Leave without allowance (LWA) period does not count towards seniority or promotion eligibility under the Kerala Service Rules.

JUDGMENT

Muralee Krishna, J.

The respondents in O.A. No.1439 of 2016 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram, (the ‘Tribunal’ in short) filed this original petition, invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , challenging the order dated 01.06.2017 passed by the Tribunal in that original application.

2. The respondent entered service as a Lower Division Clerk in the General Education Department on 13.03.1992 and satisfactorily completed his probation on 13.03.1994. He was granted higher grade with effect from 13.03.2002. While in service, by Ext.R2(a) order dated 28.03.2003, he was granted Leave Without Allowance (‘LWA’ in short) from 01.04.2003 to 08.08.2005. The respondent rejoined duty on 09.08.2005. He was promoted as Upper Division Clerk by the order dated 15.09.2006 with effect from 25.06.2004, i.e., during the period of LWA. Annexure A1 final seniority list dated 03.08.2009 of Upper Division Clerk for the period from 01.01.1996 to 31.12.2005 was published by the 2^nd petitioner, wherein the respondent was placed at rank No.475/89-92 with a seniority number of 1005. The 2^nd petitioner has issued Annexure A2 promotion order dated 15.07.2015 wherein persons whose rank number from 467/96-05 onwards in Annexure A1 seniority list were promoted and posted as Junior Superintendents, excluding the name of the respondent. Aggrieved by his non-inclusion in Annexure A2 order, the respondent submitted Annexure A3 representation dated 22.09.2015 to the 2^nd petitioner. To that representation, the 2^nd petitioner gave Annexure A4 reply dated 05.11.2015 informing that the period spent on LWA by the respondent was wrongly reckoned while assigning the seniority and rank in Annexure A1 seniority list. Hence, it was cancelled and his rank number is re- assigned as 1176A, with effect from his rejoining date, ie, 09.08.2005. The respondent then filed Annexure A5 appeal dated 19.11.2015 before the 1^st petitioner against Annexure A4 order. The 1^st petitioner did not take any action in Annexure A5 appeal, and hence the respondent approached the Tribunal by filing O.A.No.58 of 2016, wherein the Tribunal, by the order dated 08.01.2016, directed the 1^st petitioner to take a decision in Annexure A5 appeal within two months. Since no order was passed within time by the 1^st petitioner, the respondent approached the Tribunal with Contempt Petition No.76 of 2016. While the contempt petition was pending, the 1^st petitioner passed Annexure A6 order dated 20.05.2016 rejecting the request of the respondent. Being aggrieved, the respondent approached the Tribunal with the present original application filed under Section 19 of the Administrative Tribunals Act , 1985, seeking the following reliefs:

“1. Direct the 2^nd respondent to promote and post the applicant as Junior Superintendent with effect from 15.07.2015 considering his rank number in the seniority list of UD Clerk is 475/89-92 vide Annexure A1.

2. Annexure A6 order is not issued in conformity with recent judgment of the Hon’ble High Court of Kerala and Clause 4 Appendix XIIA Part I KSSR. Hence it is praying to set aside Annexure A6 order”.

2.1. On behalf of the 1^st petitioner herein, a reply statement dated 07.04.2017 was filed before the Tribunal opposing the reliefs sought therein and producing therewith Annexure R1(a) document. On behalf of the 2^nd petitioner, a reply statement dated 07.04.2017 was filed before the Tribunal, producing therewith Annexures R2(a) and R2(b) documents. To those reply statements, the respondent-applican