S. Sankarasubban, J.@mdashThe above cases have been referred to the Full Bench as the correctness of the Division Bench judgments in W.A. Nos. 175/80, 305/83 and 980/87 was doubted. The question turns round the true scope and content of Rule 8, Part II of the Kerala State and Subordinate Services Rules (hereinafter referred to as ''the K.S.S.R.'').
2. We shall first deal with the Writ Appeals. Both the Writ Appeals are filed against the judgment of the learned Single Judge in O.P. No. 6380/89. In W.A. No. 69/95, there are 15 Appellants of which Appellants 1 to 4 are Respondents 3, 5, 11 and 17. The rest of the Appellants filed the appeal after getting leave from the Division Bench. The additional fifth Respondent got himself impleaded in W.A. No. 69/95. W.A No. 171/95 is filed by Respondents 8, 10, 19, 22 to 26 in the Original Petition. Petitioners in O.P. No. 6380/89 were Village Extension Officers of the Rural Development Department. They joined as Village Extension Officer Grade II. Third Respondent in the Original Petition also joined as Village Extension Officer Grade II. Third Respondent is impleaded in the Original Petition in a representative capacity.
3. The grievance of the Petitioners is as follows:
The third Respondent and Ors. were selected for appointment in the Co-operative Department as Junior Inspector/Junior Auditor. After they were selected for appointment, the above persons joined the service of Co-operative Department. They relinquished their rights in the Rural Development Department. The lien, if any, in the Rural Development Department had been terminated. Hence, the case of the Petitioners is that the services of the above persons in the Rural Development Department should not be taken into consideration. But contrary to this, the names of the third Respondent and Ors. are still retained in the seniority list of Village Extension Officers Grade II in the Rural Development Department and they were also given promotion as Village Extension Officers while allowing them to continue in other duties. They challenged Exts. P-2 to P-5 by which these officers were given promotion in the parent Department. In the Original Petition, there is a further allegation that the above persons are ordered to be reverted to the Rural Development Department. Hence, the prayer in the Original Petition was to quash Exts. P-2 to P-5 and also to quash the reversion granted to such persons to Rural Development Department.
4. Respondents 1 and 2 in the Original Petition, viz., State of Kerala and Commissioner for Rural Development have filed a joint counter affidavit. In that counter affidavit, it is stated as follows: 20 percent of the post of Junior Inspectors/Auditors in the Co-operative Department are reserved for Village Extension Officers. These appointments are to be made by transfer. Accordingly, persons like the third Respondent and Ors. , who were qualified to become Junior Co-operative Inspectors, applied to the Public Service Commission and they were selected for being appointed as Junior Inspectors. Counter affidavit says that it is not necessary to relinquish their rights in the Department for relieving them from the Department. They are at liberty to come back to this Department so long as they do not acquire a lien or confirmation in other Departments and they are willing to be reverted to this Department. The lien of those Village Extension Officers, who are on other duty in other Departments have not been cut off or suspended by this Department as per Rule 18 of Kerala Service Rules (hereinafter referred to as ''the K.S.R.''). It is because of the above facts that those officers were given promotions in the parent Department. In paragraph 3 of the counter affidavit, it is stated as follows:
Relinquishment of right in this Department is not a condition for accepting appointment in other Departments and to relieve them from this Department. They have lien in this Department so long as they do not acquire lien or confirmation in other Departments. Their lien in this Department have not been cut of or suspended as per Rule 18 of Kerala Service Rules.
In paragraph 4 of the counter affidavit, it is stated that as per the provisions in Rule 8 of the General Rules of K.S.S.R. those Village Extension Officers who are appointed by transfer in the Departments like Co-operation, Industries, Agriculture, etc. are eligible for re-appointment in the parent Department and getting promotion from a lower to a higher category.
5. Counter affidavits were also filed on behalf of some of the Respondents wherein the main contention urged is that the lien in the Rural Development Department is not automatically cut off when they joined the Co-operative Department. Further case is that even in the Co-operative Department they have not been confirmed. Further they relied on Rule 8 of the General Rules of K.S.S.R. for their coming back to the parent Department. The learned Single Judge after hearing the parties allowed the Original Petition. The learned Single Judge relying on the Division Bench decision in W.A. No. 980/87 took the view that when a member of a service takes appointment in Anr. service, he automatically relinquishes his rights in the parent Department. According to the learned Judge, a person cannot have lien on two Departments simultaneously. Further, the learned Single Judge was of the view that if such persons were allowed to come back in the parent Department, that will affect the prospects of the incumbent in the parent Department. Hence, the learned Single Judge quashed Exts. P-2 to P-5 and also gave a direction not to include the names of the third Respondent and Ors. in the seniority list and promotion list of the parent Department. It is against the above decision that the Appeals are filed.
6. When the appeals came up before the Division Bench, it was submitted that a similar question arose for consideration in O.P. No. 6619/95 and that Original Petition had been referred to a Full Bench for consideration, In view of the above fact, the Writ Appeals were also referred for consideration by a Full Bench. As already stated O.P. No. 6619/95 was referred to the Full Bench, since the correctness of the Division Bench decision in W.A. No. 980/87 was doubted. As a matter of fact, the learned Single Judge had relied on the judgment in W.A. No. 980/87 for allowing the Original Petition.
7. Shri N.N. Sugunapalan and Shri Sasi appeared for the Appellants in both the appeals. Shri Elvin Peter appeared for the 5th Respondent in W.A. No. 69/95. They argued for the position that the learned Single Judge was wrong in allowing the Original Petition. They argued that W.A. No. 980/87 has not considered the true impact of Rule 8 of the General Rules of K.S.S.R. and also the provisions regarding lien in the Kerala Service Rules. Learned Government Pleader also supported the arguments of the Appellants. Shri V. Varghese argued for the Respondents. He contended that when a member of service takes appointment in Anr. service, it can be presumed that he had relinquished his rights in the parent Department. According to him, when a person goes from the parent Department and joins Anr. Department, he goes there on the basis that he can have better prospects there. He cannot be subsequently allowed to come back to the parent Department. Learned Counsel strongly relied on the observations of the Supreme Court in
8. Before we consider the decisions on the question, we shall look into the relevant Rules. Rule 8 of the General Rules of K.S.S.R. on which reliance is placed by the Appellants is 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 Anr. 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:
1 * * * *
2. Provided that subject to the provisions of Rule 18 he shall satisfactorily complete the period of probation on his return:
3. Provided further that a member of a service who is appointed to Anr. 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 Anr. service not being Military service, solely on his own application, unless such appointment is made in the exigencies of public service.
Note 1.-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.
Note 2. The benefit of this rule shall not be available to a person holding a post in any class or category in a service if his appointment to that post was from a post in Anr. class or category in the same service.
The above Rule enables a member of a service who is absent from duty in such service to return back to that service, if he is not otherwise ineligible. On return, he is eligible for 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; (2) for promotion from a lower to a higher category; and (3) for appointment to any substantive or officiating vacancy. The Rule contemplates a situation when the member is absent from duty on leave, on foreign service, or on deputation or for any other reason. The fourth proviso to Rule 8 is as follows:
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 Anr. service not being Military service, solely on his own application, unless such appointment is made in the exigencies of public service.
The 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 lo get the benefit of the main section. What is exigency in public service is clarified by Note 1 to Rule 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 Anr. 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. Note 2 denies the benefit to a member of a service when he is appointed to Anr. post in the same service. In the present case, we are not concerned with Note 2. Learned Counsel for the Appellants submitted that in view of Note 1 the Appellants and similarly situated persons are entitled to the benefit of Rule 8, if the conditions in Rule 8 are satisfied.
9. It is an admitted fact that all the Appellants were originally appointed as Village Extension Officers in the Rural Development Department. The post of Junior Inspector including Junior Auditor and Junior Special Inspector is a post under the Kerala Co-operative Subordinate Service. Appointment to this post is made as follows: (1) direct recruitment (2) recruitment by transfer from Upper Division Clerks/Upper Division Typists employed in the Co-operative Department and (3) recruitment by transfer from among Gramasevaks. These appointments are to be made in the ratio of 2:2:1. Thus, 20 percent of the vacancies of Junior Inspectors are to be filled up by transfer of Village Extension Officers to the Co-operative Department. Applications were invited on behalf of the Government by the Public Service Commission. Appellants and Ors. applied for the posts. They were selected and appointed to the posts. Thus those appointments are made in pursuance of the applications invited by Government. In such a case, their appointments are deemed to be made in the exigencies of public service. If that be so, the Appellants are entitled to the benefit of Rule 8, if other conditions are satisfied.
10. The next question to be considered is after the Appellants were selected for appointments in the Co-operative Department and after they joined the Co-operative Department whether they are entitled to come back to the Rural Development Department. The answer to this question depends upon whether the Appellants have relinquished their rights or put it in the service language ''their lien'' in the Rural Development Department once they joined the Co-operative Department pursuant to their selection and appointment in that Department. If lien is not lost in the parent Department, the Appellants will be entitled to come back on the basis of Rule 8. So, the question for consideration is whether the Appellants lost their lien in the Rural Development Department when they joined the Co-operative Department. In that context, it is also necessary to consider whether the Appellants had obtained a lien in the post to which they were appointed in the Co-operative Department. We shall refer to the relevant provisions in this context.
11. K.S.R. deals with "lien" of a Government servant to the post to which he is appointed. Rule 16 Part I of K.S.R. says that unless in any case it be otherwise provided in these rules, an officer on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post. Rule 18(a) of Part I of K.S.R. is as follows:
The Government shall suspend the lien of an officer on a permanent post which he holds substantively if he is appointed in a substantive capacity.
(1) to a permanent post outside the cadre on which he is borne, or
(2) provisionally to a post on which Anr. officer would hold a lien had his lien not been suspended under this rule.
(b) The Government may, at their option, suspend the lien of an officer on a permanent post which he holds substantively, if he is transferred to foreign service or in circumstances not covered by Clause (a) of this rule, is transferred, whether in a substantive or officiating capacity to a post in Anr. cadre, and if in any of these cases there is reason to believe that he will remain absent from the post on which he holds a lien for a period of not less than three years.
From a reading of the above rule, the following position emerges. When an officer is appointed substantively to a permanent post, he acquires a lien on that post and ceases to hold the lien which he acquired previously on any other post. If Rule 16 stood as such, the argument of the Respondents could have been accepted that when the Appellants were appointed substantively to a permanent vacancy in the Co-operative Department, they lost their lien in the Rural Development Department. But Rule 16 is not absolute. The lien has to be suspended by the Government under Rule 18 and before suspending the lien the Government has to consider the result of the suspension. The lien of an officer cannot be suspended or terminated without his consent.
12. The next question for consideration is whether the Appellants have been appointed substantively to a permanent post in the Co-operative Department. In this context, the counter-affidavit filed by the Government assumes importance. In paragraph 2 of the counter-affidavit, it is stated that it is not necessary to relinquish their rights for relieving them from this Department. They are at liberty to come back to this Department so long as they do not acquire lien or confirmation in other Departments. The lien of the Village Extension Officers have not been cut of or suspended by this Department as per Rule 18 of K.S.R. Counter-affidavit also relies on Rule 19(a) of K.S.R. In paragraph 7 of the counter-affidavit tiled on behalf of Respondents 4 to 18 in the Original Petition, it is stated as follows:
The additional Respondents appointed in the Co-operative Department, as Junior Co-operative Inspectors in officiating posts still continue to be in officiating capacity. They continue their lien in the Rural Development Department. None of them have received any communication suspending or terminating their lien in the Rural Development Department as per Rule 19 of Part I K.S.R. Even with the permission of the additional Respondents their lien cannot be cut off rendering them without lien in any department.
Thus on facts, it is seen that the Appellants have not been confirmed in the Co-operative Department and their lien in the parent Department has not been terminated.
13. Counsel for one of the Respondents in the appeal submitted that most of the Appellants have completed their probation and hence they should be deemed to be substantively appointed to a permanent post and hence according to the Counsel, their lien in the parent Department is germinated as per Rule 15 of K.S.R. Counsel is not right in his submission. He was not able to produce any order passed by the Co-operative Department confirming the Appellants in their posts. Even if it is admitted for argument sake that the Appellants have completed their probation that doesn''t enable them to get automatic confirmation unless under Rule 24 of Part II of K.S.S.R. they are confirmed in that post. Rule 24 of K.S.S.R. is as follows:
24. Appointment of full members. (a) Subject to the provisions of Rule 8 an approved probationer shall be appointed to be a full member of the service in the class or category for which he was selected, at the earliest possible opportunity, in any substantive vacancy which may exist or arise in the permanent cadre of such class or category and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from the date or, as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category.
This shows that an order has to be passed appointing the approved probationer as a full member of a service on a substantive vacancy. The order is the order of confirmation even though such a term does not find a place in the K.S.S.R. The order of confirmation is necessary for the conferment of full membership of the service in the class or category for which a person is selected. As has been held in Rajmohanan v. Assistant General Manager ILR 1985 (1) Ker 488 from the mere fact that an employee is allowed to continue in the post after the expiry of the specific period of probation it cannot be held that he should be deemed to have been confirmed. Thus, so far as the present case is concerned, the Appellants have not been confirmed in the post in the Co-operative Department. Under Rule 16, Part I of K.S.R., a member of a service loses his lien previously acquired in other post only when he is appointed substantively to a permanent post. Since at the time when the order of reversion was passed the Appellants have not been confirmed under Rule 24, it cannot be said that they lost their lien in the parent Department.
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 Anr. 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. The above being the provisions under the relevant Rules, we shall now consider the correctness of the judgments in the Writ Appeals.
15. In W.A. No. 175/80, the Appellant was an Assistant Librarian Grade II in the Kerala University. Thereafter, he was promoted as Assistant Librarian Grade I. Subsequently, he applied for the post of Lecturer in the Department of Library Science and he was selected and appointed to that post. From the judgment it appears that the Appellant had completed his probation in the post of Lecturer. Meanwhile, the Assistant Librarian Grade I in the University was promoted as Deputy Librarian as a result of the amendment of the Rules. Appellant challenged the promotion and wanted that he should be promoted as Deputy Librarian. On a perusal of the judgment, it is seen that Rule 8 of K.S.S.R. was not considered. The Division Bench took the view that the functions of an Assistant Librarian and the Lecturer are different. Hence, the Bench presumed that when the Appellant offered himself for recruitment to the post of Lecturer in Library Science, he had relinquished the post of Assistant Librarian Grade I. The judgment further says that inference is drawn with reference to the facts and circumstances of the case and particularly from the conduct of the Appellant himself. Thus, we find that the Division Bench had not discussed the provisions and the Rules in the K.S.R. or K.S.S.R. and merely assumed that the Appellant had relinquished his lien in the parent Department when he was appointed as Lecturer. We are of the view that this decision cannot be an authority for the position that a member of a service on being appointed to Anr. service is disabled from returning from the original Department.
16. The next judgment is the judgment in W.A. No. 305/83. In this case, the Appellant was Lower Division Clerk in the Revenue Department. While so, applications were invited for the post of Library Assistant in Vikram Sarabhai Space Centre. He made an application for the said post and was selected and appointed on a provisional basis. Subsequently, his services in the V.S.S.C. stood terminated. Thereafter, he made a representation to the Government for taking him back to the Revenue Department contending that he has lien therein and has therefore a right to rejoin duty. Government turned down his request. Hence, he approached the Court for the reliefs. The Single Judge dismissed the Original Petition. Hence, the matter was taken in appeal. The Bench took the view that the Appellant took up appointment in the V.S.S.C. and for that he was not recommended by the Government or any competent authority under the Government. Further, it was of the view that the V.S.S.C. is not an organisation belonging to the State Government. Thereafter, it took an inference that when the Appellant took up appointment in the V.S.S.C., he relinquished his job in the Revenue Department. It is not clear from the facts whether the service in the V.S.S.C. is taken in by Rule 8 of K.S.S.R. It is further seen from the judgment that the Appellant claimed his right under Rule 8, K.S.S.R. The Division Bench brushed aside his contention under Rule 8 on the ground that absence of service from the Revenue Department for taking up employment elsewhere cannot be deemed to be absence of duty under Rule 8 of K.S.S.R. The Bench took the view that it is a case of relinquishment of job to take up Anr. assignment.
17. We don''t approve the above general statement that whenever a person is absent from the Department for taking up employment in Anr. Department there is a relinquishment of job in the parent Department. When the benefit of Note 1 of Rule 8 was claimed, it was rejected on the ground that there was no evidence to show that the Government sponsored or recommended him for appointment. In the same judgment, the Court relied on the judgment in W.A. No. 175/80 and finally dismissed the appeal. We are of the view that the observations in the above judgment cannot be taken as laying down the correct law with regard to the interpretation of Rule 8. We overrule the above judgment in so far as it states that whenever a member of a service takes up job in Anr. service, he is deemed to have relinquished his lien in the parent Department.
18. The next judgment is the judgment in W.A. No. 980/87. In this case, the Appellant was Lower Division Auditor in the Local Fund Audit Department. Subsequently, he was promoted as Upper Division Auditor. While so, certain vacancies arose in the posts of Junior Co-operative Inspectors in the Co-operative Department. These posts were advertised by the Public Service Commission. Appellant being duly qualified to the post, applied for the same. He was duly selected by the Public Service Commission and he was appointed as Junior Inspector of Co-operative Societies. He earned the promotion as Senior Inspector. While he was thus serving as Senior Inspector, he made a request to the Government to revert him to the Local Fund Audit Department and to accord him all promotions and positions which he would have occupied had he been continued in the Local Fund Audit Department. That representation was allowed by the Government and a direction was given to revert him to the parent Department. This was challenged by the Petitioners in the Original Petition. Petitioners contended that their prospects in the Department have been affected by the order of reversion of the Appellant. The learned Single Judge allowed the writ petition against which W.A. No. 980/87 was filed.
19. The Division Bench relied on the earlier decisions in W.A. No. 305/83 and W.A. No. 175/80. It took the same view as in the earlier decisions that when a person who was serving in one Department applies for job to Anr. Department and accepts that appointment having been selected for that post and joins that Department, such a person cannot still be regarded as having certain rights in the parent Department. The Bench held that the "Local Fund Audit Department and the Co-operative Department are two different independent and separate Departments. An employee in one Department has therefore no right to claim any post in the other Department ... This conduct of the Appellant makes it abundantly clear that when he joined the Co-operative Department as Junior Inspector, he relinquished his right to the post which he held in the Local Fund Audit Department. That is the only reasonable inference that is possible having regard to the circumstances. The question of pressing into service the benefits flowing from Rule 8 does not arise in this case, since it was of the view that Rule 8 will not be applicable in a case of relinquishment of job to take up Anr. assignment". With great respect we are of the view that the above observations have been made without reference to Rule 8 of K.S.S.R. and the relevant Rules regarding termination of lien in the K.S.R. Note 1 of Rule 8 clearly states that when a member of a service gets an appointment in Anr. Department on the invitation of the Government or on being sponsored or recommended by the Government, such appointment will be deemed to be exigencies of service. Hence, the Division Bench was not correct in stating that when a person takes up appointment in Anr. service, he is not absent from duty in the parent Department. So also the general observation that whenever a member of a service take up appointment in Anr. Department, he relinquished his rights in the parent Department is not correct as it is not in accordance with Rules 15 to 20 of K.S.R. In W.A. No. 305/83 the Division Bench relied on the earlier decisions in W.A. Nos. 175/80 and 980/87. For the reasons already given, the above decision cannot be an authority regarding the interpretation of Rule 8.
20. Another judgment relied on was the judgment in W.A. No. 486/89. But it is a case of transfer in the same service. According to Note 2 of Rule 8 of K.S.S.R., which came into force from 19th August 1986, the benefit of Rule 8 is not available to a person holding a post in any class or category in a service if his appointment to that post was from a post in Anr. class or category in the same service. The Division Bench held that the conditions in Note 2 of Rule 8 were satisfied. We approve the judgment only to that extent. The other observations in the above judgment regarding Rule 8, with great respect, it is submitted, are not correct.
21. Now let us consider the view taken by the Supreme Court in various decisions. In
When the Appellant was appointed as Block Development and Panchayat Officer in a substantive permanent capacity, his case squarely fell within the ambit of Rule 3.14(a)(2) as the post of Block Development and Panchayat Officer was outside the cadre of Agricultural Inspectors to which the Appellant belonged. In the circumstances, it was imperative for the competent authority to suspend the lien of the Appellant on the permanent post of Agricultural Inspector which he had held substantively. The competent authority, however, failed to suspend the lien of the Appellant on the post of Agricultural Inspector. The Appellant plainly cannot suffer because of such inaction or omission on the part of the competent authority. A reading of the rule leaves no doubt that a duty is cast upon the competent authority to suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. The imperative nature of the rule is also clear from the use of the word ''shall'' in Clause (a) as against the use of the word ''may'' in Clause (b) of that rule. The Appellant, in our opinion, cannot be penalised because of the omission of the competent authority to act in accordance with the mandatory provisions of Rule 3.14(a)(2).
22.
There appears to be, however, considerable force in the second contention advanced on behalf of the Respondent that on the abolition of the post of Panchayati Raj Election Officer, his Services should not have been terminated. According to Clause (a)(2) of Rule 3.14 of Punjab Civil Services Rules Vol. 1 Part I as applicable to Haryana State a competent authority shall Suspend the lien of a Government servant on a permanent post which he holds substantively if he is appointed in a substantive capacity to a permanent post outside the cadre on which he is borne. According to Clause (e) of that rule, a Government servant''s lien which has been suspended under Clause (a) of that rule shall revive as soon as he ceases to hold a lien on the post of the nature suspended in Sub-clauses (1), (2) or (3) of that Clause, The above provisions were considered by us in the case of T.R. Sharma v. Prithvi Singh, Civil Appeals Nos. 354 and 355 of 1971 decided on 17th November 1975=(reported in
Thus, in the above decision, the Supreme Court followed its earlier decision reported in
23.
24. The decision in
A Government servant''s lien on a post shall stand terminated on his acquiring a lien on a permanent post (whether under the Central Government or a State Government) outside the cadre on which he is borne.
The post of Director was not in the same cadre as the post of Professor. Therefore, the Court took the view that on his appointment to the permanent post as a Director, he lost his lien on the post as a Professor. It was in the above circumstances that the Supreme Court held that the Appellant lost his lien in the post of Professor.
25. In
a person can be said to acquire a lien on a post only when he has been confirmed and made permanent on that post and not earlier.
Another decision cited was Sarald v. State of Kerala 1989 (1) KLT 518. There the Court held that the fourth proviso to Rule 8 of K.S.S.R. applies only to such a member of a service who absent from duty in that service and not those absent from one category in the service to another category in the same service. It was held that the Petitioner was not absent from the service. Hence, the benefit under Rule 8 of K.S.S.R. was not given to the Petitioner therein. The facts in that case are different from the facts in the present case.
26. Thus, on the basis of the above decisions and the relevant rules in the K.S.R. 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 Anr. 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 Rule 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 Co-operative 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.
27. In the above view of the matter, we set aside the judgment of the learned Single Judge. It is submitted for some of the Appellants that they have already retired from service and they could not get the benefit of the order of reversion because of the stay granted by this Court. In the result, we pass the following Order:
28. All those persons in whose favour orders have been passed reverting to the Rural Development Department will be allowed to join the Rural Development Department immediately. They will be entitled to all the benefits in the Rural Development Department including all promotions which would have accrued to them had they joined the Rural Development Department. Regarding those persons who had retired, they will be treated as having joined back the Rural Development Department and their pensionary benefits will be calculated on the basis of the benefits that would have accrued to them if they were in the service of Rural Development Department from the date of order of reversion.
O.P.No. 6619/1995
29. In this Original Petition, Petitioner prays for a writ of mandamus or other appropriate writ, direction directing Respondents 1 and 2 not to permit the fourth Respondent to join duty as Upper Division Typist in the Collectorate, Pathanamthitta. Petitioner and the fourth Respondent were selected and appointed as Lower Division Typist in the District Collector''s Office, Pathanamthitta. Petitioner was 14th in the select list while the fourth Respondent was 4th. According to the Petitioner, both the Petitioner and the fourth Respondent completed their probation in the category of Lower Division Typist as is revealed by Ext. P-2. Subsequently, the fourth Respondent was promoted as Upper Division Typist. By Ext. P-3 order the fourth Respondent was relieved of his duties in the Collectorate, Pathanamthitta in order to enable him to join as Lower Division Clerk/Bill Collector in the Municipal Common Service. Accordingly, fourth Respondent joined the Municipal Common Service, Grievance of the Petitioner is that the fourth Respondent is trying to come back to the Collectorate, Pathanamthitta and this will jeopardise his prospects in the Collectorate. Ext. P-5 is the representation filed by the Petitioner before the District Collector requesting that the fourth Respondent may not be taken back in the Collectorate.
30. A counter-affidavit has been filed on behalf of the fourth Respondent. According to him, even before he was appointed as Lower Division Typist in the Collectorate, he had applied for the post of Lower Division Clerk/Bill Collector in the Municipal Common Service. But the appointment was made only after he joined the Collectorate. He joined the Municipal Common Service on 12th July 1971. But when he joined, it was found that he was a loser of nearly Rs. 215 per month towards his salary. Therefore, within ten days of his joining the Municipal Common Service, he filed a representation to the Director of Municipal Administration seeking permission to return to his parent Department. In the same way he has filed representations on 22nd July 1991, 19th December 1991., 5th January 1993 and 9th July 1993. Thereafter he received Ext. R-4(d), dated 17th October 1994 from the District Collector, Pathanamthitta stating whether he was still interested in coming back to the Collectorate. By Ext. R-4(e), dated 19th April 1995 fourth Respondent was reverted to the parent Department. Counsel for the fourth Respondent submits that it was because he found it difficult to continue in the Municipal Common Service due to reduction in his salary that he wanted to come back to the parent Department.
31. All the contentions which were raised in the above Writ Appeals were also raised in the present case. From the facts of this case it is clear that the fourth Respondent has not been confirmed in the Municipal Common Service, Hence he is entitled to come back to the parent Department. The additional contention raised by the Counsel for the Petitioner was that Rule 8 does not take in Municipal Common Service. Counsel for the Petitioner invited us to the definition of ''service'' in Rule 2(15), which is as follows:
''Service'' means a group of persons classified by the State Government as a State or a Subordinate Service as the case may be.
Counsel for the Petitioner submitted that the Municipal Common Service is not a State or a Subordinate Service classified by the State Government. Hence the contention is that the Petitioner can not avail of the benefit of Rule 8. It is true that if one goes by the definition of the term ''service'' in Rule 2(15) of K.S.S.R., Municipal Common Service is not included in the same. But Rule 2 starts by saying: "in these rules unless there is anything repugnant, the subject or context..." Hence, the meaning of a word may vary from the meaning given in the definition, if the context requires a different meaning to be given.
32. Now we shall examine Rule 8 to find out whether the term ''service'' will include services other than the services classified as State and Subordinate Service. The fourth proviso and Note 1 to Rule 8 throw light on this aspect. They are as follows:
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 Anr. service not being Military Service, solely on his own application, unless such appointment is made in the exigencies of Public Service.
Note 1.-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.
The mention of ''Military service'' in the proviso to Rule 8 is an indication to show that the term ''service'' is not confined to State and Subordinate Service. Further, according to the proviso and Note 1, appointment made in the exigencies of Public Service on the application or recommendation of the Government or competent authority will be deemed to be absence from duty from the parent service. The term ''Public service'' has a wider concept than the term ''service'' mentioned in Clause 15 of Rule 2 K.S.S.R. It cannot be denied that Municipal Common Service is not a public service. The Kerala Municipal Common Service is constituted in exercise of the powers conferred by Sub-section (1) of Section 90 of the Kerala Municipal Corporations Act, 1961. Section 90 of the Kerala Municipal Corporations Act is as follows:
90. Constitution of a common municipal service.-(1) Notwithstanding anything contained in Sub-section (1) of Section 91 of the Kerala Municipalities Act, 1960 (Act 14 of 1961) the Government may constitute the employees under the Municipal Councils and Corporations in the State into a common municipal service for the State, subject to such rules as may be prescribed by the Government in this behalf.
(2) The Government may make rules to regulate the recruitment and conditions of service of officers and servants of municipal corporations.
Rule 3 of the Kerala Municipal Common Service Rules states that on and effect from the first day of November 1967, the employees of the Municipal Councils and Corporations holding the posts specified by the Government, by order in this behalf, shall be constituted into a common service for the State. Under Clause (2) of Rule 3, the Government is given the power to arrange for the preparation of a combined gradation list of the persons holding the posts included in the common service. Rule 4 enables the Government or the Director or any other Officer authorised by the Government to transfer an employee holding any post included in the common service from one local authority to Anr. . The pay and allowances are to be disbursed at the rates fixed by the Government. The recruitment committee for the purpose of recruitments to the posts included in the common service is to be constituted by the Government. Under Rule 8 recruitment is to be made in accordance with the provisions of the Common Service Rules and such other orders as the Government may from time to time issue. Rule 10 deals with appointing authority. The person competent to appoint any employee shall be notified by the Government. Qualifications for the different posts are to be prescribed by the Government. Under Rule 12, the Government may for special reasons and in the exigencies of service, appoint any person from the service of the Government to any of the posts under a local authority included in the common service on foreign service conditions. Rule 14 of the Rules makes the Kerala State and Subordinate Services Rules applicable in the case of employees of the common service.
33. Supreme Court had occasion to consider whether the Panchayat service constituted u/s 203 of the Gujarat Panchayats Act is a civil service. Dealing with this question, the Court held as follows:
the true test for determination of the question whether a person is holding a civil post or is a member of the civil service is the existence of a relationship of master and servant between the State and the person holding a post under it and that the existence of such relationship is dependent upon the right of the State to select and appoint the holder of the post, its right to suspend and dismiss him its right to control the manner and method of his doing the work and the payment by it of his wages and remuneration. It is further held that the relationship of master and servant may be established by the presence of all or some of the factors referred to above in conjunction with other circumstances.
The Court then considered the provisions of the Panchayats Act and held as follows:
It may be noted that the Panchayat service contemplated u/s 203 of the Panchayats Act is a single service for the whole State and it is not a collection of distinct and separate services of each individual panchayat. That Panchayat Service is a service under the State is again emphasised by Section 206 which authorises the State Government to pool together four classes of persons mentioned therein who originally belonged to four different sources and to allocate them to the Panchayat Service and one class of such persons are those who belong to the State service. Unless the Panchayat service is held to be a State service, inclusion of officers and servants in the State service will be unconstitutional.
It was farther observed thus:
State public services may be constituted or established either by a law made by the State legislature or by rules made under the proviso to Article 309 of the Constitution or even by an executive order made by the State Government in exercise of its powers under Article 162 of the Constitution. The recruitment and conditions of service of the officers and Servants of the State Government may also be regulated by statute, rules or executive orders. The administration of a service under a State involves broadly the following functions: (i) the organisation of the Civil Service and the determination of the remuneration, conditions of service, expenses and allowances of persons to serving in it; (ii) the manner of admitting persons to civil service; (iii) exercise of disciplinary control over members of the service and power to transfer, suspend, remove or dismiss them in the public interest as and when occasion to do so arises. In the instant case, the Panchayat service is constituted by the Panchayats Act and the State Government is empowered to make orders and rules regarding its organisation and management. It is true that in Section 203 of the Panchayats Act, it is stated that the Panchayat Service shall be district from the State service. Having regard to the broad features of the Panchayat service, we are of the view that the said declaration appears to have been made only to distinguish the Panchayat service from other services of the State attached to the several departments which are under the direct control of the State Government. If the members of the Panchayat Service are not to be the members of a Service under the State Government but are to be the officers and servants of the Panchayat unit to which they are allotted then Sub-sections (2), (2-A) and 4(a) of Section 203 of the Panchayats Act would to some extent become unworkable as every time there is a transfer of an officer borne on the Panchayat Service there would be a change of master.
On an examination of the Kerala Municipal Common Service Rules, we are of the view on the basis of the above Supreme Court decision that the Municipal Common Service is also a public service. Thus, the fourth Respondent will be allowed to join the Collectorate, Pathanamthitta as per Ext. R-4(e) order. He will be entitled to all the benefits which would have accrued to him had he joined the Collectorate immediately Ext, R-4(e) order.
34. In the above view of the matter, we allow the Writ Appeals and dismiss the Original Petition with the directions given above.
