IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MRS. JUSTICE K.HEMA TUESDAY, THE 29TH JANUARY 2008 / 9TH MAGHA 1929 WA.No. 233 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.7243/2005 Dated 26/06/2007 .................... APPELLANT: PETITIONER --------------------- DR.A.RASHEED, RETIRED CIVIL SURGEON (NON CADRE), HEALTH SERVICES DEPARTMENT, RESIDING AT M.M.K.MANZIL, S.M.LOCK, POONTHURA, THIRUVANANTHAPURAM-26. BY ADV. SRI.ELVIN PETER P.J. RESPONDENTS: RESPONDENTS ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER (SRI. NOBLE MATHEW) THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 29/01/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.B. KOSHY & K. HEMA, JJ. -------------------------------------------- W.A.No.233 of 2008 -------------------------------------------- Dated this the 29th day of January, 2008. JUDGMENT Koshy, J: Appellant, was appointed as Assistant Surgeon in Health Service Department in 1977. He was promoted as Civil Surgeon Grade II with effect from 1.2.1988. While so, he applied leave without allowance for a period of 5 years from 1.7.1995 and thereafter he applied for extension of leave. Leave was not sanctioned. He did not wait to enquire whether his leave application was accepted or rejected. He left India to obtain foreign employment. Thereafter, he never rejoined duty and his age of superannuation reached on 28.2.2005. It is not disputed that he never rejoined duty till his retirement. According to appellant, he sent Ext.P3 letter dated 13.8.2002 seeking permission to rejoin duty. He absented from duty without waiting to see that his leave was sanctioned or not. He did not work at all in the Government service for 10 years. The Government decided to terminate his service by order dated 28.02.2005 and appellant stood terminated from service with effect from 16.8.1995. It is not disputed that leave was not sanctioned. It is [W.A.233/08] 2 true that dismissal can be effected only when the incumbent is in service. Since the appellant has not rejoined duty his absence for the period from 13.8.2002 till the date of retirement on 28.2.2005 cannot be treated as duty merely because he sent a letter making his intention to rejoin duty. He is not entitled to the service benefits for that period. The allegation that he was not allowed to report for duty after 7 years cannot be accepted. He has virtually deserted his service from 16.8.1995 and he is not entitled to the reliefs sought for. We fully agree with the judgment of the learned single Judge. 2. It is submitted by learned Government Pleader that copy of the order terminating his service was given to the appellant. Even if the order terminating his service has already been given to the appellant, a copy of the same shall be served again, within two weeks from today, in compliance of the judgment of the learned single Judge. Writ Appeal is dismissed. J.B.KOSHY, JUDGE. Krs. K. HEMA, JUDGE.