IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 22ND OCTOBER 2008 / 30TH ASWINA 1930 OP.No. 21762 of 1998(N) ----------------------- PETITIONER(S): --------------- T.V. ABDUL KHADER, SENIOR TECHNICIAL, BADGE NO. 7308, POLLUTION CONTROL, FACT, COCHIN DIVISION, AMBALAMEDU. BY ADV. SRI.C.A.MAJEED SRI.T.M.ABDUL LATEEF RESPONDENT(S): --------------- 1. THE FERTILISERS AND CHEMICALS TRAVANCORE LTD., REP. BY ITS GENERAL MANAGER (COCHIN DIVISION) AMBALAMEDU. 2. THE DY. CHIEF MANAGER (ESTATE), FACT, COCHIN DIVISION, AMBALAMEDU. 3. M.V. RAMAKRISHNA KAMATH, SR. TECHNICIAN, BADGE NO. 7691, FACT LTD. (CD), AMBALAMEDU. ADV. SMT.PRIYA MAHESH A.M.SHAFFIQUE THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 22/10/2008, THE COURT, ON THE SAME DAY, DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: O.P.NO. 21762/1998. ---------------------------------------------------------------- EXT.P1 APPLICATION DT. 1-12-1997. EXT.P2 CLAUSE IV OF HOUSE ALLOTMENT RULES. EXT.P3 ELIGIBILITY LIST DT. 23-3-1998. EXT.P4 REPRESENTATION DT. 15-10-1998. EXT.P5 LETTER DT. 17-8-1992. EXT.P6 POLICY ON GRANT OF SPECIAL LEAVE WITHOUT PAY. RESPONDENTS' EXHIBITS: -------------------------------------- EXT.R1(a) ALLOTMENT LETTER DT. 25-1-1999. EXT.R1(b) LETTER DT. 17-10-92. EXT.R1(c) LETTER DT. 13-9-1993. EXT.R1(d) LETTER DT. 2-4-1994. EXT.R1(e) FINAL SENIORITY LIST. EXT.R1(f) LETTER DT. 5-11-1998. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 21762 of 1998 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 22nd October, 2008. J U D G M E N T The petitioner is an employee of the F.A.C.T. Originally, he was appointed as a Process Technician and later on promoted to the managerial cadre. In 1992, the petitioner availed of special leave for accepting foreign employment for three years and he joined duty in 1995 after the special leave period was over. For the purpose of fixation of seniority and consequent allotment of quarters, the period during which the petitioner was on special leave was excluded, which is the grievance of the petitioner in this original petition. The petitioner therefore seeks the following reliefs in this original petition: “i) To call for the records relating to Ext. P1 to P4 and to issue a writ of mandamus directing the respondents 1 and 2 to refix the seniority of the petitioner and assign proper rank to him. ii) To issue any writ, order or direction to the respondents 1 and 2 to grant promotions, and all other service benefits based on the actual rank and seniority to the petitioner. iii) To issue a writ of mandamus directing the 2nd respondent to allot the Type IV quarters to the petitioner as early as possible. iv) To issue a writ of mandamus or any other writ directing the 1st and 2nd respondents to consider and dispose of Ext. P4 representation as expeditiously as possible.” Out of the said reliefs, the petitioner himself admits that the 3rd relief does not survive any more. Now the only other question is as to whether for the purpose of fixation of seniority and other benefits, the petitioner is entitled to count his special leave also. 2. The petitioner submits that going by Ext. P6 policy for grant of special leave, there is no such embargo and therefore for the purpose of fixation of seniority, the leave period cannot be excluded. 3. On the other hand, the learned counsel for the FACT submits that Ext. P6 came into force only with effect from 1996 and therefore the same cannot be applied to decide the issue involved in this O.P.No. 21762/1998. -: 2 :- original petition in respect of the special leave availed of by the petitioner prior to that date. He points out that in Exts. R1(c) and R1 (d) which are orders by which the petitioner was granted special leave, a specific clause (clause 10)has been incorporated which stated that the petitioner would lose his seniority for the period he was on special leave. It is also stated in clause 6 thereof that the period of foreign service will not be counted for the purpose of gratuity, contribution to PF, contributory health scheme, quarters, uniforms, free schooling, interest subsidy etc. Since the petitioner availed of the leave accepting the said conditions, he cannot now turn around and say that the said clause is not applicable to him, is the contention raised by the counsel for the FACT. 4. I have considered the rival contentions in detail. 5. In Exts. R1 (c) and (d), identical clauses 7 and 10 are there, which reads thus: “7. The period of service with the foreign employer shall not be counted for the purpose of your earning increment in FACT. xx xx xx 10. You will not be considered for promotion to a higher post in FACT for a period of six months from 15-9-1993 on account of the special leave sanctioned to you. You will lose your seniority by the period you are on special leave.” It specifically says that the petitioner would lose his seniority by the period he is on special leave. That essentially means that for the purpose of fixation of seniority, the period of special leave would not be taken into account. Therefore, clearly, the petitioner having availed of the special leave with that specific condition, he cannot now wriggle out of the rigour of that condition. That being so, the petitioner is not entitled to have that period counter for the purpose of O.P.No. 21762/1998. -: 3 :- fixation of seniority. In view of clause 7, he is not entitled to the other benefits also. Therefore, I do not find any merit in the original petition and accordingly, the same is dismissed. S. Siri Jagan, Judge. Tds/ O.P.No. 21762/1998. -: 4 :- S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= O.P. No. 21762 of 1998 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= J U D G M E N T 22nd October, 2008.