IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 22ND MAY 2009 / 1ST JYAISHTA 1931 WP(C).No. 32439 of 2007(J) ---------------------------------------- PETITIONER(S): -------------------------- ARUNA T.K., W/O. P.R.NARAYANAN, AGED 45 YEARS, R/AT KURUMATHUR, THALIPARAMBU TALUK, KANNUR DISTRICT. (STAFF NURSE GR-II, GOVT. HOSPITAL, THALIPARAMBU, KANNUR). BY ADV. MR.KODOTH SREEDHARAN RESPONDENT(S): --------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. R1 & R2 BY GOVERNMENT PLEADER MR. ANTONY MUKKATH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/05/2009,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.32439/2007 J APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER DTD. 20/11/1963 ISSUED BY THE SECRETARY TO GOVERNMENT. P2: COPY OF THE ORDER NO.476/ADV.C3/88 P&ARD DTD. 22/2/1988 ISSUED BY THE GOVERNMENT. P3: COPY OF THE LR.NO.EE1-66160/89/DHS DTD. 29/07/1989 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE ORDER NO.EE1-66160/89/DHS DTD. 24/11/1989 BY THE 2ND RESPONDENT. P5: COPY OF THE G.O.(RT) 2412/91 H&FWD DTD. 17/09/91 ISSUED BY THE GOVERNMENT. P6: COPY OF THE ORDER NO.209/84/FIN. DTD. 12/04/1984 ISSUED BY THE GOVERNMENT. P7: COPY OF THE ORDER NO.A418856/94 DTD. 3/08/1994 ISSUED BY THE DISTRICT MEDICAL OFFICER, KANNUR. P8: COPY OF THE JUDGMENT IN WPC.NO.12721/05 DTD. 19/10/06 ISSUED BY THIS HON'BLE COURT. P8(A): COPY OF THE JUDGMENT IN W.A.1167/03 DTD. 13/07/05 ISSUED BY THIS HON'BLE COURT. P9: COPY OF THE REPRESENTATION DTD. 20/10/2006 BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P10: COPY OF THE ORDER NO.EE5-54968/06/DHS DTD. 28/03/07 ISSUED BY THE 2ND RESPONDENT. P11: COPY OF THE REPRESENTATION DTD. 19/04/2007 BEFORE THE PRINCIPAL SECRETARY TO GOVERNMENT. P12: COPY OF THE REPLY LETTER DTD. 02/07/2007 ISSUED BY THE PRINCIPAL SECRETARY TO GOVERNMENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ----------------------------- W.P(C) No. 32439 of 2007-J ------------------------------ Dated this the 22nd day of May, 2009. J U D G M E N T Heard Sri.Kodoth Sreedharan, the learned counsel appearing for the petitioner and Sri.Antony Mukkath, the learned Government Pleader appearing for the respondents. 2. The petitioner who is presently working as Staff Nurse in the Health and Family Welfare Department was advised for appointment by the Kerala Public Service Commission on 14.2.1989. She was appointed by order dated 8.3.1989 and she joined duty on 25.3.1989. The period of probation prescribed for Staff Nurse Gr.II is two years on duty within a continuous period of three years. Within the period of probation and before successfully completing her probation, the petitioner applied for leave without allowances to join her husband abroad in terms of the stipulations in Ext.P6 Government order dated 12.4.1984. By Ext.P5 order dated 17.9.1991, the Government granted to the petitioner leave without allowances for a period of five years to join her husband. The petitioner proceeded on leave on 17.9.1991 itself. She thereafter cancelled the leave and rejoined duty on 8.8.1994. Long afterwards, she moved the Government in Ext.P11 representation dated 19.4.2007 objecting to the rank and seniority assigned to her in the final seniority list of Staff Nurses for the period from 7.7.1990 to 31.12.2002. She contended that she will not loose her seniority by mere reason of the fact W.P(C) No. 32439 of 2007-J 2 that she had proceeded on leave. By Ext.P12 letter dated 2.7.2007 the Government informed the petitioner that the rank and seniority assigned to her in the seniority list of Staff Nurses for the period from 1.1.1978 to 6.7.1990 is not correct, that her name has been deleted from the said list and that she is included in the preliminary seniority list of Staff Nurses for the period from 7.7.1990 to 31.12.2002 with effect from 8.8.1994, the date on which she rejoined duty after cancelling the unavailed portion of the leave. Ext.P12 is under challenge in this writ petition. 3. Sri.Kodoth Sreedharan, the learned counsel appearing for the petitioner contended relying on G.O(P) No.616/2003/Fin. dated 19.11.2003 and Exts.P8 and P8(a) judgments of this Court that the stand taken by the respondents in Ext.P12 is not tenable. The learned counsel contended that the petitioner will not forfeit her past service by availing leave and that she will loose only the chances of promotion that had arisen during the period she was away on leave. Per contra, the learned Government Pleader appearing for the respondents contended relying on the decision of a learned Singe Judge of this Court in Sreekala V. State of Kerala (2007 (1) KLT 903) and the decision of the Division Bench of this Court in Bindu Vs. State of Kerala ILR (2008(1) Ker 427) that on the terms of para 4 of Ext.P6 Government order which corresponds to para 5 of Appendix XIIC of Part I KSR, the petitioner's past service prior to W.P(C) No. 32439 of 2007-J 3 17.9.1991 stood forfeited when she entered on leave and that she commenced service as a new entrant on 8.8.1994. The learned Government Pleader also contended that the petitioner can therefore claim seniority only with effect from 8.8.1994. The learned Government Pleader also submitted that G.O (P) No.616/2003/Fin. dated 19.11.2003 relied on by the learned counsel for the petitioner has been cancelled by G.O(P) No.39/2005/Fin. dated 20.1.2005, with effect from the date on which it was issued. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. Ext.P5 discloses that the petitioner was granted leave without allowances for a period of five years to join her husband abroad, subject to the terms and conditions stipulated in Ext.P6 Government order. Para (iv) of Ext.P6, which is relevant for the purposes of this case reads as follows: “iv) In the case of non-permanent employees in regular service who have not completed probation in the entry grade, leave without allowances may be granted subject to the condition that they will have to start afresh and complete their probation on return from leave without allowances. In other words, the officers will forfeit the service benefits that have accrued to them prior to their 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 as if they were new entrants.” (emphasis supplied) 5. Para (iv) of Ext.P6 specifically stipulates that officers on probation who are granted leave without allowances will forfeit their past W.P(C) No. 32439 of 2007-J 4 service and will be deemed to be new entrants to Government service on their return from leave. It is stipulated in unequivocal terms that only the right of the Government servant to rejoin duty as a new entrant is protected. The stipulations in para (iv) of Ext.P6 are similar to those in Rule 5 of Appendix XIIC of Part I, KSR. A learned Single Judge of this Court has in Sreekala V. State of Kerala (Supra) interpreting Rule 5 of Appendix XII C of Part I, KSR which corresponds to Rule 5 of Appendix XIIA and the stipulations in para (iv) of Ext.P6 Government order held that the effect of Rule 5 of Appendix XIIC of Part I, KSR is that the service rendered with all the benefits accrued prior to the enjoyment of leave without allowances will stand severed and that consequently, the officer commences new service because he is a new entrant in service. It was held that the seniority earned by virtue of prior service will also be lost to the officer. The decision of the learned Single Judge in Sreekala V. State of Kerala (supra) was approved by the Division Bench of this Court in Bindu V. State of Kerala. (Supra). The Division Bench also held that Rule 27(c) of Part II of the KS & SSR cannot be invoked to nullify the effect of Rule 5 of Appendix XIIA of Part I , KSR. 6. Exts.P8 and P8(a) judgments relied on by the learned counsel for the petitioner do not in my opinion apply to the case on hand. In Exts.P8 and P8(a) judgments this Court was considering the impact of W.P(C) No. 32439 of 2007-J 5 Rule 4 of Appendix XIIA of Part I, KSR which corresponds to para (iii) of Ext.P6 Government order. Interpreting Rule 4 of Appendix XIIA, this Court in Exts.P8 and P8(a) judgments held that permanent officers and non permanent officers who have completed probation in the entry cadre will loose only the service benefits and also the chances of promotion during the period of leave and that if their juniors get promotion to higher grade or grades they will loose their seniority in the higher grade or grades. Para (iv) of Ext.P6 which corresponds to Rule 5 of Appendix XIIA and Rule 5 of Appendix XIIC deals with the case of probationers. In my opinion the effect of Rule 4 of Appendix XIIA, which corresponds to para (iii) of Ext.P6 Government order is different and distinct. While a probationer who has availed leave without allowances is given only the right to rejoin duty, an approved probationer will loose only the chances of promotion if any, while he is away on leave and also the service benefits. There is no forfeiture of past service in cases governed by Rule 4 of Appendix XIIA and XIIC of Part I, KSR and para (iii) of Ext.P6 Government order. In the light of the authoritative pronouncement of this Court in Bindu V. State of Kerala (supra) and on the terms of para (iv) of Ext.P6 Government order, I am persuaded to agree with the learned Government Pleader that the petitioner can reckon her seniority only with effect from 8.8.1994, the date on which she rejoined duty as a W.P(C) No. 32439 of 2007-J 6 probationer after cancelling the unavailed portion of the leave. I accordingly hold that there is no merit in the challenge to Ext.P12. The writ petition fails and is accordingly dismissed. No costs. Sd/- P.N.RAVINDRAN JUDGE //True Copy// PA to Judge ab