IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC THURSDAY, THE 16TH OCTOBER 2008 / 24TH ASWINA 1930 WP(C).No. 33184 of 2007(A) -------------------------------------- PETITIONER: ----------------- GEORGE MICHEL, AGED 37 YEARS, S/O.REV.FR.P.C.MICHEL, P.D.TEACHER, G.L.P.S.MAMANGARA, KAMBALAKKALLU P.O. NILAMBUR, MALAPPURAM (DIST). BY ADV. SRI.JESWIN P.VARGHESE RESPONDENTS: ----------------------- 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. 3. THE ASSISTANT EDUCATIONAL OFFICER, NILAMBUR, MALAPPURAM DIST. GOVERNMENT PLEADER SMT.T.B.REMANI FOR R1 TO R3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 16/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO. 33184/2007-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE GOVT. ORDER NO.4406/94 DATED 01/11/94. EXT.P2: COPY OF THE JUDGMENT IN W.P.(C). NO. 9546/05 DATED 22/03/05. EXT.P3: COPY OF THE REPRESENTATION SUBMITTED BEFORE THE 1ST RESPONDENT DATED 28/04/2005. EXT.P4: COPY OF THE ORDER OF 1ST RESPONDENT DATED 16/03/2007. EXT.P5: COPY OF THE ORDER OF 2ND RESPONDENT DATED 13/08/2007. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE Rs/ ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.33184/2007 ----------------------------------------------------------- Dated this the 16th day of October, 2008 JUDGMENT Challenge in this writ petition is against Ext.P5 order passed by the Deputy Director, 2nd respondent. 2. The petitioner has rendered provisional service as a PD teacher for the period from 19.9.1989 to 30.3.1990, 15.6.1990 to 27.3.1991 and 20.6.1991 to 31.3.1992. Thereafter he has joined in the regular post with effect from 8.6.1990. While continuing so, he availed leave without allowance for the period 4.5.1994 to 16.12.1995 and that was allowed by Ext.P1 order subject to the conditions of GO (P).No.524/84/Fin. dated 18.9.1984. 3. Later the petitioner rejoined duty and claimed that as he has rendered provisional service prior to regular employment he is entitled to reckon the provisional service WP(c).No.33184/07 2 for the purpose of increment and that was directed to be considered by the first respondent as per Ext.P2 judgment in WP(c).No.9546/2005 filed by the petitioner. Accordingly the matter was considered by the Government and in Ext.P4, it was ordered that, as such the provisional service of the petitioner may be reckoned for sanctioning increment in the post of P.D Teacher to which he got regular appointment with effect from 8.6.1993. Accordingly, the appointing authority, namely the second respondent was ordered to take action in the case as stated above. 4. The appointing authority reconsidered the matter and passed Ext.P5 order taking the view that once a person, who has not completed the probation, availed of leave without allowance, all that is safeguarded by the Government Orders is that he has the right of re-entry as a new appointee and nothing more. The petitioner contends that this view of the 2nd respondent is erroneous. The counsel contends that in Ext.P4 Government Order passed WP(c).No.33184/07 3 in pursuance to Ext.P3 judgment, as the claim of the petitioner has been accepted, it was impermissible for the 2nd respondent to take a view different from what was taken in Ext.P4. 5. Learned Government Pleader on the other hand would pointed out that leave was granted by Ext.P1, subject to the conditions of the Government Order referred to above. According to the Government Pleader, in case of those employees, who had not rendered the minimum service of two years, leave without allowance was ordered to be granted in relaxation of the rules subject to the conditions mentioned in the Government Order. In particular the government Pleader refers to para 3(1) of the Government Order which reads under. "The officers will start afresh and complete their probation on return from leave. In other words, the officers will forfeit the service benefits that have accrued to them prior to their WP(c).No.33184/07 4 proceeding on leave and they will be deemed as new entrants to Government service on return from leave. What is protected is only their right to rejoin Government service in the same grade a s if they were new entrants." 6. It is stated that a reading of this order shows that all that is protected is the right of the Government employee to rejoin service in the same Grade as if he is a new entrant, forfeiting the entire service benefits that was accrued prior to his proceeding on leave. 7. Ext.P1 shows that leave was granted subject to the conditions of the Government Order referred to above. The extracted portion of the Government Order shows that, once an ineligible person avails of leave in relaxation of the rules, all benefits that have been accrued are forfeited and the only right is to rejoin as if he a new entrant. If that be so, the petitioner cannot claim the benefit of the previous service rendered by him prior to his rejoining duty and he WP(c).No.33184/07 5 will have to rejoin the service as a new entrant. In that view of the matter, I cannot endorse the view taken in Ext.P5. Writ Petition fails and is dismissed. ANTONY DOMINIC JUDGE vi. WP(c).No.33184/07 6