Kerala High Court
State Of Kerala vs Maya Raghavan on 1 November, 2000
Author: K.S. Radhakrishnan
Bench: K.S. Radhakrishnan
JUDGMENT K.S. Radhakrishnan, J.
1. The question that has come up for consideration in this case is whether a provisional employee appointed under R. 9(a)(i) of the Kerala State & Subordinate Services Rules, is entitled to get leave without allowance under R. 88 of Part I K.S.R. Learned Single Judge found in favour of the employee. Aggrieved by the same, the State and the Director of Medical Education, along with the Principal of the Medical College, have preferred this appeal.
2. We will narrate the facts, as we get in the Writ Petition. Petitioner was selected for appointment to the post of provisional Lecturer in various departments in the Medical College, Trivandrum. An interview was conducted on 25.4.2000. She was thereafter appointed under R. 9(a)(i) of the KS & SSR as a provisional lecturer in the department of Pathology, Medical College, Trivandrum. Her appointment was for a period of one year from the date of her joining duty. On the basis of the order, she joined duty on 15.5.2000. While she was in service she fell ill, and her illness was diagnosed as Inter Vertebral Disk Prolapse. She was advised to undergo an emergency operation, and was admitted to the Cochin Spine Hospital on 22.5.2000 for emergent operation. On 22.5.2000 itself she sent a telegram to the Professor of Pathology praying for one month's leave, followed by leave application dated 22.5.2000 with a medical certificate. Initially she applied for leave for 30 days from 22.5.2000. On expiry of the said leave on 21.6.2000, she applied for another 28 days of leave along with medical certificate.
3. Petitioner on expiry of the leave reported for duty on 18.7.2000 with a fitness certificate. She was not permitted to join duty, but was served with an order dated 26.6.2000 stating that as per Appendix VIII of Part I KSR she was not eligible for leave, and consequently her service was terminated with effect from 22.5.2000. On receipt of the said order, she preferred a representation before the Principal, Medical College. Since no action has been taken, she has preferred the Writ Petition challenging the order of termination, and also seeking a direction to the authorities to reinstate her and to grant leave prayed for. Learned Single Judge quashed the order of termination, and directed the authorities to grant leave to the petitioner. Authorities were also directed to reinstate the petitioner as Lecturer in the Medical College. Aggrieved by the said Judgment, this appeal is preferred.
4. Learned Government Pleader, Smt. P.V. Asha, submitted that petitioner being a provisional employee appointed under R. 9(a)(i) of the KS & SSR is not eligible for leave without allowances under R.88 of Part I KSR, as contended by petitioner.
According to her, the provision that is applicable, is Appendix VIII of Part I KSR read with Government decision No. 1. It is also her case that Note to R. 3 of Part I KSR specifically says that KSR as a whole shall not apply to persons appointed to the service temporarily under R. 9 of Part II KS & SSR, 1958, except to the extent specified by the Government. She further contended that R. 9(a)(i) appointment is effected in public interest to meet an emergency situation, and therefore if leave rules which are applicable to permanent employees are extended to temporary employees, the very purpose of R. 9(a)(i) will be defeated.
5. Counsel appearing for the petitioner, Sri. K. Balakrishnan, on the other hand, contended that Appendix VIII of Part I KSR is applicable only to those officers specified in R. 63 of Part I KSR.
6. In order to resolve the controversy, it is necessary to examine the various statutory provisions of the KSR. The Kerala Service Rules are a unified set of rules to regulate the service conditions of the employees in the State of Kerala. Government of Kerala introduced those rules under the proviso to Art. 309 of the Constitution of India with effect from 1.11.1959. The Kerala Service Rules contain three Parts. Part I contains rules relating to pay, leave, joining time, foreign service, etc. Part II contains rules relating to travelling allowances. Part III contains rules relating to Pension. After introduction of these Rules, Government have issued various amendments, and number of executive orders, by way of directions. Interpretations, clarifications to the KSR. Appendices I to XIII are contained in Chapter X of part III KSR. Appendix VIII deals with rules' for the grant of leave to officers appointed for limited periods. This is the general scheme of the KSR.
7. In the instant case, we have to declare whether a provisional employee appointed under R. 9(a)(i) of the KS & SSR is entitled to get leave without allowances as per R.88 of Part I KSR. Temporary appointments are effected under R. 9(a)(i) of the KS & SSR in public interest so as to fill up a vacancy immediately, owing to an emergency for a specified period, till regular appointments are made or to fill up a vacancy as a stop-gap arrangement. Question is whether such an employee appointed under R.9(a)(i) is to be treated differently, when leave is applied for under special circumstances.
8. We have already indicated that the principal contention of learned Government Pleader was that provisional employees could apply for leave only if they satisfy the conditions laid down in Appendix VIII of Part I KSR. Clause 1 of Appendix VIII says that where the appointment is for one year or less, earned leave on full pay calculated at 1/11th of the period spent on duty may be granted subject to a maximum of 15 days on production of medical certificate. If earned leave has been exhausted, leave on medical certificate, half pay upto 15 days may be granted subject to the condition that the total period of the two kinds of leave does not exceed one month in the officer's term of service. In the instant case, petitioner had worked only for 8 days, and therefore if clause 1 is made applicable to the petitioner, she could not take any leave at all. This is the stand of the learned Government Pleader.
9. We are of the view that clause 1 of Appendix VIII is not applicable to the case of provisional employees. Appendix VIII, as already stated, deals with rules for the grant of leave to officers appointed for limited periods with specific reference to R. 63 of Part I KSR. R.63(a) says that if an officer, who quits the public service on compensation or invalid pension or gratuity, is reemployed and if his gratuity is thereupon refunded or his pension held wholly in abeyance, his past service thereby becoming pensionable on ultimate retirement, he may, at the discretion of the Government and to such extent as the Government may decide, count his former service towards leave. R. 63(b) says that an officer who is dismissed or removed from the Public Service but is reinstated on appeal or revision, is entitled to count his former service for leave. Note 1 to R.63 says that the reemployment of a person who has retired on a superannuation or retiring pension is generally an exceptional and temporary expedient. In such cases, the service of the reemployed pensioner should be regarded as temporary and his leave during the period of reemployment regulated by the rules in Appendix VIII. Evidently, a provisional employee would not come within the scope of R. 63 or the Notes to the said Rule.
10. We are of the view that Appendix VIII which deals with rules for grant of leave to an officer appointed for limited periods is not applicable to a provisional employee. Learned Government Pleader referred to Government decision No. 1 which says that Rules in Appendix VIII will apply to provisional recruits in the matter of leave. Reference was made to G.O.(P) No. 103/61/Fin. dated 4.3.1961. Government decision also says that the benefit of the decision is confined to cases wherein orders regularising the provisional appointment were issued after 3.6.1970. Reference was also made to G.O.(P) No. 35/72/Edn. dated 4.2.1972, Reading both the Government Orders referred to above, we are of the view that Government decision No.1 which forms part of Appendix VIII is not applicable to a provisional employee, since the benefit of government decision is confined to cases wherein orders regularising the provisional appointment were issued after 3.6.1970. We are of the view that said decision is all together for a different purpose, and not for considering an application submitted by a provisional employee for leave without allowances.
11. We will now examine whether a provisional employee could make an application for leave without allowances under R. 88 of Part I KSR. We extract the said provision for easy reference:
88. Leave without allowances: -(i) Leave without allowances may be granted to any officer in special circumstances
(a) When no other leave is by rule admissible; or
(b) When other leaveisadmissiblebul the officer concerned applies in writing for the grant of leave without allowances.
(ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion.
Exception 1:- When a period of suspension is retrospectively treated as leave without allowances by the revising or appellate authority the limitation of admissible leave without allowances to three months to officers not in permanent employ will not apply.
Exception 2:- The limitation in sub-r. (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendix X1IA.
R. 88(i) says that leave without allowances may be granted to any officer in special circumstances, i.e., an officer could apply for leave without allowances only in special circumstances, when no other leave is by rule admissible, or when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances. Sub-r. (ii) says that except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed three months on any one occasion.
12. We are of the view that R. 88 applies not only to permanent employees, but also to provisional employees. In the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion. In the instant case, petitioner is a provisional employee, and not a permanent employee. The expression "Officer in permanent employ" has been defined under R. 77(iii) of Part 1 KSR which says that an "Officer in permanent employ' means an officer who holds substanlively a permanent post or who holds a lien on a permanent post or who would hold a lien on a permanent post had the lien not been suspended. A provisional appointee will riot satisfy the conditions of "an officer in permanent employ". Therefore, as far as the provisional employees are concerned, they could apply for leave without allowances, but the duration of such leave shall not exceed three months on any one occasion. We may notice that the expressions "any Officer" and "special circumstances" assume importance, when we examine the scope of R. 88 of Part I KSR. The Apex Court had occasion to consider the meaning of "any tenant" occurring in S. 10(3)(c) of the T.N. Buildmgs (Lease and Rent Control) Act, 1960, in Shri. Balaganesan Metals v. Shanmugham chetty,. (1987) 2 SCC 707 While explaining the word "any" the Apex Court held as follows:
The word "any" has the following meaning:
Some; one of many; an independent number. One indiscriminately of whateverkind or quantity.
Word "any" has a diversity of meaning and may be employed to indicate 'all' or 'every' as well as 'some' or 'one' and its meaning in a given statute depends upon the context and the subject matter of the statute.
It is often synonymous with 'either', 'every' or 'all'. Its generality may be restricted by the context; (Black's Law Dictionary, 5th Edn.) The Apex Court examined the word "any" in the context of Consumer Protection Act, 1986 in Lucknow Development Authority v. M.K. Gupta, (1994) 1 SCC 243. Referring to the Black's Law Dictionary, the Apex Court reiterated that the word "any" has a diversity of meaning and may be employed to indicate "all" or "every" as well as "some" or "one" and its meaning in a given statute depends upon the context and the subject matter of the statute. The meaning of the word "officer" in service jurisprudence came up for consideration in Mohinder Singh v. State of Haryana, (1989) 3 SCC 93. Reference was made to the Black's Law Dictionary and examined the meaning of the word "officer" which is extracted below:-
"In determining whether one is an 'officer' or 'employee' important tests are the tenure by which a position is held, whether its duration is defined by the statute or ordinance creating it, or whether it is temporary or transient or for a time fixed only by agreement; whether it is created by an appointment or election, or merely by a contract of employment by which the rights of the parties are regulated; whether the compensation is by a salary or fees fixed by law, or by a sum agreed upon by the contract of hiring.
A person invested with the authority of an office has been treated as an officer.
8. In Words and Phrases (Permanent Edition-Vol. 29A) an 'officer' has been stated to mean;
a person who is invested with some portion of the functions of Government to be exercised for the public benefit.
If the powers and duties reposed in the incumbent of a position are such that he exercises the function of the sovereignly, the incumbent is an 'officer' regardless of the name by which he may be designated."
The Apex Court in the above mentioned decision also stated that in service jurisprudence even ministerial employees have been referred to as officers.
13. When we apply the test laid down by the Apex Court as well as the meaning given in various dictionaries referred to hereinbefore, we can safely conclude that a provisional employee appointed under R. 9(a)(i) is holding an office under the State and is clothed with functions of sovereignty. Therefore when we look at the words of "any Officer" in the light of the above mentioned legal principles, we are of the view that provisional employees appointed under R. 9(a)(i) of the KS & SSR in public interest are to discharge sovereign functions. We may notice under R. 88 of Part I KSR, leave without allowances could be granted only in special circumstances. The words "special circumstances" assume importance. What are the special circumstances, which will enable an officer to apply for leave cannot be laid down in a straight jacket formula. R. 88(i) says that leave without allowance can be applied when no other leave by rule is admissible or when other leave is admissible, but the officer concerned applies in writing for grant of leave without allowances. But these leave could be granted by the authority, only if there are special circumstances.
14. We may examine in this case, whether there are any special circumstances, warranting grant of leave without allowances. This is a case where petitioner was advised by the doctor to undergo an emergency operation, since the disease diagnosed was inter vertebral disk prolapse. Due to illness she was admitted in the Cochin Spine Hospital. She has also produced medical certificates to that effect. There is no case for the authorities, that certificates are not genuine or that no special circumstances do not exist for grant of leave applied for. The stand of the authorities was that the provision applicable in the case of provisional employee is Appendix VIII of Part 1 KSR, and consequently, petitioner was not eligible for leave. We have already found that Appendix VIII of Part I KSR is not applicable to provisional employees, but to those employees who are covered by R. 63 of Part I KSR. We therefore hold that provisional employee appointed under R. 9(a)(i) is also entitled to seek leave without allowances, provided there are special circumstances. In the instant case, we are of the view, special circumstances exist warranting grant of leave without allowances.
For the reasons indicated hereinbefore, we confirm the judgment of the learned Singe Judge, and dismiss the appeal.