Kerala High Court
Shaji Sanjayi Nottithodi vs The Managing Director
Author: P.Somarajan
Bench: P.N.Ravindran, P.B.Suresh Kumar, P.Somarajan
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT:
THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN
THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
&
THE HONOURABLE MR. JUSTICE P.SOMARAJAN
FRIDAY, THE 26TH DAY OF MAY 2017/5TH JYAISHTA, 1939
WA.No. 302 of 2014
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JUDGMENT DATED 01-07-2013 IN WP(C) 265/2013
.....
APPELLANT(S)/PETITIONER:
-----------------------
SHAJI SANJAYI NOTTITHODI, AGED 41 YEARS,
S/O. LATE ABDUL AZIZ,
NOTTITHODI HOUSE, MULLAMPARA, MANJERI P.O.,
PIN-676 121, MALAPPURAM DISTRICT.
(CONDUCTOR, KERALA STATE ROAD TRANSPORT
CORPORATION, MALAPPURAM DEPOT.)
BY ADVS.SRI.K.JAJU BABU (SR.)
SRI.K.P.JUSTINE (KARIPAT)
RESPONDENT(S)/RESPONDENTS:
--------------------------
1. THE MANAGING DIRECTOR,
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, FORT P.O.,
THIRUVANANTHAPURAM-695 023.
2. THE EXECUTIVE DIRECTOR (ADMINISTRATION),
KERALA STATE ROAD TRANSPORT CORPORATION,
TRANSPORT BHAVAN, FORT P.O., THIRUVANANTHAPURAM-23.
3. THE ASSISTANT TRANSPORT OFFICER
K.S.R.T.C., MALAPPURAM-670 014.
4. K. SUMAN,
STATION MASTER, KSRTC, THIRUVANANTHAPURAM-695 023.
R1-R3 BY DR. THUSHARA JAMES, SC, KSRTC
SRI.T.S.SARATH
R4 BY ADV. SRI.A.NIZAMUDDIN
THIS WRIT APPEAL HAVING BEEN FINALLY HEARD
ON 24-03-2017 ALONG WITH WA. 566/2014 AND CONNECTED
CASES THE COURT ON 26-05-2017, DELIVERED THE FOLLOWING:
msv/
WA.No. 302 of 2014
APPENDIX
PETITIONER(S)' ANNEXURES
-------------------------
ANNEXURE - A1 TRUE COPY OF THE ORDER NO.PLA.10-01575/84/R.DIS
DTD.21.8.1994 ISSUED BY THE PERSONNEL (A)
SECTION, KERALA STATE ROAD TRANSPORT
CORPORATION.
ANNEXURE - A2 TRUE COPY OF ORDERS ISSUED BY THE RESPONDENT
CORPORATION.
ANNEXURE - A3 TRUE COPY OF ORDER NO.PL.10/6088/06
DTD.15.12.2006 ISSUED BY THE PERSONNEL SECTION
OF KERALA STATE ROAD TRANSPORT CORPORATION.
ANNEXURE - A4 TRUE COPY OF MEMORANDUM NO.PL9-000925/07
DTD.26.11.2007 ISSUED BY THE RESPONDENT
CORPORATION.
ANNEXURE - A5 TRUE COPY OF G.O.(P) 780/83/FIN. DTD.16.12.1983
ISSUED BY FINANCE (RULES) DEPARTMENT.
ANNEXURE - A6 TRUE COPY OF MEMORANDUM NO.PL-10-0236371/10
DTD.15.10.2010 ISSUED BY THE RESPONDENT
CORPORATION.
ANNEXURE - A7 TRUE COPY OF THE COMMON JUDGMENT DTD.12.3.2003
IN OP.NO.14175/2002 & OP.NO.32006/2001 OF THIS
HONOURABLE COURT.
ANNEXURE - A8 TRUE COPY OF THE COMMON JUDGMENT DTD.13.7.2005
IN WA.NO.1167/2003 & WA.NO.1179/2005 OF THE
DIVISION BENCH OF THIS HONOURABLE COURT.
ANNEXURE - A9 TRUE COPY OF THE JUDGMENT IN MOHAMMED ABDULLA
VS. STATE OF KERALA AS REPORTED IN 2008 (1) KLT
712 (SC) OF HON. APEX COURT.
ANNEXURE - A10 TRUE COPY OF THE CIRCULAR MEMORANDUM
DTD.6.7.2010 ISSUED BY THE RESPONDENT
CORPORATION.
ANNEXURE - A11 TRUE COPY OF THE JUDGMENT IN KSRTC-VS-
NOORUDEENKUTTY AS REPORTED IN 2005 (3) KLT 504
OF THIS HONOURABLE COURT.
ANNEXURE - A12 TRUE COPY OF THE RELEVANT PAGE OF GRADE
PROMOTION RULE.
ANNEXURE - A13 TRUE COPY OF THE JUDGMENT DTD.20.1.2014 IN
WA.NO.1810/2013 OF THE DIVISION BENCH OF THIS
HONOURABLE COURT.
RESPONDENT(S)' ANNEXURE:
------------------------
NIL
//TRUE COPY//
P.S.TO JUDGE
Msv/
C.R.
P.N.RAVINDRAN,
P.B.SURESH KUMAR &
P.SOMARAJAN, JJ.
--------------------------------------------
W.A.Nos.302 and 566 of 2014 & 936,
1044, 1128, 1147,1165, 1244, 1274,
1345, 1349, 1355, 1363, 1438, 1451,
1491 & 1617 of 2015.
---------------------------------------------------------------
Dated this the 26th day of May, 2017
J U D G M E N T
Suresh Kumar, J.
The above batch of writ appeals have been placed before this Full Bench on a reference by a Division Bench. The issue that falls for consideration is whether the employees of the Kerala State Road Transport Corporation ('the Corporation') who rejoin duty after availing Leave Without Allowances for taking up employment elsewhere would lose cadre seniority impairing their right to claim cadre promotion. The issue was W.A.No.302 of 2014 & connected cases.
2 answered in the affirmative by a learned Single Judge in a batch of writ petitions. Writ Appeal No.302 of 2014 is preferred by the employee concerned in one of the said writ petitions challenging the said decision of the learned Single Judge. The issue was answered in the negative by another learned Single Judge in another batch of writ petitions. Writ Appeal Nos.936, 1044, 1128, 1147,1165, 1244, 1274, 1345, 1349, 1355, 1363, 1438, 1451, 1491 & 1617 of 2015 are preferred by the Corporation challenging the decision of the learned Single Judge in the said batch of cases. Writ Appeal No.566 of 2014 is one preferred by the Corporation challenging the decision of yet another learned Single Judge wherein also the issue was answered in the negative.
2. When the writ appeals came up for hearing, the Division Bench noticed that in Krishna Warrier v. Devendran [2005 (4) KLT short note 51] and in W.A.No.1810 of 2013, in the case of employees of the Corporation, Division Benches of this Court affirmed the view taken by the learned Single Judge in the batch of cases from which W.A.Nos.936 of 2015 and connected cases arise and in Abdul Razak v State of Kerala [2006 (1) KLT 818], in the case of a Government employee governed by identical rules, another Division Bench took the view that merely W.A.No.302 of 2014 & connected cases.
3 for the reason that the seniority of a person who avails Leave Without Allowances is protected as against juniors who are not promoted to the higher cadre by virtue of the provisions contained in Appendix XIIA to Part I Kerala Service Rules (KSR), he is not entitled to reckon the said period for the purpose of claiming higher grades in the cadre. It was also noticed by the Division Bench that in State of Kerala v. Thomas [2015 (1) KLT 863], a Full Bench of this Court took the view that the period of Leave Without Allowances availed by private college teachers for taking up employment elsewhere cannot be reckoned for placement under the Scheme of the University Grants Commission ('UGC Scheme'). In the light of the conflicting views aforesaid, the Division Bench felt it appropriate to refer the issue for adjudication by a Full Bench. The reference aforesaid was made in the above background.
3. Heard the learned Senior Counsel Sri.Jaju Babu for the employees of the Corporation and the learned Standing Counsel Dr.Thushara James for the Corporation.
4. The facts of the cases are similar. The learned Single Judge has decided the issue in the writ petitions from which Writ Appeal No.936 of 2015 and connected cases arise, with W.A.No.302 of 2014 & connected cases.
4 reference to the facts in W.P.(C).No.7813 of 2014. As such, the facts and the documents in the said case are taken as the basis for deciding the issue in this batch of writ appeals as well. The petitioner in the said case was recruited as a Reserve Conductor in the service of the Corporation on the advice of the Kerala Public Service Commission. After completing probation, the petitioner had gone on Leave Without Allowances for the period from 15.11.2008 to 06.10.2010 for securing employment abroad. He rejoined duty on the expiry of the period of leave on 07.10.2010. When the petitioner rejoined duty after the leave period, his rank in the seniority list was re-fixed from the position 3002 to the position 3847A and the juniors of the petitioner have been promoted to the higher cadre superseding him. The petitioner approached this Court, in the circumstances, seeking among others, directions to restore his original seniority and rank and for promotion to the higher cadre with effect from the date on which his junior was promoted to that cadre.
5. Relying on the provisions contained in Rule 4 of Appendix XIIA of Part I KSR applicable to Government employees availing Leave Without Allowances for taking up employment elsewhere and paragraph 3 of Ext.P5 order applicable to the W.A.No.302 of 2014 & connected cases.
5 employee of the Corporation, this Court, in W.A.No.1810 of 2013 took the view that incumbents who rejoin duty after availing Leave Without Allowances would lose seniority in the higher cadre only with reference to their juniors who might get promoted to such cadre before they rejoin duty and in the absence of such juniors, the senior incumbents would not lose their seniority in the cadre and therefore, they are entitled to promotion in the higher cadre on the strength of their rank in the seniority list in preference to their juniors. Identical is the view taken by this Court in Krisha Warrier (supra).
6. Promotion to higher grades of different categories of employees in the Corporation were being granted based on the ratio fixed for the said purpose. As per Ext.R1(c) memorandum of settlement arrived at between the Corporation and the trade unions representing its workmen, the said mode of promotion was abolished and promotions to all categories of employees were linked with the years of qualifying service put in by each employee in different grades. For instance, as far as Conductors are concerned, it is provided in Ext.R1(c) settlement that their initial recruitment will be in Grade II and on completion of nine years service in Grade II, they will be promoted automatically to W.A.No.302 of 2014 & connected cases.
6 Grade I. Likewise, it is also provided in the said settlement that a Conductor who completes fifteen years service in Grades I and II will be promoted automatically to Selection Grade and a Conductor who completes eighteen years service in Grades I and II and also in Selection Grade will be promoted automatically to Special Grade. Similar provisions were incorporated in the settlement concerning other categories of employees as well. In the judgment impugned in W.A.No.302 of 2014, the view taken by the learned Single Judge is that since one has to complete the required length of qualifying service in each grade for the purpose of claiming promotion, it is meaningless to contend that the senior who rejoins duty after availing Leave Without Allowances for taking up employment abroad is entitled to seniority over his juniors as he cannot claim promotion solely based on his seniority.
7. In Thomas (supra), having regard to the objects of the UGC Scheme providing for placement of teachers as Senior Lecturer, Selection Grade Lecturer, etc. on completion of the stipulated number of years of service, a Full Bench of this Court held that the object of the UGC Scheme being to achieve academic excellence, the service provided for under the UGC W.A.No.302 of 2014 & connected cases.
7 scheme for placement can only be the period during which the teacher concerned has actually discharged the duties of the teacher and therefore, the period during which the teachers were on Leave Without Allowances other than on the strength of medical certificate, cannot be reckoned for the purpose of placement. It was also observed in the said case that the contrary view would do violence to the UGC Scheme.
8. At the outset, it has to be mentioned that Leave Without Allowances is one of the eligible leaves available to the employees of the Corporation. As such, an employee who avails Leave Without Allowances in accordance with the rules applicable shall be subjected only to the disadvantages of the said leave as provided for in the rules applicable. In other words, the issue has to be answered with reference to the rules applicable to the employees of the Corporation. Appendix XIIA of Part I of the KSR governs the rights of Government employees who avail Leave Without Allowances for taking up employment elsewhere. Rule 4 of Appendix XIIA of Part I of the KSR reads thus:
"4. 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 the entry grade, may be granted Leave Without Allowances under these rules. In such cases, for, and during the currency of, the W.A.No.302 of 2014 & connected cases.
8
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."
It is evident from the extracted rule of Appendix XIIA of Part I KSR that for and during the currency of the period of leave, Government employees who avail Leave Without Allowances shall lose all service benefits such as the earning of leave including the half pay leave, pension, gratuity, increment etc., and also promotion chances as may arise with reference to their seniority in the post from which they proceeded on leave. It is also evident from the said rule that they shall lose, in addition, seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty. In other words, as per the provisions contained in Appendix XIIA of Part I KSR, incumbents who rejoin duty after availing Leave Without Allowances would retain seniority in the grade as regards their juniors who were not promoted to the higher grade during the period of their leave.
9. It is the common case of the parties that the W.A.No.302 of 2014 & connected cases.
9 order dated 21.08.1984 issued by the Corporation governs the rights of the employees of the Corporation who avail Leave Without Allowances for taking up employment elsewhere. Though a copy of the said order was produced as Ext.P5 in the writ petition, as it was found that there are mistakes in the said copy, pursuant to the interim order passed in these matters dated 27.2.2017, a true copy of the said order was produced by the Corporation in W.A.No.1128 of 2015 as Annexure B. Paragraph 3 of the said order reads thus:
"Permanent employees and employees who have completed probation in their entry cadre in the regular service of the Corporation 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 employees shall lose all service benefits including commutation leave benefits, half pay leave benefits, increment, pension 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 employees 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 get promoted before they rejoin duty."
10. The provisions contained in Rule 4 of Appendix XIIA of Part I KSR and the provisions contained in paragraph 3 of Ext.P5 order are similar, though not identical. The service benefits, which the incumbents who avail Leave Without W.A.No.302 of 2014 & connected cases.
10 Allowances would lose, are differently worded in Rule 4 of Appendix XIIA of Part I KSR and Ext.P5 order. Other than that, it is provided in paragraph 3 of Ext.P5 order that the period spent by the employees availing Leave Without Allowances for taking up employment elsewhere shall be treated as Dies-non for all kinds of service benefits. 'Dies-non' which is the short form of Dies- non juridicus in Latin means a day on which no legal business could be transacted. In the present context, the said expression only indicates that the period of Leave Without Allowances of the employee concerned will not be treated as service for any service benefit. As noted above, after having provided in paragraph 3 of Ext.P5 order that the period spent by such employees shall be treated as Dies-non for all kinds of service benefits, it is clarified in the very same paragraph that the incumbents who avail Leave Without Allowances shall also lose seniority in the grade with reference to those who might get promoted before they rejoin duty. It is seen that the word 'grade' is used in Rule 4 of Appendix XIIA of Part 1 KSR synonymous with the word 'cadre' in Ext.P5 order. It can be inferred, therefore, that incumbents who rejoin duty after availing Leave Without Allowances will not lose the rank and seniority in the cadre with reference to their juniors W.A.No.302 of 2014 & connected cases.
11 who are not promoted to the higher cadres during their period of leave. The question, therefore, is whether such employees are entitled to cadre promotion on the strength of their protected seniority in preference to their juniors who were not promoted to the higher cadre before they rejoin duty.
11. As noted above, the ratio promotions followed in the Corporation were given a go by and grade promotions linked with the years of qualifying service put in by the employees in different grades have been introduced in its place by virtue of Ext.R1(c) settlement. Ext.R1(d) is the grade promotion rules introduced to give effect to the terms of Ext.R1(c) settlement. It is provided in Ext.R1(d) rules that grade promotions are promotions given to employees belonging to all categories in lower and intermediate divisions except the supervisory posts, from their entry grade to the higher grade/grades in the channel prescribed for their promotions till they reach the highest grade allowed/ the grades just below the supervisory level, on completing the number of years of qualifying service stipulated for each of such grade/grades. Rule 9 of Ext.R1(d) rules deals with qualifying service for claiming grade promotions. Clauses (a), (c), (d), (e) and (f) of Rule 9, and Rule 10 of Ext.R1(d) rules, which are W.A.No.302 of 2014 & connected cases.
12 relevant in the context, read thus:
"9. a) service from the date of absorption / appointment to regular establishment on a scale of pay in the entry grade alone will be counted as service qualifying for grade promotion. Service rendered prior to the date of such absorption to the entry grade such as Daily Wages Service and service in posts outside the approved channel will not be taken as qualifying service for grade promotion.
xx xx
xx xx
c) Approved channel of regular promotion for each
category allowed as per Agreement, is furnished in the Chart appended. Service in posts outside such prescribed channels of promotion shall not be counted as qualifying service.
Eg. (i) Service as Work Assistant will not be counted as qualifying service for the grade promotion of Electrician II Grade as the regular channel of his promotion is Mechanic II Grade.
(ii) Service as Conductor II Grade will not be counted as qualifying service for grade promotion from the post of L.D.Clerk as it is outside the regular channel of promotion of the post.
(iii) Previous service of a Stenographer II Grade as L.D. Typist will not be counted as qualifying service for grade promotion to Stenographer I Grade.
d) Inter se seniority in the entry grade will be strictly maintained in promotions to higher grades as per grade promotion rules and the sequence of inter se ranking will not be disturbed due to promotion.
W.A.No.302 of 2014 & connected cases.
13
However, in cases where the senior in rank qualifies for grade promotion on a date later than that of his junior (owing to the delay on the part of the senior to attain prescribed length of qualifying service), the senior will be given notional promotion to the post in the higher grade on the date on which any of his juniors in rank who completes the prescribed qualifying service is promoted, to avoid disturbance of inter se rank held by them and to maintain the same sequence of ranking in the promoted post, as in the lower post. But the monetary benefit of fixation of pay in the promoted post shall not be given to the senior so (notionally) promoted, until he completes the prescribed length of qualifying service in the lower post. Monetary benefit of grade promotion shall accrue only on completion of prescribed length of qualifying service in the lower post.
e) Periods of Dies-non other than dies-non due to strike, imposed to regularise periods of unauthorised absence/cover periods of break of service etc. will not be counted as service counting for monetary benefit of grade promotion, even though seniority will not be affected.
f) Leave Without Allowances, not supported by Medical Certificate and extending to more than 15 days at a stretch will not be reckoned as qualifying service counting for monetary benefit of grade promotion. In such cases as well as in cases mentioned (e) above, monetary benefit of grade promotion shall not be given until the employee completes the prescribed length of qualifying service, excluding such non-qualifying periods.
xx xx
xx xx
10. Leave Without Allowances availed for the purpose of W.A.No.302 of 2014 & connected cases.
14
other employment shall not be counted as Qualifying Service for grade promotion."
12. As is evident from Rule 10 of Ext.R1(d) Rules, Leave Without Allowances is not liable to be reckoned as qualifying service for grade promotion. While clause (d) of Rule 9 of Ext R1(d) rules provides that inter se seniority in the entry grade will be strictly maintained in promotion to higher grades as per grade promotion rules and the sequence of inter se ranking will not be disturbed due to promotion, it is clarified therein that in cases where the senior in rank qualifies for grade promotion on a date later than that of his junior, owing to the delay on the part of the senior to attain the prescribed length of qualifying service, the senior will be given notional promotion to the post in the higher grade on the date on which any of his juniors in rank who completes the prescribed qualifying service is promoted to avoid disturbance of inter se rank held by them and to maintain the same sequence of ranking in the promoted post as in the lower post. It is also clarified in the said clause that the monetary benefit of fixation of pay in the promoted post shall not be given to the senior so notionally promoted until he completes the prescribed length of qualifying service in the lower post. In other words, in cases where the senior in rank qualifies for grade W.A.No.302 of 2014 & connected cases.
15 promotion on a date later than that of his junior, owing to the delay on the part of the senior to attain the prescribed length of qualifying service, the senior will be given only notional promotion to the post in the higher grade on the date on which any of his juniors in rank who completes the prescribed qualifying service is promoted and he would be promoted to the grade only on acquiring the qualifying service in the lower post. The effect of clause (d) of Rule 9 of Ext.R1(d) rules, therefore, is that when the senior gets grade promotion on acquiring the qualifying service in the lower grade, he can claim seniority over his junior in the higher grade on the strength of the notional promotion for whatever it is worth. True, the aforesaid provision deals with grade promotion provided for in the rules and not cadre promotion. But, as clarified in clause (d) of Rule 9 of Ext.R1(d) rules, it applies to all promotions of the employees in the lower and intermediate levels from their entry grade to the higher grade/grades in the channel prescribed for their promotion till they reach the highest grade allowed/the grade just below the supervisory level. It is seen that Ext.R1(c) memorandum, which abolished the ratio promotions that prevailed in the Corporation itself, provided that if the nature of work changes on such W.A.No.302 of 2014 & connected cases.
16 promotion to the higher grade, a minimum experience of three years in the lower grade is essential. In other words, even while promotions are effected to higher grades solely based on qualifying service, incumbents who do not have a minimum of three years experience in the lower grade are not entitled to promotion even to the higher grades involving change in the nature of work unless they complete the minimum service of three years in the immediate lower grade.
13. Coming to the issue relating to cadre promotion, there cannot be any dispute to the fact that generally grade promotion provides monetary incentives without raising the rank of the employee, whereas the cadre promotion not only provides for monetary incentives but also raises the rank of the employee. The recruitment rules which are produced by the Corporation in W.A.No.1128 of 2015 indicate that only the incumbents in the highest grade of the feeder category are entitled to be considered for cadre promotion to supervisory posts. Since the period spent by an incumbent on Leave Without Allowances is not liable to be reckoned as qualifying service for grade promotions, on rejoining duty, he is not entitled to be promoted to the grade of the cadre where his immediate junior has reached in the meanwhile, W.A.No.302 of 2014 & connected cases.
17 though he is notionally promoted to that grade along with his junior. Notional promotion is given to the senior, as stated above, only to maintain the same sequence of ranking in the promoted post as in the lower post, for whatever it is worth and he is entitled to promotion to that grade only on acquiring the requisite qualifying service. The question therefore, is, whether the senior can be considered as a person who has reached the appropriate grade merely on account of the notional promotion secured by him so as to claim cadre promotion in preference to his junior. In this context, the view taken by the Division Bench in Abdul Razak (supra), assumes relevance. In the said case, the issue that arose for consideration was whether a Government servant who rejoins duty after availing Leave Without Allowances for taking up employment abroad is entitled to the benefit of grade promotion which his immediate junior has acquired in the meanwhile on the strength of the seniority protected in terms of Rule 4 of Appendix XIIA of Part I KSR. The Division Bench had answered the said issue in the negative holding that a person may retain his position of seniority for whatever it is worth and the same does not automatically lead to a presumption that he is to be deemed as having rendered service all through out. W.A.No.302 of 2014 & connected cases.
18 Paragraphs 6 and 7 of the said judgment read thus:
"6. That a person may retain his position of seniority for whatever it is worth does not automatically lead to a presumption that he is to be deemed as having rendered service all throughout. Conferment of grade promotion is for ensuring that stagnation is avoided and disgruntlement does not result. After rendering service for a specified period in a post, an officer is deemed to have come over to the higher grade. The absence of a higher post itself is immaterial for giving such benefit. It respect of persons, who are able to secure promotion, benefit of grade promotions is not admissible. Thus the benefit is introduced with clear insight.
7. R.88 as also R.110(b) of Part 1 K.S.R. prescribe that Leave Without Allowances could be availed of when no other leave is admissible to the officer. Also when the officer applies for the grant of Leave Without Allowances, it may be available. Naturally it has to be presumed that the officer is aware of the possibility of set backs in his service, as he is voluntarily keeping away from service. There is no case for the appellant that he had been deputed to any public sector enterprise. He had voluntarily availed of leave for employment abroad. It will not therefore be justifiable on his part to contend that notwithstanding all these he will be entitled, to grade promotion, as if a bonanza for having joined Government service. He was never in public employment during such period and had nor suffered stagnation, as is normally understood. The wordings of Rule 4 of Appendix XII-A are sufficiently clear to show that the benefit might not have been admissible to such an officer. These, we find, are sufficient reasons to reject the contentions urged." (underline supplied)
14. The ratio in the said case, therefore, is that the senior who has not rendered the requisite period of service is not entitled to be treated as a person who was acquired the W.A.No.302 of 2014 & connected cases.
19 appropriate grade merely on the strength of his seniority protected in terms of Rule 4 of Appendix XIIA of Part I KSR. We are in agreement with the view taken by the Division Bench in the said case. If a Government servant who has not rendered the requisite period of service is not entitled to be treated as a person who has acquired the appropriate higher grade on the strength of his seniority protected in terms of Rule 4 of Appendix XIIA of Part I KSR, an employee of the Corporation who has not acquired the qualifying service for claiming promotion to the higher grade cannot also be treated as a person who has acquired the higher grade on the strength of his seniority protected in terms of the identical provision contained in Ext.P5 order of the Corporation. If that be so, a senior who has not secured the highest grade in the feeder category cannot be held to be entitled to claim promotion to the next higher cadre.
15. We are fortified in this view by the fact that in terms of Ext R1(d) rules, a senior employee of the Corporation is not entitled for promotion to a higher grade in the same cadre, involving change in the nature of work, unless he completes a minimum period of three years service in the feeder grade. If seniors are not entitled even to grade promotion to posts W.A.No.302 of 2014 & connected cases.
20 involving change in the nature of work without completing a minimum period of three years in the feeder grade, there is absolutely no basis for the claim that they are entitled to promotion to the supervisory cadre on the strength of their seniority without acquiring the qualifying service, to reach the highest grade in the lower cadre. If the said argument of the employees is accepted, a Conductor who leaves the Corporation on Leave Without Allowances immediately after the declaration of his probation and rejoins duty just before his immediate junior becomes eligible to be considered for promotion to the supervisory cadre of Station Master, can claim promotion to the said post in preference to the junior, who, on account of his continuous service of more than 18 years, has become a Special Grade Conductor. Such a view would also frustrate the provision in the recruitment rules that only incumbents in the highest grade of the feeder category are entitled to be considered for promotion to the supervisory cadres.
16. We are fortified in this view also by the decision of the Full Bench in Thomas (supra). The view taken in the said case was that the period spent on Leave Without Allowances by the teachers is not liable to be treated as duty and therefore, the W.A.No.302 of 2014 & connected cases.
21 same cannot be reckoned for placement under the UGC Scheme. It was held in the said case that the very introduction of the U.G.C. Scheme being to improve the quality of education and to provide incentives towards the said purpose, placement as well as grant of higher scale of pay are intended to be given only in recognition of the actual teaching work rendered by the teachers and therefore, teachers who were working elsewhere on their own volition are never contemplated to be given incentives for their abstinence from discharging the duties of the teachers. It was also held in the said case that if the case of the teachers is accepted, it will do violence to the object of the U.G.C. Scheme, for, it will have the effect of conferring on the teachers an incentive for not teaching the students in the colleges. The relevant portions of the said judgment read thus:
"46. The next question to be considered is whether the period on Leave Without Allowances for employment abroad can be reckoned towards placement under the U.G.C. scheme. ...........
xxx xxx xxx
53. xxx xxx xxx
The above provisions in K.S.R. apply to the teachers of Private Colleges also. A teacher cannot be said to be on duty in the W.A.No.302 of 2014 & connected cases.
22
College when he is working abroad, on his own volition. Under R.33(2), the period on loss of pay otherwise than on medical certificate will not count for increments. The meaning of the word 'increment' as per Chambers 21st Century Dictionary is :
1. An increase especially of one point or level in a fixed scale;
e.g. a regular increase in salary; 2. the amount by which something is increased. As per Thesaurus, it is increase, addition, augmentation, rise, growth, percentage increase, pay raise. As per www.dictionary.com, increment means: something added or gained; profit; gain; the act of process of increasing; an amount by which something increases or grows; one of a series of regular additions. Therefore there cannot be any kind of increase in pay with reference to the period covered by LWA for employment abroad.
54. When no increment is admissible for such period under Leave Without Allowances, there is no question of grant of any benefits towards the period during which a teacher served another employer in a foreign country. There can be no addition to his pay towards such period of absence. Therefore the period during which the teachers of Private Colleges did not discharge their duties in the respective Colleges or in other words while they were serving another employer in another country and remained on Leave Without Allowancess for that purpose, even in the absence of any provision for the same, which does not count for increments, can in no manner be reckoned towards placement as Senior Grade Lecturer, Selection Grade Lecturer, etc. xxx xxx xxx
58. No reasonable person, will in normal circumstances even think of granting an incentive to the teachers for the W.A.No.302 of 2014 & connected cases.
23
period they kept themselves away from teaching the students in the colleges, for serving employers in foreign countries and earned money. By reckoning the said period also for placement, it will do violence to the very object of the U.G.C. scheme. It is also relevant to note that the teacher who avails leave for the said purpose from the Government College does not get that benefit, even though there was a provision permitting him to avail leave for employment abroad. As per Statute 22 of 1st Statute 1979, the scale of pay of teachers in Private Colleges shall be the same as those in Government Colleges. Under Statute 39, the provisions in K.S.R. are made applicable, as detailed supra. There is no provision in the First Statute 1979 which enables the teacher of a Private College to get placed in a higher scale of pay, reckoning the period on employment abroad also. By placement as Senior Scale and as Selection Grade Lecturers, the College teachers are getting hike in their pay. When that hike in pay is on condition that they should complete 8 years/16 years' service, such service can only mean and include the actual and physical teaching service and at any rate it cannot include the period during which the teacher was not anywhere near the college and was earning from other employers. By such a placement, the higher education in our state will not attain any improvement in its standard or quality.
xxx xxx xxx
61. It is to be noticed that the very introduction of the U.G.C. Scheme including the revision of scale of pay is intended to improve the quality of education and to provide incentives towards the said purpose. The placement as well as the grant of higher scale of pay are those intended to be given in recognition of the actual teaching work rendered by the teachers making themselves available in the respective W.A.No.302 of 2014 & connected cases.
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colleges, for the benefit of the students throughout. It cannot even be imagined that the teachers who were working elsewhere outside India on their own volition had to be given incentives for their continued absence in the respective colleges when there was no provision for them to avail such leave or accept employment."
17. As noted above, it is made clear in Ext P5 order that the period of Leave Without Allowances will not be treated as duty for any purpose whatsoever. If the period of Leave Without Allowances is not liable to be treated as duty for any purpose whatsoever, acceptance of the case of the employees that they are entitled to cadre promotion solely on the strength of their seniority protected in terms of Ext.P5 order would amount to a bonanza for not discharging the duties attached to the post, in this case as well. It is all the more so since only incumbents who have acquired the prescribed length of qualifying service to reach the highest grade in the cadre are contemplated to be given the right to be considered for cadre promotion.
18. In the light of the aforesaid discussion, we are inclined to accept the view taken by the learned Single Judge in the batch of writ petitions from which W.A.No.302 of 2014 arises. However, it needs to be clarified that if the employees who rejoin W.A.No.302 of 2014 & connected cases.
25 duty after availing Leave Without Allowances are promoted to the higher cadre in course of time on acquiring the requisite qualifying service, they would be entitled to claim seniority in the higher cadre on the strength of Ext.P5 order, for whatever it is worth, except over those juniors who got promoted while they were on Leave Without Allowances.
In the circumstances, Writ Appeal No.302 of 2014 is dismissed and Writ Appeal Nos.936, 1044, 1128, 1147,1165, 1244, 1274, 1345, 1349, 1355, 1363, 1438, 1451, 1491 & 1617 of 2015 as also Writ Appeal No.566 of 2014 are allowed, setting aside the judgments impugned therein, subject of course to the clarification made in paragraph 18 above.
P.N.Ravindran, Judge.
P.B.Suresh Kumar, Judge.
P.Somarajan, Judge.
rsr