PREMAKUMARI A Vs. STATE OF KERALA

JUDGEMENT

(1.) The claim of retention of lien and consequential request for repatriation to the parent department is yet again crop up for consideration. The petitioner who commenced her career under the State Judical Department on 10/10/1975 as a Copyist got selection for appointment by transfer as Junior Inspector / Auditor of Cooperative Societies. This writ petition has been filed challenging Ext. P6 order whereby the request of the petitioner for repatriation to the parent department and for all consequential benefits including promotion were denied. The further prayer is for issuance of a writ of mandamus commanding respondents 4 and 5 to forthwith repatriate the petitioner to her parent department viz. the State Judicial Department and to grant all consequential benefits including promotion. The service particulars of the petitioner necessary for deciding the entitlement of the petitioner for the aforesaid reliefs are as hereunder:

(2.) As per Ext. P1 representation dated 27/11/1986 the petitioner had requested the third respondent to consider her for promotion, notionally on par with her juniors. On receipt of the same, she was directed to produce certain documents in proof of her appointment to the post of Junior Inspector / Auditor of Cooperative Societies. Though she has submitted the necessary documents for that purpose, no further action was taken thereon, it is submitted. It is in the meanwhile that a Full Bench of this Court in Balakrishnan Nair v. Ram Mohan Nair, 1998 KHC 147 : 1998 (1) KLT 766 (FB) : ILR 1998 (2) Ker. 812 : 1998 (2) KLJ 99 held that the appointees by transfer to other departments are entitled to get repatriated to their respective parent departments with all benefits, including all promotions which would have accrued to them had they continued in their parent departments. In the light of the said Full Bench decision, the petitioner has submitted Ext. P3 representation on 03/02/1998 through proper channel requesting for the benefits flowing from the aforesaid judgment including repatriation to the parent department. For the same benefits the petitioner has submitted Ext. P4 representation to the second respondent requesting for a suitable posting in the appropriate grade. Since they were not acted upon, the petitioner had approached this Court by filing WP (C) No. 13760 of 1999 and the same was disposed of as per Ext. P5 judgment with a direction to the first respondent to consider Ext. P4 representation submitted by the petitioner in the light of the decision reported in 1998 KHC 147 : 1998 (1) KLT 766 (FB) : ILR 1998 (2) Ker. 812 : 1998 (2) KLJ 99. Subsequently, in purported compliance of the directions in Ext. P5 judgment, Ext. P6 order dated 09/08/1999 was issued by the second respondent. As per Ext. P6 the request of the petitioner was rejected citing the reason that she was regularised with effect from 31/12/1986 in the Co - operative Department as per proceedings No. EB(2)1212/93 dated 11/01/1994 of the Additional Registrar (General) of Cooperative Societies and that on account of such appointment on regular basis against a substantive post she had acquired conferment of full membership in terms of R.24 and further that no person shall, at the same time, be a full member of more than one service in the light of R.26 of the Kerala State & Subordinate Services Rules. In short, it is held thereunder that the petitioner is not holding a lien in her parent department. According to the petitioner, Ext. P6 order besides being opposed to the dictum laid down by this Court in 1998 KHC 147 : 1998 (1) KLT 766 (FB) : ILR 1998 (2) Ker. 812 : 1998 (2) KLJ 99 is violative of the equality clauses enshrined under Art.14 and Art.16 of the Constitution of India. To canvass the point that Ext. P6 suffers from arbitrariness and hostile discrimination, the petitioner placed reliance on Exts. P7 and P8. Ext. P7 is the copy of the proceedings No. Estt.A1-25960/96 / CRD dated 21/09/1998 of the Commissioner, Rural Development Department granting promotions to certain personnel who secured appointment in the Co - operative Department on their repatriation to the said department based on various judgments of this Court. According to the petitioner, Ext. P7 includes names of appointees to the Co - operative Department as Junior Inspectors before and after her entry in its service as Junior Inspector. Ext. P8 is a chart indicating the particulars of such appointees included in Ext. P7. According to the petitioner, as many as 55 persons included in Ext. P7 are her juniors in the Co - operative Department and in respect of them it was submitted on behalf of the Co - operative Department, before this Court in certain earlier writ petitions that they were only officiating in the Co - operative Department. In the said circumstances, the contention that she was regularised in the service of the Co - operative Department cannot be taken as correct, it is further contended. That apart, according to the petitioner, the mere regularisation of her service, if at all such an order was passed, would not and could not amount to confirmation in the service and therefore such a regularisation cannot legally terminate her lien in the State Judicial Department. In short, according to the petitioner, as long as she was not confirmed in the service of the Co - operative Department, she is entitled to get repatriated to the parent department, viz. the State Judicial Department with all consequential benefits including promotion with effect from the date on which her immediate junior one Smt. K. P. Meenakshi was granted such benefits.

(3.) A counter - affidavit has been filed on behalf of respondents 1, 4 and 5. A perusal of the same would reveal that virtually they support the case of the petitioner. A scanning of the contentions of respondents 1, 4 and 5 would reveal that even after issuing the order regularising the petitioner as Junior Auditor in the Cooperative Department they maintained the stand that such regularisation could not be considered as confirmation in Co - operative Department.