2021 Supreme(Ker) 405

IN THE HIGH COURT OF KERALA AT ERNAKULAM
ALEXANDER THOMAS, K. BABU, JJ.
A.M. Thomas S/o Mathai – Petitioner
Versus
State of Kerala, Rep. by Principal Secretary – Respondent
O.P. (KAT) No. 24 of 2020
Decided On : 01-03-2021

Point of law : Permanent Officers and non-permanent officers in the regular service of Government who have completed probation in the grade in which they are working, including entry grade, may be granted leave without allowances under these Rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc. and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty

Headnote:

KSR – Rules 4, 9, 11 – Constitution of India, 1950 – Articles 226 and 227 – Seniority – Promotions – Prayers in afore captioned Original Petition filed under Articles 226 and 227 of Constitution of India are as to call for details relating to P1 (A17), P1 (A18) and P1 (A20) and quash the same, setting aside the impugned order of the Hon'ble Tribunal in Ext.P6, allowing the O.A in the interest of justice

Finding of the court :

Court is of the firm view that the said aspects discernible from Annexure A17 and Annexure A18 were rather irrelevant and unnecessary. – A reading of Annexure A3 and A6 as well as Annexure A7, as modified by Annexure A9, would make it clear that the petitioner had made a request in the application for grant of the leave and the subsequent extension of leave. – It so happened that the said request for extension of leave would have faced delay at the hands of the various authorities concerned including the Director of Collegiate Education and ultimately by the time, the Government had issued Annexure A6 and A7, the last of the leave period, which is sought to be extended, had by then expired. – In the result, Annexure A6 and A7 were technically amounted to a so called retrospective extension of the leave period. – Government had thought rather unnecessarily in the facts of this case that it would amount to deviate from the Rule and that therefore, to ensure that the said proceedings are not considered as if it was irregular and therefore, the petitioner was in an unauthorised absence, etc. by way of abundant caution unnecessarily issued Annexure A17 and A18 modifying Annexure A6 and A7 with the only rider that the same is done retrospectively, etc. – In the facts and circumstances of the case, inasmuch as the petitioner had made a request in the application for extension of time and the same was pending consideration before various authorities and merely because there was some time taken by those authorities and ultimately there was some delay on the part of the State Government in issuing orders as in Annexure A6 and A7 will not lead to the situation of the existence of the jurisdictional facts either in Rule 11 or in Rule 9. Rule 11 which speaks about no relaxation of the Rules, and Rule 9 which speaks about so called unauthorised absence of the incumbents, etc. will not apply in the instant case. – Court already have taken the considered view that Annexure A17 and Annexure 18 were an unnecessary detour in the facts and circumstances of the case and therefore, nothing significantly turns in this case irrespective as to the outcome of the challenge as against Annexure A17 and A18. – Heart and soul of the controversy as indicated herein above is as to whether the adverse conditions stipulated in the statutory provision contained in Rule 4 of Appendix XIIA of Part I KSR would apply in this case even though the executive orders granting leave without allowance as per Annexure A3, A6, A7 and A9 are silent about those adverse conditions flowing from Rule 4 of Appendix XIIA of Part I KSR. – Even though the said executive orders have clearly spoken about Appendix XII A, the answer to that primary issue has already been answered by court herein above and therefore, it need not be reiterated. – Contentions of the petitioner are not tenable and bereft of any merit. – Tribunal cannot be faulted for having rendered the impugned final order at Exhibit P6 in this case. –

Result :Original Petition Dismissed