IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.M.JOSEPH WEDNESDAY, THE 30TH JANUARY 2008 / 10TH MAGHA 1929 OP.No. 10047 of 1999(U) --------------------------------- PETITIONER: ------------------- JOHNSON M.P., MADASSERY HOUSE, MALAYATTOOR P.O., ERNAKULAM DISTRICT. BY ADV. SRI.P.SANJAY SRI.A.PARVATHI MENON RESPONDENTS: ----------------------- 1. STATE OF KERALA REP.BY SECRETARY TO GOVERNMENT, SECRETARIATE, THIRUVANANTHAPURAM. 2. DIRECTOR GENERAL OF POLICE, THIRUVANANTHAPURAM. 3. CITY POLICE COMMISSIONER, ERNAKULAM. BY GOVERNMENT PLEADER SRI.M.P.SREEKRISHNAN THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 29/01/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP. NO.10047/1999 ORDER ON CMP. NO.16450/1999 IN OP. NO.10047/1999 DISMISSED 29.01.2008 SD/- K.M.JOSEPH, JUDGE APPENDIX PETITIONERS EXHIBITS EXT.P1:- COPY OF THE COMMUNICATION DT. 15.6.94 SENT TO THE PETITIONER BY THE RESPONDENTS. EXT.P2:- COPY OF THE REPRESENTATION DT. 17.7.98 FILED BY THE PETITIONER. EXT.P3:- COPY OF THE GOVERNMENT ORDER DT. 24.7.97. /TRUE COPY/ P.S. TO JUDGE tss K. M. JOSEPH, J. ------------------------------------ O.P NO. 10047 OF 1999 U ------------------------------------ Dated this the 29th January, 2008 JUDGMENT Petitioner challenges Exts.P1 and P3 orders. He seeks a direction that he be given the benefit of the previous service by treating his period of absence as leave on medical ground. 2. Petitioner was a Constable in the Armed Reserve Camp. He entered service in 1985. It is stated that on 27.10.1987, petitioner received a telephone call that his wife was sick and since he was the only person who could get her medical attention, he sought leave for the day and as it was refused, in the spur of the moment, he gave a letter resigning from the service. It is his further case that upon realising the folly, on the very next day, he apologised and sought withdrawal of his resignation. He filed a representation seeking withdrawal. According to him, there was assurance. Thereafter, by Order dated 8.4.1988 he was informed that his resignation was accepted with effect from 27.10.1987. Petitioner contends that OP 10047/99 U 2 there is no reference made to his representation dated 28.10.1987 by the third respondent. However, he represented the matter again before the third respondent and also before respondents 1 & 2. It is his further case that there was enquiry and finding that what was stated by the petitioner was true, the third respondent directed him to produce his Medical Certificate and Fitness Certificate, to consider his re-posting and to consider the time spent out of duty as on medical leave. Thereafter, he produced Medical Certificate and Fitness Certificate. But, he was served with an order dated 26.4.1993 reinstating him subject to the condition that he would be treated as a new entrant and that his past service could not be treated for any service benefit. Petitioner reported for duty with effect from 10.6.1993. Thereafter, he made another representation. However, he received a communication dated 15.6.1994 informing him that his request for seniority is rejected (Ext.P1). Thereafter, petitioner made Ext.P2 representation. That came to be rejected by Ext.P3. In Ext.P3, it is stated that the Public OP 10047/99 U 3 Service Commission has agreed to the proposal to appoint the petitioner on compassionate grounds, subject to the condition that the petitioner should be treated as a fresh hand in service. There is no justification found for considering the petitioner's past service. A Counter Affidavit is filed essentially reiterating the same fact. A Reply Affidavit also is filed by the petitioner. 3. Heard the learned counsel appearing for the parties. Learned counsel for petitioner points out that the petitioner happened to make his resignation in the circumstances mentioned in the Original Petition and he had withdrawn it. He points out that the allegation that the petitioner had withdrawn the resignation, is not seen rebutted in the Counter Affidavit and this is a clear case where the request of the petitioner to count his previous service should have been granted. 4. It may be true that there is no denial of the allegation that the petitioner had sought withdrawal of his resignation. Of course, the letter withdrawing the resignation is not produced before this Court. But, it is to be noted that the petitioner had, OP 10047/99 U 4 going by the unrebutted allegations in the Counter Affidavit, filed a representation on 24.1.1989 requesting to re-appoint him in service and he had tendered his resignation letter due to some family problems and without knowing the consequence. Petitioner also requested to count his service of two years from 1985 to 1987 as on duty and the period from 28.10.1987 to 11.6.1993 as on leave. The representation of the petitioner, going by the order passed in 1993, which is made available by the learned Government Pleader was one seeking re- appointment. Therefore, the petitioner virtually accepted the fact that the letter of resignation has come into effect, as otherwise, he would not have sought re-appointment. Even though the learned counsel for the petitioner cited the decision in Balram Gupta v. Union of India and another (AIR 1987 SC 2354), I would think that in the facts of this case, it cannot be open to the petitioner to draw any support from the same. The request of the petitioner was not that the resignation must be disregarded, or that the resignation had not come into effect, in view of his OP 10047/99 U 5 application seeking withdrawal. He only sought to re- appointment which was granted after consultation with the Public Service Commission, subject to certain conditions. Neither the representation filed by the petitioner on 24.1.1989, nor the order passed thereon has been produced by the petitioner. Petitioner does not seek to modify the said order as such, as there is no challenge to the order passed on 26.4.1993, pursuant to which he came to be reinstated in service. Petitioner, in fact, accepted the re-appointment and joined duty. It is to be noted that the very re-appointment itself was done by the Government in consultation with the Public Service Commission and purely on compassionate grounds. No legal right is shown to exist by which the petitioner can seek to have his earlier service as on duty or that the subsequent period as on leave or on loss of pay. In such circumstances, I find no merit in the Writ Petition and it is dismissed. kbk. K. M. JOSEPH, JUDGE OP 10047/99 U 6 K. M. JOSEPH, J. O.P NO. 10047 OF 1999 U JUDGMENT 29th January, 2008.