Johnson M.P. v. State of Kerala, Director General of Police, City Police Commissioner, Ernakulam

Case Details & Bench

Court: High Court of Kerala
Hon'ble Judges: K. M. Joseph
Judgment Date: 2008-01-29
Court Decision / Holding: Writ petition dismissed
Final Disposition: Writ petition dismissed

Parties to the Case

Appellants / Petitioners

Johnson M.P.

Respondents

State of Kerala represented by Secretary to Government, Secretariate, Thiruvananthapuram
Director General of Police, Thiruvananthapuram
City Police Commissioner, Ernakulam

Legal Representation & Advocates

Counsels for Petitioners

• P. Sanjay
• A. Parvathi Menon

Counsels for Respondents

• M. P. SreeKrishnan

Case Synopsis & Summary

This Original Petition challenges Exts.P1 and P3 orders and seeks to count the petitioner’s period of absence as medical leave and to treat his prior service for seniority. Johnson M.P., a Constable in the Armed Reserve, joined service in 1985. In 1987, upon learning of his wife’s illness, he sought a day’s leave; it was refused, and he resigned impulsively. He withdrew the resignation the next day, but later, in 1989, a representation was made; the resignation came to be treated as effective from 27.10.1987, and he was informed that his prior service would not be counted. He represented again seeking reinstatement and re-posting, and provided medical and fitness certificates as directed. In 1993, he was reinstated, but as a “new entrant,” with past service not creditable for seniority or leave benefits. In 1994 Ext.P1 denied seniority; Ext.P2 followed with Ext.P3 explaining the compassionate-appointment proposal with fresh service status. The petitioner contends he should be allowed to count prior service and treat the period out of duty as medical leave. The court, after considering the facts and distinguishing a cited case (Balram Gupta), dismisses the petition, holding there is no legal right to count the earlier service where reappointment was on compassionate grounds and as a fresh entrant under PSC guidance.

Submissions & Arguments

Contentions of Appellants / Petitioners

The petitioner argues that his resignation was withdrawn and that the representation to count prior service and treat the absence as medical leave should have been considered. He contends that the resignation’s withdrawal was in the context of his family emergency and that the subsequent reinstatement on compassionate grounds did not extinguish the right to credit his earlier service.

Contentions of Respondents

The respondents contend that the resignation date and its acceptance fixed the petitioner’s status, and that the 1993 reinstatement as a fresh entrant, with compassionate appointment, negated credit for prior service. They rely on the order to appoint on compassionate grounds in PSC consultation and argue there is no legal right to count earlier service or to treat the out-of-duty period as medical leave.

Cited Precedents (1)

Case Name	Citation	Treatment	Explanation
Balram Gupta v. Union of India and another	AIR 1987 SC 2354	Distinguished	The court notes the petitioner cannot rely on Balram Gupta to support his claim given differing facts; it distinguishes the decision rather than applying it.

Extracted Judgment Text

Exact text extracted from official judgment records.

## **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** **t** _**ss**_ ## **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 reappointment. 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 reappointment 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 _**6**_ _**OP 10047/99 U**_ ## **K. M. JOSEPH, J.** ## **O.P NO. 10047 OF 1999 U** ## **JUDGMENT** **29th January, 2008.**