IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 24TH NOVEMBER 2011 / 3RD AGRAHAYANA 1933 WP(C).No. 28309 of 2010(K) -------------------------------------- PETITIONER(S): ---------------------- SHAJI.P.Y., AGED 39 YEARS, S/O.P.M.YOHANNAN, PEON, ST.GEORGE'S GOVT.V.H.S.S., PUTHUPPALLY P.O., KOTTAYAM., RESIDING AT POOVATHUMMOOTTIL HOUSE, CHAMPAKARA P.O.,KARUKACHAL KOTTAYAM DISTRICT-686 540. BY ADV. SRI.MILLU DANDAPANI RESPONDENT(S): --------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR, DIRECTORARE OF EDUCATION, THIRUVANANTHAPURAM. 3. THE SECRETARY, KERALA PUBLIC SERVICE COMMISSION, PATTAM, THIRUVANANTHAPURAM. R1 & R2 BY SR. GOVERNMENT PLEADER SRI.M.A.FAYAZ R3 BY SRI.P.C.SASIDHARAN, SC, KPSC THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 24/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC 28309/2010 PETITIONERS EXHIBITS P1 : TRUE COPY OF GOVT. ORDER G.O.(RT) NO.1154/2007/G.EDN.DATED 13.3.2007, GRANTING LEAVE WITHOUT ALLOWANCE TO THE PETITIONER BY THE IST RESPONDENT P2: TRUE COPY OF CERTIFICATE RECEIVED FROM THE SECRETARY, BOARD OF PUBLIC EXAMINATIONS, KERALA DATED 23.10.2008 TO THE PETITIONER. P3: TRUE COPY OF THE SERVICE CERTIFICATE RECEIVED FROM THE PRINCIPAL, ST.GEORGE'S GOVT. V.H.S.S, PUTHUPPALLY P.O. KOTTAYAM DATED 12.08.2009. P4: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 13.08.2009 FOR THE POST OF L.P.SCHOOL ASSISTANT BY TRANSFER IN THE EDUCATION DEPARTMENT. P5: TRUE COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER DATED 13.08.2009 FOR THE POST OF U.P. SCHOOL ASSISTANT BY TRANSFER IN THE EDUCATION DEPARTMENT. P6: TRUE COPY OF THE NOTIFICATION DATED 14.07.09 ISSUED BY THE 3RD RESPONDENT IN RESPECT OF CATEGORY NO. 242/09 FOR L.P.SCHOOL ASSISTANT (MALAYALAM MEDIUM) BY TRANSFER P7: TRUE COPY OF THE LETTER NO. KII (4) 1994/09 DATED 31.07.2010 ISSUED BY THE DISTRICT OFFICER UNDER THE 3RD RESPONDENT. P8: TRUE COPY OF THE REPRESENTATION DATED 26.08.2010 SUBMITTED BEFORE THE 3RD RESPONDENT BY THE PETITIONER. P9: TRUE COPY OF THE G.O.(P) NO.448/08/FIN.DATED 6.10.2008, ISSUED BY THE IST RESPONDENT P10: TRUE COPY OF THE G.O(MS) NO.69/10/G.EDN. DATED 28.4.2010 BY THE 1ST RESPONDENT P11: TRUE COPY OF THE RELEVANT PAGES OF NOTIFICATION DATED 09.02.2011 RESPONDENTS EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE JM T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.28309 of 2010-K - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 24th day of November, 2011. JUDGMENT The petitioner herein is a Peon working in St. George's Government Vocational Higher Secondary School, Puthuppally, Kottayam District. He entered service on 2.6.2004. The petitioner is seeking for a direction to count the period of leave without allowance from 2.10.2006 to 31.3.2008 taken for study purpose, as service, for consideration of his candidature for the post of LPSA by the Public Service Commission. 2. The leave period is from 2.10.2006 to 31.3.2008. Ext.P1 is the copy of the order granting leave without allowance. The leave was granted on condition that it will not be counted for any service benefits including pension and the fact of which will be so recorded in the Service Book of the incumbent. 3. Exts.P4 and P5 are the copies of applications submitted by the petitioner for by transfer appointment from the post of Peon. The applications are rejected by the Public Service Commission. 4. The requirement to be satisfied for consideration of the application is that one should have completed five years of service. The petitioner wpc 28309/2010 2 received Ext.P7 letter from the Public Service Commission that he has not completed five years of service and hence the applications are rejected. The petitioner thereafter represented the third respondent and having failed to get any response, this writ petition has been filed. Exts.P9 and P10 are two Government Orders dealing with sanction of leave without allowance under Appendix XIIA of Part I K.S.R. 4. Heard learned counsel for the petitioner, learned Government Pleader and learned Standing Counsel for the Public Service Commission. 5. In the counter affidavit filed by the Commission, it is made clear that five years experience as on the date of application, should necessarily be possessed by the applicant. It is submitted that even if the period of leave without allowance is treated as duty, it will not count for any service benefits. Evidently, therefore, if the period of leave is excluded, the petitioner will not be able to satisfy the condition. 6. The conditions stipulated in Ext.P1 therefore will clearly act against the petitioner, as the leave period will not be counted for any service benefits which is made clear in the order sanctioning leave itself. 7. Learned counsel appearing for the petitioner submitted that but still the petitioner is right in submitting that the condition in Ext.P1 has to be relaxed in the light of Exts.P9 and P10 Government Orders. It is wpc 28309/2010 3 submitted that reliefs Nos.2 and 3 therefore are liable to be considered by this Court. 8. Learned Government Pleader, with reference to the averments contained in paragraphs 3 and 4 of the statement filed by the second respondent, submitted that Exts.P9 and P10 cannot apply to the petitioner. 9. Evidently, the proceedings of the Commission stating that the petitioner's application cannot be considered, is perfectly in order. Therefore, to that extent the writ petition fails. 10. I need not go into the details of the alternate plea raised by the petitioner for relaxation of the condition in Ext.P1 herein, since this is a matter to be considered by the Government. Therefore, the petitioner can file appropriate representation before the Government seeking for the benefit, if any, allowable under Ext.P9. If a representation is filed within one month, appropriate orders will be passed within a further period of four months. The writ petition is disposed of with the above observations. No costs. (T.R. Ramachandran Nair, Judge.) kav/