Swarnalatha K.C. v. State of Kerala & Others

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR.JUSTICE C.T.RAVIKUMAR & THE HONOURABLE MR. JUSTICE K.P.JYOTHINDRANATH WEDNESDAY, THE 11TH DAY OF JANUARY 2017/21ST POUSHA, 1938 OP(KAT).No. 185 of 2016 (Z) ---------------------------AGAINST THE ORDER DATED 04-07-2016 IN TA.6190/2012 of KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM PETITIONER/APPLICANT.: --------------------------- SWARNALATHA K.C. W/O S.K.KUTTY, H.S.A (PHYSICAL SCIENCE) GHSS, EDAPAL, MALAPPURAM DISTRICT. BY ADVS.SRI.KALEESWARAM RAJ SRI.VARUN C.VIJAY KUM.A.ARUNA RESPONDENTS/RESPONDENTS: ----------------------------------- 1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM.695001. 2. DIRECTOR OF HIGER SECONDARY EDUCATION, HOUSING BOARD BUILDING, SANTHI NAGAR, THRUVANANTHAPURAM.695001. 3. THE DIRECTOR OF PUBLIC INSTRUCTIONS THIRUVANANTHAPURAM.695001. 4. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM.673632. 5. DEPUTY DIRECTOR OF EDUCATION, PALAKAD.679503. BY SR.GOVERNMENT PLEADER SRI.A.J.VARGHESE THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 11-01-2017, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP(KAT).No. 185 of 2016 (Z) ---------------------------- ## APPENDIX ## PETITIONER'S EXHIBITS --------------------------- - ANNEXURE A1:TRUE COPY OF THE ORDER DATED 4.7.2016 IN T.A.NO.6190/2012. - ANNEXURE A2 : TRUE COPY OF THE MEMORANDUM OF T.A.6190/12 TOGETHER WITH EXHIBITS. - EXHIBIT P1: TRUE COPY OF G.O (RT) 535/97/G.EDN. DATED 17.2.1997. - EXHIBIT P2: TRUE COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DATED 23.7.1997. - EXHIBIT P3: TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT NO.4 DATED 30.7.1997. - EXHIBIT P4: TRUE COPY OF THE G.O.(RT) NO.4939/98/G.EDN. DATED 23.12.1998 ISSUED BY THE RESPONDENT NO.1. - EXHIBIT P5: TRUE COPY OF THE PROCEEDINGS OF THE RESPONDENT NO.2 DATED 9.4.2005. - EXHIBIT P6: TRUE COPY OF THE G.O (RT) NO.2346/2005/G.EDN DATED 6.6.2015. - EXHIBIT P7: TRUE COPY OF THE G.O.(RT) NO.1393/2006/G.EDN.DATED 31.3.2006. - EXHIBIT P8: TRUE COPY OF THE G.O (RT) NO.4492/07/G. EDN. DATED 28.9.2007 ISSUED BY THE RESPONDENT NO.1. - EXHIBIT P9: TRUE COPY OF THE PETITION DATED 11.8.2006 SUBMITTED BY THE PETITIONER. - EXHIBIT P10: TRUE COPY OF THE SUBMISSION DATED 3.11.2008 SUBMITTED BY THE PETITIONER BEFORE THE RESPONDENT NO.1. - EXHIBIT P11: TRUE COPY OF THE G.O.(RT) NO.917/09/G.EDN DATED 2.3.2009. - EXHIBIT P12: TRUE COPY OF THE CIRCULAR NO.18/96/FIN. DATED 11.4.1996. EXHIBIT P13: TRUE COPY OF G.O.(P) NO.78/93/FIN. DATED 1.2.1993. - ANNEXURE A3: TRUE COPY OF THE REPLY STATEMENT FILED ON BEHALF OF THE 5TH RESPONDENT. ANNEXURE A4: TRUE COPY OF THE REJOINDER FILED BY THE APPLICANT. - ANNEXURE A5: TRUE COPY OF THE STAY PETITION DATED 10.5.2009 TOGETHER WITH EXT.P14. OP(KAT).No. 185 of 2016 (Z) EXHIBIT P14: TRUE COPY OF THE COMMUNICATION DATED 15.5.2009 SENT BY THE RESPONDENT NO.3 TO RESPONDENT NO.4. ANNEXURE A6: TRUE COPY OF THE STAY PETITION DATED 15.7.2009 TOGETHER WITH EXT.P15. EXHIBIT P15: TRUE COPY OF THE ORDER DTD 24.6.2009 (NO.A1/17508/09) ISSUED BY THE RESPONDENT NO.4. RESPONDENTS' EXHIBITS: NIL ---------------------------- // TRUE COPY // TKS P.S. TO JUDGE ## **C.T.RAVIKUMAR & K.P.JYOTHINDRANATH, JJ.** -----------------------------------O.P.(KAT)No.185 of 2016 ------------------------------------Dated 11[th] January, 2017 ## **JUDGMENT** ## **Ravikumar, J.** This original petition is directed against the order dated 4.7.2016 in T.A.No.6190 of 2012 passed by the Kerala Administrative Tribunal, Thiruvananthapuram. Earlier, the petitioner filed W.P.(C) No.14498 of 2009 seeking quashment of Exts.P5 and P11. Ext.P5 is the proceedings of the 2[nd] respondent dated 9.4.2005 whereby the petitioner was reverted from the post of H.S.S.T (Physics) to the post of H.S.A. (Physical Science) and Ext.P11 is the copy of G.O.(Rt)No.917/ 09/G.Edn. Dated 2.3.2009 whereby her request to convert the Leave Without Allowances sanctioned under Appendix XII-C Part I of the Kerala Service Rules into ordinary leave, was turned down. After the constitution of the Tribunal the said writ petition was transferred to the Tribunal and was renumbered as T.A.No.6190 of 2012. The Tribunal after considering all the contentions and the relevant provisions found that the challenge of the petitioner against the said orders is devoid of merits and consequently, dismissed the Transferred Application. It is in the said circumstances that the captioned original petition has been O.P.(KAT)No.185 of 2016 2 filed challenging the order passed by the Tribunal and also Exts.P5 and P11. 2. We have heard the learned counsel for the petitioner and also the learned Government Pleader. 3. A succinct narration of the facts that culminated in the order in T.A.No.6190 of 2012 is necessary for a proper disposal of this original petition. The petitioner was appointed as High School Assistant (Physical Science) in the Education Department in Government High School, Pattikkad in Malappuram District on 10.8.1995. Before completion of her probation, she applied for Leave Without Allowances (LWA) under Appendix XII-C Part I of the Kerala Service Rules (for short `KSR') for joining her spouse abroad. The same was granted by the Government as per Ext.P1 order dated 17.2.1997. In fact, as per the same, Leave Without Allowances was granted from 3.12.1996 to 2.12.2001. While so, the 2[nd] respondent, the Director of Higher Secondary Education issued a notification on 18.6.1997 calling applications from “qualified Departmental High School Assistants who are in the regular services as on 31.9.1997” for appointment by transfer as HSST. The petitioner responded to the said notification and consequently, as per Ext.P2, she was appointed as HSST (Physics) and O.P.(KAT)No.185 of 2016 3 was posted at Kerala Varma MGHSS, Kodungallur in Thrissur District. The petitioner who was on Leave Without Allowances applied for cancellation of the unavailed portion of the leave sanctioned under Ext.P1 and the 4[th] respondent, Deputy Director of Education, Malappuram as per Ext.P3 order dated 3.0.7.1997 permitted the petitioner to re-join duty after cancelling the unavailed portion of leave. Immediately, the petitioner re-joined duty as H.S.A. (Physical Science) on 30.7.1997 and then got relieved from the said post to join as H.S.S.T (Physics) on the strength of Ext.P2 order. On getting relieved she joined as H.S.S.T. (Physics) in Kerala Varma M.G.H.S.S., Kodungallur on 1.8.1997. After joining duty as H.S.S.T. (Physics) she applied again for Leave Without Allowances for five years to join her spouse abroad. In fact, she made such an application in that regard just after an year since her joining duty and the same was sanctioned by the Government as per Ext.P4 order dated 23.12.1998. On expiry of the leave period she applied for extension of Leave Without Allowances for another period of five years with effect from 15.11.2003. It was also sanctioned. While processing her Leave Without Allowances, the 2[nd] respondent noticed that the petitioner's probation as H.S.A. (Physical Science) was not actually declared at the time of her consideration for appointment to the post of HSST (Physics) and in such circumstances, she could not have been appointed by transfer as O.P.(KAT)No.185 of 2016 4 H.S.S.T. (Physics). That apart, it was found that the petitioner was not even eligible to apply for the post, in response to the notification issued by the 2[nd] respondent on 18.6.1997 as she was not then, actually on service on that day and was on Leave Without Allowances under Appendix XII-C Part I of the Kerala Service Rules from 3.6.1997. It is found that in such circumstances, in view of the provisions under Appendix XII-C of Part I, KSR on her rejoining duty after the expiry of the period of leave sanctioned she had to start the probation afresh. In other words, she had to forfeit the entire past service. In such circumstances, Ext.P5 order dated 9.4.2005 was passed by the 2[nd] respondent cancelling the by transfer appointment of the petitioner as HSST(Physics) and reverting her as H.S.A.(Physical Science). Though the said order cancelling her appointment and reverting her to the post of H.S.A.(Physical Science) was served on the petitioner she had not chosen to challenge the same and has chosen to remain on Leave Without Allowances. As noticed hereinbefore, on getting sanctioned the 2[nd] stint of five years of Leave Without Allowances she remained on leave from 15.11.2003 to 14.11.2008. Before re-joining duty after expiry of the leave she filed Ext.P9 representation dated 11.8.2006 requesting for conversion of Leave Without Allowances for 58 days from 3.6.1997 to 30.7.1997 as ordinary leave and also for revocation of the order of cancellation of her O.P.(KAT)No.185 of 2016 5 appointment as H.S.S.T.(Physics) and also the consequential reversion as H.S.A.(Physical science). The said representation was rejected by the Government as per Ext.P11 order dated 2.3.2009. As stated earlier, immediately, the petitioner challenged Exts.P5 and P11 before this Court by filing W.P.(C)No.14498 of 2009. Later, it was transferred to the Kerala Administrative Tribunal and it was re-numbered as T.A.No.6190 of 2012. It is the said Transfer Application that was disposed of as per Annexure-A1, the impugned order. It is to be noted that before its transfer, in W.P.(C)No.14498 of 2009 the petitioner moved an application for interim stay of Ext.P5 whereby her promotion was cancelled and she was reverted as H.S.A. This Court declined to grant the said prayer and ultimately as per the interim order dated 17.7.2009 this Court made it clear that her appointment, rather, reversion as H.S.A. (Physical Science) as per Ext.P15 would be subject to the outcome of the writ petition. Evidently, in this Original Petition the petitioner challenges the order of the Tribunal as also Exts.P5 and P11 relying on the decision of this Court in **Siva Prasad** v. **Kerala Public Service Commission (2007 (3) KLJ 655).** The petitioner also relies on the judgments of this Court in W.P.(C)No.17857 of 2003 dated 23.6.2011, in W.P.(C)No.23246 of 2007 dated 28.8.2008 and in W.P.(C)No.28690 of 2007 dated 1.7.2009. The petitioner also relies on O.P.(KAT)No.185 of 2016 6 Ext.P8 which is Government Order dated 28.9.2007 passed by the Government in the case of another teacher Smt.M.Devika who had availed Leave Without Allowances and later, on her request got it converted as leave under Rule 88, Part I of KSR. The learned counsel for the petitioner submits that in the light of the decisions referred (supra) the order passed by the Tribunal cannot be sustained and Exts.P5 and P11 are also liable to be set aside. It is submitted that at any rate, the petitioner is entitled to get a similar treatment as has been extended to Smt.Devika as per Ext.P8 in similar circumstances. 4. The learned Government Pleader submitted that the said contentions are bereft of any basis or merits. The decision relied on by the petitioner in **Siva Prasad's** case (supra) and also the judgments in the aforementioned writ petitions are not at all applicable to the facts of the case on hand. That apart, it is contended that after getting sanctioned Leave Without Allowances under Appendix XII-C of Part I, KSR which carries the condition to the effect that a person entering on LWA thereunder before completion of probation, on return from LWA, has to start afresh the period of probation, the petitioner would not be justified in turning around challenging the condition in Annexure-A1 order. It is further submitted that the attempt of the petitioner to get the LWA availed for 58 days converted as ordinary leave is nothing but O.P.(KAT)No.185 of 2016 7 an indirect attempt to overreach the impact of the provisions under Appendix XII-C, Part I of KSR. 5. In view of the rival contentions the question to be considered is whether the rejection of the request of the petitioner for conversion of LWA availed by her for 58 days as ordinary leave could be sanctioned in law. The further question is that merely because in a different situation another teacher who entered on LWA got the leave converted as leave under Rule 88 Part I of KSR could be a reason for accepting the contentions of the petitioner. There is no dispute on certain facts. The facts that the petitioner had entered into service as H.S.A. (Physical Science) on 10.8.1995 and was granted Leave Without Allowances under Appendix XII-C, Part I of KSR before declaration of her probation are not in dispute. It is also not disputed that the petitioner had responded to the notification issued by the 2[nd] respondent on 18.6.1997 while she was on leave. It is evident that after getting selected and appointed under Ext.P2 as H.S.S.T. (Physics) she had applied for cancellation of the unavailed portion of LWA and to permit her to re-join duty for the purpose of joining the promoted post. It is on that application that the 4[th] respondent passed Ext.P3 order dated 30.7.1997 permitting her to re-join duty after cancelling the unavailed portion of leave. The petitioner did not have a case that she O.P.(KAT)No.185 of 2016 8 did not submit an application for cancellation of the unavailed portion of the LWA and she had not filed any such application before the 4[th] respondent which culminated in Ext.P3 order dated 30.71997 permitting her to re-join duty after cancelling the unavailed portion of LWA. The petitioner was fully aware of the conditions incorporated in Ext.P1 order dated 17.2.1997 while applying for LWA under Appendix XII-C, Part I of KSR and on getting the same sanctioned as per Ext.P1 order. There is no case for the petitioner that Ext.P1 did not carry a condition that in the case of persons granted LWA prior to the declaration of probation they will have to start the probation afresh on return from leave and availing LWA before declaration of probation will result in forfeiture of the entire past service. It is accepting Ext.P1 order carrying such a specific condition as enjoined under Appendix XII-C Part I of KSR and remaining on leave to certain period on its strength that the petitioner applied for cancellation of the unavailed portion of LWA and got it cancelled under Ext.P3 order. It is only thereafter that she re-joined duty on 30.7.1997 as H.S.A (Physical Science) in Government High School, Pattikkad in Malappuram Dist. In such circumstances, the request of the petitioner for conversion of LWA for 58 days as ordinary leave can only be taken as an attempt to overreach the inevitable impact of availing LWA prior to the declaration of probation under Appendix XII-C, Part I of KSR. A perusal of Exts.P5 and P11 would O.P.(KAT)No.185 of 2016 9 reveal that the said request of the petitioner was rejected in the light of Ext.P13 Government Order dated 1.2.1993. In Ext.P13 Government Order it is specifically made clear that persons sanctioned with Leave Without Allowances for taking up employment abroad, for joining spouse etc. would not be allowed to convert the said leave to any other kind of leave retrospectively. True that, the attempt of the petitioner is to get over the rider in Ext.P13 by citing the instance involved in Ext.P8. That was a case where another teacher namely, Smt.M.Devika was sanctioned LWA under Appendix XII-C, Part I of KSR to join spouse abroad. She got it cancelled and fresh LWA for 145 days on private affairs was sanctioned later to enable her to look after her mother-inlaw who met with an accident. Thus, it is evident that the LWA originally sanctioned under Appendix XII-C to join spouse abroad was cancelled and the said teacher was granted a fresh leave for private affairs for the reason mentioned above. Therefore, the petitioner cannot be heard to contend that the factual situation obtained in the case on hand is akin to the factual situation obtained in that case. Even otherwise, when in deviation of a specific provision an irregular or illegal order was passed in the case of one person that cannot be a reason for claiming similar benefit raising the contention of arbitrary or hostile discrimination as this Court cannot issue any direction to perpetuate such an illegality. As regards the challenge of the petitioner against her O.P.(KAT)No.185 of 2016 10 reversion it is to be noted that the stand of the respondents is that she was ineligible to apply to the post of H.S.S.T (Physics) pursuant to the notification dated 18.6.1997. The petitioner joined the service only on 10.8.1995 and evidently as on 31.5.1997 her probation period was not completed and consequently her probation was not declared as satisfactorily completed. In fact, she was granted Leave Without Allowances as per Ext.P1 on 17.2.1997. Evidently, the petitioner rejoined duty after getting cancelled the unavailed portion of Leave Without Allowances sanctioned to her only on 30.7.1997 pursuant to Ext.P3 order passed by the 4[th] respondent. In such circumstances, the findings in Ext.P5 as also in Ext.P11 to the effect that the petitioner was not entitled to apply in response to notification dated 18.6.1997 for the reasons specifically stated therein cannot be said to be illegal. 6. On her rejoining duty she should have been put in the category of H.S.A.(Physical Science) to enable her to start her probation afresh. The question is whether the petitioner is entitled to get the benefit of the decision in **Siva Prasad's** case (supra) and the judgments referred supra so as to get converted LWA of 58 days and then to apply for reckoning the said period for the purpose of declaring the probation so as to sustain her promotion as H.S.S.T. Evidently, the factual situation obtained in **Siva Prasad's** case (supra) is totally O.P.(KAT)No.185 of 2016 11 different. In that case, the employee proceeded on LWA under Appendix XII-A. Evidently, the concerned employee therein contended that the fact that he entered on LWA could not have been worked out against him in the matter of promotion. The reason assigned therein was that he had acquired the eligibility to apply for the concerned post by transfer prior to the sanctioning of the LWA under Appendix XII-A. In other words, in that case, the concerned employee's probation was declared prior to his entry on LWA under Appendix XII-A. In this case, admittedly, the petitioner had not acquired eligibility to apply for appointment by transfer and she had not completed her probation by 31.5.1997 which is the cut off date specified in the notification dated 18.6.1997. The above mentioned three judgments in the writ petitions are also not applicable in this case. Those are cases where the concerned persons were granted leave either under Rule 91 or 91A for study purposes. It is the said nature of leave which was subsequently converted to one under Rule 88 of Part I KSR. In such circumstances, in the light of Ext.P13 and also in view of the impact of availing LWA under Appendix XII-C the reasons in Ext.P5 assigned for rejecting the request for conversion stated in Ext.P11 cannot be said to be illegal or against the provisions of law. It is the said position which was taken into consideration and cited as reasons for dismissing the above mentioned original application by the Tribunal. In such circumstances, O.P.(KAT)No.185 of 2016 12 we do not find any reason to hold that the order of the Tribunal is infected with any irregularity, illegality or impropriety, that calls for any interference. The original petition is liable to fail and accordingly, it is dismissed. Sd/- **C.T.RAVIKUMAR Judge** Sd/- **K.P.JYOTHINDRANATH Judge** TKS