The premature confirmation of employees as full members in a transferee department, before the declaration of their probation, is not justified under KS & SSR Rules.

Manjula Chellur, CJ.

Writ Appeal Nos. 1414/2011 and 1385/2011 are between the parties in the original application before the learned Single Judge.

2. Writ Appeal Nos.1825 /2011and 1823/2011 are filed by third parties seeking leave of the court to file appeals contending that they are aggrieved by the directions of the learned Single Judge in the impugned judgment.

3. The brief facts lead to the filing of W.A. Nos.1414 and 1385 of 2011 are as under:-

The party respondents in these appeals were the writ petitioners before the learned Single Judge. It is not in dispute that writ petitioners were appointed initially as Assistant Grade- II in the Administrative Secretariat, and later on, they were appointed by recruitment by transfer to the post of Block Development Officer ("BDO" for short) in the Rural Development Department by order dated 28-09-1993. According to the writ petitioners, after they were transferred to the Rural Development Department, probation in the said department was declared with effect from the respective dates communicated to them. Subsequently, they represented for repatriation from Rural Development Department to Administrative Secretariat ("parent department" for short). But the said representations were not considered on the ground that in SLP 14996 of 1998, matter was pending before the Apex Court and their request cannot be considered during the pendency of the said SLP.

4. It is not in dispute, against the Full Bench Judgment of this Court in Balakrishnan Nair v. Ram Mohan Nair - 1998 (1) KLT 766 (FB), the Special Leave Petition was filed. As could be seen from the records placed before the Court, SLP against the judgment of the Full Bench came to be dismissed upholding the view of the Full Bench. Apparently, these Writ Petitioners were not parties to the Special Leave Petition, but they were similarly situated persons. According to the petitioners, by virtue of initial appointments to the Administrative Secretariat, they have a lien in the parent department and, only if, they are confirmed in accordance with the regulations in the transferee department, they would lose their lien in the parent department. It is further contented, as long as no such confirmation in the transferee department is made, they shall continue to hold their lien in the parent department and, therefore, having submitted their applications for repatriation to the parent department, there was no justification for confirmation of them in the transferee department hurriedly, and it was done only to overcome the law declared by the Full Bench which came to be confirmed with the dismissal of SLP.

5. It is also the case of the petitioners that after their initial appointments, against a substantive permanent vacancy, lien will be held by the appointee in such parent department and in order to become a full member as per Rule 24 of Kerala State and Subordinate Services Rules (KS & SSR for short) Part II one has to be declared having completed the probation period as satisfactory, and then only they could be considered as full members. It is their further contention that unless they are full members, the question of confirmation in the transferee department or parent department, would not arise. So far as, these two writ petitioners are concerned, as on the date of issuing confirmation order without considering their representations for repatriation, they had not completed the period of two years of probation, therefore, even declaration of probation could not have been done, hence question of considering them as full members would not arise in the facts and circumstances of the case.

6. Aggrieved by such confirmation, the writ petitioners approached the learned single judge with the present Writ Petitions. The learned Single Judge referring to the earlier judgment, exactly in identical circumstances, proceeded to hold that the confirmation in the transferee department was not in accordance with the procedure contemplate