Nadeera P.A. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT** **THE HONOURABLE MR. JUSTICE A.K.JAYASANKARAN NAMBIAR** **&** **THE HONOURABLE MR.JUSTICE MOHAMMED NIAS C.P.** **TUESDAY, THE 13[TH] DAY OF DECEMBER 2022 / 22ND AGRAHAYANA, 1944 OP(KAT) NO. 425 OF 2022** **AGAINST THE ORDER DATED 13.04.2022 IN OA 1279/2020 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONER/APPLICANT:** **NADEERA. P.A AGED 54 YEARS W/O. P.K. NAZER, SENIOR GRADE SCIENTIFIC ASSISTANT, DISTRICT SOIL TESTING LABORATORY, NETTOOR. P.O., EMAKULAM -682040, (PRESENTLY ON DEPUTATION AS DISTRICT EXECUTIVE OFFICER, KERALA BUILDING AND OTHER CONSTRUCTION WORKERS WELFARE BOARD, PONEKKARA, JAWANS CROSS ROAD, EDAPPALLY RESIDING AT PARALIL HOUSE, SURYA NAGAR, PALLILAMKARA. H.M.T COLONY. P.O., KALAMASSERY, ERNAKULAM, KERALA, PIN – 683503** **BY ADVS. SMT.SHAMEENA SALAHUDHEEN SMT.S.SIMY SMT.JISEMOL THOMAS SMT.AMITHA JAMES** ## **RESPONDENTS/RESPONDENTS:** - **1 STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF AGRICULTURE DEVELOPMENT AND FARMERS WELFARE, SECRETARIAT, THIRUVANANTHAPURAM, KERALA, PIN – 695001** **2 DIRECTOR OF AGRICULTURAL DEVELOPMENT AND FARMERS WELFARE DEPARTMENT DIRECTORATE OF AGRICULTURAL, VIKAS BHAVAN, THIRUVANANTHAPURAM, PIN - 695033** :2: OP(KAT).No.425 of 2022 - **3 BAIJU. V.K ASSISTANT SOIL CHEMIST, MOBILE SOIL TESTING LABORATORY, NETTOR P.O., ERNAKULAM, PIN – 682040** - **4 PRADEEPKUMAR.C.P.K ASSISTANT SOIL CHEMIST, MOBILE SOIL TESTING LABORATORY, SNANTHANAPURAM. P.O., KALARKODE, ALAPPUZHA, PIN – 686003** - **5 RAJESH. K ASSISTANT SOIL CHEMIST, MOBILE SOIL TESTING LABORATORY, KOZHA P.O, KOTTAYAM, PIN – 686633** - **6 BABU. A.G ASSISTANT SOIL CHEMIST, DISTRICT SOIL TESTING LABORATORY. THIKKODI. P.O., KOZHIKODE, PIN – 673529** - **7 RAVIKUMAR K.V S/O C.K VASUDEVAN PILLAI, AGED 54 YEARS. SENIOR GRADE SCIENTIFIC ASSISTANT, DISTRICT SOIL TESTING LABORATORY, IDUKKI, ARIKUZHA P.O., THODUPUZHA-685608,RAVI NIVAS, VADACKAL PO, ALAPPUZHA, PIN – 688003** ## **BY ADV R.RAJESH(PULLIKADA)** ## **SRI. BIJOY CHANDRAN, GOVERNMENT PLEADER** ## **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR** **ADMISSION ON 13.12.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** :3: OP(KAT).No.425 of 2022 ## **JUDGMENT** ## **A.K.Jayasankaran Nambiar, J.** The unsuccessful applicant in O.A.No.1279 of 2020 before the Administrative Tribunal, Thiruvananthapuram, is the petitioner before us aggrieved by the order dated 13.04.2022 of the Tribunal in the O.A. 2. The brief facts necessary for the disposal of this OP(KAT) are as follows: The petitioner is a Senior Grade Scientific Assistant in the Agricultural Development and Farmer's Welfare Department. She is aggrieved by an alleged denial of promotion to the post of Assistant Soil Chemist. In the O.A preferred before the Tribunal it was her case that while she had been included in a list of persons found eligible for promotion to the post of Assistant Soil Chemist, the Departmental Promotion Committee (DPC) that convened on 27.05.2020 for the purpose decided to exclude her from the select list for the reason that she had not completed 15 years of total service in the category of Scientific Assistant in all the three grades. The facts before the Tribunal :4: OP(KAT).No.425 of 2022 revealed that the petitioner was a Lower Division Clerk in the Department and was appointed as a Junior Scientific Assistant Gr.II on 26.08.2004 through a category change. She was later promoted as Scientific Assistant Gr.I by order dated 01.08.2015 and as Senior Grade Scientific Assistant with effect from 15.10.2016. Thereafter, she availed Leave Without Allowance (LWA), initially for a period of 5 years which was later extended by a further period of 5 years, for going abroad to join her husband. The said LWA was availed subject to the conditions prescribed under Appendix XIIC of Part I KSR and she rejoined duty with the Agricultural Development and Farmer's Welfare Department only on 12.04.2013 after cancelling the unavailed portion of leave that was sanctioned to her. She was, therefore, on LWA for the period from 17.07.2006 to 12.04.2013. 3. The Tribunal found that as per the Recruitment Rules in force, the method of appointment to the post of Assistant Soil Chemist was, inter alia, by promotion from Senior Grade Scientific Assistant in the Soil Testing Laboratory. The qualification prescribed for the post was a degree in Chemistry from a recognised University or a Diploma in Agriculture with at least one year of experience in an Analytical Laboratory together with 15 years of total service in the category of Scientific Assistant including all the three grades. The Tribunal found :5: OP(KAT).No.425 of 2022 that if the period of LWA availed by the petitioner was excluded, then she would not have the necessary 15 years of service as Scientific Assistant in the three grades together. The Tribunal, therefore, found that the exclusion of the petitioner from the select list for promotion to the post of Assistant Soil Chemist was legal, and the decision to do so did not require any interference. 4. Before us, it is the submission of Smt.Shameena Salahudheen, the learned counsel for the petitioner, that a perusal of Appendix XIIC of Part I KSR would indicate that all that the petitioner stood to lose on account of the LWA availed by her was the chances of promotion with reference to seniority in the post from which she had proceeded on leave. It is her contention that the period spent on LWA had to be deemed as service in view of the provisions of the KSR that mandated that service included periods when an employee had a lien to the post in the service. She assails the impugned order of the Tribunal on the said contention. 5. On a consideration of the said submission of the learned counsel for the petitioner, we find ourselves unable to accept the same. Firstly, it is clear from a perusal of the Recruitment Rules that 15 years of service in the category of Scientific Assistant, including all the three :6: OP(KAT).No.425 of 2022 grades, is prescribed as a qualification for a person aspiring for the post of Assistant Soil Chemist through promotion. The question then arises as to whether the 15 years qualifying service will take in even the period when an employee was not rendering service in the establishment in question consequent to availment of LWA. Appendix XIIC of Part I KSR clearly indicates that during the currency of the period of leave, the officer concerned shall lose all service benefits, including earning of leave, increment, gratuity, pension, etc., and also promotion chances as may arise with reference to their seniority in the post from which they proceed on leave. They would also lose seniority in the higher grade with reference to their juniors who might get promoted to such grades before they rejoin duty. The first limb of the provision noticed above, in our view, makes it abundantly clear that during the currency of the period of leave the petitioner stood to lose all service benefits such as increment, gratuity, pension, etc. In other words, the leave period will not count towards service for the purpose of the said benefits. This would mean that the leave period cannot also be counted as service while reckoning the future career prospects of the petitioner. Judgments of this Court have also clearly held that the period of LWA cannot be reckoned for the purposes of granting a higher grade and also that the limited purpose for which the lien is retained in the post in question is for enabling the officer concerned to rejoin :7: OP(KAT).No.425 of 2022 service after the availment of leave. **(see:Abdul Rasak v. State of Kerala [2006 (1) KLT 818], State of Kerala v. M.M.Thomas [2005 (1) KLT 863] and Shaji Sanjay Nottitthodi v. Managing Director, K.S.R.T.C [2017 (3) KLT 198] (FB))** . Thus in any view of the matter, we find that the period spent by the petitioner on LWA cannot be reckoned as part of the service rendered in the establishment for the purposes of the Recruitment Rules noticed above. We see no reason to interfere with the order of the Tribunal impugned before us in these proceedings. The OP(KAT) fails and is accordingly dismissed. Sd/- ## **A.K.JAYASANKARAN NAMBIAR JUDGE** Sd/- **MOHAMMED NIAS C.P. JUDGE** mns :8: OP(KAT).No.425 of 2022 ## **APPENDIX OF OP(KAT) 425/2022** ## **PETITIONER EXHIBITS** **Exhibit P1 A TRUE COPY OF THE O.A.1279/2020 ALONG WITH THE ANNEXURES ON THE FILE OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **Exhibit P2 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 2 ND RESPONDENT IN O.A.NO. 1279/2020** **Exhibit P3 A TRUE COPY OF THE REPLY STATEMENT FILED BY RESPONDENTS 3 AND 4 O.A.NO. 1279/2020** **Exhibit P4 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 6 TH RESPONDENT IN O.A.NO. 1279/2020** **Exhibit P5 A TRUE COPY OF THE M.A FOR IMPLEADING FILED BY THE 7TH RESPONDENT IN O.A.NO. 1279/2020** **Exhibit P6 A TRUE COPY OF THE REPLY STATEMENT FILED BY THE 7 TH RESPONDENT IN O.A.NO. 1279/2020** **ExhibitP7 A TRUE COPY OF THE M.A 2452/2021 ALONG WITH ANNEXURE A16 FILED BY THE PETITIONER IN O.A.NO. 1279/2020 ALONG WITH TYPED COPY OF ANNEXURE A16** **Exhibit P8 A TRUE COPY OF THE FINAL ORDER DATED 13.4.2022 IN O.A.1279/2020 OF THE KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** **ANNEXURE A1: A TRUE COPY OF G.O.(RT).NO.607/2020/AGRI DATED 30.06.2020 ISSUED BY THE LST RESPONDENT.** **ANNEXURE A2: A TRUE COPY OF ORDER NO. SH(2) 21692/03 DATED 24.7.2004 ISSUED BY THE 2ND RESPONDENT.** :9: OP(KAT).No.425 of 2022 **ANNEXURE A3: A TRUE COPY OF ORDER NO. STW.70/04 DATED 19.11.2004 ISSUED BY THE ASSISTANT SOIL CHEMIST, SOIL TESTING LABORATORY, MANANTHAVADY.** **ANNEXURE A4: A TRUE COPY OF ORDER NO. E(2)6291/06 DATED 27.10.2006 ISSUED BY THE PRINCIPAL AGRICULTURAL OFFICER, LDUKKI.** **ANNEXURE A5: A TRUE COPY OF ORDER NO. E(2)2257/2011 DATED 12.04.2013 ISSUED BY THE PRINCIPAL AGRICULTURAL OFFICER, LDUKKI.** **ANNEXURE A6: A TRUE COPY OF ORDER NO. SH(2) 4352/2013 DATED 01.08.2015 PROMOTING THE APPLICANT AS SCIENTIFIC ASSISTANT GRADE 1 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A7: A TRUE COPY OF ORDER NO.SH(2)571/15 DATED 27.04.2016 ALONG WITH FINAL SENIORITY LIST OF SCIENTIFIC ASSISTANT GRADE 1 AS ON 30.11.2015 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A8: A TRUE COPOY OF THE ORDER NO.SH(2) 3687/2014 DATED 26.5.2017 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A9: A TRUE COPY OF ORDER NO. SH(2)3687/2014 DATED 19.08.2017 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A10: A TRUE COPY OF LETTER OF THE 2ND RESPONDENT ADDRESSED TO ALL AGRICULTURAL OFFICERS AND CHIEF SOH CHEMIST, CENTRAL SOH AND PLANT HEALTH CENTRE, THIRUVANANTHAPURAM DATED 6.2.2018.** **ANNEXURE A11: A TRUE COPY OF ORDER NO. SH(2)13579/19 DATED 24.06.2019 ALONG WITH SENIORITY LIST OF SENIOR SCIENTIFIC ASSISTANT AS ON 31.03.2019 ISSUED BY THE 2ND RESPONDENT.** **ANNEXURE A12: A TRUE COPY OF THE NOTIFICATION NO. CR-1893/2020 DATED 23.1.2020 ISSUED BY THE 2ND RESPONDENT ALONG WITH THE LIST OF SENIOR SCIENTIFIC ASSISTANT.** :10: OP(KAT).No.425 of 2022 **ANNEXURE A13: A TRUE COPY OF THE MINUTES OF DEPARTMENTAL PROMOTION COMMITTEE (LOWER) FOR THE POST OF ASSISTANT SOIL CHEMIST FOR THE YEAR 2020 DATED 27.5.2020.** **ANNEXURE A14: A TRUE COPY OF THE REPRESENTATION OF THE APPLICANT DATED 14.07.2020 BEFORE THE 2ND RESPONDENT.** **ANNEXURE A15: A TRUE COPY OF G.O.(MS)NO.199/2010/AD DATED 7.8.2010 ANNEXURE A16: THE TRUE COPY OF G.O(MS)NO. 8L/92/AD 16.3.1992 ALONG WITH TYPOED COPY .** **ANNEXURE A16: THE TRUE COPY OF G.O(MS)NO.81/92/AD DATED 16.3.1992 ALONG WITH TYPED COPY** ## **RESPONDENT'S ANNEXURES:** **ANNEXURE R6(A): A TRUE COPY OF G.O.NO.439/2019 AGRI DATED 9.5.2019** **ANNEXURE R6(B):A TRUE COPY OF G.O.(RT).NO.1055/06/AD DATED 8.8.2006 ANNEXURE R6(C):A TRUE COPY OF G.O.(RT) 1373/2011 AD DATED 25.7.2011.** **ANNEXURE R7(A):A TRUE COPY OF THE ORDER DATED 26.10.2018 IN O.A. (EKM)NO.1993/2018 OF THIS HON'BLE TRIBUNAL.** **ANNEXURE R7(B):. A TRUE COPY OF G.O.(RT.).NO.199/2010/AD DATED 07.08.2010 ISSUED BY THE LST RESPONDENT.**