IN THE HIGH COURT OF JUDICATURE OF ANDHRA PRADESH AT HYDERABAD FRIDAY, THIS THE 6th DAY OF NOVEMBER, 2009 W.P.No.981 of 2007 Between: Mohd. Ghouse ….PETITIONER(S) and Superintending Engineer, R & B, Nizamabad Circle, Nizamabad and another …RESPONDENT(S) THE HON’BLE SRI JUSTICE V.ESWARAIAH AND THE HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR W.P.No.981 of 2007 ORDER:( Per HON’BLE SRI JUSTICE VILAS V.AFZULPURKAR) The unsuccessful applicant before the Andhra Pradesh Administrative Tribunal has approached this Court by this writ petition questioning the correctness of the orders of the Tribunal dated 14.11.2006 in O.A.No.2859 of 2006. 2. The case of the petitioner is as follows: While he was working as Blue Print Operator with the 1st respondent, he sought permission to go abroad to take up employment under the policy of the Government as formulated in G.O.Ms.No.214 Finance & Planning (FW-FR.I) Department dated 03.09.1996 whereby the Government had decided to take a liberal view and the government employees who are desirous of taking employment abroad were permitted to go abroad on extraordinary leave. Based on the said policy, the application of the petitioner was considered vide G.O.Rt.No.678 Transport, Road and Buildings (Ser.II) Department dated 07.09.2000 and permission was granted subject to condition that his absence shall not exceed five years and if it exceeds the maximum period of five years he ceases to be a Government servant. He did go abroad and availed the said extraordinary leave from 16.09.2000. But he came back to India as he could not get secured employment and on account of his personal problems abroad and after coming back to India he once again joined the 1st respondent from 23.03.2001. Thus, for the period of 188 days of extraordinary leave which he availed, he filed an application dated 17.04.2001 requesting the 1st respondent to convert the said period of leave into earned leave to the extent admissible and balance on half pay leave. In consideration of his application, the 1st respondent vide proceedings No.Estt/E1/2001-2/6 dated 07.06.2001 sanctioned earned leave to the petitioner from 16.09.2000 to 13.01.2001 for 120 days and half pay leave from 14.01.2001 to 22.03.2001 for 68 days. Consequently, the petitioner was paid the leave salary which in aggregate worked out to Rs.26,230/-. Later, the said sanction of leave was found to be irregular and contrary to G.O.Ms.No.214 dated 03.09.1996 and, accordingly, the 1st respondent through his Proceedings No.Estt/E1/Leave/2006-2 dated 04.04.2006 cancelled the leave already sanctioned. Questioning the said cancellation order, the petitioner filed O.A. before the Tribunal. 3. The petitioner contended before the Tribunal that because of some problems and as he could not secure a job abroad, he came back to India and joined in duties and, in any case, as he has sufficient earned leave to his credit, sought for conversion of the extraordinary leave into earned leave to the extent admissible and balance on half pay leave and the same was granted vide proceedings No.Estt/E1/2001-2/6 dated 07.06.2001. He, therefore, submits that the cancellation order impugned in the O.A. was unjustified and, in any case, it was without notice to him. 4. The Tribunal considered the aforesaid contention and found that in terms of G.O.Ms.No.214 dated 03.09.1996 the said extraordinary leave could not have been converted into earned leave or half pay leave as was done under the proceedings no.Estt/E1/2001-2/6 dated 07.06.2001 and it was found that the cancellation was justified. It was also found that even if the petitioner had been given notice prior to passing of such cancellation order, the same would not alter the situation as he cannot have any objection against the terms of G.O.Ms.No.214 referred to above and no order could have been passed other than the order passed in the impugned order. Questioning the said order, the present writ petition is filed. 5. We have heard the learned counsel for petitioner and the learned Government Pleader for Services. 6. The learned counsel for petitioner reiterates the submissions made before the Tribunal by contending that the very G.O.Ms.No.214 was issued by the Government formulating a policy to enable the Government servants to enable them to seek a job abroad and for that purpose extraordinary leave was granted to them. The petitioner was also granted the extraordinary leave but unfortunately he could not secure a job and had several personal difficulties abroad on account of which he came back to India and gave joining report and has been working as such. The learned counsel for petitioner also contends that the petitioner was also not given any notice of the cancellation of leave orders which was impugned in the O.A., and, therefore, he seeks that the said cancellation orders be set aside. 7. The permission granted to the petitioner was in terms of G.O.Ms.No.214 dated 03.09.1996 and the said G.O. was specifically referred to in G.O.Ms.No.678 Transport, Roads and Buildings (Ser.II) Department dated 07.09.2000 under which the petitioner was permitted to avail extraordinary leave. The petitioner having availed the benefit of G.O.Ms.No.678 read with G.O.Ms.No.214, he cannot now turn around and question the conditions imposed in G.O.Ms.No.214. Para-5.2 of G.O.Ms.No.214 specifically states as follows: “The period of absence during employment abroad will be treated as extraordinary leave without allowances but such period of absence will not be construed as a break in service. It will not be counted for service benefits such as increment, pay, leave etc. However, if contribution towards pension is paid by the foreign employer or employee such periods will count for pension.” In view of that, the period of absence having been treated as extraordinary leave without any allowance, such period cannot be converted into one on allowances, by converting the said period into earned leave or half pay leave admissible. Further, the circumstances under which the petitioner could not secure a job abroad and had to come back India has no relevance for the present issue. The contention of the petitioner that he was not given any notice of the cancellation of leave is also unsustainable for two reasons. Firstly, when the original order of sanctioning leave was against the provisions of G.O.Ms.No.214, the said mistake in granting him leave was duly rectified by the impugned proceedings dated 04.04.2006 and, secondly, even during the hearing we gave opportunity to the learned counsel for petitioner to submit any cause against the said cancellation order. But, except stating that the petitioner went to Saudi Arabia and could not secure a job and had several difficulties, no other circumstance is mentioned as to why he could be allowed to wriggle out of condition no.2 of para-5 of the G.O.Ms.No.214. In addition to the above, it is well settled that principles of natural justice has not to be put in a straight jacket formula and in the facts and circumstances of the case, the prejudice especially also has to be kept in mind. Further, in the event of the said order of cancellation being set aside, on the said ground the erroneous order of sanctioning earned leave and half pay leave to the petitioner would revive. It is well settled that jurisdiction under Article 226 of the Constitution of India cannot be exercised by this Court in such a way as to revive an illegal and erroneous order. Looking at the matter from any of these grounds, therefore, we do not see any error in the order of the Tribunal. The writ petition is, therefore, devoid of merits and is liable to be dismissed. 8. The writ petition is, accordingly, dismissed. However, there shall be no order as to costs. __________________ V.ESWARAIAH, J ____________________________ VILAS V.AFZULPURKAR, J 6th November 2009 CVRK