER. RESPONDENT'S EXHIBITS: R2(a):COPY OF THE ORDER, G.O. DATED 02/01/1961 ISSUED BY THE GOVERNMENT. /TRUE COPY/ P.A. TO JUDGE. svs S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W.P(C) No. 3283 of 2006 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 31st day of August, 2011. J U D G M E N T The petitioner was originally appointed as a U.D. Typist in the Civil Judicial Department. The petitioner sought inter- departmental transfer to Labour Department and he was transferred to the Labour Department. While working in the Labour Department, he again sought inter-departmental transfer to the Social Welfare Department, which was also granted. While working there, the petitioner was deployed to Local Self Government Department where he is working now. The petitioner wanted to be transferred back to the Judicial Department on the ground that under Rule 8 of Kerala State and Subordinate Service Rules, he continues to hold lien in the Judicial Department, insofar as he has not been confirmed in either the Labour Department or the Social Welfare Department. The petitioner relies on the decision of a Full Bench of this Court in Balakrishnan Nair V. Ram Mohan Nair, 1998(1) KLT 766 (FB) in support of his contentions. The petitioner therefore seeks the following reliefs: “A. To declare that the petitioner is entitled to be re-appointed in his parent Department viz Thalasserry Civil Judicial Department with all his service benefits, as requested in P1, 3 and 5. B. issue a writ of mandamus or any other appropriate writ or orders commanding the 2nd respondent to re-appoint the petitioner with all service to his parent Department ie. Thalasserry Civil Judicial Department. C. issue a writ of mandamus or any other appropriate order W.P(C) No. 3283 of 2006 -: 2 :- commanding the 1st respondent to consider and dispose of Ext.P5 and 7 considering all contentions raised therein and after referring to all documents that are accompanied therewith. D. issue a writ of mandamus or any other appropriate order commanding the 2nd respondent to consider and dispose of Ext.P1 and 3 considering all contentions raised therein and after referring to all documents that are accompanied therewith.” 2. Both the Government and the High Court have filed counter affidavits denying the claims of the petitioner. According to them, what is relevant is Ext.R2(a) G.O(Ms) 4/61/PD dated 2.1.1961, which governs inter-departmental transfers, paragraph 2 of which reads thus: “2. 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.” According to the High Court, the petitioner has been given inter-departmental transfer from Judicial Department to the Labour Department and the petitioner has no case that there is no vacancy for him to continue in the Labour Department or in the Social Welfare Department. They further submit that the scale of pay of U.D. Clerk in the W.P(C) No. 3283 of 2006 -: 3 :- Judicial Department is Rs. 6680-10790, which is the same scale of pay of U.D. Clerk in the Labour Department also. Therefore, the petitioner does not satisfy the conditions in clause 2 of Ext. R2(a) for repatriation to the Judicial Department is their contention. 3. Counsel for the petitioner would submit that the petitioner has been deployed to the Local Self Government Department for want of vacancy in the Social Welfare Department and therefore the petitioner is entitled to be repatriated to the parent department. 4. I have considered the rival contentions in detail. 5. As rightly pointed out by the respondents, the petitioner is entitled to repatriation only if either of the two conditions in paragraph 2 of Ext. R2(a) Government Order is satisfied. As far as the Judicial Department is concerned, the petitioner was given inter-departmental transfer to Labour Department. Therefore, the petitioner can aspire to come back to Judicial Department only if there is no vacancy for the petitioner in the Labour Department or the pay of U.D. Clerk in the Labour Department is less than that of the U.D. Clerk in the Judicial Department. As far as the first condition is concerned, the petitioner himself sought inter-departmental transfer from Labour Department to Social Welfare Department and that was not due to want of vacancy in the Labour Department. As far as the scale of W.P(C) No. 3283 of 2006 -: 4 :- pay is concerned, in paragraph 5 of the counter affidavit of the 2nd respondent, it is specifically stated that the scale of pay of U.D. Clerk in the Judicial Department is Rs. 6680- 10790 and that of U.D. Clerk in the Labour Department is also Rs. 6680-10790. Therefore, neither of the two conditions in paragraph 2 of Ext. R2(a) is satisfied for enabling the petitioner to get repatriation to the Judicial Department. Therefore, there is no merit in the writ petition and accordingly the same is dismissed. Sd/- S. Siri Jagan, Judge. Tds/