IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS WEDNESDAY, THE 18TH FEBRUARY 2009 / 29TH MAGHA 1930 WA.No. 2908 of 2007() --------------------- AGAINST THE JUDGEMENT IN WPC.2099/2006 Dated 25/10/2007 .................... APPELLANT: PETITIONER ------------------------ DR. RAJU FRANCIS, LECTURER SENIOR SCALE, DEPARTMENT OF CHEMISTRY, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT-8. BY ADV. SRI.JOSHI N.THOMAS RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION (D) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF COLLEGIATE EDUCATION, VIKAS BHAVAN, P.M.G. JUNCTION, THIRUVANANTHAPURAM. 3. UNIVERSITY OF CALICUT, REPRESENTED BY ITS REGISTRAR, THENHIPALAM. 4. PRINCIPAL, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT-8. 5. MANAGER, ST.JOSEPH'S COLLEGE, DEVAGIRI, CALICUT-8. SRI.P.C.SASIDHARAN, SC FOR CALICUT UNY. - R3 GOVT. PLEADER SMT. R.BINDU - R1 & R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 18/02/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 2908 OF 2007 ----------------------------------------- Dated 18th February, 2009. JUDGMENT Balakrishnan Nair, J. The appellant was the writ petitioner. He approached this Court, by filing W.P.(C) No.2099/2006, challenging certain adverse orders in the matter of grant of leave to him for study purpose as also for taking up employment abroad. The learned Single Judge dismissed the writ petition, mainly, on the ground of delay and laches. Hence this Writ Appeal. 2. The brief facts of the case are the following: The appellant is a Lecturer of St.Joseph's College, Devagiri, Kozhikode. By Ext.P2 communication dated 4.1.1996, he has been granted leave without allowance for study purpose by the Government from 15.1.1996 to 14.1.1997. He represented against that order before the Government on 29.7.1998, after availing the leave, praying that he may be given service benefits for the above period of one year. The said representation was rejected by the Government, by Ext.P5 communication dated 24.9.1998. Later, the appellant was granted leave without allowance for five years from WA 2908/2007 2 27.7.2000 to 26.7.2005 by the Government, to take up employment abroad, subject to the conditions stipulated in G.O. (Ms) No.137/85/H.Edn. dated 14.6.1985. It appears, he sought cancellation of the unavailed portion of the leave from 11.10.2002 to 26.7.2005. That was granted as per Ext.P8 communication dated 2.11.2002. By Ext.P10 communication dated 14.6.2004, the appellant was again granted leave without allowance for study purpose from 1.6.2004 to 30.11.2004. Later, he submitted Ext.P14 representation dated 19.9.2005, claiming that the periods of leave covered by Exts.P2, P7 and P10 may be treated as duty for all purposes. The said representation was rejected by the Government by Ext.P18 communication dated 26.11.2005. The writ petition was filed, challenging Exts.P5 and P18. The appellant also challenged the adverse conditions in Exts.P7 and P10 communications, sanctioning leave to him. 3. We notice that against the sanction of leave as per Ext.P2, the appellant has already moved the Government, highlighting his grievances and the claim for redressal of his grievances has been rejected by the Government by Ext.P5 communication dated 24.9.1998. So, there is considerable delay in challenging Ext.P5. Similarly, against the adverse conditions in Exts.P7 and P10, the appellant has chosen to represent only by Ext.P14 on 19.9.2005. There is considerable delay from the part of the WA 2908/2007 3 appellant, even for representing against those adverse orders. So, it is unnecessary to go into the correctness of Ext.P18. The learned Single Judge rightly dismissed the writ petition on the ground of delay and laches. We fully endorse the view taken by the learned Judge in this regard. Since the appellant has taken advantage of the leave granted to him, he cannot be allowed to turn round and challenge the adverse conditions later. If the leave period is treated as duty, that will affect the seniority of several others. Even assuming it will not affect others, we feel that this is not a fit case to invoke the discretionary jurisdiction of this Court. The discretion exercised by the learned Single Judge by declining to interfere with the impugned orders cannot be said to be illegal or perverse. 4. The learned counsel for the appellant relied on the decision of the Apex Court in Ramachandra Shankar Deodhar v. State of Maharashtra [(1974)1 SCC 317] and contended that the delay in moving the writ petition should be ignored. Special reference was made to the observations made in para 10 of that judgment. We notice that it was a case involving enforcement of the fundamental rights and in that context the Apex Court said that normally, a petition for enforcement of the fundamental rights cannot be thrown out, based on the ground of delay or laches. In this case, we notice that no Government servant has got any fundamental right, much WA 2908/2007 4 less any statutory right, to insist that he should be granted leave with all service benefits. It is a matter within the discretion of the Government. Therefore, the decision cited by the learned counsel for the appellant has no application to the facts of this case. 5. The learned counsel for the appellant submits that in the case of some other employees, the Government have granted all service benefits for the leave period. If the Government have acted beyond the requirement of law in the case of one or more employees, this Court cannot mandate the Government to act so in the case of all employees. Such a claim cannot be founded on Article 14 or Article 16 of the Constitution of India. In the result, the Writ Appeal fails and it is dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/