IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 12TH JUNE 2009 / 22ND JYAISHTA 1931 WP(C).No. 23297 of 2008(W) --------------------------------------- PETITIONER: ------------------- NITHA RAMACHANDRAN, ASSISTANT GRRADE -1, GREATER COCHIN DEVELOPMENT AUTHORITY, COCHIN -20. BY ADV. MR.ELVIN PETER P.J. RESPONDENTS: ------------------------ 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, LOCAL SELF GOVERNMENT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. GREATER COCHIN DEVELOPMENT AUTHORITY, COCHIN -20, REPRESENTED BY ITS SECRETARY. 3. THE SECRETARY, GREATER COCHIN DEVELOPMENT AUTHORITY, COCHIN -20. R1. BY GOVT. PLEADER MR. ANTONY MUKKATH, R2 & R3 BY MR..M.K.THANKAPPAN,SC,GCDA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 12/06/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.23297/2008-W: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER DT. 09/03/2005 ISSUED BY THE R.2. EXT.P.2: COPY OF THE ORDER DT. 06/03/2008 ISSUED BY THE R.2. EXT.P.3: COPY OF THE ORDER DT. 15/03/2008 ISSUED BY THE R.2. EXT.P.4: COPY OF THE APPLICATION DT. 25/03/2008 FILED BY THE PETITIONER BEFORE THE R.1. EXT.P.5: COPY OF THE ORDER G.O. DT. 22/07/2003 ISSUED BY THE GOVERNMENT. EXT.P.6: COPY OF THE COMMUNICATION DT. 18/07/2008 ISSUED BY THE R.2. EXT.P.7: COPY OF THE ORDER DT. 05/07/2008 ISSUED BY THE GOVERNMENT. EXT.P.8: COPY OF THE ORDER G.O. DT. 03/03/2007 ISSUED BY THE GOVERNMENT. EXT.P.9: COPY OF THE ORDER DT. 17/01/2008 ISSUED BY THE R.2. EXT.P.10: COPY OF THE ORDER, G.O. DT. 20/02/2008 ISSUED BY THE GOVT. EXT.P.11: COPY OF THE ORDER, G.O. DT. 18/06/2007 ISSUED BY THE GOVT. EXT.P.12: COPY OF THE ORDER DT. 10/10/2007 ISSUED BY THE GOVERNMENT. EXT.P.13: COPY OF THE ORDER DT. 11/11/2005 ISSUED BY THE R.2. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. Prv. P.N.RAVINDRAN, J. ------------------------------------- W.P.(C)No.23297 of 2008 -------------------------------------- Dated 12th June, 2009 JUDGMENT Heard Sri.Elvin Peter, the learned counsel appearing for the petitioner, Sri.Antony Mukkath, the learned Government Pleader appearing for the State of Kerala and Sri.M.K.Thankappan, the learned Standing Counsel appearing for the Greater Cochin Development Authority. 2. The petitioner entered service as Assistant Grade II in the Greater Cochin Development Authority (hereinafter referred to as `the Authority' for short) on 24.10.1996. After her probation in the category of Assistant Grade II was declared she was promoted to the category of Assistant Grade I. The petitioner's husband is employed abroad. With a view to join him, the petitioner initially applied for leave without allowances for a period of one year from 21.4.2003. That request was granted by order dated 24.7.2003 issued by the Secretary of the Authority. On the expiry of the said period of leave, the petitioner rejoined duty. She again applied for leave without allowances for a period of three years to join her husband under Appendix XII C of Part I of the Kerala Service Rules. By Ext.P1 order dated 9.3.2005 the said application was allowed and the petitioner was WP(C).No.23297/2008 2 granted leave without allowances for a period of three years with effect from 10.3.2005 subject to the conditions laid down in G.O.(P) No.209/84/Fin. dated 12.4.1984 and Appendix XII C of Part I of the Kerala Service Rules. 3. When the leave granted as per Ext.P1 order was about to expire, the petitioner submitted an application dated 21.1.2008 requesting for extension of the leave without allowances for a further period of three years with effect from 10.3.2008. The executive committee of the Authority that met on 25.2.2008 considered the petitioner's application and taking note of the dearth of Assistants in the Authority resolved to reject the petitioner's application. The decision taken by the Authority was communicated to the petitioner by Ext.P2 letter dated 6.3.2008. On the very next day, the petitioner requested the Authority to reconsider its decision. That request was also rejected by Ext.P3 order dated 15.3.2008. The petitioner thereupon moved the Government by submitting Ext.P4 representation dated 25.3.2008. That request was turned down by the Government and the decision of the Government was communicated to the petitioner by Ext.P7 letter dated 5.7.2008 which was forwarded to the petitioner by the Secretary of the Authority along with Ext.P6 letter dated 18.7.2008. By Ext.P6 letter the petitioner was also directed to WP(C).No.23297/2008 3 report for duty forthwith. She was also informed that if she fails to report for duty disciplinary action will be taken against her. In this writ petition, the petitioner challenges Exts.P2, P3 and P7 and prays for a writ in the nature of mandamus commanding the respondents to grant the leave applied for by her. Relying on Exts.P10, P11, P12 and P13 orders the petitioner contends that the Authority has lent the services of employees to other institutions and has also granted leave without allowances to a Senior Town Planner. The petitioner contends that the decision taken by the Authority declining her request for extension of leave is therefore arbitrary and discriminatory. 4. The second respondent has filed a counter affidavit wherein it is stated that though the sanctioned strength of Assistants of all grades is 52, only 26 posts are occupied and the remaining posts are lying vacant. It is also stated that 4 out of the said 26 posts are occupied by deputationists. It is further stated that the deputation of Sri.T.Mohandas who was sent on deputation to the Kerala State Pollution Control Board has been cancelled and that he rejoined duty in the Authority on 10.6.2008. It is also stated that the deputation of Sri.R.Chandran, Assistant Lineman who was on deputation to the Thiruvananthapuram Development Authority, Smt.N.R.Omana, Assistant Town Planner, who was on deputation to Command Area WP(C).No.23297/2008 4 Development Authority, Thrissur and Smt.N.A.Suprabha, Assistant Engineer who was on deputation to Command Area Development Authority, Perumbavoor have been terminated and that their requests for extension of deputation have been rejected. As regards Sri.T.D.Sudarsanan, Section Officer on deputation to the Kerala Building and Other Construction Workers' Welfare Board and Sri.S.Sunil, Attender on deputation to the Kerala Cashew Workers' Relief and Welfare Fund Board, it is stated that there is no dearth of Section Officers and Attenders and therefore, their deputation has not so far been cancelled. 5. I have considered the submissions made at the Bar by the learned counsel on either side. The pleadings and the materials on record disclose that the petitioner was initially granted leave without allowances for one year with effect from 21.4.2003 and thereafter for a period of three years with effect from 10.3.2005 to join her husband who is employed abroad. The petitioner's request for extension of leave from 10.3.2008 by a further period of three years stands rejected. The petitioner is therefore absent without leave. The petitioner challenges the decision taken by the Authority rejecting her request for extension of leave on the ground that the Authority has permitted other employees to continue on deputation and has also WP(C).No.23297/2008 5 granted leave without allowances to some others. In my opinion, on the pleadings and the materials on record, it cannot be said that the decision taken by the Authority to reject the petitioner's request for extension of leave is in any way arbitrary. The pleadings disclose that as against the sanctioned strength of 52 Assistants, only 26 Assistants including four persons on deputation are in place. Thus there is shortage of 26 Assistants in the Authority. As the employer, taking note of the administrative exigencies, the Authority has decided that leave without allowances will not be granted to certain categories of employees whose services are essential. The petitioner was also informed accordingly as early as on 6.3.2008. She did not however rejoin duty. Instead, on the very next day she again applied for extension of leave and thereafter moved the Government. The pleadings disclose that the petitioner got employment under the compassionate appointment scheme. Subsequent events would show that such compassion was wholly out of place for the reason that the petitioner's husband is employed abroad. Rule 65 of Part I of the Kerala Service Rules which applies to the Authority states that leave cannot be claimed as a matter of right and that when the exigencies of the public service so require, the discretion to refuse or revoke leave of any description is reserved with the authority empowered to grant WP(C).No.23297/2008 6 it. I have in W.P.(C)No.16744 of 2008 and connected cases, held that leave without allowances under Appendices XII A, XII B and XII C cannot be claimed as a matter of right and that Government servants or other employees to whom the said rules apply, have no vested right for the grant of leave without allowances for the purposes mentioned therein. It was also held that Rule 65 reserves with the authority competent to grant leave, the power to refuse the leave applied for or to revoke the leave already granted. After taking note of the dire need for the services of Assistants in the Authority, the Authority decided that the petitioner's request for extension of leave cannot be granted. It cannot be said that the said decision is in any way arbitrary or discriminatory. The employer is the best judge of the situation and this Court exercising the discretionary jurisdiction under Article 226 of the Constitution of India cannot compel an employer or a public authority to grant leave to any of its employee for the purpose of enabling him/her to join his/her spouse abroad. The petitioner does not also deserve any sympathetic consideration of her request for extension of leave. She was given employment on 24.10.1996 under the scheme for compassionate appointment. Her appointment under the said scheme has resulted in denial of employment to another person awaiting employment. The petitioner therefore owes a duty to WP(C).No.23297/2008 7 the Authority to work as an employee of the Authority. Instead, she has chosen to join her husband abroad. In my opinion, the conduct of the petitioner also dis-entitles her to any relief. I accordingly hold that there is no merit in this writ petition. The writ petition fails and is accordingly dismissed. P.N.RAVINDRAN Judge TKS