IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE HARUN-UL-RASHID FRIDAY, THE 9TH APRIL 2010 / 19TH CHAITHRA 1932 RP.No. 170 of 2010(N) --------------------- AGAINST THE JUDGEMENT IN WPC.2233/2004 Dated 08/04/2009 .................... REVIEW PETITIONER/RESPONDENTS 1 TO 3: ---------------------- 1. STATE OF KERALA REP BY THE HEALTH SECRETARY,MINISTRY OF HEALTH, SECRETARIAT THIRUVANATHAPURAM. 2. THE DIRECTORATE OF MEDICAL EDUCATION MEDICAL COLLEGE,THIRUVANATHAPURAM. 3. THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, STATUE JUNCTION, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI P.K. BABU RESPONDENT: ------------------- DR.M.G.PRESANNA, SENIOR LECTURER IN MEDICO SOCIOLOGY, DEPARTMENT OF COMMUNITY MEDICINE MEDICAL COLLEGE, KOTTAYAM. BY ADV. SRI P. RADHAKRISHNAN THIS REVIEW PETITION HAVING BEEN FINALLY HEARD ON 09/04/2010, THE COURT ON THE SAME DAY PASSED THE FOLLOWING: HARUN-UL-RASHID,J. ------------------------------ R.P.NO.170 OF 2010 IN W.P.(C).NO.2233 OF 2004 ------------------------------- DATED THIS THE 9TH DAY OF APRIL, 2010 O R D E R This review petition was filed seeking to review the judgment dated 8th April, 2009 in W.P.(C).No.2233/2004. A separate petition also filed for condonation of delay of 305 days in filing the review petition. This Court by order dated 1/3/2010 condoned the delay. This Court as per the impugned judgment declared that the writ petitioner is entitled to get all the benefits conferred under Ext.P1 order and further declared that the petitioner is entitled to get the benefit of time bound cadre promotion conferred under Ext.P1 with effect from 6/8/1999 as Associate Professor in Medico Sociology. Further direction was also issued to the Government to pass consequent orders within a period of two months from the date of receipt of a copy of the judgment. The dates occurring in the penultimate sentence in -2- R.P.No.170/2010 paragraph 8 of the judgment are corrected as “6/8/1997” and “6/8/2002” respectively as per order dated 21/05/2009 in I.A.No.5604/2009. The learned counsel for the respondent submitted that the review petition was filed without taking note of the correction made by this Court in the order dated 21/05/2009. 2. In the review petition filed by the State and two others, it is averred that on verification of the service details, the writ petitioner (respondent herein) had availed total leave of 161 days in different spells w.e.f. 6/8/92 and hence completed 5 years of physical teaching service as Lecturer on the AN of 13/1/1998 only and as such she is eligible for time bound cadre promotion as Assistant Professor w.e.f. 14/1/1998. It is also averred that after 14/1/1998 the petitioner had availed 217 days of leave on different spells and completed 5 years of physical teaching service in the cadre of Associate Professor and would be entitled to time bound cadre promotion as Associate Professor w.e.f. 22/8/2003 as per G.O.(P).No.145/2000/H&FWD dated -3- R.P.No.170/2010 16/6/2000. Therefore, it is stated that in the light of the entries revealed during the verification of the service records, it has become necessary on the part of the petitioners to file the review petition to correct the dates on which the writ petitioner would be entitled to the benefit of time bound cadre promotion in the cadre of Assistant Professor and Associate Professor as per G.O.(P). No.145/2000/H&FWD dated 16/6/2000. 3. The respondent/writ petitioner filed a counter- affidavit denying the contentions raised in the review petition. According to the respondent, the review petitioners have not taken into account the rules prescribed under the Kerala Service Rules regarding leave. The respondent, referring to Rules 77 and 77(ix), submitted that in the light of the definition of completed years of service, the leave earned by the respondent in respect of the periods spent on duty has to be reckoned as continuous service of specified duration. According to her, Rule 78 of the Kerala Service Rules provides that the earned leave admissible to an officer in his permanent employment is 1/11th of the period -4- R.P.No.170/2010 spent on duty, provided that he/she will cease to earn such leave when the earned leave due amounts to 340 days. According to her, under Rule 92 an officer on earned leave is entitled to leave salary equal to: (i) full (duty) pay i.e. pay admissible had he been on duty during the period of leave; (ii) dearness allowance applicable to the above duty pay and (iii) such other compensatory allowances a are admissible under the Rule during the period of leave. 4. The learned counsel for the respondent/writ petitioner submitted that when the Kerala Service Rules are very clear with regard to the fact that the writ petitioner's leave should be counted for the purpose of her service, an arbitrary exclusion of her leave period from her service is not in accordance with law. The question was answered by the writ petitioner referring to Rule 77 of the Kerala Service Rules. -5- R.P.No.170/2010 5. The question now agitated in the review petition is based on the facts stated for the first time and without noticing the corrections made. It is stated that the writ petitioner had availed 161 days and 217 days of leave on different spells and therefore she would be entitled to time bound cadre promotion as Assistant Professor and Associate Professor only w.e.f. 14/1/1998 and 22/8/2003 is a question not agitated before this Court at the time when the matter was heard. The review petitioners have not made out any grounds to review the judgment rendered on the basis of the facts and contentions, which are available to them at the time of hearing. Without prejudice to the right of the review petitioners to prefer an appeal, if so advised, this review petition is dismissed. Sd/- HARUN-UL-RASHID, JUDGE. kcv.