Lukose, T.M. vs State of Kerala and Others

P. Shanmugam, J.—W.A. No. 986/1993 was referred to the Full Bench by the Division Bench on the question of interpretation of the fourth proviso to Rule 8 of Part II of the Kerala State and Subordinate Services Rules and Rule 31(a)(i) of the Kerala State and Subordinate Services Rules read with Appendix XII-A of the Kerala Service Rules (Clause 4). The above O.P. was subsequently referred by a learned Single Judge to the Full Bench to be posted along with W.A. No. 986/93. However, W.A. No. 986/93 was allowed to be withdrawn and dismissed. Therefore, O.P. No. 3250/1989 is taken up for consideration.

The Petitioner, while working as Assistant Executive Engineer under the Greater Cochin Development Authority applied for leave for five years for going abroad for seeking private employment. Even though the Secretary, Greater Cochin Development Authority (G.C.D.A.) granted him leave for two years from 1st March 1977 to 28th February 1979, the Petitioner got extension of his leave for a further period of three years from 28th February 1979 and a further extension of leave for five years from 1st March 1982. He joined the service back on 28th February 1987. Before he was allowed to join duty there were a number of proceedings in reference to his leave application for extensions of the leave and the grant of leave for a total period of ten years both by the G.C.D.A. as well as the Government which may not be relevant for the purpose of this case.

While the Petitioner was on leave he was given notional promotion as Executive Engineer from 26th June 1980, the date on which his immediate junior in the category of Assistant Executive Engineer was promoted as Executive Engineer. But since the Petitioner continued on leave without allowance and in the meantime five of his juniors who were promoted as Executive Engineers completed their probation, the Petitioner who was yet to commence his probation was reverted as Assistant Executive Engineer by proceedings of the Secretary, G.C.D.A. dated 2nd March 1987. The Petitioner moved this Court in O.P. No. 2349/1987 to quash this proceeding dated, 2nd March 1987 and for a declaration that he is entitled to join duty as Executive Engineer and commence his probation with effect from 28th February 1987. When the above O.P. came up for disposal the Petitioner desired to withdraw the O.P. with liberty to approach this Court in future if so advised and accordingly the O.P. was dismissed on 11th November 1988. The present O.P. is filed on 5th April 1989 seeking to quash the same proceedings dated 2nd March 1987 and also to declare that Rules 8, 9 and 31 of K.S. and S.S.R. 1958 as amended are only prospective in nature and do not apply to the Petitioner or alternatively to strike down the amended provisions as unconstitutional, and for a further direction to consider the case of the Petitioner for promotion to the post of Superintending Engineer.

The relevant rule relating to absence from duty is Rule 8 of Part II K.S. and S.S.R., 1958, hereinafter referred to as ''the Rule''. The portion of the relevant Rule for our purpose is as follows:

Members absent from duty, The absence 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.

* * * (b) for promotion from a lower to a higher category in Such service.

* * * Provided that subject to the provisions of Rule 18 he shall satisfactorily complete the period of probation on his return.

* * * 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.

By amendment dated 30th September 1986 the words "other than leave without allowances for taking up other employment" were inserted. The case of the Petitioner is that during the relevant time, i.e. from 1st March 1977 to 28th February, 1987 the Petitioner was on leave with out allowances and this will not disentitle him to claim promotion to the post of Executive Engineer. But the last proviso to Rule 8 states that by reason of his own application if he absented from duty this rule shall not apply to him, unless such appointment is made in the exigencies of public service. The first proviso which says that he shall satisfactorily complete the period of probation on his return will also oblige the Petitioner to begin and complete the period of probation after he returned to India.

The Petitioner submitted this application for the grant of leave on loss of pay and by proceedings dated 28th February 1977 the 3rd Respondent granted leave subject to the condition that the leave of absence will not be counted as service for the purpose of seniority and for the purpose of promotion. The order on his application makes it clear that he is not entitled to avail of seniority and promotion. The proceedings of the 3rd Respondent is obviously based on a Government Order in G.O.(P) 274/70/Fin., dated 29th April 1970. In the said Government Order the Government issued guidelines for the grant of leave. Clauses (b) and (d) of Sub-clause (iii) are relevant for our purpose.

(b) In the case of an officer who is eligible for appointment to a selection post but who has not been included in the ''selection list'' at the time of granting leave, appointment to the selection post will be made only after his performance is assessed and his case reconsiderd by the Departmental Promotion Committee, on his return from leave.

(d) In the case of non-selection posts, appointment will be made during the period of leave and the officer allowed to continue on leave, subject to other conditions being satisfied.

As per this Government Order an officer is not eligible to be considered for the selection post and any such appointment can be done only after his performance is assessed on his return from leave. Contrary to this specific provision he was given a notional promotion as Executive Engineer from 26th June 1980 during his leave. However when the Petitioner rejoined duty after 10 years and reported for duty with effect from 28th February 1987 he was reverted as Assistant Executive Engineer and admitted to duty as Assistant Executive Engineer with effect from 28th February 1987, by order dated 2nd March 1987, the impugned order herein. Thereafter the Petitioner was promoted by order dated 7th October 1987 as Executive Engineer in an upgraded post and allowed to commence his probation in the category of Executive Engineer from 7th October 1987 and completed the probation on 6th October 1988. Therefore his rank and seniority has to be assigned only from the date of his completion of his probation in the cadre of Executive Engineer. The Petitioner''s claim that he must be assigned his rank based on his notional promotion date of 1980 cannot at any stretch of imagination be sustained. The order of reversion of the Petitioner to the post of Assistant Executive Engineer dated 2nd March 1987 has become final. By virtue of the provision of Rule 8 read with Government order dated 29th April 1970 and the specific condition while granting the leave by the 3rd Respondent dated 28th February 1977 (Ext. P-2), the Petitioner is not eligible to count the period during his leave for the purpose of seniority and promotion.

In Krishna Pillai v. State of Kerala 1988 (2) KLT 106 a question arose whether a Government servant who was granted leave to take employment abroad is entitled to count the period for the purpose of service and promotion. In that case the Petitioner was granted leave without allowances and it was also stated that the leave will not count for increment, pension or any other service benefits. The contention of the Petitioner in that case was that the condition thus imposed was contrary to Rule 8 of the Rules. The Division Bench held that the Petitioner had gone abroad on leave with out allowances and therefore he was not eligible for the privileges conferred by Rule 8. The Division Bench also took note of the fourth proviso and held that since the appointment was secured by him solely on his application, the fourth proviso was attracted and inasmuch as the appointment secured was not in the exigencies of public service but for the personal benefit the entire Rule 8 become inapplicable. The Petitioner tried to distinguish this judgment stating that at the time when the Petitioner was granted leave the expression "other than leave without allowances for taking up other employment" was not there and the same was inserted only in the year 1986. Assuming for the sake of argument the order of granting leave (Ext. P-2) and Government Order dated 29th April 1970 (Ext. P-4) were ignored, the fourth proviso will be attracted in his case and therefore the Petitioner is not entitled to the benefit under Rule 8.

The said judgment of the Division Bench has been consistently followed in W.A. No. 952 of 1989, dated 21st February 1990, W.A. No. 463 of 1989, dated 5th June 1989, W.A. Nos. 4 and 18 of 1986, dated 17th June 1988 and SLP Nos. 15150 and 15151 of 1988 against W.A. Nos. 4 and 18 of 1986 which were dismissed by order dated 13th December 1988 and W.A. No. 644 of 1987, dated 3rd December 1987. In all the decisions the Division Bench has taken consistent view and followed Krishna Pillai''s case 1988 (2) KLT 106. Further it has been held that members of the service who have completed their probation are entitled to seniority over and above the members who have gone on leave for taking employment abroad. It has been held in all these cases that the officers availing leave are bound by the conditions stipulated in the orders granting leave besides Rule 8 of the Rules.

The learned Counsel for the Petitioner referred to an unreported decision of the Supreme Court in T. Krishnankutty v. State of Kerala and Ors. Civil Appeal No. 1275/90. By virtue of this decision the matter was referred to the Full Bench. In the case before the Supreme Court the Appellant sought for promotion to the post of Headmaster in an aided school and also wanted to count the period of his absence of four years for the purpose of his eligibility. The supreme Court while dealing with the Government Order dated 29th April 1970 invoked Clause (d) whevein it was specifically stated that in the case of non-selection posts, appointment will be made during the period of leave and the officer allowed to continue on leave, subject to other conditions being satisfied. Besides the Supreme Court also referred to Rule 26 of the Kerala Education Rules wherein it was provided that the time passed on leave with or without allowances will count as qualifying service unless otherwise specified. The Supreme Court specifically declined to consider Rule 8 of the K.S. and S.S.R. stating that it is unnecessary to consider because those regulations do not apply as the Appellant''s conditions of service are governed by the Kerala Education Rules. Under those circumstances the Supreme Court held that the Appellant thereunder was entitled to count his leave as part of his service, and also held that his reversion was not justified. But the case on hand is factually and legally different. The rule that applies in the case of the Petitioner is Rule 8 of the Rules and Clause (b) of the Government Order dated 29th April 1970. Besides the Petitioner is entitled to count his probation only from the date of his assuming charge and discharging the functions of the Executive Engineer after his return from leave. By virtue of the fact that the Petitioner commenced his probation after his return and completed his probation only on 6th October 1988 and much earlier his juniors have been appointed in the post of Executive Engineer and completed their probation, he is not entitled to claim seniority from the date of his notional promotion. It is not the case of the Petitioner that he could have been declared to have completed probation even earlier. The Supreme Court decision in C.A. No. 1275/90 will not apply to the facts of the case and is distinguishable. The Petitioner has not addressed any argument on the unconstitutionality of the amendment whereby a member of service who was granted leave without allowances is also entitled to the benefits of Rules 8, 9 and 31 of K.S. and S.S.R. The rule which disentitles those who were on leave without allowances is a salutory provision and is reasonable. The members of service who absented themselves from duty without allowances for taking up other employment cannot be allowed to take away the rights accrued to the members of service who are already in service. A member of service who takes up employment after availing leave cannot be allowed to have the double benefit of service/promotion as well his leave. The condition imposed on the Petitioner while granting leave was in accordance with the Government Order and the Service Rules. In any event the prayer of the Petitioner in reference to the amendment to Rules 8, 9 and 31 is only academic inasmuch as the Petitioner becomes ineligible for promotion to the post of Executive Engineer during the period of his leave by virtue of the two provisos to Rule 8.

The learned Counsel placed reliance on Rule 3 of the Kerala Government Servants'' Application for Posts (Private Employment and Government Service) Rules, 1958. From the rules we do not find any other right than already conferred under Rule 8 of the Service Rules. Condition (2) of Rule 3(B)(4)(b)(iii) as originally stood is as follows:

(2) In the case of an officer who is eligible for appointment to a selection post but who has not been included in the ''Select List'' at the time of granting leave, appointment to the selection post will be made after his suitability is assessed by the Departmental Promotion Committee on the basis of his confidential reports for the periods immediately preceding the period for which leave has been granted and if the confidential reports of these periods are not available on account of the fact that the nature of service during the periods is one for which no confidential records is obligatory, on the basis of his confidential report of one year on joining duty after leave. [Sub- Rule(4) of Rule 3(B) in Sub-clause (iii) of Clause (b)(2) amended vide G.O. (Ms) No. 39/77/GAD., dated 4th February 1977].

Similarly condition (4) of Rule 3(B)(4)(b)(iii) is as follows:

(4) In the case of non-selection posts, appointment will be made during the period of leave and the officer allowed to continue on leave, subject to other conditions being satisfied.

The Rule 3(B)(4)(d)(iii) (1) as it stands today makes it clear that the period spent on leave without allowances shall be treated as ''dies-non'' for all kinds of service benefits. The Rule 3(B)(4)(b)(iii) (2) makes it clear that the officer will forfeit the service benefits that have accrued to them prior to their proceeding on leave and they wili be deemed as new entrants to Government Service on return from leave. Condition (6) of Rule 3(B)(4)(b)(iii) states that in the case of non-selection posts, appointment shall be made only after his return from leave subject to availability of vacancy. Thus the amended rule as it stands today gives no room for doubt whatsoever that the officer who goes on leave to take employment elsewhere is not entitled to any service benefits and as a matter of fact, he will be deemed to be a new entrant to Government service forfeiting service benefits accrued earlier if he has not completed his probation. In the case of non-selection post, he will be considered for the vacancy only if there is availability of the post. Even based on the unamended Rules the Petitioner cannot have any better rights than available under Rule 8 of the Service Rules, as it could be seen from the rules extracted above. For all these reasons we hold that the Original Petition is devoid of any merit.

Accordingly the Writ Petition is dismissed. No order as to costs.