The central legal point established in the judgment is the unsustainable nature of the ouster of the petitioner under R.27 of the K.S.& S.S.R., considering the specific conditions and implications of the leave granted under Ext.P7 Government Order to the 4th respondent.

The petitioner was advised for appointment as Tutor in T.B. and Chest Diseases as per the advice of the P.S.C.dt 31-7-1991. He was temporarily appointed as Tutor pursuant to the said advice by Ext.P1 order dt. 19-8-1991.. The appointment was regularised with effect from 30-8-1991 as evidenced by Ext.P2 order. The 4th respondent had been advised for the same post vide advice dt.14-12-1990. He joined duty on 4-2-1991. As he was undergoing Post Graduate Studies in General Medicine, he left the very next day to continue his studies after applying for leave. The leave was sanctioned as per Ext.R4(d)dt.27-12-1991. It is seen from Ext.R4(d) that the leave was granted to the 4th respondent from 5-2-1991 to 30-8-1992 for study purpose in relaxation of R.88(u) Part I K.S R. subject to the specific condition that the leave period will not count for any service benefits including pension as provided in G.O.(P) 524/847 Fin. dt.18-9-1984. The said Government Order dt.18-9-1984 is produced along with the reply affidavit marked as Ext.P7.

2. The 4th respondent completed his Post Graduate Studies and sought permission to rejoin duty. Accordingly, the 2nd respondent issued Ext.P5 order permitting the 4th respondent to rejoin duty and in order to make room for the 4th respondent, the petitioner is directed to be ousted from service from the date of joining of the 4th respondent. A consequential order namely, Ext.P6 dt.9-11-1992 was served on the petitioner informing him about the ouster from service. The petitioner challenges Exts.P5 and P6 and also seeks a direction to respondents 1 to 3 not to terminate the services of the petitioner.

3. The learned advocate for the petitioner, Sri.C.S. Rajan contends that from a reading of Ext.R4(d), it is clear that the 4th respondent was granted leave in relaxation of R.88(u) Part I K.S.R. The 4th respondent who joined the services as probationer on 4-2-1991 had no leave to his credit to enable him to pursue the Post Graduate Studies. As such, he had necessarily to seek relaxation of R.88(u) to proceed on leave on the very next day of his joining duty and leave was granted specifically in terms of Ext.P7 Government Order. Ext.P7 Government Order stipulates that in cases where the officers are not eligible for leave under R.91, Part I of K.S.R. and the grant of leave without allowance for the purpose of study requires relaxation of R.88(u) Part I K.S.R., such relaxation may be allowed and the leave without allowances sanctioned only subject to certain conditions. The first of such conditions stipulates as follows: -

"The officers will start afresh and complete their probation on return from leave. In other words, the officers will forfeit the service benefits that have accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government service on return from leave. What is protected is only their right to rejoin Government Service in the same grade as if they were new entrants."

4. Inasmuch as the 4th respondent was granted leave in terms of the above mentioned Government Order, according to the learned advocate for the petitioner, the 4th respondent cannot claim to be a probationer or claim any of the rights a probationer enjoys. R.7 of the K.S.& S.S.R. deals with a manner in which retrenchment should be effected due to want of vacancies in the case of probationers and approved probationers. The said Rule says that it should be done in the order of junior. However, this Rule is to be applied in deciding the right of retention as between probationers or approved probationers not in a case where one of the claimants is not a probationer or an approved probationer. Inasmuch as the 4th respondent ceased to be a probationer by virtue of Ext.R4(d) order he is not entitled to preference in the matter of being retained in service. The learned advocate also referred to the decisions reported in Shareef Rawther v. State of Kerala (1977 KLT 814) to substantiate the contenti