IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR MONDAY, THE 11TH JANUARY 2010 / 21TH POUSHA 1931 WA.No. 720 of 2006() -------------------- AGAINST THE JUDGEMENT IN OP.2568/1998 Dated 13/10/2005 .................... APPELLANTS/ RESPONDENTS 1 TO 4 IN O.P: ---------------------------------------- 1. STATE OF KERALA, REP. BY THE CHIEF SECRETARY TO GOVERNMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE COMMISSIONER & SECRETARY, LABOUR DEPARTMENT, THIRUVANANTHAPURAM. 3. DIRECTOR OF INSURANCE MEDICAL SERVICES, THIRUVANANTHAPURAM. 4. THE ACCOUNTANT GENERAL, KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER, SMT.R.BINDU RESPONDENT/ PETITIONER IN O.P: --------------------------------- DR. K.V. INDUMATHY, ASSISTANT INSURANCE MEDICAL OFFICER, E.S.I. HOSPITAL, PERRORKADA,THIRUVANANTHAPURAM. ADV. SRI.G.SASIDHARAN CHEMPAZHANTHIYIL SRI.S.VISHNU THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 11/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T.RAVIKUMAR, JJ. ------------------------------ W.A. No. 720 OF 2006 ------------------------------ Dated this, the 11th day of January, 2010 J U D G M E N T ~~~~~~~~~~~ Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. 2. The brief facts of the case are the following: The respondent/writ petitioner joined the Insurance Medical Service as Assistant Insurance Medical Officer on 1.4.1993. Within one year, she got admission for Post Graduate Course in Radiology. So, she applied for leave from 17.4.1994 to 17.4.1996. She got admission in the General Merit quota and not in the Insurance Medical Service quota. Since the petitioner was a probationer, the Government allowed the leave application of the petitioner by Ext.P8 order dated 20.2.1997 granting her leave under Appendix XII-B of the Kerala Service Rules ('KSR' for short). The petitioner represented praying that the leave may be granted in W.A. No.720/2006 - 2 - relaxation of Rule 88(ii) of Part-I of the KSR and the period of leave may be counted for all service benefits. The said claim was considered by the Government and rejected by Ext.P11 dated 5.9.1997. So, the Writ Petition was filed challenging Exts.P8 and P11. 3. The petitioner being a probationer in view of Rule 88(ii), she was entitled to get only 3 months leave. That means, after three months, she should be treated as an unauthorised absentee, unless the aforementioned provision is relaxed by the Government. But, soon after the petitioner joined the Course, Appendix XII-B was introduced to the KSR, with effect from 18.9.1984 by G.O.(P) No.654/95/Fin dated 10.10.1995 published in the Gazette dated 12.10.1995. The provisions of the Appendix XII-B permitted grant of study leave to a probationer. Such a person can join service, after the expiry of the leave period, if there is a vacancy available for the same. In the case of the respondent/petitioner, she rejoined duty as there was a vacancy to accommodate her. 4. Though the respondents resisted the prayers in the Writ Petition, the learned Single Judge allowed the same, W.A. No.720/2006 - 3 - taking note of an order of the Government permitting counting of leave without allowance for study purpose for grant of increment, subject to certain conditions. The learned Single Judge also relied on a judgment of this Court in favour of similarly placed persons. 5. Feeling aggrieved by the said judgment, the appellants have preferred this appeal. According to them, in the absence of any specific rule enabling the petitioner to get leave as claimed by her, the Writ Petition should not have been allowed. The learned counsel for the writ petitioner supported the impugned judgment. 6. We find there were no provisions in the KSR, which enabled the respondent/petitioner to join P.G.Course immediately after joining service while she was a probationer. She was eligible to get only three months leave, in view of the provisions contained in Rule 88(ii) of the KSR. Thereafter, her absence could have been treated as unauthorised and she could have been terminated. But, by granting leave under Appendix-XII B she was able to rejoin service without any adverse consequences and she was joined W.A. No.720/2006 - 4 - service also. So, in fact, Ext.P8 is an order in favour of the writ petitioner. Though the Government have the power to relax any Rule in the KSR, the same cannot be relaxed on the request of an individual for her personal benefits as such relaxation of the Rule will be against public interest. Therefore, the claim of the respondent/petitioner made in the Writ Petition was unsustainable in law. In the absence of any legal right flowing from some order or rule, the respondent could not have claimed any relief. In view of the above position, the judgment of the learned Single Judge is unsupportable in law. Accordingly, it is reversed and the Writ Petition is dismissed. The Writ Appeal is allowed as above. (K. BALAKRISHNAN NAIR, JUDGE) (C.T.RAVIKUMAR, JUDGE) ps