U. Ameen and others v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT :** **THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN** **WEDNESDAY, THE 29TH OCTOBER 2008 / 7TH KARTHIKA 1930** **WP(C).No. 16744 of 2008(R)** **-----------------------------------------** **PETITIONER(S):** **--------------------------** **U.AMEEN, AZEEM MANZIL, KAREELAKULANGARA P.O., EDASSERY, KAYAMKULAM, ALAPPUZHA.** **BY ADV. SRI.JACOB P.ALEX** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO DEPARTMENT OF PUBLIC WORKS, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **2. SECRETARY (FINANCE-EXPENDITURE), DEPARTMENT OF FINANCE, GOVT. SECRETARIAT, THIRUVANANTHAPURAM.** **3. CHIEF ENGINEER, PWD ADMINISTRATION, THIRUVANANTHAPURAM.** **4. EXECUTIVE ENGINEER, OFFICE OF THE EXECUTIVE ENGINEER, PWD, NATIONAL HIGHWAY DIVISION, ALAPPUZHA.** **5. THE SECRETARY TO GOVERNMENT, PUBLIC WORKS (B) DEPARTMENT, THIRUVANANTHAPURAM.** - **SPL. GOVERNMENT PLEADER SRI. N.MANOJKUMAR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 19/08/2008 ALONG WITH WPC.NO.23886 OF 2008 AND WPC.NO.24817 OF 2008, THE COURT ON 29/10/2008 DELIVERED THE FOLLOWING:** _Kss_ ## **WPC.NO.16744/2008 R** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** **EXT.P1: COPY OF THE APPLICATION FOR LEAVE DTD. 26/03/2008 SUBMITTED BY THE PETITIONER. EXT.P2: COPY OF THE LETTER NO.E1/630/97 DTD. 07/04/2008 ISSUED BY THE 4TH RESPONDENT TO THE 3RD RESPONDENT. EXT.P3: COPY OF G.O.(P) NO.161/08/FIN. DTD. 09/04/2008. EXT.P4: COPY OF THE JUDGMENT DTD.22/05/2008 IN WPC.15049 OF 2008. EXT.P5: COPY OF ORDER BEARING NO.10589/B2/08/PWD DTD. 22/05/2008 ISSUED BY THE 5TH RESPONDENT.** ## **RESPONDENT'S EXHIBITS: N I L** ## **/TRUE COPY/** **P.S.TO JUDGE** _Kss_ ## **P.N.Ravindran, J. ===================== W.P(C).Nos.16744, 23886 & 24817 of 2008 =================================** ## **Dated this the 29[th] day of October, 2008.** ## **JUDGMENT** Common questions arise in these Writ Petitions and they were therefore heard together and are being disposed of by this common judgment. ## **W.P.(C) No.16744 of 2008** 2. The petitioner is presently working as Lower Division Clerk in the office of the fourth respondent. He entered service on 6.1.2006 and has completed the period of probation. His probation has however not been declared for the reason that he has not passed the prescribed departmental tests. The petitioner's wife is employed in Saudi Arabia. With a view to join her, he applied for leave without allowances for a period of 5 years from 16.4.2008 under Appendix XII B of Part I of the Kerala Service Rules, hereinafter referred to as the “K.S.R.” for short. Ext.P1 is the application submitted by the petitioner in that regard to the fourth respondent. The fourth respondent in turn forwarded it to the third respondent along with Ext.P2 letter dated 7.4.2008 with a request to the third respondent to forward it to the State Government. Thereafter, on 9.4.2008 the Government issued Ext.P3 order to the effect WP(C) 16744/08,etc. -: 2 :- that requests for grant of leave under Appendices XII A, XII B and XII C of Part I of the K.S.R. from government employees and employees of public sector undertakings appointed through the Kerala Public Service Commission will be considered only after declaration of satisfactory completion of probation in the entry cadre. By Ext.P3, the Government also ordered that necessary modifications to the K.S.R. will be issued separately. Since the respondents refused to consider the petitioner's application for leave, he filed W.P.(C)No.15049 of 2008 in this Court. By Ext.P4 judgment delivered on 22.5.2008, this Court disposed of the said Writ Petition with a direction to the State Government to consider Ext.P1 and pass orders thereon in accordance with law, within a period of one month from the date of receipt of a copy of the judgment. The Government thereafter considered the petitioner's application for leave without allowances and by Ext.P5 letter dated 22.5.2008, informed the third respondent that the petitioner's application for leave without allowances stands rejected for the reason that his probation has not been declared. The petitioner has in this Writ Petition challenged Ext.P5 and prayed for a writ in the nature of mandamus commanding the respondents to consider his application for leave without taking note of Ext.P3. ## **W.P.(C) No.23886 of 2008** 3. The petitioner is working as Lower Division Clerk in the Directorate of Homeopathy. He entered service on 3.8.2007. With a view WP(C) 16744/08,etc. -: 3 :- to join the M.B.A. course, he applied for leave without allowances for a period of 2 years, 3 months and 26 days under Appendix XII B of the K.S.R. The application for leave is dated 22.4.2008. Shortly before the petitioner applied for leave, the Government issued Ext.P2 order dated 9.4.2008 to the effect that requests for grant of leave under Appendices XII A, XII B and XII C of Part I of the K.S.R. from government employees and employees of public sector undertakings appointed through the Kerala Public Service Commission will be considered only after declaration of satisfactory completion of probation in the entry cadre. By Ext.P2, the Government also ordered that necessary modifications to the K.S.R. will be issued separately. The petitioner has in this Writ Petition challenged Ext.P2 and prayed for a writ in the nature of mandamus commanding the second respondent to consider and pass orders on Ext.P1 application for leave without allowances, in accordance with Appendix XII B of the K.S.R. ## **W.P.(C) No.24817 of 2008** 4. The petitioner is working as Lower Division Clerk in the Kerala Water Authority. He entered service on 17.5.2008. With a view to enable him to take up employment abroad, he applied leave without allowances for a period of five years under Appendix XII A of Part I of the K.S.R. as per Ext.P4 application dated 2.6.2008. The fifth respondent forwarded the said application to the Managing Director of the Kerala Water Authority along with Ext.P5 letter dated 16.6.2008, recommending grant WP(C) 16744/08,etc. -: 4 :- of leave. Even before the petitioner applied for leave, the Government had issued Ext.P7 order dated 9.4.2008 order to the effect that requests for grant of leave under Appendices XII A, XII B and XII C of Part I of the K.S.R. from government employees and employees of public sector undertakings appointed through the Kerala Public Service Commission will be considered only after declaration of satisfactory completion of probation in the entry cadre. By Ext.P7, the Government also ordered that necessary modifications to the K.S.R. will be issued separately. The petitioner thereupon submitted Ext.P8 representation requesting the Government to treat his case as a special case and grant him leave without allowances as prayed for. This Writ Petition was thereafter filed challenging Ext.P7 and seeking a direction to the Government to grant the request in Ext.P4 application and also a writ in the nature of mandamus directing the Government to consider and dispose of Ext.P8 representation in the light of the recommendations in Ext.P5 letter. 5. The short question that arises for consideration in these Writ Petitions is whether the decision taken by the State Government as regards grant of leave under Appendices XII A, XII B and XII C is valid and sustainable in law. The learned counsel appearing for the petitioners contend that the Government order dated 9.4.2008 which imposes a restriction on the grant of leave under Appendices XII A, XII B and XII C of Part 1 of the K.S.R. to government employees and employees of public sector undertakings who have not completed their probation in the entry WP(C) 16744/08,etc. -: 5 :- cadre, is arbitrary and discriminatory. The petitioners also contend that as the provisions in Appendices XII A, XII B and XII C have not yet been amended, their applications have to be considered and disposed of in accordance with the existing provisions and that the Government order dated 9.4.2008 cannot operate to their disadvantage or be held out against them. They also contend that the Government order dated 9.4.2008 cannot modify or vary the provisions contained in Appendices XII A, XII B and XII C of Part I of the K.S.R. and that it cannot also be relied on to deny them the leave applied for. Per contra, Sri.P.Manoj Kumar, the learned Government Pleader appearing for the official respondents submitted that the Government is competent to impose conditions for the grant of leave and that the petitioners have no right to claim the leave applied for by them. The learned Government Pleader referred to and relied on Rule 65 of Part I of the K.S.R. in support of the said contention. The learned Government Pleader also relied on the decision of the Apex Court in **Dr.K.Ramulu and another** v. **Dr.S.Suryaprakash Rao and others** - (1997) 3 S.C.C. 59 to contend that even where the field is occupied by Rules, the Government is entitled to take a decision not to operate the Rules, based on their policy decision to amend the Rules. 6. Rule 65 of Part 1 of the K.S.R. reads as follows: “65. Leave cannot be claimed as a matter of right. When the exigencies of the public service so require, WP(C) 16744/08,etc. -: 6 :- discretion to refuse or revoke leave of any description is ” reserved to the authority empowered to grant it. The authority competent to grant leave without allowances under Appendices XII A, XII B and XII C of Part I of the K.S.R. is the State Government. On the terms of Rule 65 of Part I of the K.S.R., the petitioners cannot claim leave under Appendices XII A, XII B and XII C of Part I of the K.S.R. as a matter of right. Rule 65 reserves with the State Government the power to refuse the leave applied for or to revoke the leave already granted. Appendices XII A, XII B and XII C of Part I of the K.S.R. do not confer any enforceable right on the petitioners for the grant of leave permissible under the said provisions. Appendices XII A, XII B and XII C of Part I of the K.S.R. only lay down the conditions subject to which, leave without allowances for the purposes mentioned therein can be granted. On the terms of Rule 65 of Part I of the K.S.R., the petitioners cannot claim that they have a right to be granted the leave which they have applied for. 7. The Government order dated 9.4.2008 reads as follows: “It has come to the notice of the Government that there is a growing tendency among the employees of the State Government and Public Sector Undertakings to proceed on leave under Appendices XII A, XII B and XII C KSRs soon after entry in Government service which causes administrative inconveniences and affects adversely the smooth functioning of Government Departments and Public Sector Undertakings. WP(C) 16744/08,etc. -: 7 :- 2. Government have examined the matter in detail and are pleased to order that the request for grant of leave under Appendices XII A/ XII B/ XII C KSRs in respect of Government employees and those of Public Sector Undertakings who secure appointment through PSC will be considered only after the declaration of satisfactory completion of probation in the entry cadre. 3. Necessary modifications to KSR will be issued separately.” 8. A reading of the Government order dated 9.4.2008 indicates that it was issued in public interest and to prevent administrative inconvenience. It was issued taking note of the growing tendency among Government employees and employees of public sector undertakings to proceed on leave soon after they enter service. The Government have by the order dated 9.4.2008 decided not to grant leave under Appendices XII A, XII B and XII C of Part I of the K.S.R. to persons who have not completed their probation in the entry cadre. The Government order is one intended to ensure the availability of personnel in the entry cadre, in Government service and in public sector undertakings. If employees of the State Government and public sector undertakings proceed on leave without allowances soon after they enter service, either for taking up employment abroad or for study purposes or to join their spouse abroad, it cannot be said that it will not cause administrative inconvenience or affect the smooth functioning of various departments of the Government and public sector undertakings. In my considered opinion, the WP(C) 16744/08,etc. -: 8 :- Government order dated 9.4.2008 is sustainable on the terms of Rule 65 of Part I of the K.S.R. Having regard to the exigencies of public service, the power of the Government to issue the Government order dated 9.4.2008 cannot be questioned. The Government order being one issued in public interest, it cannot also be said to be one which is arbitrary or irrational. The Government order dated 9.4.2008 has been issued to achieve a laudable purpose, namely, to ensure the availability of adequate personnel in Government service and in public sector undertakings. Further, applying the dictum laid down by the Apex Court in **Dr.K.Ramulu and another** v. **Dr.S.Suryaprakash Rao and others** - (1997) 3 S.C.C. 59, the Government is entitled to take a decision not to grant leave under Appendices XII A, XII B and XII C of Part I of the K.S.R., based on their policy decision not to grant leave in terms thereof, to Government employees and employees of public sector undertakings appointed through the Kerala Public Service Commission before they complete probation in the entry cadre, pending amendment to the K.S.R. The policy decision taken by the State Government in the matter of grant of leave to Government employees and employees of public sector undertakings, who have not completed probation in the entry cadre, cannot be said to be arbitrary or irrational. 9. In my considered opinion, the challenge to the Government order dated 9.4.2008 is without merit. The petitioners have no vested right for the grant of leave without allowances under Appendices XII A, WP(C) 16744/08,etc. -: 9 :- XII B and XII C of Part I of the K.S.R. and the Government is also not bound to grant them, the leave they have applied for. The Writ Petitions accordingly fail and are dismissed. P.N.Ravindran, Judge. ess 6/10