Kerala High Court
Unnikrishna Panicker vs Bhasi on 3 January, 2001
Author: K.S. Radhakrishnan
Bench: M.R. Hariharan Nair, K.S. Radhakrishnan
JUDGMENT 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 No. 2997 of 2000 is preferred by the third respondent against the judgment in O.P. 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 O.P. No. 20753 of 1998 against which W.A. Nos. 29% and 3170 are preferred.
3. Third respondent in O.P. 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 up 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/Fin 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(ii) 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 27.1.1 987 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 number 9. 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 1998 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 no condition in the order dated 21.1.1982 or in the order dated 27.1.1987 that he would loose his period of leave for counting seniority. According to him, leave was availed of with the firm belief that he would not loose his seniority. Further it was stated that that seniority is to be governed by R. 27(c) of the Kerala State and Subordinate Services Rules that is seniority of a person appointed to a class, category or grade in a service on the advice of the Commission shall be determined on the date of first effective advice made for his appointment. Counsel for the third respondent Sri. S.V. Rajan submitted that nowhere in the Service Rules it is stated that the date of declaration of probation would be taken as the basis for the determination of seniority of a person in public service. Reference was also made to the decision of the Apex Court in In Re Hariharan & Ors. v. K. Balachandran Nair & Ors. (2000) 7 SCC 399). Counsel also relied on the unreported decision of a learned Single Judge of this Court in O.P. No. 10544 of 1994 and contended that the principle laid down in the said decision is squarely applicable to the facts of this case as well. Referring to R. 70(1) of Part I K.S.R. counsel submitted that 'ordinary leave' includes earned leave, half-pay leave, commuted leave, leave not due and leave without allowances. According to him, mere fact that declaration of probation was deferred does not mean that the Government servant has to be treated as new entrant in service. Counsel submitted that the appellant continues to be member of the service. Counsel also submitted treating a Government servant as a new entrant in service would be unconstitutional and void.
7. Counter affidavits have been filed on behalf of first respondent and second respondent. Respondents submitted that persons who availed of leave without allowance under Appendix XII A of KSR shall loose all service benefits only during the currency of leave, but seniority remains unaffected. Consequently second respondent had advised that the seniority of third respondent appointed on the basis of the advice of the P.S.C. has to be determined under R. 27(c) of the General Rules. Sri. C.K. Pavithran, learned Government Pleader pointed out that the condition in G.O. (P) No. 274/70/Fin dated 29.4.1970 is also applicable to persons who had got the leave extended on the basis of the G.O. dated 16.12.1983 as well. On satisfactory completion of probation on 20.12.1993 the third respondent could reckon his seniority from the date of effective advice by the Public Service Commission as per R. 27(c) of the K.S. & S.S.R.
8. Learned Single Judge after examining the rival contentions took the view that third respondent has to be treated as a new entrant in service and his seniority can be reckoned only from the date of re-entry. Referring to clause 5 of Appendix XII-A learned Judge took the view that since third respondent rejoined duty only on 20.12.1991 after nine years of leave he could not complete the period of probation within three years commencing from 24.12.1981. According to the learned Judge such a person cannot be said to be senior even if he has been granted leave to take up employment abroad on 27.1.1987. His claim that he was gaining seniority during the period of leave was negatived. Learned Judge therefore allowed both the Writ Petitions. Aggrieved by the said Judgment these appeals have been preferred.
9. In order to resolve the controversy, it is necessary to examine the Government Orders referred to by the parties as well as the scope of the rules in Appendix XII-A and other allied rules. The third respondent availed of leave on the basis of G.O. (P) No. 274/70/Fin dated 29.4.1970. The said G.O. read with R. 27(c) of the K.S. & S.S.R. would not affect seniority of persons who have availed of long leave without allowances for taking up employment abroad. But this position has been changed by G.O.(P) No. 780/83/Fin dated 16.12.1983. Relevant portion of the said G.O. is extracted below:
"(iv) Permanent Officers and officers who have completed probation in their entry cadre in the regular service of Government will be granted leave without allowances for taking up employment outside the country as well as inside. In such cases, during the currency of the leave period, the officers shall lose all service benefits etc. and also promotion chances as may arise with reference to their seniority in the posts from which they left on foreign service. In other words, the period spent by such officers on leave without allowances to take up employment elsewhere shall be treated as 'dies-non' for all kinds of service benefits. They shall lose seniority also in the grade with reference to those who might gel promoted before they rejoin duty.
(v) In the case of non-permanent employees in regular service who have not completed probation in the entry grade, leave without allowances may be granted subject to the condition that they will have to start afresh and complete their probation on return from leave without allowances. 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.
(vi) Normally leave without allowances upto a maximum period of five years will be sanctioned. But applications for extension of leave for a further period of five years or part thereof may be entertained. The maximum period of leave that will be sanctioned to an officer during one's entire service will be limited to ten years. If the officer does not return to duty on expiry of the level sanctioned for ten years his service will stand automatically terminated. This condition will be incorporated in all individual sanctions to be issued hereafter."
Third respondent after availing off the first spell of leave again sought leave for a period of five years from 27.1.1987. The request was granted by the Government by order dated 27.1.1987 subject to the conditions laid down in G.O.(P) No. 780/83/Fin dated 16.12.1983. Since period of leave was extended for another five years on the basis of the aforementioned Government order, third respondent was bound by the terms and conditions of that Government order. The Government Order dated 16.12.1983 provided that non-permanent employees in regular service who have not completed probation in the entry grade will have to start afresh and complete their probation on return from leave without allowance. 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 entrant to Government service on return from leave. Government Order however protected their right to rejoin Government service on the same grade as if they were new entrants. The aforementioned G.O. was given the status of a rule and inserted as Appendix XII-A vide G.O.(P) No. 953/86/Fin dated 2.12.1986 published in the Kerala Gazette dated 3.3.1987 with effect from 16.12.1983. Relevant portion of the same is extracted below:
The following rules shall regulate the gram of leave without allowances to officers for taking up employment abroad or within India. These rules shall not apply in cases of employment in the service of any public sector undertaking, aided schools and private colleges or anybody incorporated or not, which is wholly or substantially owned, controlled or aided by any State Government or the Government of India.
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4. Permanent officers and non-permanent officers who have completed probation in their entry cadre in the regular service of Government 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.
5. In the case of non-permanent officers in regular service who have not completed probation in the entry grade, leave without allowances may be granted subject to the condition that they will have to start afresh and complete their probation or return from the leave without allowances. In other words, the officers will forfeit the service benefits that had 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 entry grade as if they were new entrants.
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Note - Notwithstanding anything contained in these rules those who have proceeded on leave for taking up employment abroad before the commencement of these rules, after obtaining permission of Government will continue to be governed by the conditions laid down in G.O.(P) 274/70/Fin dated 29.4.1970 for the leave granted to them even if it extends beyond 16.12.1983 provided they return to duty immediately on the expiry of leave or before.
11. No relaxation of any of the above rules will be allowed.
We have indicated that the Government have revised the guidelines prescribed for availing off leave without allowances by G.O. dated 16.12.1983. Note provided in Appendix XII-A incorporated only the conditions in the G.O.(P) 1078/92/Fin dated 16.12.1983. The aforementioned provisions of the rules make it amply clear that if a Government employee whose probation had not been declared but availed of leave without allowance to take up employment abroad would forfeit the service benefits which had accrued to him prior to his proceeding on leave and he will be deemed as a entrant to Government service on return from leave. He will also forfeit his seniority and will have to start his probation afresh and complete his probation on return from leave. Rules make it clear that what is protected is right to rejoin Government service in the same grade as if he was a new entrant. Note to the rules also indicates that the leave granted on the basis of the conditions laid down in the G.O. dated 29.4.1970 29.4.1970 if it extends beyond the Government Order dated 16.12.1983 would be governed by the G.O. dated 29.4.1970. But those persons who have availed of leave without allowance on the basis of the G.O. dated 16.12.1983 would be governed by the terms and conditions of that G.O.
10. The non obstante clause contained in the Note deals with cases of those persons who had availed off leave on the basis of G.O. dated 29.4.1970 and continued to be on leave on the date of coming into force of the G.O. dated 16.12.1983. Reason being that when they availed off leave, the conditions prevalent and the conditions laid down in the G.O. dated 16.12.1983 were not there.
11. In order to get the benefit of the Note to Appendix XII-A read with G.O. dated 29.4.1970 three conditions must be satisfied.
(i) A person must be on leave as on 16.12.1983 sanctioned on the basis of G.O. dated 29.4.1970.
(ii) Leave sanctioned on the basis of G.O. dated 29.4.1970 must extend beyond 16.12.1983.
(iii) The employee must return to duty immediately on the expiry of leave or before, sanctioned on the basis of G.O. dated 29.4.1970.
12. We may in this connection also extract the Explanatory Note to the Kerala Service (Amendment) Rules, 1992 by which the Note was added to Appendix XII-A of the K.S.R. "In G.O.(P) No. 780/83/Fin dated 16.12.1983 guidelines were issued to deal with the proposals for leave without allowance for taking up employment abroad. Prior to that the cases were dealt with as per G.O.(P)274/70/Fin dated 29.4.1970. There are still doubts notwithstanding specific mention in the G.O. itself whether an employee to whom leave has been sanctioned as per the G.O. date 29.4.1970 and who continue on leave as on 16.12.1983 will come under the purview of the terms and conditions of the G.O.(P) No. 780/83/Fin dated 16.12.1983. The object of this amendment is to reiterate that cases of leave without allowance sanctioned prior 10 16.12.1983 and extending thereafter are governed by conditions of G.O. (P) 274/70/Fin dated 29.4.1970".
(underline supplied) The said Note as well as the various provisions would clearly indicate that only those persons who have availed of leave without allowance on the basis of G.O. dated 29.4.1970 and continued to be on leave on the date of G.O. dated 16.12.1983 would alone be governed by the terms and conditions of the G.O. dated 29.4.1970. Persons who had availed of leave on the basis of the G.O. dated 16.12.1983 would govern only by the terms and conditions of that G.O. In the instant case though third respondent had availed of leave initially on the basis of the G.O. dated 29.4.1970 and on expiry of leave granted, he availed of leave on the basis of G.O. dated 16.12.1983, and therefore he was bound by the terms and conditions stipulated in the G.O. dated 16.12.1983. The general rule regarding seniority under R. 27(c) has to give way to specific provisions of R. 8 Part II of K.S. & S.S.R. read with R. 110-B Part I K.S.R. and Appendix XII-A.
13. We cannot accept the contention of the counsel for the third respondent that third respondent is not bound by the terms and conditions laid down in Appendix XII-A of the K.S.R. R. 110-B of Part I K.S.R. states that the rules for the grant of leave without allowances for taking up employment abroad or within India are given in Appendix XII-A. Scope of those rules we have already referred to in the earlier part of the judgment. In this connection we may also refer to R. 8 of Part II of the Kerala State and Subordinate Services Rules which says that the absence of a member of a service from duly in such service, whether on leave other than leave without allowances for taking up other employment, on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn. The scope of R. 8 of Part II K.S. & S.S.R. came up for consideration before a Full Bench of this Court in Lukose v. State of Kerala (1995 (2) KLT 285). While dealing with the scope of the aforementioned rule, the Full Bench held as follows:
"The petitioner had gone abroad on leave without allowances and therefore he was not eligible for the privileges conferred by R. 8. Since the appointment was secured by him solely on his application, the fourth proviso was attracted and inasmuch as the appointment secured was not in the exigencies of public service but for personal benefit the entire R. 8 become inapplicable. Members of the service who have completed their probation are entitled to seniority over and above the members who have gone on leave for taking employment abroad. The officers availing leave are bound by the conditions stipulated in the orders granting leave besides R. 8 of the Rules. The rule which disentitles those who were on leave without allowances is a salutory provision and is reasonable. The members of service who absented themselves from duly without allowances for taking up other employment cannot be allowed to take away the rights accrued to the members of service who are already in service."
The principle laid down by the Full Bench is squarely applicable to this case as well. In this case the petitioner's probation was already declared in the post of Drugs Inspector on 13.7.1984. The third respondent's probation was declared only on 20.12.1993. The fourth proviso to R. 8 Part II says that members of service who have completed their probation are entitled to seniority over and above the members who have gone on leave for taking employment abroad and the members of service who take up employment after availing off leave cannot be allowed to have double benefit of service/promotion as well as leave. The Full Bench held the officers availing leave are bound by the conditions stipulated in the orders granting leave besides R. 8 of the Rules. The third respondent has availed off leave on his own volition and therefore fourth proviso to R. 8 of K.S. & S.S.R. is attracted and the benefit of entire R.8 is inapplicable to the third respondent. We are of the view that the third respondent is bound by the terms and conditions laid down in Appendix XII-A of K.S.R. We may in this connection make reference to the decision in Krishna Pillai v. State of Kerala (1988 (2) KLT 106). A Division Bench of this court examined the scope of R. 8 of the K.S. and S.S.R. 1958 viz-a-viz Government Order dated 18.7.1970. The expressed condition laid down in the said order is extracted below:
"That the leave without allowance sanctioned will not count for increment, pension or any other service benefit and will be recorded as such in the service records of the incumbent."
A contention was raised before the Division Bench that the condition imposed in the aforementioned Government Order has to yield so that the statutory provision of R. 8 of the Kerala State and Subordinate Service Rules should enure. This contention was repelled by the Division Bench stating that the appellant having secured leave without allowance subject to certain conditions and after taking advantage of the said order cannot now turn round and try to wriggle out of the conditions that were imposed by the Government Order denying him the service benefits during the period of his absence.
14. We may also refer to the decision of the learned Single Judge of this Court in Dr. Davis Paul v. State of Kerala (1993 (2) KLJ 91). The Court examined the scope of R. 88(ii) Part I K.S.R. and Government Order dated 18.9.1984 with particular reference to R. 27 of the K.S. & S.S.R. The facts in the case now quoted are almost identical. That was also a case where the employee look leave when he was on probation and on return claimed seniority. Repelling the contention that seniority has to be reckoned on the basis of R. 27 of the K.S. & S.S.R. the Court held as follows:
"A reading of Ext. P7 clearly shows that any person who takes advantage of the relaxation of R. 88 in terms of the said Government Order has to forego all service benefits accrued in his favour. The said Government Order categorically lays down that those who avail of the benefit under the Order shall forfeit all 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. The only right that would be left with a person who takes leave in terms of Ext. P7 Government Order is that they will have the right to rejoin Government service and such right will of course be subject to the existence of vacancy. The mere fact that a Government servant is granted a right to rejoin duty does not presuppose that as and when he decides to return the Government should keep a post ready for him."
This Court earlier in Shareef Rawther v. State of Kerela (1977 KLT 814) held that a person who was proceeding on leave while on probation is not entitled to treat the period of leave as part of the period of probation. We may hasten to add that a person can be said to be a permanent employee only when he has been confirmed and not earlier. In this connection we may refer to the decision of the Apex Court in Triveni Shanker Saxena v. State of U.P. and Ors. (1992 (1) Supp. SCC 524). We may also indicate that 3rd respondent being a probationer cannot be said to hold any lien in a substantive post unless he has been confirmed and made permanent on that post.
15. We have already indicated that the Division Bench of this Court in Krishna Pillai's case (1988 (2) KLT 106) took the view that after having availed of the benefit of leave on the basis of a Government Order, the Government servant cannot turn round and try to wriggle out of the terms and conditions of the said Government Order. The principle laid down in the above decision has been consistently followed by this Court in Writ Appeal No. 952 of 1989, 463 of 1989 and 4 and 8 of 1986. S.L.P. Nos. 15150 and 15151 of 1988 filed against the judgments in W.A. Nos. 4 and 8 of 1986 were dismissed by the Apex Court by order dated 13.12.1988. Same view was taken in W.A. No. 644 of 1987. The principle laid down by this Court in Krishna Pillai's case (1988 (2) KLT 106), which was followed by the Full Bench in Lukose's case (1995 (2) KLT 285), is squarely applicable to the facts of this case as well. Our reasoning also supports the view expressed by one of us (Hariharan Nair, J.) in O.P.No. 10544 of 1994.
16. We are therefore of the view that after having availed of the benefit of the Government Order dated 16.12.1983 petitioner cannot wriggle out of the terms and conditions of the said Government Order (Appendix XII-A) which would forfeit his seniority in service and he has to start probation afresh since third respondent being a non-permanent employee whose probation had not been declared when he availed of the leave.
17. In the aforementioned circumstances we are of the view that the teamed Judge was justified in treating the third respondent as new entrant since he had not completed his probation. He completed his probation only in the year 1993. The contention that his seniority has to be counted on the basis of R. 27(c) of the K.S. & S.S.R. cannot be accepted since he has to be treated as new entrant since his probation had not been declared before declaring the probation of the petitioners. Therefore we confirm the judgment of the learned Single Judge and dismiss all the appeals.