IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN THURSDAY, THE 8TH DECEMBER 2011 / 17TH AGRAHAYANA 1933 WP(C).No. 31988 of 2006(G) -------------------------------------- PETITIONER: ----------------- ABDUL RAHOOF, S/O. MAHAMOOD V.K., AGED 37 YEARS, UDC/ SPECIAL VILLAGE OFFICER, KANEELAKATH HOUSE, CHALAD P.O., KANNUR-14. BY ADV. SRI.M.K.SUMOD SRI.KAUSER EDAPPAGATH SMT.A.LOWSY SRI.P.M.PAREETH SRI.MOHAMMED SHAMEEL RESPONDENTS: ---------------------- 1. THE DISTRICT COLLECTOR, KANNUR. 2. THE COMMISSIONER, LAND REVENUE, THIRUVANANTHAPURAM. 3. THE STATE OF KERALA, REP. BY ITS SECRETARY, DEPARTMENT OF REVENUE, SECRETARIAT, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT.PLEADER SRI.NOBLE MATHEW THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 06/12/2011, THE COURT ON 08/12/2011 DELIVERED THE FOLLOWING: JM WP(C).No. 31988 of 2006 ANNEXURE PETITIONER'S EXHIBITS: P1: COPY OF PROCEEDINGS NO. D.DIO.3057/2001/A2 DT. 23.1.01. P2: COPY OF REPRESENTATION DT. 19.1.2000 P3: COPY OF LETTER REF.NO. 48802/99/A2 DT. 19.1.2000 P4: COPY OF REPRESENTATION DT. 1.7.04 P5: COPY OF GOVT. ORDER (P) NO. 616/2003 DT. 19.11.03 P6: COPY OF ORDER NO. 89043/T3/04 RD DT. 17.1.05 P7: COPY OF REVISION DT. 5.5.2005 P8: COPY OF GOVT.ORDER NO. 42863/T3/05/RD DT.12.4.06 P9: COPY OF PROCEEDINGS NO. A 2-88297/96 DT. 24.11.99 ISSUED BY THE FIRST RESPONDENT P10: COPY OF PROCEEDINGS DT. A2-4170/98 DT. 24.8.98 ISSUED BY THE 1ST RESPONDENT. P11: COPY OF GO (RT) NO. 4875/98RD DT. 28.11.98 RESPONDENTS EXHIBITS: NIL \\ TRUE COPY\\ PA TO JUDGE JM S.SIRI JAGAN, J. ================== W.P.(C).No. 31988 of 2006 ================== Dated this the 8th day of December, 2011 J U D G M E N T The petitioner entered service of the Revenue Department of the Government of Kerala as a Lower Division Clerk on 8.9.1997. He availed of leave without allowances for taking up employment abroad for a period of five years from 13.3.1998. Subsequently, he sought cancellation of the unavailed portion of leave and rejoined duty on 25.8.1998. His probation was declared only with effect from 24.8.2000 in view of the provisions of Appendix XIIA of Part I of Kerala Service Rules, which stipulated that a person who avails of leave under Appendix XIIA before completion of probation will have to join as a fresh entrant after the expiry of the leave. The petitioner submits that the leave actually availed of by the petitioner was only for 73 days and therefore, that leave ought to have been construed as a leave under Rule 88 of Part I of KSR, in which case, his past service prior to the availing of leave should have been taken into account for the purpose of computing the probation period. The petitioner's representations in that regard have been rejected by Exts.P6 and P8 orders. The petitioner seeks the following reliefs: “(a) Issue a writ of Certiorari or such other writ quashing Exhibit P1, Exhibit P6 and Exhibit P8. (b) Declare that petitioner's probation period is from 08.09.97 to w.p.c.31988/06 - : 2 :- 19.11.99. (c) Issue a writ of mandamus or such other writ directing respondents to extent (sic) the period of probation from 08.9.97 to 19.11.99 and declare the same as on 19.11.99 and to consequently fix his seniority, pay and allowances. 2. A counter affidavit has been filed by the 1st respondent, wherein the stand taken is that insofar as the petitioner availed of leave under Appendix XIIA, all conditions for such leave are applicable to the leave availed of by the petitioner. One of the conditions under Appendix XIIA is that a person who avails of leave under Appendix XIIA before completion of probation will have to join as a new entrant when he rejoins duty after leave. As such, the petitioner's probation would start only on the date of rejoining viz. 25.8.1998 and, therefore, his probation was rightly declared with effect from 24.8.2000 is the contention raised. The petitioner would also contend that since the petitioner's service was regularised with effect from 8.9.1997 by Ext.P9, it must be deemed that the entire service has been regularised including the leave period and, therefore, what is applicable is Rule 88 and not Appendix XIIA. 3. I have considered the rival contentions in detail. 4. It is not disputed before me that the petitioner has availed of leave under Appendix XIIA and that for such leave it was a condition that a person who avails of leave before completion of probation will have to rejoin duty after the leave as a new entrant. Therefore, w.p.c.31988/06 - : 3 :- notwithstanding the fact that the petitioner rejoined duty after 73 days of leave, the character of the leave does not change. The leave is under Appendix XIIA and not under Rule 88. The petitioner has no case that leave has been sanctioned to the petitioner under Rule 88. Ext.P9 does not support the petitioner. As is being done in Government service all employees are originally appointed under Rule 9(a)(i) and subsequently such appointment is being regularised. Ext.P9 is only such a regularisation. It cannot be pressed into the service to claim that on such regularisation the petitioner's leave for 73 days also stands regularised under Rule 88 of Part I of KSR. Insofar as the petitioner availed of leave only under Appendix XIIA, all conditions stipulated in Appendix XIIA apply for that leave notwithstanding the fact that after 73 days the petitioner rejoined duty. Therefore, there is no merit in the writ petition and accordingly, the same is dismissed. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge