IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HON'BLE THE CHIEF JUSTICE MR.J.CHELAMESWAR & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON TUESDAY, THE 21ST DECEMBER 2010 / 30TH AGRAHAYANA 1932 WA.No. 2118 of 2010() --------------------- AGAINST THE JUDGEMENT IN WPC.34868/2010 Dated 22/11/2010 .................... APPELLANT/PETITIONER: --------------------------- LEEGIA M.B., NURSING TUTOR, SCHOOL OF NURSHING ALAPPUZHA, RESIDING AT CHILLEDATH VEEDU, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM - 695 010. REPRESENTEDBY HER POWER OF ATTORNEY HOLDER, SRI.G. SURESHKUMAR, AGED 46 YEARS, S/O.GOPALAKRISHNAN NAIR, CHILLEDATH VEEDU, T.C. 9/1270, SASTHAMANGALAM P.O., THIRUVANANTHAPURAM - 695 010. BY ADV. SRI.T.P.DEYANANTHAN RESPONDENTS/RESPONDENTS: ---------------------------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM - 695 001. 3. THE DISTRICT MEDICAL OFFICER, ALAPPUZHA - 688012. BY SENIOR GOVERNMENT PLEADER, SRI.BENNY GERVASIS. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 21/12/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J.Chelameswar, C.J. & P.R.Ramachandra Menon, J. - - - - - - - - - - - - - - - - - - - - - - - - - - - - W.A.No. 2118 of 2010 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 21st day of December, 2010 JUDGMENT Ramachandra Menon, J. Whether any interference is to be made with the judgment dismissing the writ petition filed by the petitioner challenging Ext.P8 order dated 05.05.2008 issued by the concerned respondent, removing the petitioner from service, forms the subject matter of challenge in this appeal. 2. The petitioner joined as a Staff Nurse in the Government service on 19.04.1986 and was promoted as a Nursing Tutor on 25.06.1990. While so, she had to undergo some surgery in connection with 'Carcinoma' in December 2001 and thereafter she rejoined duty and continued as a Tutor. The petitioner applied for leave without allowances on 09.09.2005, seeking employment abroad. Without getting the leave sanctioned, she proceeded to the destination abroad and started working there. 3. Taking note of the circumstances, particularly in WA No. 2118 of 2010 -:2:- view of the acute scarcity of staff, the Department sent a show- cause notice to the appellant, giving an opportunity to rejoin duty. It is her case that she responded to the show cause notice by sending a reply dated 28.08.2007, stating that she would rejoin duty with effect from 01.06.2008, i.e., about one year later. The Department rejected her request to extend the time to rejoin duty. The appellant does not have a case that her application for leave without allowances had been got sanctioned by the Department, before proceeding to the foreign country. It is also the case of the petitioner that she was working abroad and that she needed some more time to complete the term of contract of employment. 4. In the above circumstances, the matter was considered by the competent authority, who passed Ext.P8 order dated 05.05.2008 removing the petitioner/appellant from service; which in turn was subjected to challenge by filing a writ petition earlier, as W.P.(C) No.23412 of 2009, which culminated in Ext.P11 judgment. It is seen from Ext.P11 that the petitioner sought for permission to withdraw the writ petition reserving WA No. 2118 of 2010 -:3:- liberty to file a fresh writ petition incorporating further and better particulars and accordingly, the said writ petition was dismissed as withdrawn on 17.08.2009. The present writ petition was filed only on 18.11.2010, i.e., nearly one year after the dismissal of the earlier writ petition. 5. The learned Single Judge observed that there was laches on the part of the petitioner in having approached this Court. It is further observed that, by virtue of the mandate under Appendix XIIA of Part I K.S.R., a person who applies for leave to take up employment abroad, is not permitted to proceed on leave before getting the leave sanctioned by the competent authority. There is admittedly no case for the petitioner/appellant that the leave was ever sanctioned. 6. The fact remains that, in spite of the lapses on the part of the appellant/petitioner, she was given an opportunity to rejoin duty, which was not availed of and she all the more chose to continue abroad, dictating terms to the respondents, which course cannot but be deprecated. As observed in Ext.P8 order, there was acute shortage of staff, it is always for the employer to WA No. 2118 of 2010 -:4:- pursue proper steps to meet the organizational interest. The admitted facts do not require to be proved and no violation of any vested right of the petitioner; much less any fundamental right is established. We do not find any ground to interfere with the impugned judgment. The Writ Appeal fails and it is dismissed accordingly. J.Chelameswar, Chief Justice. P.R.Ramachandra Menon, Judge. ttb