SUMESH V. S. Vs. RAJITH T. A.

JUDGEMENT

(1.) O.P.(KAT) No.31 of 2022 is filed by the 5th respondent in O.A.(EKM) No.776 of 2021 and O.P.(KAT) No.36 of 2022 is filed by the applicant in O.A.(EKM) No.1472 of 2021 (5 th respondent in O.A. (EKM) No.776 of 2021) before the Kerala Administrative Tribunal, Thiruvananthapuram, Ernakulam Bench aggrieved by the common order dtd. 23/9/2021, disposing of both the Original Applications, whereby O.A.(EKM) No.776 of 2021 was allowed and O.A.(EKM) No.1472 of 2021 was dismissed. Since the issue involved in both these original petitions is the same, they are heard and disposed of together.

(2.) Brief facts necessary for the disposal of the above Original Petitions are as follows: OP(KAT)No.31 of 2022

(3.) Respondents 1 to 3 are the applicants in O.A.(EKM) No.776 of 2021 who are employees included as rank Nos.39, 40 and 44 respectively in the ranked list for by-transfer appointment to a post of Range Forest Officer in category No.213/2016. The grievance raised by the said applicants in the O.A. was regarding the issuance of a lien certificate in favour of the 5th respondent, the petitioner herein, even though he has been confirmed in service in the Airport Authority of India and consequential inclusion of the 5th respondent in the ranked list by accepting the said lien certificate, by the 2nd respondent Public Service Commission. Annexure-A1 is the notification dtd. 3/8/2016 issued by the 2nd respondent for selection to the post of Range Forest Officers earmarked for recruitment by transfer from Forest Officers. In fact, the 5th respondent was relieved as per Annexure-A2 order dtd. 30/5/2017 to join the Airport Authority of India. The 5th respondent in the Original Application approached the Tribunal earlier by filing O.A.(EKM) No.1886 of 2020 praying for issuance of a lien certificate. The Tribunal as per Annexure-A3 interim order dtd. 12/1/2021 directed the Divisional Forest Officer, Kodanadu to issue certificate regarding his lien in the post of Beat Forest Officer within a period of one week from the date of receipt of a copy of the order and further directed that on the production of the said certificate, the Public Service Commission shall consider the same for the purpose of inclusion of the 5th respondent in the ranked list to be prepared in pursuance to Annexure-A1 notification. Annexure-A4 is the ranked list published on 28/1/2021 by the 2nd respondent Public Service Commission wherein the applicants were included as rank Nos.39, 40 and 44 respectively. It is averred that by Annexure-A5 order dtd. 9/2/2021 in a similar matter, O.A.(EKM) No.290 of 2021, the Tribunal issued an interim order directing that since the earlier order passed by the Tribunal for issuance of a lien certificate has not been complied with, the earlier order passed as per Annexure-A7 therein should be strictly complied with. In O.A. (EKM) No.1886 of 2020 filed by the 5th respondent, Annexure-A6 dtd. 24/2/2021 was issued wherein the Divisional Forest Officer, Kodanadu was directed to ensure that a proper lien certificate as per the directions in Annexure-A3 order may be issued. Consequently, Annexure-A7 lien certificate dtd. 3/3/2021 was issued in favour of the 5th respondent/petitioner herein. A further interim order dtd. 5/3/2021 was issued in O.A.(EKM) No.1886 of 2020 as Annexure-A8, wherein a direction was issued to the Public Service Commission to take a decision on accepting the lien certificate and initiate action for inclusion of the 5th respondent/petitioner herein in Annexure-A6 ranked list by issuing an addendum notification. While so, the 3rd applicant in the present O.A. filed an application for getting himself impleaded. Though the same was allowed, O.A. (EKM) No.1886 of 2020 was closed as per the order dtd. 25/3/2021 recording the submission of the Kerala Public Service Commission that a decision has been taken to accept the lien certificate issued in favour of the 5th respondent and expeditious steps are being taken to include him in the ranked list and that consequent addendum notification was issued by the Public Service Commission on 3/4/2021 as Annexure-A11 whereby the 5th respondent was included as rank No.15A. It is the case of the applicants in the O.A. that the 5th respondent has concealed material facts while filing O.A.(EKM) No. 1886 of 2020 especially the fact of declaration of his probation, as well as the confirmation in service of the Airport Authority of India as per Annexure-A10, Airport Authority of India (General Conditions of Service and Remuneration of Employees) Regulation, 2003, and therefore, the 5 th respondent who was relieved from the Forest Department on 30/5/2017 and who has completed four years in Airport Authority of India and had his probation declared and confirmed, has no right to claim for by-transfer appointment to a post in the Forest Department. Further based on Annexures-A12 and A13 communications issued under the Right to Information Act obtained from the Airport Authority of India, the applicants contended that the 5th respondent's probation has been declared and confirmed, and later he was promoted to a higher post also. Even though Annexure-A9 order passed by the Tribunal in O.A.No. (EKM) No.1886 of 2020 was challenged by filing O.P.(KAT) No.112 of 2021, the same was disposed of as per Annexure-R5(a) judgment dtd. 17/5/2021 reserving the right of the applicant therein who is the 3rd applicant herein to ventilate his grievances before the Tribunal if aggrieved by the decision of the appointing authority in issuing a lien certificate in favour of the 5th respondent in the O.A. It is in the said circumstances the present Original Application was filed.