A government employee who availed of leave without allowance to take up employment abroad forfeits service benefits and seniority, and has to start probation afresh on return from leave.

K.S. Radhakrishnan, J.

1. Writ Appeal No. 3170 of 2000 is preferred by State of Kerala and its officers against the judgment in O.P. No. 20753 of 1998. Writ Appeal Mo. 2997 of 2000 is preferred by the third respondent against the judgment in OP. No. 10196 of 1998 and Writ Appeal No. 2996 of 2000 is preferred by the appellant in W.A. No. 2997 of 2000 against the judgment in O.P. No. 20753 of 1998. Point involved in all these cases is the same and therefore we dispose of all these cases by a common judgment.

2, We may refer to the facts in OP. No. 20753 of 1998 against which W.A. Nos. 2996 and 3170 are preferred.

3. Third respondent in OP. No. 20753 of 1998 joined service as Drugs Inspector in the Kerala Drugs Control Service on 24.12.1981 on the advice of the Kerala Public Service Commission. A few months after his appointment, before declaring probation in the post of Drugs Inspector, he applied for leave for five years to take op employment abroad. Application was considered by the Government of Kerala by G.O. (Rt.)No.,139/82/HD dated 21.1.1982 granted leave subject to the terms and conditions prescribed in G.O.(P)No. 274/70/Rn dated 29.4.1970 as clarified in G.O.(P) No. 65/76/Fin dated 25.2 1976 and Circular No. 117546 sd3/76/gad dated 19.5 1977 and Circular No 54973/SD3/78/GAD dated 10.7.1978 in relaxation of R.88(1) of Part I K.S.R. The order further provided that period of leave without allowance sanctioned would not count for increment, pension or any other service benefits and would be recorded as such in the service records.

4. Leave granted to the third respondent, vide order dated 21.1.1982 expired. Consequently he applied for further extension of leave for a period of five years from 27.1.1987. Application was considered by the Government vide order G.O. (Rt.) 251 /H&FWD dated 27.1.1987 and granted extension of leave without allowance for a period of five years from 27.1.1987 subject to the condition laid down in G.O.(P) No. 780/83/Fin dated 16.12.1983. Third respondent a few months before the expiry of that leave joined duty on 20. 12.1991. When he was on leave his probation in the post of Drugs Inspector was not declared. On rejoining duty after a period of nearly two years on 20.12.1993 his probation in the post of Drugs Inspector was declared.

5. A provisional gradation list of Drugs Inspector in the Drugs Control Department was published by the Drugs Controller vide communication dated 24.1.1997. Objections were called for to the provisional seniority list. Third respondent was shown as serial number 5 while petitioner was shown as serial number9. Petitioner in O.P. No. 10196 of 1998 was shown as serial number 11 in the gradation list. They filed objections to the gradation list. Petitioner in O.P. No. 20753 of 199& entered service as Drugs Inspector on 27.2.1982 and his probation was declared in the post of Drugs Inspector on 13.7.1984 while third respondent's probation was declared in the post of Drugs Inspector only on 20.12.1998. The third respondent's probation was not declared since he had availed of leave without allowance. On rejoining duty he has to be treated as new entrant in service. Petitioner also filed another representation objecting to the provisional gradation list. While so, without reference to the objections raised by persons like the petitioners and without finalising the gradation list, Government issued an order, G.O.(Rt.) No. 728/98/H&FWD dated 25.3.1998 provisionally promoting the third respondent as Senior Drugs Inspector/ Regional Drugs Inspector under R.31(a)(i) of the General Rules. The said order has been challenged in this Writ Petition. Petitioner has also sought for a direction to finalise the gradation list strictly in accordance with the seniority of Drugs Inspectors and to effect further promotions accordingly.

6. Counter-affidavit has been filed on behalf of third respondent. According to him, he availed of leave on the strength of G.O. dated 29.4.1970 and that there was