IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN THURSDAY, THE 5TH MARCH 2009 / 14TH PHALGUNA 1930 WP(C).No. 24240 of 2008(I) ---------------------------------------- PETITIONER(S): ----------------------- DR. K.K. BABU, S/O KRISHNAN, KRISHNA KALIYANI, AISWARYA COLANY, OLAVAKKODE, PIN 678 002. BY ADVS. MR.P.RAVINDRAN, SENIOR ADVOCATE MR.ANIL SIVARAMAN RESPONDENT(S): ------------------------- 1. DIRECTOR OF TECHNICAL EDUCATION, THIRUVANANTHAPURAM. 2. PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE CHAIRMAN, NSS COLLEGE OF ENGINEERING PALAKKAD 678 008. ADDL. R4 IS IMPLEADED . ADDL. R4 . THE PRINCIPAL , N.S.S. COLLEGE OF ENGINEERING PALAKKAD 678 008 IS IMPLEADED AS PER ORDER DT. 9.2.09 IN IA. NO.1654/09. GOVERNMENT PLEADER SMT.T.B.RAMANI FOR R THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.24240/08 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPLICATION FOR LEAVE DT. 28.3.08. P2:- COPY OF THE COVERING LETTER DT. 28.3.08 P3:- COPY OF THE ORDER DT. 14.6.83. P4:- COPY OF THE GOVERNMENT CIRCULAR DT. 29.3.03. P5:- COPY OF THE LETTER DT. 15.5.08. P6:- COPY OF THE INTERIM ORDER IN WPC. 196534/08 DT. 30.6.08. P7:- COPY OF THE ORDER DT. 10.7.08. P8:- COPY OF THE GOVERNMENT ORDER DT. 21.2.08. TRUE COPY P.S. TO JUDGE TSS P.N.Ravindran, J. ================== W.P.(C) No.24240 of 2008 ===================== Dated this the 5th day of March, 2009. JUDGMENT Heard Sri. P.Ravindran, the learned Senior Advocate appearing for the petitioner, Smt. T.B. Remani, the learned Government Pleader appearing for respondents 1 and 2 and Sri. P.Gopal, the learned standing counsel appearing for respondents 3 and 4. 2. The petitioner, a Selection Grade Lecturer in the N.S.S. College of Engineering, Palakkad, applied for leave without allowances for a period of one year with effect from 2.7.2008 to take up better employment within India. That application was submitted to respondents 3 and 4 who forwarded it to the Government for concurrence. The Government by Ext.P7 order passed on 10.7.2008 granted concurrence on the following terms: “Government have examined the case in detail and convey the concurrence of Government for granting Leave Without Allowance for one year from 02.07.2008 or from the date of avail to Dr.K.K.Babu, Selection Grade Lecturer, Civil Engineering Department, NSS College of Engineering, WP(C) 24240/08 -: 2 :- Palakkad for taking p employment within India under appendix XII-A Part I Kerala Service Rules, subject to the following condition. (a) The undertaking submitted by the teachers ie. his work load will be shared by the teachers should be brought to the notice of the students. (b) The incumbent should not claim extension of Leave Without Allowance and join duty immediately on the expiry of the leave and further absence will be deemed to be unauthorised absence. ( c) The Substitute will not be posted in the light of the undertaking submitted by the teachers.” 3. The petitioner availed the leave and is presently on leave. It is stated that he is working in a private Engineering College at Coimbatore. A few months after availing the leave, he submitted an application to the Principal of the College seeking extension of the leave by a further period of three years from 15.7.2009. The Principal thereupon took the stand that in view of the stipulation in Ext.P7 that the petitioner cannot apply for extension of leave on the expiry of the leave already sanctioned, he is not in a position to forward the leave application to the Government. In this Writ Petition, the petitioner challenges the stipulation in Ext.P7 that he cannot apply for extension of leave without allowances on the expiry of the leave granted thereunder. 4. Sri. P.Ravindran, the learned Senior Advocate appearing for the petitioner contends that para 2(iv) of G.O.(MS) No.137/85/H.Edn. dated 14.6.1985 which governs grant of leave without allowances to private WP(C) 24240/08 -: 3 :- college staff for taking up employment abroad or within the country, states that leave without allowances upto a maximum period of 5 years can be granted. It is also stated that extension of leave can be granted for a further period of five years subject to the condition that the maximum period of leave that will be sanctioned to an employee during his entire service will be limited to 10 years. The learned Senior Advocate appearing for the petitioner submits that in the light of the stipulations in the aforesaid Government order, the Government could not have in Ext.P7 imposed a condition that the petitioner should not apply for extension of leave without allowances and should join duty immediately on the expiry of the leave granted. The respondents have filed a counter affidavit wherein it is stated that such a restriction was imposed in view of the stipulations in Government letter No.22219/J3/07/H.Edn. dated 31.10.2007. The stand taken by the management is that they did not forward the application in view of the stipulations in Ext.P7. 5. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The grant of leave without allowances to staff of private college is governed by Ext.P3 Government order dated 14.6.1985. Appendix 12A of Part I of the Kerala Service Rules also does not stipulate that on the expiry of the leave initially granted, the employee cannot apply for extension of the leave. Even in Ext.P3, there is no such stipulation. Therefore, in my opinion, the stand taken by the Government in Ext.P7 that under no circumstance shall the WP(C) 24240/08 -: 4 :- petitioner be entitled to seek extension of leave was not warranted either by the terms of Ext.P3 or by the terms of Appendix 12A of Part I of the Kerala Service Rules. By Ext.P7, the Government have granted leave without allowances. Therefore, the Government is not bound to pay the petitioner salary and allowances during the leave period. The absence of the petitioner from duty will not enable the Manager to appoint a fresh hand. Interests of the Government are therefore adequately safeguarded by the other stipulations in Ext.P6. Therefore, it was also unnecessary to impose the conditions that the petitioner cannot claim extension of leave without allowances on the expiry of the period of leave granted as per Ext.P7. Ext.P7 takes care of the interest of the Government in that regard. In such circumstances, it was also unnecessary to impose the stipulation that the petitioner cannot claim extension of leave without allowances on the expiry of one year. I therefore hold that the stipulation in sub-para 3 in Ext.P7 that “The incumbent should not claim extension of Leave Without Allowances and join duty immediately on the expiry of the leave and further absence will be deemed to be unauthorised absence” cannot be sustained. The said stipulation is accordingly quashed. Respondents 3 and 4 are directed to forward the application for extension of leave submitted by the petitioner to the Secretary to Government within one month from the date of receipt of a certified copy of this judgment. The Secretary to Government General Education Department shall thereupon pass orders on or before WP(C) 24240/08 -: 5 :- 31.5.2009 and communicate the order thus passed to the petitioner and to the fourth respondent. The Writ Petition is allowed as above. No costs. P.N.Ravindran, Judge. ess 17/3