Seniority is considered a service benefit and is forfeited when an employee avails leave without allowance, as per the specific provisions of the rules.

Radhakrishnan, J.

Writ petition was preferred by the appellant herein seeking a declaration that the petitioner is having seniority in the cadre of Legal Assistant Grade II with effect from 23-12-2003, ie., the date of effective advice for appointment to that cadre and that she is entitled to all service benefits on the basis of that seniority. Petitioner has also sought for a direction to respondents to promote her to the cadre of Legal Assistant Grade I before anyone of her juniors who was advised/appointed as Legal Assistant Grade II after 23-12-2003 is considered for promotion.

2. Petitioner had applied for leave without allowance vides leave application dated 14-12-2005 to join her spouse abroad. Application was considered by the Government in the light of GO (P).No.209/84/Fin. Dated 12-4-1984 and GO(P).No.76/86/Fin. Dated 17-1-1986 and accorded sanction for one year from 15-5-2005 to 14-5-2006 subject to the conditions laid down in the above mentioned Government orders. Petitioner after the expiry of the leave returned to India in February 2006 and submitted an application dated 2-3-2006 requesting permission to rejoin duty after canceling unavailed portion of the leave. Respondent as per its order dated 20.3.2006 cancelled the unavailed portion of leave without allowance from 15-3-2006 to 14-5-2006 and permitted her to rejoin duty in the Department. While the petitioner was on leave, respondent as per order dated 8-8-2005 had provisionally promoted 8 Legal Assistants Grad II as Legal Assistant Grade I. Among those persons who were promoted, three were juniors to the petitioner in the cadre of Legal Assistant Grade II. Petitioner therefore submitted Ext.P8 representation requesting that she may be provisionally promoted as Legal Assistant, Grade I retaining her seniority over the juniors.

3. The respondent took up the stand that by availing leave without allowance she has forfeited the previous service and seniority and so she can be considered for promotion as Legal Assistant Grade I only after all those who were advised or appointed as Legal Assistant Grade II before 15-3-2006, the date on which she rejoined duty. Petitioner has approached this court for a declaration that she is entitled to seniority in the cadre of Legal Assistant Grade I with effect 23-12-2003 the date of effective advice for appointment and she be given due promotion considering her seniority.

4. Leaned single Judge found no reason to grant the relief prayed for holding the view that she cannot wriggle out of the conditions on which leave without allowance was sanctioned to her placing reliance on clause (5) of Appendix XII-C of Part-I Kerala Service Rules. Learned single Judge took the view that the officers who come within the purview of clause 5 will have to undergo full period of probation on return from leave and all service benefits that had accrued to them before proceeding on leave stands forfeited. Learned single Judge also referred to his earlier judgment in Sreekala v. State of Kerala, (2007 (1) KLT 903) and dismissed the writ petition.

5. Learned counsel appearing for the petitioner Sri. K.G. Anil Babu submitted that seniority as per rule 27(c) of Part II, K.S. & S.S.R. is not a service benefit but a statutory right conferred on a Government servant and that such a right cannot be taken away by Appendix XII-C of Kerala Service Rules. Learned counsel also submitted that K.S.R. and K.S. & S.S.R. govern separate fields and cannot therefore be imported to take away seniority gained by an employee under rule 27(c) of Part II, K.S. & S.S.R. Learned counsel also submitted that interpretation of provision of Appendix XII-A is more rigorous than the provision in Appendix XII-C since the earlier provision was dealing with a person who has availed of leave without allowance for taking up employment abroad and the latter provision is dealing with a person who has taken leave without allowance for joining his spouse. Learned counsel also refe