IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE THOTTATHIL B.RADHAKRISHNAN THURSDAY, THE 5TH AUGUST 2010 / 14TH SRAVANA 1932 WP(C).No. 36152 of 2008(D) -------------------------- PETITIONER(S): --------------- A.MOHAMMED IQBAL, S/O.ABDUL KHADER, AGED 46 YEARS, FOREST GUARD, ELANAD FOREST STATION, MACHAN RANGE OFFICE, THRISSUR DIVISION. BY ADV. SRI.V.A.MUHAMMED SRI.T.V.VIJAYARAJAN SRI.M.SAJJAD RESPONDENT(S): --------------- 1. THE STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT TRANSPORT DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE TRANSPORT COMMISSIONER, TRIVANDRUM. 3. THE CHIEF CONSERVATOR OF FORESTS, (ADMINISTRATION),TRIVANDRUM. BY GOVT PLEADER SRI.T.T.MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/08/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX IN WPC.36152/08 PETITIONER'S EXHIBITS: EXT.P1: TRUE COPY OF THE ORDER NO.AB/21464/TC/91 OF THE 2ND RESPONDENTS. EXT.P2: TRUE COPY OF THE ORDER NO.AB/15204/TC/92 OF THE 2ND RESPONDENT. EXT.P3: TRUE COPY OF THE ORDER NO.AB/21388/TC/92 OF THE 2ND RESPONDENT. EXT.P4: TRUE COPY OF THE ORDER NO.AB-10590/95 OF THE ADDL. TRANSPORT COMMISSIONER. EXT.P5: TRUE COPY OF the G.O.(RT)NO.5078/81/GAD OF THE GOVERNMENT. EXT.P6: TRUE COPY OF THE G.O.(RT)NO.8330/88/GAD OF THE GOVERNMENT. EXT.P7: TRUE COPY OF THE ORDER NO.2471/C2/99/TRAN. OF THE GOVERNMENT. EXT.P8: TRUE COPY OF THE REVIEW PETITION FILED BEFORE THE GOVERNMENT. EXT.P9: TRUE COPY OF THE JUDGEMENT OF THIS HON'BLE COURT IN O.P.NO.33148/00. EXT.P10: TRUE COPY OF THE G.O.NO.366/2004/TRAN. OF THE GOVERNMENT. EXT.P11: TRUE COPY OF THE CIRCULAR NO.768/R1/2004/P7&ARD OF THE GOVERNMENT. EXT.P12: TRUE COPY OF THE JUDGMENT OF THIS HON'BLE COURT IN CON. CASE © NO.455/08. EXT.P13: TRUE COPY OF THE APPLICATION UNDER RIGHT TO INFORMATION ACT. EXT.P13(a): TRUE COPY OF THE ORDER NO.TE-5639/08 OF THE DIVISIONAL FOREST OFFICER. RESPONDENT'S EXHIBITS: EXT.R2(a): G.O.(RT)NO.366/2004/GRAN. DATED 7.10.2004. /TRUE COPY/ THOTTATHIL B.RADHAKRISHNAN,J. ------------------------------------------- W.P(C).No.36152 OF 2008 ------------------------------------------- Dated this the 5th day of August, 2010 JUDGMENT The petitioner was working as a peon in a Regional Transport Office in the Transport Department in Government. While so, he was selected by the Kerala Public Service Commission for being appointed as Forest Guard and entered service in the Forest Department on 28.08.1991 as Forest Guard. Such appointment and posting was regularised and his probation in the cadre of Forest Guard was duly declared with effect from 25.10.1993. Though it is a fact that his service is yet to be confirmed by passing an order of confirmation, the claim of the petitioner now is that his service in the Forest Department not having been confirmed, he should be repatriated to the Transport Department where he had been working as a peon. He relied on the Full Bench decision of this Court in Balakrishnan Nair v. Ram Mohan Nair [1998 (1) KLT 766 (F.B.)] and of the Apex Court in Ali v. State of Kerala [2003 (2) WPC.36152/08 2 KLT 922 (SC)]. The issue pressed for consideration and decided in those cases was as to whether repatriation could be done before confirmation. As can be noted from the judgment rendered by the Full Bench in Balakrishnan (supra), the appointments and movements were among recruits who had joined service in one department and were thereafter moved to other department, either by transfer or on the basis of the requirement of the Government. The question of lien etc. was relevant only for such purpose. Therefore, even if the request of the petitioner, who is a Forest Guard, for being repatriated to the Transport Department is to be considered, the question would be whether he would go back as a peon or whether his claim is to have his seniority determined in the Transport Department based on his initial entry as a peon. In the impugned Ext.P10, the State Government has taken the stand that the eligibility for confirmation having been reported by the DFO, nothing remains except the issuance of formal orders and the petitioner is deemed to have got his confirmation in WPC.36152/08 3 the Forest Department in the post of Forest Guard with effect from 28.10.1991. The Government accordingly concluded that the petitioner is in no way eligible to get re-appointment and seniority in the parent department in terms of rule 8 of Part II of KS & SSR. There is no illegality in that decision. The question, therefore, whether the confirmation has actually been done or not, is irrelevant and the ratio of the aforesaid precedents do not apply in favour of the petitioner. The writ petition fails. The same is accordingly dismissed. Sd/- THOTTATHIL B.RADHAKRISHNAN, Judge. kkb.7/08.