IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE ACTING CHIEF JUSTICE MR.P.R.RAMAN & THE HONOURABLE MR. JUSTICE C.N.RAMACHANDRAN NAIR TUESDAY, THE 16TH FEBRUARY 2010 / 27TH MAGHA 1931 WA.No. 2909 of 2009() --------------------- AGAINST THE JUDGEMENT IN WPC.738/2009 APPELLANTS: RESPONDENTS ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, THIRUVANANTHAPURAM. 2. DISTRICT MEDICAL OFFICER (HEALTH) WAYANAD, MANANTHAVADY. BY GOVERNMENT PLEADER SRI. BENJAMIN PAUL RESPONDENT/PETITIONER: ------------------------------ K.K.SREENIVASAN, PEON, PRIMARY HEALTH CENTRE, MEPPADI, WAYANAD. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 16/02/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: P.R. RAMAN Ag. CJ & C.N. RAMACHANDRAN NAIR, J. = = = = = = = = = = = = = = = = = = = = W.A. 2909 OF 2009 = = = = = = = = = = = = DATED THIS, THE 16TH DAY OF FEBRUARY, 2010. J U D G M E N T Raman, Ag. CJ. Appeal is by the State against the judgment of the learned Single Judge in W.P.(C) 738/2009, rendered on 21.8.2009. Writ petitioner, who is the respondent herein, entered service as a Peon in the Health Service Department in July, 1999. At that time, he possessed only a pass in the SSLC Examination. In order to improve his qualification, he applied to the District Medical Officer of Health, Wayanad, through the Medical Officer of the Primary Health Centre where he was working, to sanction him eligible leave from 16.8.2006 to 30.11.2006 for undergoing the Sanitary Inspectors' Diploma Course conducted by All India Institute of Local Self Government, Mumbai. He had also applied for Half Pay Leave for the period from 1.12.2006 to 31.3.2007 and leave without allowances from 1.4.2007 to 30.5.2007for the said purpose. The application for leave was forwarded by the Medical Officer of Primary Health Centre, Meppady where he was employed, to the District Medical Officer of Health, Wayanad along with Ext.P2 letter. The District Medical Officer also granted "No WA. 2909/2009 2 Objection Certificate" as per Ext.P3. The DMO (Health) returned the leave application to the Medical Officer of Primary Health Centre, along with Ext.P4, informing that since the petitioner has leave available to his credit and the leave without allowances applied for was below 120 days, the Head Office can sanction the same. Accordingly, the Head Office sanctioned the leave applied fr as per order dated 17.10.2006. The appellant completed his studies and passed the Diploma Course. Later, the Government amended the rules governing the method of appointment to the post of Junior Health Inspector Gr.II in the ratio of 50:50 between appointment by transfer/promotion and appointment by direct recruitment. A further ratio of 2:2:1 was also fixed for the purpose of promotion among last grade servants, field workers and other eligible candidates. Government ordered that those in service candidates who acquired qualification without availing leave, will be excluded from the list of candidates eligible for promotion. Ext.P7 is the list of eligible candidates for promotion, prepared by the Director of Health Services. Since the name of the petitioner did not find a place in the said list, he represented the Government by filing Ext.P8. Pursuant to an interim order passed in the writ petition, Government considered the said representation and passed Ext.P9 order holding that the District Medical Officer was not competent to WA. 2909/2009 3 issue the No Objection Certificate and the petitioner ought to have obtained the NOC from the Director of Health Services and so, he is not eligible to be included in the seniority list of Departmental hands eligible to be promoted as Junior Health Inspector Grade II. In the factual situation, it was found that the petitioner, who is a Last Grade Servant, applied for leave through proper channel, NOC was issued by the District Medical Officer, leave sanctioned, he underwent the course, successfully completed the same and passed and it is thereafter that such a stand is taken, which in the factual situation is found to be unjustified. 2. At the time of admission, the learned Government Pleader submitted that the Government are considering issuance of an order, approving the No Objection Certificate given by the District Medical Officer also, as valid and if such an order is passed, it is not necessary to pursue the writ appeal. This submission was recorded by this Court on 12.1.2010. When the matter came up for further consideration, it is submitted by the learned Government Pleader that Government has approved the No Objection Certificate given by the District Medical Officer. But in the matter of leave without allowance, however, it is maintained that the proper authority is the Director of Health Services. 3. In the above factual situation, we find that there is no merit in WA. 2909/2009 4 the contention now raised. After availing leave duly certified by the District Medical Officer and undergoing the course, the Government is estopped from denying promotion. It is not a case that the leave application was refused earlier on any ground as now stated. When, after availing the leave sanctioned by higher authorities, petitioner has proceeded on leave, underwent and passed the course, for awarding promotion, he cannot be denied the same. In the factual situation, we do not find any reason to interfere with the order passed by the learned Single Judge. Accordingly, the writ appeal is dismissed. P.R. RAMAN, (Ag. CHIEF JUSTICE) C.N. RAMACHANDRAN NAIR, (JUDGE).