Sarayu Bala C. v. The Assistant Education Officer, Thrithala, Palakkad District; The Manager, AUPS, Ezhumangad, Palakkad District; SEBIA P.V.; NABEESA P.V.

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 17TH DAY OF FEBRUARY 2016/28TH MAGHA, 1937 WP(C).No. 31407 of 2015 (A) ---------------------------- PETITIONER(S): -------------------------- SARAYU BALA C. AGED 54 YEARS UPSA, AUPS, EZHUMANGAD PALAKKAD DISTRICT. BY ADV. SRI.P.BHASKARAN RESPONDENT(S): ---------------------------- ## 1. THE ASSISTANT EDUCATION OFFICER THRITHALA, PALAKKAD DISTRICT. 678 001. 2. THE MANAGER AUPS, EZHUMANGAD, PALAKKAD DISTRICT. 678 001. 3. SEBIA P.V. UPSA, AUPS, EZHUMANGAD PALAKKADDISTRICT - 678 001. 4. NABEESA P.V UPSA, AUPS, EZHUMANGAD PALAKKAD DISTRICT678 001. R1 BY GOVERNMENT PLEADER SRI. M A FAYAZ R2 BY ADV. SRI.MATHEW KURIAKOSE R3&4 BY ADV. SRI.U.BALAGANGADHARAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 1702-2016, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 31407 of 2015 (A) ---------------------------- ## APPENDIX PETITIONER(S)' EXHIBITS ------------------------------------- EXT.P-1: TRUE COPY OF THE PROVISIONAL SENIORITY LIST PREPARED BY THE 2ND RESPONDENT AND APPROVED BY THE 2ND RESPONDENT AS ON 1.1.12 EXT.P-2: TRUE COPY OF THE ORDER BY WHICH LWA WAS GRANTED TO THE 3RD RESPONDENT DATED 28.2.92 EXT.P-3: TRUE COPY OF THE JUDGEMENT IN WPC 8386/2015 DATED 18.3.2015 EXT.P-4: TRUE COPY OF THE INTERIM ORDERS IN WPC 12246/2015 DATED 10.4.2015 EXT.P-5: TRUE COPY OF THE ORDER DT.4.8.15 EXT.P-6: TRUE COPY OF THE FINAL SENIORITY LIST AS ON 1.1.2015 RESPONDENT(S)' EXHIBITS --------------------------------------- EXT.R2(a): TRUE COPY OF THE APPOINTMENT ORDER DT 17.4.2012 OF SMT. SEBIA AS HM EXT.R2(b): TRUE COPY OF APPOINTMENT ORDER DT 1.07.2012 OF SMT SEBIA AS HM EXT.R2(c): TRUE COPY OF APPOINTMENT ORDER DT 8.7.2013 OF SMT. SEBIA AS HM EXT.R2(d): TRUE COPY OF APPOINTMENT ORDER DT 31.3.2015 OF SMT. SEBIA AS HM EXT.R2(e): TRUE COPY OF APPROVED SENIORITY LIST DRAWN AS ON 1.1.2006 EXT.R3(a): TRUE COPY OF APPOINTMENT ORDER DT 17.4.2012 OF SMT. SEBIA AS HM EXT.R3(b): TRUE COPY OF APPOINTMENT ORDER DT 01.07.2012 OF SMT. SEBIA AS HM EXT.R3(c): TRUE COPY OF APPOINTMENT ORDER DT 8.7.2013 OF SMT. SEBIA AS HM EXT.R3(d): TRUE COPY OF APPOINTMENT ORDER DT 31.3.2015 OF SMT. SEBIA AS HM EXT.R3(e): TRUE COPY OF APPROVED SENIORITY LIST DRAWN AS ON 1.1.2006 TRUE COPY P.A TO JUDGE jma ## K. VINOD CHANDRAN, J - - - - - - - - - - - - -- - - - - - - - - - - - - - - - W.P(C) No. 31407 of 2015 - - - - - - - - - - - - - - - - - - - - - - - - - - - - Dated this the 17[th] day of February, 2016 ## J U D G M E N T The petitioner claims seniority over the 3[rd] and 4[th] respondents. Though the petitioner was first appointed to the 2[nd] respondent School on 29.10.1987, even going by Ext.P1 seniority list, the petitioner had continuous service only from 01.06.1988. Hence the petitioner would have been first appointed in a leave vacancy and in a regular vacancy only from 01.06.1988. The 3[rd] respondent was appointed on 17.06.1985 and the 4[th] respondent on 02.06.1986. The 3[rd] respondent had availed a leave of 4 years between 26.03.1992 and 25.03.1996. The 4[th] respondent had availed a similar leave without allowance between 01.08.1987 and 31.07.1989. The contention raised by the petitioner is that both the 3[rd] respondent and 4[th] respondent forfeited their service during the period of their leave and the same cannot be counted for their seniority also. WPC.No.31407/2015 : 2 : 2. At the outset it is to be noticed that the 4[th] respondent was appointed more than three years before the petitioner. Hence even if the two year leave period is excluded, the 4[th] respondent would be senior to the petitioner. With respect to the 3[rd] respondent, the contention has to be examined on the basis of the Appendix XII C of the Kerala Service Rules,. The learned counsel for the petitioner specifically points to Ext.P2, which was the order granting the 3[rd] respondent leave without allowance with a condition that the leave period will not be counted for any service benefits and the condition that it would be recorded in the service book of the incumbent. The said stipulation is also said to be by virtue of G.O(P) No.209/84/Fin. Dated 12.04.1984. The learned Counsel for the petitioner would rely on 2007(3) KLJ 661 (C. Bindu v. State of Kerala) to contend that the petitioner’s seniority would be affirmed by the said binding precedents. 3. The learned Counsel for the respondents 3 and 4 however, contends that the service benefits, going by the words WPC.No.31407/2015 : 3 : employed in Appendix XII C, clause 5 indicates that seniority is not included. Seniority has been specifically saved and would be effected only as against the junior who is promoted prior to the person availing leave; joining duty. The learned counsel would place reliance on 2008(1) KLT 712 (SC) (Mohammed Abdulla v. State of Kerala), 2014 (1) KHC 382 (Ghosh K.V v. Managing Director, KSRTC, Tvm and others) and 2015(1) KHC 474 (Ibrahimkutty v. Chairman and Managing Director, KSRTC, Tvm) to advance his contention. 4. It is to be noticed that the decisions placed reliance upon by the respondents, all deal with Appendix XII-A. Herein it is the admitted fact that respondents had availed of the leave without allowance under Appendix XII-C of the KSR. Apposite is the reference made by the petitioner to C Bindu (supra), however, the same would stand against the petitioner. Interpreting clause 5 (omitted later) of Appendix XII-C which is applicable even in the case of the respondents 3 and 4, existing at the time of their leave without allowance, this Court found that the seniority would WPC.No.31407/2015 : 4 : not be saved and would come within the ambit of service benefits. However, that is with reference to Rule (5) which deal with probationers, as is extracted herein below . “In the case of non-permanent officers in regular service who have not completed probation in their entry cadre, leave under these rules may be granted subject to the condition that they shall have to start afresh and complete their probation on re-joining duty. The service benefits that had accrued to them before proceeding on leave shall be forfeited and on re-joining duty they shall be deemed as new entrants in the Government service.” 5. It is to be noticed that a reading of Appendix XII-C specifically speaks of non-permanent officer Though it is not clear from a reading of Bindu (supra), whether the petitioner therein WPC.No.31407/2015 : 5 : was a non-permanent officer. The facts and the Division Bench relied on in Bindu (supra) makes it very clear that clause V applies only to non-permanent officers. Unnikrishna Panicker v. Bhasi (2001(1) KLT 449) was relied on. An extract was also made from the aforesaid Division Bench judgment as is hereunder: “The aforementioned provisions of the rules makes it amply clear that if a Government employee whose probation had not been declared but availed of leave without allowance to take up employment abroad would forfeit the service benefits which had accrued to him prior to his proceeding on leave and he will be deemed as a entrant to Government Service on return from leave. He will also forfeit his seniority and will have to start his probation afresh and complete his probation on return from leave. Rules make it clear that what is WPC.No.31407/2015 : 6 : protected is right to rejoin Government service in the same grade as if he was a new entrant.” 6. The aforesaid extract also makes it clear that the forfeiture of seniority will be only with respect to persons who had proceeded on Leave without allowance before the completion of the probation. The reliance placed on G.O(P) No.209/84/Fin. by the petitioner is also not sustainable. Clause 3 of the above G.O is almost similar to clause 5 and takes in permanent officers who have completed their probation. The specific clause with respect to seniority is found as following: “They shall lose seniority also in the grade with reference to those who might get promoted before they rejoin duty.” 7. This is in tandem with clause 4 of Rule XII A, which has been interpreted in the decisions placed on record by the learned counsel for the respondents 3 and 4. The binding precedent is that for permanent workers, the seniority would be WPC.No.31407/2015 : 7 : lost only as against juniors continuing in the service who were promoted prior to the person availing leave joins duty after completion of the leave. 8. The petitioner was not promoted to the higher category before the 3[rd] and 4[th] respondents joined after the leave. There can be no loss of seniority in the case of the respondents 3 and 4, in such circumstance. Writ petition would stand dismissed. No costs. Sd/- (K. VINOD CHANDRAN, JUDGE) jma //true copy// P.A to Judge