IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN WEDNESDAY, THE 1ST JULY 2009 / 10TH ASHADHA 1931 WP(C).No. 28690 of 2007(M) -------------------------- PETITIONER(S): --------------- SAJI JOHN .Y., HSST, GOVERNMENT HIGHER SECONDARY SCHOOL, NAVAYIKULAM. BY ADV. SRI.S.RAMESH BABU SRI. M.ARUN BABU RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT,SECRETARIT, TRIVANDRUM. 2. THE DIRECTOR, DIRECTORATE OF HIGHER EDUCATION HOUSING BOARD BUILDING,TRIVANDRUM. 3. THE PRINCIPAL, GHSS, VALATHUNGAL, KOLLAM. GOVERNMENT PLEADER SMT.SMITHA SUKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1.7.2009, THE COURT ON 01/07/2009 DELIVERED THE FOLLOWING: W.P.(C).No. 28690/2007. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE REQUEST FOR L.W.A. P2. COPY OF THE LETTER DTD.2.3.99 FROM THE PRINCIPAL TO THE DIRECTOR. P3. COPY OF THE ORDER DTD.31.3.99 OF R2. P4. COPY OF THE APPLICATION DULY SANCTIONED BY R3. P5. COPY OF THE LETTER FROM THE ACCOUNTANT GENERAL. P6. COPY OF THE LETTER DTD.30.9.02 TO R2 BY R1. P7. COPY OF THE REPRESENTATION DTD.4.1.2003. P8. COPY OF THE REPRESENTATION DTD. 19.6.05. P9. COPY OF THE REPRESENTATION DTD.12.2.07. P10. COPY OF THE LETTER DTD.2.5.07. P11. COPY OF THE ADVICE DTD.25.6.98. P12. COPY OF THE ORDER DTD.11.2.99. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.28690 of 2007 ================== Dated this the 1st day of July, 2009 J U D G M E N T The petitioner joined the services of the Government of Kerala as an High School Assistant in the Education Department on being selected by the PSC and appointed by Ext.P11 order dated 29.6.1998. He joined duty on 10.7.1998. Later, by Ext.P12 order dated 11.2.1999, his services were regularised with effect from his date of joining duty, viz., 10.7.1998. Thereafter, he was appointed by transfer as a Higher Secondary School Teacher in the 25 per cent quota reserved for teachers in service, on 27.11.1998 and he joined duty pursuant thereto. He applied for leave for the period from 2.12.1998 to 1.3.1999. When he reported for joining duty after leave, on 2.3.1998, the Principal of the school opined that since in his leave vacancy another person had been appointed, he cannot be allowed to join duty without obtaining sanction from the Director of Higher Secondary Education. Accordingly, by Ext.P2, the Principal wrote to the the Director for appropriate instructions in the matter. Thereafter, on the advice of the Director, the petitioner applied for further leave till 31.3.1999 and, by Ext.P3, the Director instructed the Principal to take necessary steps for extension of leave of the petitioner upto 31.3.1999. According to the petitioner, thereafter, he joined duty on w.p.c.28690/07 2 31.3.1999 and he continued thereafter. By Ext.P5, the office of the Accountant General raised an audit objection to the effect that the petitioner's leave for the period from 2.12.1998 to 31.3.1999 could not have been sanctioned, since he was not eligible for leave without allowances for the period not exceeding three months invoking Rule 88(ii) of Part 1 of KSR. Subsequently, by Ext.P6 order, the Government held that the vacation salary paid to the petitioner during vacation 1998 may be recovered from him, since he had suffixed vacation with his leave without allowances, which was not permissible. The petitioner's representation in this regard met with Ext.P10 order confirming the action. It is under the above circumstances, the petitioner has filed this writ petition seeking the following reliefs: “i) Issue a writ of certiorari calling for the records leaving upto Exhibit P5, P6 and P10 and quash the same. ii) Declare that the period of leave sanctioned by the 3rd respondent under Exhibit P1 & P4 is in order and in conformity with Chapter 9 Part I of the KSR. iii) Issue a writ of mandamus commanding the respondents to treat the period of leave sanctioned under Exhibit P1 and P4 as legal, valid and proper. iv) Issue a writ of mandamus commanding the respondents to declare satisfactory completion of probation of the petitioner w.e.f 1.4.2000. v) Issue a writ of mandamus commanding the respondents to grant the 1st Higher Grade to the petitioner w.e.f. 1.4.2007 and also sanction one increment and one weightage due to the petitioner with all consequent benefits thereof.” 2. According to the petitioner, both the reasonings are w.p.c.28690/07 3 incorrect. In respect of the audit objection on the sanctioning of his leave, the petitioner would submit that the objection raised by the office of the Accountant General relates only to an officer not in permanent employment of the Government. According to the petitioner, the petitioner was in permanent employment as is evidenced by Ext.P12, whereby his appointment as High School Assistant was regularised with effect from the date of joining duty. He would further submit that he was appointed by transfer as a Higher Secondary School Teacher in a substantive vacancy and, therefore, that appointment was also in permanent employment. The said appointment was treated as temporary only, because of the order of the Supreme Court in view of the pendency of certain litigations, which cannot be a reason to hold that the petitioner is not in permanent employment of the Government at that time. He would also submit that such appointment was later confirmed after the Supreme Court disposed of the cases. As far as the second objection is concerned, the petitioner would submit that he never sought suffixing of vacation with his leave. According to him, he joined duty on 31.3.1999, the day before vacation and therefore, between the day when his leave ended and the vacation started, there was a gap of one day, during which day he actually worked. Therefore, the second contention is also w.p.c.28690/07 4 unsustainable, is the contention of the petitioner. 3. A counter affidavit has been filed by the 2nd respondent. The contention of the learned Government Pleader with regard to the first issue is that Ext.P12 was passed only on 11.2.1999 and therefore, at the time when the petitioner applied for leave, he was not in permanent employment. Regarding the second issue, the Government Pleader would submit that as per KSR as well as Government letters in that regard, vacation period cannot be suffixed to leave without allowances. 4. I have considered the rival contentions in detail. 5. Leave without allowances is governed by Rule 88 of Part 1 of KSR, which reads thus: “88. Leave without allowances:- (i) Leave without allowances may be granted to any officer in special circumstances- (a) When no other leave is by rule admissible, or (b) When other leave is admissible but the officer concerned applies in writing for the grant of leave without allowances. (ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion.” (underlining supplied) The expression 'officer in permanent employ' is defined in Rule 77 (viii) of Part I KSR, as follows: “77. In these rules:- xxx xxx xxx xxx w.p.c.28690/07 5 (viii) 'Officer in permanent employ' means an officer who holds substantively a permanent post or who holds a lien on a permanent post or who would hold a lien on a permanent post had the lien not been suspended.” (underlining supplied) Neither Rule 88 nor Rule 77(viii) contemplates regularisation of employment. What the same states is that the officer should be holding substantively a permanent post or should hold lien on a permanent post. It is not disputed before me that the petitioner was appointed as H.S.A. to a permanent post. Even otherwise, subsequently the petitioner's appointment was regularised with effect from his date of joining duty by Ext.P12 order. That being so, nothing prevents the respondents from regularising the leave period since at least as on today, the petitioner could validly avail of that leave in accordance with the provisions of the KSR. As such, there is no merit in the first objection raised against the grant of leave to the petitioner for the period from 2.12.1998 to 31.3.1999. As far as the second contention is concerned, the petitioner's contention is that he never requested for suffixing of vacation to his leave. The answer given by the Government Pleader to the same is that the petitioner's leave period was upto 31.3.1999 and he had not obtained permission for cancellation of the unavailed portion of the leave and therefore, he is deemed to have continued on leave on 31.3.1999. Therefore, the effect is that the petitioner wanted vacation to be suffixed to his leave. w.p.c.28690/07 6 The said objection of the respondents is also not correct in view of Note 1 to Rule 72 of Part I KSR, which reads thus: “72. xxx xxx xxx Note I:- No formal cancellation of the unexpired portion of leave is necessary when an officer returns to duty before the expiry of his leave. The cancellation will be effected by the Audit Officer in the case of Gazetted Officers and by the Head of office in the case of non-gazetted officers.” The Rule is very clear to the effect that no formal cancellation of unavailed portion is necessary when an officer returns to duty before the expiry of the leave and the same can be effected by the head of office. Here it is not disputed before me that although the petitioner was on leave on 31.3.1999, he had actually joined duty after leave on 31.3.1999. As such, both objections against the petitioner's leave period and vacation salary are clearly unsustainable. In the above circumstances, I quash Exts.P5, P6 and P10. The respondents are directed to regularise the petitioner's leave period for the period from 2.12.1998 to 30.3.1999. The petitioner would also be entitled to keep vacation salary drawn by him during the vacation for the year 1999. Orders in this regard shall be issued within two months from the date of receipt of a certified copy of this judgment. 6. The petitioner submits that in view these objections, further service benefits due to the petitioner like grant of higher grade, declaration of probation etc. have been delayed. In view of my above w.p.c.28690/07 7 findings, all the objections based on Exts.P5, P6 and P10 shall be cancelled and all benefits due to the petitioner shall be released accordingly. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge