IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR TUESDAY, THE 17TH NOVEMBER 2009 / 26TH KARTHIKA 1931 WA.No. 2432 of 2009() --------------------- AGAINST THE JUDGMENT IN WPC.32439/2007 Dated 22/05/2009 .................... APPELLANT(S): PETITIONER ------------------------ ARUNA.T.K, STAFF NURSE GR.I, PRIMARY HEALTH CENTRE, KALLIASSERI, (ON WORKING ARRANGEMENT) TALUK HEAD QUARTERS HOSPITAL, THALIPARAMBA, KANNUR DISTRICT. BY ADV. SRI.KALEESWARAM RAJ RESPONDENT(S): RESPONDENTS -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF HEALTH AND FAMILY WELFARE, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. SENIOR GOVT.PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 17/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & C.T. RAVIKUMAR, JJ. --------------------------------------------- W.A.NO. 2432 OF 2009 --------------------------------------------- Dated this the 17th day of November, 2009 JUDGMENT Ravikumar, J. The appellant was the writ petitioner. The writ petition was filed mainly with the following prayers:- (i) a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to promote the petitioner to the post of Head Nurse with retrospective effect from the date on which her juniors are promoted as per Ext.P10 reckoning her seniority in the cadre of Staff Nurse as per date of advice by the PSC dt.14/2/89 in the light of Ext.P8 & P8(a) and 2005 (2) KLT 796. (ii) a direction directing the 1st respondent to promote the petitioner to the post of Head Nurse with retrospective effect from the date on which her juniors are promoted as per Ext.P10 reckoning her seniority in the cadre of Staff Nurse as per date of advice by the PSC dt.14/2/89 in the light of Ext.P8 & P8(a) and 2005 (2) KLT 796. (iii) a writ of mandamus or any other appropriate writ, order or direction directing the 1st respondent to consider and dispose of Ext.P11 within a time limit to be fixed by this Hon'ble Court in the light of Ext.P8 and P8(a) and 2005 (2) KLT 796. 2. The appellant was advised for appointment as Staff Nurse Grade-II by the K.P.S.C under the Health and Family Welfare Department on 14.2.1989. Subsequently, she was appointed to the said post as per order dated 8.3.1989 and she joined duty on 25.3.89 in Kozhikode District. W.A. NO.2432 of 2009 2 Later she was transferred to Kannur District as per Order No.E1-66160/89 dt. 21.11.89 of the 2nd respondent. During the period of probation and before successfully completing the same, she had applied for leave without allowances to join her husband. Leave without allowances was subsequently granted by the Government as per Ext.P5 order dated 17.9.1991 in terms of the stipulations in Ext.P6 G.O dated 12.4.1984. On that day itself, she proceeded on leave. As per Ext.P5, leave without allowance was granted for a period of 5 years to join her husband. Thereafter, she rejoined duty on 8.8.1994 after cancelling the unavailed portion of leave. Later, the petitioner felt aggrieved by the rank and seniority assigned to her in the final seniority list of Staff Nurse Grade-II and also the promotions effected based on the same. To redress the said grievance, she had submitted Ext.P11 representation dated 19.4.07 before the Government. After considering the representation, Government have issued Ext.P12 informing her that as per the condition stipulated in G.O.(P) No.209/84/Fin. dated 12.4.1994, she was eligible to have her seniority reckoned only with effect from 8.8.1994 and in the circumstances, rank No.2058 assigned to her in the final seniority list of Staff Nurses for the period from 1.1.1978 to 6.7.1990 have been deleted and she was included in the preliminary seniority list of Staff Nurse Grade-II for the period from 7.7.1990 to 31.12.2002 with effect from 8.8.1994. It was challenging the W.A. NO.2432 of 2009 3 said order that W.P.(C) No.32439/2007 was filed. 3. It was contended before the learned Single Judge that Ext.P12 is unsustainable. Availing of leave without allowances prior to the declaration of probation would not result in forfeiture of past service, it was further contended. According to the appellant-writ petitioner, availing of such leave prior to the declaration of probation would only adversely affect the chances of promotion arisen during the period she stayed on Leave Without Allowances. A counter affidavit was filed on behalf of 2nd respondent refuting the claims and contentions of the appellant herein. It was contended therein, relying on the decision of this court in Sreekala v. State of Kerala reported in 2007 (1) KLT 903 and a bench decision of this court in Bindu v. State of Kerala (ILR 2008 (1) Kerala 427 ) that in terms of paragraph 4 of Ext.P6 G.O., past service of the petitioner prior to 17.9.1991, the date on which she proceeded on leave without allowances, stood forfeited and she would be eligible to reckon her seniority only with effect from 8.8.1994 viz., the day on which she rejoined duty after Leave Without Allowances. In other words, the right to rejoin duty as a new entrant in the very same entry grade alone was available to the appellant on account of her availing the LWA prior to the declaration of probation. It was contended that paragraph 4 of Ext.P6 G.O is exactly corresponding to W.A. NO.2432 of 2009 4 paragraph 5 of appendix XII C of Part I KSR. Yet another contention was taken that G.O.(P) No.616/03/Fin. dated 19.11.03 relied on by the appellant herein to substantiate her claim was cancelled as per G.O.(P) No.39/05/Fin. dated 20.1.2005 with effect from the date on which it was issued. 4. After considering the rival contentions, the learned Single Judge held that in the light of the decision in Bindu v. State of Kerala (supra) and also the terms of paragraph IV of Ext.P6 G.O, the appellant herein could reckon her seniority in the cadre of staff Nurse Grade-II only with effect from 8.8.94, the date on which she rejoined duty after cancelling the unavailed portion of leave without allowances granted to her as per Ext.P5. Based on the said finding, the Writ Petition was dismissed. Hence this Writ Appeal. 5. We have already adverted to the facts relevant for the purpose of deciding the issue involved in this case. Admittedly, the petitioner had proceeded on leave without allowances to join her husband during the period of probation and before its successful completion. Ext.P5, the order by which leave without allowances was granted to the appellant for the said purpose would reveal explicitly that it was sanctioned in terms of the conditions stipulated in G.O.(P) No.209/84/Fin. dated 12.4.84. The copy of W.A. NO.2432 of 2009 5 the said G.O. dated 12.4.84, produced and marked as Ext.P6 in the Writ Petition would reveal the relevant terms and conditions. Paragraph IV therein which is relevant for this purpose reads as herein:- “IV) In the case of non-permanent employees 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 leave without allowances. In other words, the officers will forfeit the service benefits that have 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 grade as if they were new entrants” (emphasis supplied) 6. A scanning of the said condition enjoined under paragraph IV of Ext.P6 would reveal that the non-permanent employee in regular service who had not completed probation in the entry grade could be granted leave without allowances only subject to the condition that he would start afresh and complete the probation on return from leave without allowances. Further, it would make abundantly clear that such an employee who was granted leave without allowances had to forfeit his/her past service and would be deemed to be a new entrant in Government service on rejoining duty. In other words, it would reveal that the only right available to such an employee is only a right to rejoin duty as a new entrant in the very same W.A. NO.2432 of 2009 6 entry grade. The above extracted stipulation is akin to one in Clause 5 of Appendix XII C of Part I, KSR. The said portion in so far as it is relevant reads thus:- 5. In the case of non-permanent officers in regular service who have not completed probation in their entry cadre, leave under these rules may be granted subject to the condition that they shall have to start afresh and complete their probation on re-joining duty . The service benefits that they had accrued to them before proceeding on leave shall be forfeited and on re-joining duty they shall be deemed as new entrants in the Government service. 7. In short, the position is fairly clear, as has been held in the decisions in Bindu v. State of Kerala (ILR 2008 (1) Kerala 427) and Sreekala v. State of Kerala (2007 (1) KLT 903). The decision in George v. Law Secretary reported in 2009 (1) KLT 655 would also lend support to our view that a probationer who availed leave without allowances would not be entitled to claim seniority on the basis of the date of joining duty or on the date of advice by the P.S.C for such appointment and would be entitled to claim seniority only with effect from the date on which he/she rejoined duty in the very same entry grade. In this case, the facts expatiated earlier would reveal that the petitioner had availed leave without allowances and proceeded on leave on 17.9.1991 during the period of her probation and before its successful completion and had rejoined duty only on 8.8.1994. Therefore, we fully agree with the conclusion and reasoning of the learned W.A. NO.2432 of 2009 7 Single Judge in rejecting the claims and contentions of the appellant herein and accepting the contentions of the respondents. In that view of the matter, the judgment of the learned Single Judge cannot be said to be illegal or perverse warranting appellate interference. The Writ Appeal is devoid of any merit and accordingly it is dismissed. (KURIAN JOSEPH) JUDGE (C.T. RAVIKUMAR) JUDGE spc