IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 9TH JUNE 2008 / 19TH JYAISHTA 1930 WP(C).No. 8121 of 2006(P) ------------------------- PETITIONER: ------------ P.C. SURESH, S/O. CHATHAN, AGED 42 YEARS, L.D. CLERK (HIGHER GRADE), O/O. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. BY ADV. SRI.V.A.MUHAMMED RESPONDENTS: ------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, TRIVANDRUM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, ERNAKULAM. BY GOVERNMENT PLEADER SRI.T.T.MUHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 09/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P(C)No.8121/2006 APPENDIX PETITIONER'S EXHIBITS: EXT.P1. TRUE COPY OF THE ORDER NO.ESTT.C4-36761/88/COLL.EDN. OF THE 2ND RESPONDENT DATED 1-6-1988. EXT.P2. TRUE COPY OF THE ORDER NO.ESTT.C4036761/88/COLL.EDN. OF THE 2ND RESPONDENT DATED 27-2-1989. EXT.P3. TRUE COPY OF THE ORDER NO.E6-28697/99/K.DIS. OF THE DIRECTOR OF PANCHAYATS DATED 13-10-1999. EXT.P4. TRUE COPY OF THE REQUEST OF THE PETITIONER DATED 6-12-1999. EXT.P5. TRUE COPY OF THE LETTER NO.B2-155/2002 OF THE PRINCIPAL OF MAHARAJAS COLLEGE DATED 26-7-2002. EXT.P6. TRUE COPY OF THE LETTER NO.32908/F3/2003/H.EDN. OF THE GOVERNMENT DATED 20-1-2003. EXT.P7. TRUE COPY OF THE LETTER NO.B4/44625/01/COLL.EDN. OF THE 2ND RESPONDENT DATED 11-9-2003. EXT.P8. TRUE COPY OF THE LETTER NO.30213/H3/2003/HR.EDN. DEPARTMENT DATED 31-8-2004. EXT.P9. TRUE COPY OF THE G.O(MS)NO.4/61/PD OF THE GOVT. DATED 2-1-1961. EXT.P10. TRUE COPY OF THE REPLY OF THE PETITIONER DATED 23-5-2005 EXT.P11. TRUE COPY OF THE DECISION REPORTED IN 1998 (1) KLT 766. EXT.P12. TRUE COPY OF THE JUDGMENT IN O.P.NO.2765/1994 DATED 8-9-1998. EXT.P13. TRUE COPY OF THE G.O(RT)NO.5078/81/GAD OF GOVT. DATED 22-7-1981. EXT.P14. TRUE COPY OF THE DECISION REPORTED IN 2004 (1) ILR KER. 428. / TRUE COPY / P.S.TO JUDGE K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 8121 OF 2006 P -------------------------------------------- Dated this the 9th June, 2008 JUDGMENT The petitioner was appointed as L.D.Clerk in the Collegiate Education Department under the scheme of giving employment assistance to the dependents of Government Servants dying in harness. While working as L.D.Clerk in Maharajas College, Ernakulam, the petitioner was granted inter-departmental transfer, at his request, to the Panchayat department as L.D.Clerk, as per Ext.P3 order dated 13.10.1999, passed by the Director of Panchayats, Thiruvananthapuram. The petitioner became the juniormost in the transferred department. Finding that it would affect his promotion prospects, it is stated that, he submitted Ext.P4 request to the Secretary to the Government, Higher Education Department. The reliefs sought for in Ext.P4 are the following: “(a) issue orders reverting me to the Collegiate Education Department i.e., my Parent Department. (b) issue orders allow me all attendent benefits including seniority in the Parent Department.” In the Writ Petition it is stated that on considering the request, the petitioner was repatriated to his initial department on 1.3.2003. 2. According to the petitioner, he passed the Manual of Office W.P.(C) NO.8121 OF 2006 :: 2 :: Procedure Test in 2000. He applied for declaration of his probation on 29.5.2001. The Principal of Maharajas College forwarded the request to the Director of Collegiate Education as per Ext.P5 covering letter. As per Ext.P6 letter dated 20.1.2003, the Government returned the request for extension of the period of probation stating that the Director shall state the reasons for the reappointment of the petitioner in the light of the second condition to G.O.(MS) No.4/61/PD dated 2.1.1961. The second condition in the said Government Order reads as follows: “(2) A person need not 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.” The Director replied as per Ext.P7 reply dated 11.9.2003, requesting to take the case as a special case and to extend the period of probation from 13.6.1991 to 20.7.2000. Thereupon, the Government passed Ext.P8 Order dated 31.8.2004, rejecting the request made in Ext.P7. Ext.P8 is challenged in the Writ Petition. 3. The reliefs prayed for in the Writ Petition are the following: “(a) call for the records relating to Exhibit P8 and quash W.P.(C) NO.8121 OF 2006 :: 3 :: the original of the same by the issue of a writ of certiorari or other appropriate writ or order. (b) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st Respondent to declare the probation of the Petitioner with effect from the date of passing the Departmental test and direct to issue consequential benefits. (c) direct the Respondents to grant promotion to the Petitioner with effect from the date on which his juniors are promoted after the Petitioner got entitled for the declaration of his probation. (d) pass such other order or direction which this Hon'ble Court may deem fit and proper to grant in the circumstances of the case.” 4. The contention of the petitioner is that the petitioner has a lien in the Education Department and he has got a right to return to his parent department. He also relied on Ext.P13 order passed by the Government in an alleged identical case. 5. In the counter affidavit filed on behalf of respondent No.2, it is stated that the contention of the petitioner that he was repatriated to his parent department is not correct. It is contended that the petitioner has been reappointed in the Education Department on his request. The reappointment was only as per his personal interest. 6. The petitioner has submitted Ext.P10 representation to the Government through proper channel, requesting to drop the objection W.P.(C) NO.8121 OF 2006 :: 4 :: raised against his repatriation to the Collegiate Education Department and to declare his probation. From the counter affidavit it is seen that Ext.P10 is pending consideration before the Government. 7. Since Ext.P10 is pending consideration before the Government, it is only proper that the entire matter is considered afresh by the Government, after affording an opportunity of being heard to the petitioner. The order of the alleged repatriation on the basis of Ext.P4 request is not on record in the case. Even disputed questions of fact are involved in the case. In these circumstances, it is not proper to have a final adjudication of the dispute involved in the case in a Writ Petition under Article 226 of the Constitution. I am of the view that the matter should be considered afresh by the Government while disposing of Ext.P10 representation. Accordingly, the Writ Petition is disposed of directing the Government to dispose of Ext.P10 representation dated 23.5.2005, after affording an opportunity of being heard to the petitioner and after perusing all the relevant records and considering the binding precedents. (K.T.SANKARAN) Judge ahz/