O.P. (KAT) No. 2369 of 2012. Case: Suveen S. Kamath Vs State of Kerala. High Court of Kerala (India)
| Case Number | O.P. (KAT) No. 2369 of 2012 |
| Counsel | For Appellant: P.C. Sasidharan, Advocate and For Respondents: Noble Mathew, Sr. Government Pleader |
| Judges | Thottathil B. Radhakrishnan and A. Hariprasad, JJ. |
| Issue | Constitution of India - Article 141 |
| Judgement Date | April 11, 2014 |
| Court | High Court of Kerala (India) |
Judgment:
Thottathil B. Radhakrishnan, J.
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Petitioner challenges an order of the Kerala Administrative Tribunal. Heard the learned counsel for the petitioner and the learned Senior Government Pleader.
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In his pursuit for employment, petitioner applied for being considered to the post of Junior inspector/Auditor in the Co-operative Department in the Government of. Kerala in response to the relevant notification issued by the Kerala Public Service Commission, "P.S.C.", for short. He also made a separate application for being considered for appointment to the post of Clerk/cashier in the District Co-operative Bank, Alappuzha, hereinafter, "D.C.B.", by direct recruitment, in terms of a different notification issued by the P.S.C.
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At the first instance, P.S.C. advised for the appointment of the petitioner as Junior inspector/Auditor. The Registrar of Co-operative Societies, for short, "R.C.S.", issued Ext. P1 appointment order on 25.10.2008 and the petitioner joined in that post.
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Petitioner was also included in the P.S.C.'s rank list for the post of clerk/cashier in the D.C.B. On 14.5.2010, P.S.C. advised the D.C.B. for petitioner's appointment to that post. D.C.B. appointed him in that post on 11.6.2010. Petitioner was relieved from the Co-operative Department in Government at his instance on 12.7.2010 and he joined the D.C.B.
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Thereafter, on 2.12.2010, the petitioner represented to the R.C.S., seeking permission to rejoin the Co-operative Department as Junior inspector/Auditor. In its nutshell, the claim of the petitioner was to rejoin duty in the Co-operative Department in Government in terms of R. 8 of Part II of Kerala State and Subordinate Services Rules, for short, "K.S. & S.S.R.". R.C.S. rejected that request as per communication dated 7.1.2011. Challenging that, and praying for a direction to the respondents to allow him to rejoin in the Co-operative Department, the petitioner filed a Writ Petition before this Court. R.C.S. filed counter affidavit to the Writ Petition, supporting the impugned decision and contending that R. 8 cannot be pressed into service for the petitioner to come back from the D.C.B. to a Department in Government because D.C.B. is a cooperative society registered under the Kerala Co-operative societies Act, 1969, hereinafter, "K.C.S. Act" and service under it cannot be treated as equivalent to Government service. The Writ Petition was transferred to the Tribunal on its constitution. Tribunal dismissed the transferred application holding that the petitioner is not entitled to invoke R. 8. Hence this Original Petition.
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It is argued on behalf of the petitioner that the expanse of R. 8 and the amplitude of the field to which it applies has been narrowly construed by the R.C.S. and the learned Tribunal ignoring the phrase "or for any other reason" in the opening paragraph of that Rule. It is further argued that the fourth proviso and Note I to R. 8 of Part II of K.S. & S.S.R. explaining as to what is "exigency of public service 1, show that the petitioner was statutorily entitled to come back to the Co-operative Department in Government with the support of that Rule. Reference was also made to the decision of the Supreme Court of India in Ali v. State of Kerala (2003 (2) KLT 922 (SC)) which, among other things, dilated on the scope of the proviso and the utility of a proviso as a legislative tool.
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On behalf of the State, the learned Senior Government Pleader, supporting the decision of the Tribunal and that of the R.C.S., argued that R. 8, can be understood only in the manner in which the Tribunal has viewed it and the service in a co-operative society cannot be treated as service which was in exigency of public service.
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Rule 8 of Part II K.S. & S.S.R. reads as follows:
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Members absent from duty. The absence of a member of a service from duty in such service, whether on leave, other than leave without allowances for talking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn-
(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;
(b) for promotion from a lower to a higher category in such service; and
(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate;
as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the...
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