Probationary officers are not entitled to the same seniority protections as permanent employees under Kerala service rules, impacting their leave conditions and subsequent reappointment.

JUDGMENT

Both these writ petitions are filed by the very same petitioner. In W.P.(C) No. 9440 of 2012, petitioner challenges the condition imposed in Ext.P6 order while granting her Leave Without Allowance (LWA) for study purposes, that she had to rejoin duty as a new entrant on expiry of the leave. In W.P.(C) No.13556 of 2014, petitioner challenges the action of the High Court in rejecting her representation without forwarding it to Government, in which she had requested for converting her application for leave as one under Rule 91. The documents referred to are as described in W.P.(C) No.9440 of 2012 unless specified otherwise.

2. The petitioner was appointed as a Munsiff-Magistrate in Kerala Judcial Service as per Ext.P2 order dated 25.7.2008. After undergoing training for a period of one year from 18.8.2008, she took charge as Munsiff on 21.05.2009. On 30.8.2010, she submitted application for LWA for one year from 13.09.2010, for study purposes in order to undergo Ph.D at National Law School of University. By Ext.P4 order dated 4.11.2010 Government accorded sanction for the same from date of avail after that order subject to conditions laid down in Appendix XIIB, Part I KSR. Thereafter, based on request for sanctioning the leave from 13.09.2010, Government issued Ext.P6 order on 25.08.2011, in modification of Ext.P4 order, sanctioning leave without allowance to the petitioner, for study purpose for a period of one year from 13.09.2010, on condition that she has to join as a new entrant, on expiry of leave. On completion of the course, petitioner submitted Ext.P9 representation addressed to the Government requesting to protect her seniority from the date of joining as Munsiff and absolve her from the condition that she should join as fresh entrant on expiry of leave. A representation Ext.P10 was submitted before the District Judge, Manjeri, requesting to forward her representation Ext.P9 to Government through proper channel. As per Ext.P11 letter, the High Court informed that the High Court considered her representation and rejected the same. She was also informed that she was placed in the last position (190^th ) in the seniority list of Munisiff Magistrate then in force. The representation addressed to Government was not forwarded. W.P.(C) No.9440 of 2012 is filed challenging the condition imposed in Exts.P6 and P11 orders to the extent they impose the condition that she has to join as fresh entrant, on expiry of leave. She challenges the Government order Ext.P8 issued on 20.01.2005 also, by which Ext.P7 order issued by Government on 19.11.2003, protecting seniority of those who avail leave under Appendix XIIA, XIIB and XIIC was cancelled. She seeks a declaration that she is entitled to be on leave without allowance without any loss of seniority or other service benefits.

3. The contention of Sri.P.Ravindran, the learned Senior Counsel appearing for the petitioner, is that the petitioner has every right to rejoin the post from which she availed leave and under Rule 8 of Part II of Kerala State and Subordinate Service Rules ('KS&SSR'), her seniority is protected and she cannot be treated as a new entrant on expiry of leave. Reliance is placed on Rule 18(g) of the General Rules (Part II of KS&SSR), the definitions of member of service, substantive appointment, etc. occurring in Part I KS&SSR; Rule 12 (28), Rule 77(viii) and provisions contained in Rules 86A, 88, etc of Part I of Kerala Service Rules (KSR) and appendix XII B thereto. It is pointed out that petitioner had passed the requisite tests which were required to be passed during probation. It is claimed that petitioner, was an officer in permanent employ and hence was entitled to leave for study purposes without imposing any restrictions.

4. According to the learned Senior Counsel, petitioner who was directly recruited as Munsiff Magistrate, was eligible for leave without allowance under Rule 88 and the restriction of LWA only to 3 months or exception 2 thereof, permitt