Sebastian vs State of Kerala

K.K. Densesan, J.—Petitioner joined service as Lower Division Clerk in the NCC Department in Ernakulam District on the advice of the Ernakulam District Recruitment Board of the Kerala Public Service Commission as per memo dated 26.7.1995. He completed the probation period of two years and passed the M.O.P. and the Account Test. While so, He applied, pursuant to a fresh notification published by the Commission, of appointment as L.D.C in the same department but in another district i.e., Alappuzha and was appointed on the advice of the Alappuzha District Recruitment Board of the Commission as per memo dated 24.11.1997.

Petitioner made a representation to the second respondent to relieve him from the post in order to join duty in alappuzha district. That was allowed and he was relieved on 22.11.19983. He reported for duty in that district on 23.1.19983 as L.D.C.

Thereafter, considering his seniority reckoned with reference to the date of advice dated 26.7.1995 in Ernakulam District, by Ext. P5 dated 25.2.1999 he was promoted as upper Division Clerk with effect from 13.1.1998 after declaring his probation. He was given consequential service benefits including pay and allowances and increments as U.D.C. from 13.1.1998. Subsequently, Ext. P6 final seniority list of and increments as U.D.C. was published on 22.5.2000 in the NCC Directorate assigning him rank in that list.

When matters stood as above, petitioner received Ext. P7 order issued by the second respondent on 27.7.2000 reverting him to the post of L.D.C. with immediate effect. The reason stated for the reversion is that the petitioner''s appointment in Alappuzha District must be considered as a fresh appointment and his seniority will be determined with reference to the date of his advice in that district. Aggrieved, he challenges in Ext. P7 in this Original Petition.

The 2nd respondent has filed a counter affidavit wherein it is stated that the petitioner has no right to get promotion as U.D.C. on the basis of the service put in by him in Ernakulam District. He was recruited on the advice of the District Recruitment Board of Kerala Public Service Commission and the advice was on district-wise basis. According to the respondents petitioner can count his seniority only from 24.11.1997 in Alappuzha District and not from the date of his advice on 26.7.1995 in Ernakulam District.

Learned counsel for the petitioner submits that the petitioner''s probation having been declared with reference to his original appointment, he acquired a lien in Ernakulam district and hence his seniority shall be determined with reference to the date of his advice in Ernakulam District.

I have heard Sri. K.M. Joseph, learned counsel for the petitioner and the learned Government Pleader for the respondents.

The question that arises for consideration is whether the services rendered by the petitioner in Ernakulam District can be carried forward and counted along with the services in Alappuzha District. The answer to this question depends on the interpretation to be given to Rule 38 of the Kerala State and Subordinate Service Rules which deals with relinquishment of rights by the Government servants. A Division Bench of this Court had occasion to deal with the question almost in identical circumstances while disposing of W.A. No. 629 of 1987 dated 4.4.1989. This Court in that judgment held:

"Though Rule 38 contemplates relinquishment in writing we are not inclined to agree with the contention that if the relinquishment in made otherwise than in writing, the same is not a valid relinquishment under law. The rule contemplated relinquishment in writing to avoid undue dispute and difficulties in the matter of proof regarding relinquishment. If the relinquishment is made in writing, nothing further would be required to establish the relinquishment. Relinquishment in writing is contemplated by Rule 38 only for the purpose of facilitating proof and not as an essential condition for reliquishment becoming effective. This Court has consistently taken the view in W As. Nos. 305 of 1983. 380 of 1987 etc. that inference of relinquishment can be drawn from the conduct of the Government servant and the surrounding circumstances. A person holding a particular post when another post was advertised, applied for the same, offered himself as candidate, got himself selected and accepted that post, and inference that he relinquished the post earlier held by him can reasonably and legitimately be drawn. The conduct of the party who holds a particular post, if he is attracted by another offer of appointment and accepts the same, in the absence of any other reservation specifically made at the time of accepting the new appointment, the only reasonable inference possible is that he relinquished the former job for the purpose of taking up the new appoinment".

The above view has been upheld by the Supreme Court in K. Viswambharan Vs. State of Kerala and Others,

Petitioner''s counsel relies on the judgment in Abraham v Director of Public Instructions (2000 (2) KLJ 562) rendered by a learned Single Judge of this Court. In that case the petitioner who commenced service as P.D. teacher applied for appointment to the post of High School Assitant and got selected by the Public Service Commission and appointed as High School Assistant. The Learned Judge accepted the contention of the petitioner in that O.P. that he, even after joining duty as High School Assistant, retained lien in the post of P.D. teacher and was entitled for all service benefits by virtue of his first appointment as PD teacher based on the provisions in Rule 8 of K.S. & S.S.R. This claim was accepted by the learned Single Judge by invoking the provisions of Rules 17 to 20 and 24 of the General Rules in K.S. & S.S.R.

Learned counsel for the petitioner submits that Ext. P7 is liable to be quashed in the light of the above decision. It is true that the judgment of this Court in Abraham''s case supra (2000(2) KLJ 562) is in favor of the petitioner. However. In may say with respect, that I am unable to follow that judgment for two reasons. Firstly, the decision of the Supreme Court in K. Viswambharan Vs. State of Kerala and Others, does not appear to have been placed for the consideration of the learned Single Judge. The effect of Rule 8 of K.S. & S.S.R. is also not considered. Secondly, in my view, the provisions of appointment to the post of High School Assistant on his own volition and got appointed to the post. That appointment is not one made in the exigencies of service and says that the benefit of Rule 8 is not available to such and employee. The proviso to Rule 8 says that the benefit of the said rule is not available to and employee whose appointment to another service is solely on his own application and not in the exigencies of service. I would have thought of passing a reference order expressing my reluctance to accept the judgment in Abraham''s case, but for the fact that this Original Petition can be disposed of in the light of the decision of the Supreme Court reported in K. Viswambharan Vs. State of Kerala and Others, . I do not find any error in Ext. P7 and that order does not call for any interference.

Petitioner''s counsel submits that even in Ext, P7 is not quashed, having regard to the fact that the petitioner has been discharging his duties as U.D. Clerk from the date of Ext. P5 without any interruption, it will be unjust and inequitable to direct him to refund the pay and allowances already drawn by him. It is a fact that the petitioner has not in any manner contributed to the passing of Ext. P5 by which he was wrongly promoted as U.D. Clerk. It was on the strength of that order he discharged the duties attached to the higher post and drew his salary. In such circumstances I make it clear that the petitioner shall not be called upon to refund the pay and allowances drawn by him as U.D. Clerk for the period he worked as such.

Subject to the above observation, the Original Petition is dismissed. No costs.