Kerala State and Subordinate Services Rules, 1958 - Rule 8 - Members Absent from Duty [Case Law]

Kerala State and Subordinate Services Rules, 1958 - Rule 8 - Members absent from duty - the absence of the petitioner in KSEB on account of his appointment in the Irrigation Department, could not have been an impediment for his appointment back in the KSEB.

He was entitled to get reappointed without any loss of seniority which he was enjoying at the relevant time and was entitled to all consequential benefits, as if he continued in KSEB without any break. In other words, the appointment in the Irrigation Department through Kerala Public Service Commission, would not have disabled him from enjoying his seniority in the KSEB. The rejection of the representations submitted by petitioner as per the orders Exts.P5 as well as P7 are absolutely unlawful and unjust. Hence those orders are quashed. There shall be a direction to the 1st respondent to reappoint petitioner in the KSEB and to grant him all consequential benefits with reference to his seniority as on 27.08.2003 when he was relieved.
Kerala State and Subordinate Services Rules, 1958 - Rule 8 - Members absent from duty - Where persons who got appointment in another service/department through Public Service Commission claimed reappointment in the first service/department where it was found that appointment through Public Service Commission is one made in exigency of service and hence such appointees are entitled to the benefit of Rule 8 of KS & SSR.
IN THE HIGH COURT OF KERALA AT ERNAKULAM
P.V.ASHA J.
W.P.(C).No.11756 of 2017
Dated this the 21st day of May, 2018
PETITIONER 
V. SHAJI ASSISTANT ENGINEER, IRRIGATION DEPARTMENT, PAZHASSI IRRIGATION PROJECT, MAINTENANCE SECTION 1, VELIYAMBRA, KANNUR DISTRICT-670 702.
BY ADV.SRI.P.M.PAREETH 
RESPONDENTS
1. KERALA STATE ELECTRICITY BOARD LTD REPRESENTED BY ITS SECRETARY, VIDHYUTHI BHAVANAM, PATTOM, THIRUVANANTHAPURAM-695 004.
2. CHIEF ENGINEER IRRIGATION AND ADMINISTRATION, THIRUVANANTHAPURAM-695 001.
R1 BY ADVS. SRI.M.K.THANKAPPAN, SC, SMT.ANEETHA A.G., SC, R2 BY GOVERNMENT PLEADER SRI. RON BASTIAN 
J U D G M E N T 
The petitioner has approached this Court for the second time, aggrieved by the rejection of his request for reappointment as Assistant Engineer (Civil) in the Kerala State Electricity Board (for short 'KSEB'), under Rule 8 of Kerala State and Subordinate Services Rules, 1958 (for short 'KS & SSR').
2. The petitioner was initially appointed as a Sub Engineer (Civil) in the KSEB on 02.03.1995. Later he was appointed as Assistant Engineer (Civil) as per Ext.P1 order dated 23.03.1998 in the 10% quota reserved for qualified departmental candidates. While continuing so, he got appointment as Assistant Engineer in the Irrigation Department through Public Service Commission. On the basis of his request, he was relived by the respondents as per Ext.P3 letter dated 27.08.2003 in order to join as Assistant Engineer in the Irrigation Department and accordingly he joined the Irrigation Department on 28.08.2003. Immediately after joining the Irrigation Department, he submitted Ext.P4 representation on 24.03.2004 requesting the respondent to reappoint him as Assistant Engineer under them and to permit him to rejoin duty. But the 1st respondent as per Ext.P5 letter dated 10.12.2004 rejected his request saying that the Board was unable to entertain his request since Assistant Engineers (Civil) were surplus in the Board.
3. Petitioner challenged Ext.P5 order, by filing W.P.(C). No.3224/2005 before this court. Seeing that the respondents had not considered the claim of the petitioner for reappointment under the provisions of Rule 8 of KS & SSR, that writ petition was disposed of by Ext.P6 judgment dated 20.12.2016 directing the respondents to consider his claim after affording him an opportunity of hearing. Ext.P7 order was passed thereafter again rejecting the request of petitioner saying that the number of Assistant Engineers (Civil) in the 10% quota is far in excess. The respondents also found that the petitioner was eligible for confirmation in the Irrigation Department as 13 years had already elapsed after he got appointment in that Department. This writ petition is filed under the above circumstances challenging Ext.P7 order.
4. The case of the petitioner is that he had requested for re-appointment in the year 2004 itself and under Rule 8 of KS & SSR and in the light of the judgment of the Full Bench of this Court reported in Balakrishnan Nair v. Ram Mohan Nair : 1998 (1) KLT 766 (FB), he is entitled to be re-appointed in the KSEB. He points out that he was never confirmed in the Irrigation Department.
5. The respondents filed a counter affidavit stating that there are no vacancies of Assistant Engineer (Civil) and even at present there are excess hands and petitioner cannot be accommodated. Moreover, petitioner's appointment as Assistant Engineer was in the 10% quota for departmental candidates and in this 10% quota there are 11 more surpluses hands to be adjusted. It is stated that it has been over 15 years since the petitioner joined in Irrigation Department and he would have become a permanent member in the service of the Irrigation Department and he would have been confirmed in that department. It is stated that petitioner do not have any right to be reappointed in KSEB. The respondents have also referred to the circulars issued by Government on 03.12.2004 and thereafter on 11.02.2011 issued by the Government directing Heads of Departments to take timely action to give confirmation to the employees under their control. Therefore it is their case that petitioner cannot have any claim in KSEB after a period of 15 years and he cannot be allowed to rejoin duty. The learned Standing Counsel for the respondents also submitted that since the KSEB has become a Company, petitioner cannot have any right to rejoin as Assistant Engineer especially after a period of 15 years.
6. Heard learned counsel for the petitioner as well as the learned Standing Counsel for the respondents.
7. Rule 8 of KS & SSR has been interpreted by this Court in the judgment of the Full Bench in Balakrishnan Nair's case (supra) which is affirmed by the judgment of Apex Court in Ali v. State of Kerala : 2003 (2) KLT 922. Petitioner who was relieved from the KSEB from 27.08.2003 as per Ext.P3 letter, had requested for reappointment even before he completed 8 months by submitting Ext.P4 representation on 24.03.2004 which the respondents rejected on 10.12.2004. The only ground under which the reappointment was rejected in Exts.P5 as well as P7 is that there are excess hands in the 10% quota of departmental candidates in the post of Assistant Engineer. But the petitioner was an Assistant Engineer who got appointment under the respondents as per Ext.P1 order issued on 23.03.1998. He was relieved after a period of 5 years of service in that post in the year 2003. Then he would not have become excess as on the date of Ext P3 application or even as on this day. He was not the junior most at the relevant time, so as to throw him out.
8. Rule 8 of KS & SSR reads as follows: 
“8. 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 taking 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 privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence: 
[Provided that subject to the provisions of rule 18 he shall satisfactorily complete the period of probation on his return;] 
[Provided further that] a member of a service who is appointed to another service and is a probationer or an approved probationer in the latter service, shall not be appointed under clause (c) to any other service for which he may be an approved candidate unless he relinquishes his membership in the latter service in which he is a probationer or an approved probationer: 
Provided further that this rule shall not have retrospective effect so as to disturb the decisions taken by the Travancore-Cochin Government in respect of the Travancore-Cochin personnel: Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service not being Military Service, solely on his own application, unless such appointment is made in the exigencies of public service.” 
9. In the light of the above provisions, the absence of the petitioner in KSEB on account of his appointment in the Irrigation Department, could not have been an impediment for his appointment back in the KSEB. He was entitled to get reappointed without any loss of seniority which he was enjoying at the relevant time and was entitled to all consequential benefits, as if he continued in KSEB without any break. In other words, the appointment in the Irrigation Department through Kerala Public Service Commission, would not have disabled him from enjoying his seniority in the KSEB. In that view of the matter petitioner would not have been a person who would have been excess either as on 24.03.2004 or as on 10.12.2004 when Ext.P5 order was issued. Even when Ext.P7 order was issued, the respondents can not have a case that the immediate junior of the petitioner had become excess. Their case is that 10 more persons are to be adjusted as they have become excess. Petitioner would not have been one among those 10 who became excess.
10. The contentions raised by the respondent Board that petitioner was eligible for confirmation within the past 15 years is not correct, because Government have filed a statement to the effect that he is not so far confirmed. At any rate what is relevant to consider in this case is the eligibility of the petitioner when Ext P4 application was submitted and Ext.P5 order was passed. Petitioner challenged Ext.P5 order at the earliest opportunity. He cannot be denied relief on account of the pendency of the writ petition before this Court till the year 2016. The judgment of the Full Bench squarely applies in his case and he is entitled to the benefit of Rule 8 on his reappointment for seniority and all consequential benefits as if he continued in KSEB. It is relevant to note the judgment of the Full Bench, which considered a batch of cases where persons who got appointment in another service/department through Public Service Commission claimed reappointment in the first service/department where it was found that appointment through Public Service Commission is one made in exigency of service and hence such appointees are entitled to the benefit of Rule 8 of KS & SSR. The relevant portions of the judgment read as follows: 
“8.xxxThe meaning of the above proviso is that if a member of a service is appointed in the exigencies of public service, then he will be entitled to get the benefit of the main section. What is exigency in public service is clarified by Note 1 to R. 8. Note 1 says that an appointment made in pursuance of applications invited, sponsored or recommended by Government or other competent authority shall be deemed to be an appointment made in the exigencies of public service for the purpose of this rule. Thus, if a member of a service gets appointment in another service on the basis of the applications invited by Government or when he is sponsored or recommended by the Government or competent authority he is entitled to get the benefit of the main Section.
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14. Thus, on going through the provisions of K.S.S.R. and K.S.R., we find that there is no inhibition for a member of a service, who got appointment in another service, to come back to the parent Department. The only condition being that before he comes back, he should not have lost his lien in the parent Department.
Xxxx 
26. Thus, on the basis of the above decisions and the relevant Rules in the KSR and K.S.S.R., we are of the view that the lien of a member of a service to a post in the parent Department is not lost automatically when he joins another Department. The lien can be terminated only after hearing the concerned person. By mere completion of probation it cannot be said that a person has been substantively appointed to a permanent post. Unless a person is confirmed under R. 24 of K.S.S.R., it cannot be said that the person has been substantively appointed to a permanent post. In the present case, we find that the appellants have not been confirmed in the Cooperative Department. Hence they have no lien in the Co-operative Department. Their lien in the Rural Development Department has not been terminated. In that view of the matter, sending them back to the parent Department is legal.” 
The aforesaid judgment was affirmed by the Apex Court in Ali v. State of Kerala, 2003 (2) KLT 922.
In the above circumstances, I find that the rejection of the representations submitted by petitioner as per the orders Exts.P5 as well as P7 are absolutely unlawful and unjust. Hence those orders are quashed. There shall be a direction to the 1st respondent to reappoint petitioner in the KSEB and to grant him all consequential benefits with reference to his seniority as on 27.08.2003 when he was relieved. This shall be done within a period of 'two months' from the date of receipt of a copy of this judgment.
Accordingly, this writ petition is allowed.

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