IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN MONDAY, THE 12TH JANUARY 2009 / 22ND POUSHA 1930 OP.No. 711 of 2000(I) ------------------------------- PETITIONER(S): ------------------------ DR.R.PRAKASAM, ASSOCIATE PROFESSOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, THIRUVANANTHAPURAM. BY ADV. SRI.S.RAMESH SRI.ELVIN PETER P.J. SRI.P.N.SANTHOSH SRI.S.D.ASOKAN RESPONDENT(S): ------------------------ 1. INSTITUTE OF MANAGEMENT IN GOVERNMENT THIRUVANANTHAPURAM 38, REP.BY ITS SECRETARY. 2. THE DIRECTOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, THIRUVANANTHAPURAM 33. 3. THE EXECUTIVE COMMITTEE OF INSTITUTE OF MANAGEMENT IN GOVERNMENT, THIRUVANANTHAPURAM 33, REP.BY ITS CHAIRMAN, THE DIRECTOR, INSTITUTE OF MANAGEMENT IN GOVERNMENT, THIRUVANANTHAPURAM -33. ADV. SMT.V.P.SEEMANDINI (SR.) FOR R1 SRI.C.KHALID FOR R2 SRI.R.O.MUHAMED SHEMEEM FOR R2 THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 12/01/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.711/2000 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE APPLICATION DT. 23.11.1996 SUBMITTED BY THE PETITIONER. P2: COPY OF THE MEMORANDUM NO.ADMN. (PF) 57/RP/IMG. DT. 31.10.96 ISSUED BY THE DIRECTOR. P3:- COPY OF THE NOTE DT. 10.2.96 SUBMITTED BY THE PETITIONER. P4:- COPY OF THE ORDER N.ADMN (PF) IMG. DT. 26TH FEB. 1997 ISSEUD BY THE DIRECTOR. P5:- COPY OF THE NOTE DT. 17TH MARCH, 1997 SUBMITTED BY THE PETITIONER. P6:- COPY OF THE NOTE DT. 14.5.97 SUBMITTED BY THE PETITIONER. P7:- COPY OF THE MINUTES OF THEMEETING OF THE EXECUTIVE COMMITTEE DT. 15TH JULY, 1998. P8:- COPY OF THE ORDER NO.247/98/IMG DT. 29TH OCTOBER 1998 ISSUED BY THE GOVT. P9:- COPY OF THE NOTE DT. 21ST JULY, 998 SUBMITTED BY THE PETITIONER. 10:- COPY OF THE COMMUNICATION DT. 26.11.99 ISSUED BY THE DIRECTOR. P11:- COPY OF THE EXTRACT OF THE MINUTES OF THE EXECUTIVE COMMITTEE HELD ON 23.2.99. /TRUE COPY/ P.A. TO JUDGE tss S.SIRI JAGAN, J. ================== O.P.No. 711 of 2000 ================== Dated this the 12th day of January, 2009 J U D G M E N T The petitioner is an Assistant Professor in the Institute of Management in Government, the 1st respondent herein, which is a Government owned institute. The petitioner applied for earned leave from 1.11.1996 for 61 days by Ext.P1 application dated 23.10.1996. By Ext.P2, the application for earned leave was rejected on the ground that it would affect the smooth conduct of the programmes and projects of the institute. The petitioner, therefore, submitted Ext.P3 note seeking leave surrender benefit in respect of the said leave in accordance with Rule 4.15 Chapter IV of the Service Rules applicable to the petitioner. By Ext.P4, it was rejected on the ground that the petitioner can seek surrender of that leave only at the time of retirement since Rule 4.15 relates to surrender of earned leave at the time of retirement. The petitioner submitted Exts.P5 and P6 notes again. The same were placed before the Executive Committee of the institute, which, by Ext.P7 minutes, declined the request of the petitioner. By Ext.P8 order, that portion of Rule 4.15, which permits the employees to surrender earned leave when the same is rejected on the ground of exigencies of work, was deleted from the Rules. The petitioner's request by Ext.P9 to reconsider the decision was rejected by Ext.P10 order. Ext.P11 is the minutes of the Executive Committee w.p.c.711/2000 2 passed on the basis of which Ext.P10 communication had been issued to the petitioner. It is in the above circumstances the petitioner has approached this Court seeking the following reliefs: “i) issue a writ of certiorari or any other appropriate writ, direction or order calling for the records leading to Exts.P10 and P11 and quashing the same. ii) issue a writ of mandamus or any other appropriate writ, direction or order asking the respondents to disburse the leave surrender salary of Rs.24,700/- to the petitioner with interest at the rate of 18% per annum from December, 1996 onwards. iii) issue a writ of mandamus or any other appropriate writ, direction or order declaring that the petitioner is entitled to get leave surrender salary for 61 days for which a claim was made by the petitioner by Ext.P3 in accordance with the unamended provision contained in Rule 4.15 of the I.M.G. Service Rules. 2. A counter affidavit has been filed by the respondents supporting the impugned orders on the very same reasons mentioned in the same. According the learned counsel appearing for the respondents, the petitioner can invoke the rule only at the time of retirement in so far as the rule itself relates to surrender of earned leave at the time of retirement. The counsel also submits that through out the history of the 1st respondent no employee has been allowed to surrender the benefits in respect of earned leave before retirement. It is also submitted that the 1st respondent is a small institute which cannot afford payment as requested for by the petitioner. 3. I have considered the rival contentions in detail. 4. Notwithstanding the contention of the 1st respondent w.p.c.711/2000 3 regarding the financial constraints of the 1st respondent, the eligibility of the petitioner for the benefit requested for depends upon the interpretation of Rule 4.15, which reads thus: “An employee may be paid cash equivalent of leave salary in respect of the period of earned leave at his credit limited to 240 days at the time of retirement or leaving the Institute. Similar leave surrender benefit will also be allowed in cases when an employee is prevented from taking leave in the exigencies of work.” There cannot be any dispute regarding the eligibility for surrender of earned leave in both situations contemplated by the Rule. The only dispute is as to when an employee can surrender earned leave in the second situation. The maximum leave that can be surrendered in normal circumstances by an employee is 240 days. Therefore, if they want to avail of the earned leave benefits, apart from the 240 days, they have to avail of the leave as such and if they do not avail of the same, the same would lapse. There is no question of surrendering the same. That being so, the leave is intended for the employees to be availed of at appropriate time. When an employee seeks to avail of the benefit of earned leave, which is rejected on the ground of exigencies of work, the employee has to be appropriately compensated for the same. It is for that very purpose in Rule 4.15 the latter part was introduced. The latter part is not qualified by the former part except to say that benefit similar to the first part is available when an employee is prevented from availing earned leave in the exigencies of work. The w.p.c.711/2000 4 normal interpretation of that rule would be that the employee who is prevented from taking leave in the exigencies of work, is entitled to be duly compensated by giving him leave surrender benefit. The earned leave applied for is for a specified purpose. If it cannot be granted because of exigencies of work, the employee has to get the purpose done otherwise, for which I am of opinion that the monetary equivalent should be paid to the petitioner. There is no logic in postponing the same till the petitioner retires. Simply because at the time of retirement the employee can surrender 240 days of earned leave standing to his credit, I am unable to give any other interpretation to the said rule. That being so, the petitioner has become eligible to leave surrender benefit in respect of the leave which was denied to him on the ground of exigencies of work. Accordingly, this original petition is allowed and the respondents are directed to see that the petitioner is paid his leave surrender benefits for 61 days from 1.11.1996, within one month from the date of receipt of a certified copy of this judgment. Although the petitioner seeks interest, I am not inclined to grant the same. The original petition is disposed of as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge w.p.c.711/2000 5 S.SIRI JAGAN, J. =============== O.P.No. 711 of 2000-I =============== J U D G M E N T 12th January, 2009