IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR FRIDAY, THE 15TH JANUARY 2010 / 25TH POUSHA 1931 WA.No. 1467 of 2008() --------------------- AGAINST THE JUDGMENT IN WPC.32066/2006 Dated 18/01/2008 .................... APPELLANT(S): PETITIONER -------------- VALSAMMA.K.A., STAFF NURSE DISTRICT HOSPITAL, KANHANGAD. BY ADV. SRI.M.RAMESH CHANDER RESPONDENT(S): --------------- 1. STATE OF KERALA, REP. BY SECRETARY HEALTH AND FAMILY (C) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM 3. THE ADDITIONAL DIRECTOR OF HEALTH SERVICES (MEDICAL), THIRUVANANTHAPURAM. 4. THE MEDICAL OFFICER (HEALTH), DISTRICT HOSPITAL, KANHANGAD. 5. LOVELY THOMAS, STAFF NURSE, DISTRICT HOSPITAL, KANHANGAD, KASARAGOD. SENIOR GOVT.PLEADER SRI.BENNY GERVASIS FOR R1 TO 4 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/01/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A. NO. 1467 OF 2008 --------------------------------------------- Dated this the 15th day of January, 2010 JUDGMENT Balakrishnan Nair, J. The writ petitioner is the appellant. The brief facts of the case are the following: 2. The appellant was advised for appointment as Staff Nurse, by the Public Service Commission, in Kozhikode District. As per the advice dated 17.9.1987, she was appointed to that post on 22.9.1987. She joined duty on 6.10.1987. While she was a probationer, she availed leave without allowance, granted to her under Appendix XII-A of the Kerala Service Rules, from 12.6.1989 to 23.8.1998. Thereafter, she rejoined duty on 24.8.1998. She completed her probation on 23.8.2000 and the same was declared by the competent authority by Ext.P2 order dated 17.11.2000, with effect from 23.8.2000. Later, the appellant/petitioner W.A. NO. 1467/2008 2 represented that she may be given seniority from the date of appointment, that is, from 17.9.1987. That claim was rejected by the Director of Health Services, by Ext.P6 communication dated 20.1.2005. The petitioner moved the Government and the Government, by Ext.P7, rejected her representation. So, challenging Exts.P6 and P7 and seeking consequential reliefs, the Writ Petition was filed. The learned Single Judge, noticing the decisions of this Court in Unnikrishna Panicker v. Bhasi (2001(1)K.L.T. 449) (DB) and Sreekala v. State of Kerala (2007(1)K.L.T. 903), dismissed the Writ Petition. Hence, this appeal. 3. We heard the learned counsel for the appellant and the learned senior Government Pleader for the official respondents. In the case of approved probationers, the consequences that may befall them during the leave period is stipulated in clause 4 of Appendix XII-A of the Kerala Service Rules and in the case of probationers, they are mentioned in clause 5 of Appendix XII-A. Those clauses read as follows: “4. Permanent Officers and non-permanent Officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall W.A. NO. 1467/2008 3 lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty. 5. In the case of non-permanent Officers 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 the leave without allowances. In other words, the Officers will forfeit the service benefits that had 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 entry grade as if they were new entrants.” 4. A plain reading of Clause 5 of Appendix XII-A of the Kerala Service Rules would show that the appellant has to start as a new entrant in service, on her rejoining duty on 24.8.1998. In view of the said special stipulation concerning persons who availed leave without allowance, the claim of the benefit under Rule 27(c) of the Kerala State and Subordinate Services Rules is untenable. W.A. NO. 1467/2008 4 The Writ Appeal fails and it is accordingly dismissed. (K. BALAKRISHNAN NAIR) JUDGE (C.T. RAVIKUMAR) JUDGE sp/ W.A. NO. 1467/2008 5 K. BALAKRISHNAN NAIR & C.T. RAVIKUMAR, JJ. W.A.NO.1467/2008 JUDGMENT 15th January, 2010 W.A. NO. 1467/2008 6