IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 14TH FEBRUARY 2008 / 25TH MAGHA 1929 OP.No. 20702 of 2000(M) ---------------------------------- PETITIONER: -------------------- LAILA BEEVI.N., U.D.TYPIST, DISTRICT KHADI AND VILLAGE INDUSTRIES OFFICE, KOTTAYAM. BY ADV. SRI.PIRAPPANCODE V.SREEDHARAN NAIR SRI.S.P.ARAVINDAKSHAN PILLAY SRI.PIRAPPANCODE V.S.SUDHIR SMT.RESMI G. NAIR RESPONDENTS: ------------------------ 1. KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM , REP.BY ITS SECRETARY. 2. DIRECTOR (ADMN) KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM. 3. SARALA S., U.D.TYPIST, DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, THIRUVANANTHAPURAM. 4. C.J.LALITHA, U.D.TYPIST, DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, THIRUVANANTHAPURAM. pto OP. NO.20702/2000 5. SIVADASAN P.S., JUNIOR CO-OPERATIVE INSPECTOR, DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, PALAKKAD. 6. K.MOHANAN, JUNIOR CO- OPERATIVE INSPECTOR, DISTRICT KHADI & VILLAGE INDUSTRIES OFFICE, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.SANDESH RAJA BY ADV. SRI.N.UNNIKRISHNAN - R6 SRI.V.V.JOSHI, SC, KHADI BOARD SRI.K.P.HARISH,SC,KERALA KHADI BOARD THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 14/012/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: pto OP. NO.20702/2000 ORDER ON CMP. NO.34702/2000 IN OP. NO.20702/2000 DISMISSED 14.02.2008 SD/- P.N.RAVINDRAN, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE RELEVANT EXTRACT OF THE ORDER NO.KB.8406/87/E1 DT. 17.11.92 OF THE IST RESPONDENT. EXT.P2:- COPY OF THE ORDER NO.KB/5234/95/E1 DT. 22.4.95 OF THE 2ND RESPONDENT. EXT.P3:- COPY OF THE ORDER NO.KB.15802/94/E2 DT. 19.6.95 OF THE 2ND RESPONDENT. EXT.P4:- COPY OF THE CERTIFICATE DT. 8.8.94 ISSUED BY THE DOCTOR OF V.S.M. HOSPITAL, MAVELIKKARA. EXT.P5:- COPY OF THE ORDER NO.KB.9431/98/E3 DT. 24.5.99 OF THE IST RESPONDENT. EXT.P6:- COPY OF THE REPRESENTATION DT. 15.7.99 SUBMITTED BY THE PETITIONER BEFORE THE CHAIRMAN OF THE IST RESPONDENT. EXT.P7:- COPY OF THE ORDER NO.KB/9431/98/E3 DT. 15.11.99 OF THE IST RESPONDENT. EXT.P8:- COPY OF THE ORDER NO.KB/5234/95/E1 DT. 12.9.95 OF THE 2ND RESPONDENT. EXT.P9:- COPY OF THE ORDER NO.KB.7104/99/E1(A) DT. 29.11.99 OF THE 2ND RESPONDENT. EXT.P10:- COPY OF THE REVIEW PETION SUBMITTED BY THE PETITIONER BEFORE THE IST RESPONDENT DT. 10.12.99. EXT.P11:- COPY OF THE JUDGMENT DT. 15.2.2000 OF THIS HONOURABLE COURT IN OP. 3592/2000. EXT.P12:- COPY OF THE ORDER NO.KB.9431/98/E3 DT. 5.5.2000 OF THE IST RESPONDENT. pto OP. NO.20702/2000 EXT.P13:- COPY OF THE LETTER NO.K7/3519/93 DT. 13.3.95 OF THE PROJECT OFICER, KHADI AND VILLAGE INDUSTRIES OFFICE, KOTTAYAM, FORWARDING THE APPLICATION OF THE PETITIONER FOR LEAVE ON MEDICAL GROUNDS, ENCLOSING THE MEDICAL CERTIFICATE, TO THE SECRETARY, KERALA KHADI AND VILLAGE INDUSTRIES BOARD, THIRUVANANTHAPURAM. EXT.P14:- COPY OF THE MEMO NO.KB/4147/95/E3 DT. 30.5.95 OF THE SECRETARY, KHADI AND VILLAGE INDUSTRIES BOARD. RESPONDENT'S EXHIBITS EXT.R1(a):- COPY OF THE RELEVANT PAGES OF THE REGULATION. EXT.R1(b):- COPY OF THE APPLICATION FOR LEAVE. EXT.R1(c):- COPY OF THE MEDICAL CERTIFICATE EXT.R1(d):- COPY OF THE REPRESENTATION DT. 21.11.98 BY THE PETITIONER. EXT.R1(e):- COPY OF THE MEDICAL CERTIFICATE DT. 8.8.2000 ISSUED BY DR.BALAKRISHNAN V.S.M. HOSPITAL, MAVELIKARA. /TRUE COPY/ P.A. TO JUDGE tss P.N.Ravindran, J. =============== O.P.No.20702 of 2000 ================ Dated this the 14th day of February, 2008. JUDGMENT The petitioner was appointed as Lower Division Typist in the Kerala Khadi and Village Industries Board, hereinafter referred to as the "Board" for short, as per Ext.P1 order dated 17.11.1992. Respondents 3 to 6 were also likewise appointed as Lower Division Typists in the Board and it is not in dispute that they were juniors to the petitioner in the category of Lower Division Typist. Ext.P1 order states that the incumbents will be on probation for the period specified in the Kerala Khadi and Village Industries Board (Classification and Conditions of Recruitment of Staff) Regulations 1967, hereinafter referred to as the "Regulations" for short. Regulation 15(a)(i) of the Regulations states that every person appointed to any grade, category or class of a service shall if recruited direct, be on probation, from the date on which he joins duty, for a total period of two years within a continuous period of three years. OP 20702/00 -: 2 :- 2. While the petitioner was a probationer Lower Division Clerk, she availed leave for 51 days during the period from 12.7.1994 to 31.8.1994. Ext.R1(b) produced along with the counter affidavit dated 16.1.2001 filed on behalf of respondents 1 and 2 is the leave application submitted by the petitioner. By the said leave application, the petitioner applied for earned leave for 8 days from 12.7.1994 to 19.7.1994 and half pay leave for 20 days from 20.7.1994 to 8.8.1994. From Ext.R1(b), it is seen that the petitioner had applied for leave on medical grounds, that it was submitted on 5.8.1994 and that the leave applied for was granted by the Project Officer on 13.3.1995. The petitioner had also applied for and was granted leave without allowances for 23 days from 9.8.1994 to 31.8.1994. 3. Since the petitioner was on leave for 51 days during the period from 12.7.1994 to 31.8.1994, there was delay in the completion of her probation in the category of Lower Division Typist. Respondents 3 to 6, who were juniors to the petitioner, completed their probation in the category of Lower Division Typist earlier than the petitioner and by Ext.P2 proceedings dated 22.4.1995, they were promoted as Upper Division Typists with OP 20702/00 -: 3 :- effect from the date of Ext.P2. After Ext.P2 order was passed, the probation of the petitioner in the category of Lower Division Typist was declared to have been satisfactorily completed with effect from 12.1.1995, as can be seen from Ext.P3 proceedings issued in that regard on 19.6.1995. The petitioner did not object to the earlier promotion granted to respondents 3 to 6 as Upper Division Clerks with effect from 22.4.1995 as per Ext.P2. Later, by Ext.P8 proceedings dated 12.9.1995, the promotion given to respondents 3 to 6 as Upper Division Typists was revised and they were promoted as Upper Division Typists with retrospective effect from 9.1.1995, 6.1.1995, 25.11.1994 and 7.1.1995 respectively. By Ext.P8, the petitioner was also promoted as Upper Division Typist with effect from 13.1.1995. 4. Nearly three years after Ext.P8 order was issued, the petitioner submitted Ext.R1(d) application dated 21.11.1998 to the Secretary of the Board requesting that the leave for 51 days may be converted into medical leave for abortion. Along with Ext.R1(d), she also submitted a revised leave application. The petitioner had referred to and relied on Rules 100 and 101 of Part I, Kerala Service Rules in her request. By Ext.P5 memo dated OP 20702/00 -: 4 :- 24.5.1999, the Secretary of the Board informed the petitioner that the Board is not in a position to commute the leave already granted to her into medical leave, four years after the leave applied for was sanctioned. The petitioner thereupon submitted Ext.P6 representation dated 15.7.1999 to the Chairman of the Board seeking a reconsideration of the matter. By Ext.P7 memo dated 15.11.1999, the Secretary of the Board informed the petitioner that the said request cannot be granted. Shortly thereafter, respondents 5 and 6 were promoted to the post of Junior Co-operative Inspector by Ext.P9 order dated 29.11.1999. The petitioner again pursued the matter by filing Ext.P10 representation dated 10.12.1999 before the Board seeking a review of the earlier orders and once again requested that the leave sanctioned to her may be commuted into medical leave. She also sought promotion as Upper Division Clerk with effect from 25.11.1994, the date on which the fifth respondent, the senior most among respondents 2 to 6 therein, was promoted as Upper Division Typist and as Junior Co-operative Inspector with effect from 29.11.1999 when respondents 5 and 6 were promoted to the said post. The petitioner thereafter filed O.P.No. OP 20702/00 -: 5 :- 3592 of 2000. By Ext.P11 judgment delivered on 15.2.2000, this Court directed the respondents to consider the petitioner's request in Ext.P10 and to pass orders thereon within two months from the date of receipt of a copy of the judgment. The Secretary of the Board, by Ext.P12 proceedings dated 5.5.2000, rejected the petitioner's request in Ext.P10. Exts.P5, P7, P8, P9 and P12 are under challenge in this original petition. The petitioner has also prayed for a writ of mandamus commanding the first respondent to promote her to the post of Upper Division Typist on a regular basis with effect from 25.11.1994, the date on which the fifth respondent was promoted to that post. The petitioner has also prayed for a direction to the first respondent to promote her to the post of Junior Co-operative Inspector with effect from 29.11.1999, the date on which respondents 5 and 6 were promoted to the said post. 5. I have heard Sri. Pirappancode V.S. Sudheer, the learned counsel appearing for the petitioner, Sri. K.P.Harish, the learned Standing Counsel appearing for the Board and Sri.N.Unnikrishnan, the learned counsel appearing for respondents 3 to 6. The learned counsel for the petitioner, OP 20702/00 -: 6 :- relying on Rules 76, 89, 100 and 101 of Part I of the Kerala Service Rules, hereinafter referred to as the "K.S.R." for short, contended that as the petitioner was eligible for medical leave for abortion, the leave sanctioning authority had the discretion to commute the leave originally granted to her into medical leave. The learned counsel further submitted that in the light of Ext.P4 and Ext.R1(c) medical certificates, the Board ought to have granted the petitioner's request for commutation of the leave into medical leave. The learned counsel contended that on the terms of Rules 76 and 89 of Part I, K.S.R. the leave originally granted to her can be retrospectively commuted into any other kind of leave admissible to her at the time the original leave was granted. The learned counsel for the petitioner attempted to draw a distinction between Rule 76 and Rule 89 of Part I, K.S.R. to contend that while under Rule 89 the leave sanctioning authority has got the discretion to decline to commute the leave already granted, on the terms of Rule 76, no such discretion exists and that the leave sanctioning authority ought to have commuted the earned leave, half pay leave and leave without allowances originally granted to her into medical leave under Rule OP 20702/00 -: 7 :- 101. Per contra, the learned counsel appearing for the respondents contended that the petitioner had not in Ext.R1(b) applied for maternity leave or produced any medical certificate to claim leave under Rule 101. It was pointed out that in the medical certificate that was submitted along with the application for leave, the ailment was described as "Lumbago". It was submitted that the petitioner has not specifically pleaded in the original petition that along with the application for leave, she had enclosed the medical certificate evidenced by Ext.P4. It was also submitted that the petitioner did not choose to produce a copy of the application for leave submitted by her along with the original petition. The learned counsel for the respondents further submitted that the petitioner's belated request for commutation of the leave originally granted to her into medical leave was to avail the benefit of G.O.(P)No.6/88/P&ARD dated 15.2.1988 and G.O.(P)No.43/88/P&ARD dated 17.8.1988 whereby the State Government had ordered that maternity leave under Rules 100 and 101 of Part I, K.S.R. will be treated as duty for the purpose of probation and that the petitioner's attempt is to claim the benefit of the said government orders, with a view to challenge OP 20702/00 -: 8 :- the promotion of respondents 3 to 6 who had completed their probation in the category of Lower Division Typist earlier than the petitioner and were also promoted to higher posts earlier than the petitioner. 6. I have considered the rival contentions. It is evident from Ext.R1(b) that the leave application was submitted on 5.8.1994 and that it was granted only in March, 1995. The first respondent has in the counter affidavit dated 16.1.2001 stated that what was applied for as per Ext.R1(b) was earned leave for 8 days from 12.7.1994 to 19.7.1994 and half pay leave for 20 days from 20.7.1994 to 8.8.1994. Ext.R1(c) medical certificate dated 12.7.1994 was also produced along with it. But the said certificate referred to the ailment as lumbago. In Ext.R1(c) medical certificate, the Medical Practitioner had recommended absence from duty for 15 days with effect from 12.7.1994 for the reason that the petitioner was suffering from lumbago. It was only on 8.8.1994 that Ext.P4 medical certificate was issued by another Medical Practitioner, though of the very same hospital, to the effect that the petitioner was admitted as an inpatient on 25.7.1994 following internal bleeding, that she OP 20702/00 -: 9 :- underwent surgery on 27.7.1994 for ruptured ectopic pregnancy and was discharged on 8.8.1994 with advice to take complete rest till 31.8.1994. Though the learned counsel appearing for the respondents disputed the statement of the petitioner that the originals of Ext.R1(c) and Ext.P4 were produced along with the leave application, it is evident from Ext.R1(b) leave application that maternity leave on medical grounds was not applied for by the petitioner. What was applied for was earned leave for 8 days from 12.7.1994 to 19.7.1994 and half pay leave for 20 days from 20.7.1994 to 8.8.1994. The leave application discloses that the petitioner had not applied for leave under Rules 100 and 101 of Part I, K.S.R., though according to her, she was eligible for maternity leave. 7. Rule 76 of Part I, K.S.R. enables the leave sanctioning authority to retrospectively commute the leave originally granted to any officer into any other kind of leave admissible to the officer at the time the original leave was granted. Rule 89 of Part I, K.S.R. also empowers the authority which granted leave to an officer to commute it retrospectively into leave of a different kind which may be admissible to the officer. But the officer concerned OP 20702/00 -: 10 :- cannot claim it as a matter of right. Rule 100 of Part I, K.S.R. stipulates that the competent authority may grant to a female officer, maternity leave on full pay for a period of 135 days from the date of its commencement. During the relevant time it was 90 days. Rule 101 of Part I, K.S.R. stipulates that the leave under Rule 100 may also be granted to female officers in cases of miscarriage, including abortion subject to the condition that the leave does not exceed six weeks and the application for the leave is supported by a certificate from the Medical Attendant. On going through Rules 100 and 101 of Part I, K.S.R., it is evident that if the petitioner had applied for medical leave under Rules 100 and 101 of Part I, K.S.R. on the ground of miscarriage, along with a certificate to that effect, the leave applied for would certainly have been granted, but only for 42 days. However, the petitioner applied for earned leave for 8 days from 12.7.1994 to 19.7.1994, half pay leave for 20 days from 20.7.1994 to 8.8.1994 and leave without allowance for 23 days thereafter. The application for leave, Ext.R1(b), was presented on 5.8.1994 along with Ext.R1(c) medical certificate. The conduct of the petitioner discloses that it was more than three years after respondents 3 OP 20702/00 -: 11 :- to 6 were given respective promotion as Upper Division Typists that she moved the competent authority for commutation of the leave already sanctioned to her into maternity leave. 8. By the time the petitioner made such a request, respondents 3 to 6 had been promoted by virtue of their earlier completion of probation as Upper Division Clerks. It was after they were promoted as Upper Division Clerks that the petitioner's probation in the category of Lower Division Typist was declared to have been satisfactorily completed. It was more than three years after respondents 3 to 6 were promoted as Upper Division Typists that the petitioner came forward with the request for commutation of the leave originally granted to her into maternity leave. A learned single Judge of this Court has in Pushpangadan v. State of Kerala - 2002(3) K.L.T. 519 held that the Government cannot grant leave which was not in fact applied for by the Government servant. Therefore, the leave applied for was rightly granted and on the leave application submitted by the petitioner maternity leave could not have been granted. The petitioner's request in Ext.R1(d) application dated 21.11.1998 for commutation of leave was first rejected by Ext.P5. She did not OP 20702/00 -: 12 :- challenge Ext.P5 in appropriate proceedings. Instead, she submitted Ext.P6 representation dated 15.7.1999 seeking reconsideration of the matter, and it was also rejected by Ext.P7 memo dated 15.11.1999. The petitioner did not challenge Ext.P7 also. Instead, claiming commutation of leave and seeking promotion as Upper Division Typist from the date on which the fifth respondent was promoted, the petitioner filed Ext.P10 representation dated 10.12.1999 and that was rejected by Ext.P12 order dated 5.5.2000. In my opinion, as the petitioner did not challenge Exts.P5 and P7 orders in time, she is not entitled to challenge Ext.P12 order on the ground set out in the original petition. The claim of the petitioner was twice rejected. Further, the Board has in Ext.P12 considered the entire claim of the petitioner and rejected it on the ground that if the petitioner's request is granted, it will adversely affect the interests of respondents 3 to 6, who had in the meanwhile been promoted to higher posts. The Secretary of the Board had also noticed that the leave applied for by the petitioner was not maternity leave, but earned leave for 8 days, half pay leave for 20 days and leave without allowances for 23 days. The ailment referred to in OP 20702/00 -: 13 :- Ext.R1(c) medical certificate was Lumbago. Further, by the time the petitioner applied for commutation of leave, her juniors had been promoted to higher posts. The petitioner cannot seek commutation of leave to unsettle the earlier promotions given to respondents 3 to 6. In any case, the entire period of 51 days cannot be commuted into maternity leave, on the terms of Rule 101 of Part I, K.S.R. In my opinion, having regard to the facts noticed above and the conduct of the petitioner, her claim for commutation of the leave originally sanctioned to her into maternity leave is highly belated and is not tenable. Her claim in that regard was rightly rejected by the Board and I find no reason to interfere with the decision of the Board evidenced by Ext.P12. The original petition accordingly fails and it is dismissed. No costs. P.N.Ravindran, Judge. ess 15/2