Judgment :- Shanmugam, J. W. A. No. 986/1993 was referred to the Full Bench by the Division Bench on the question of interpretation of the fourth proviso to Rule 8 of Part II of the Kerala State and Subordinate Services Rules and Rule 31(a)(i) of the Kerala State and Subordinate Services rules read with Appendix XII-A of the Kerala Service Rules (clause 4). The above O.P. was subsequently referred by a learned single judge to the Full Bench to be posted along with W.A. No. 986/93. However, W.A. No. 986/93 was allowed to be withdrawn and dismissed. Therefore, O.P. No. 3250/1989 is taken up for consideration. 2. The petitioner, while working as Assistant Executive Engineer under the creater Cochin Development Authority applied for leave for live years forgoing abroad for seeking private employment. Even though the Secretary, creater Cochin Development Authority (G.C.D. a.) granted him leave for two years from 1-3-1977 to 28-2-1979, the petitioner got extension of his leave for a further period of three years from 28-2-1979 and a further extension of leave for five years from 1-3-1982. He joined the service back on 28-2-1987. Before he was allowed to join duty there were a number of proceedings in reference to his leave application for extensions of the leave and the grant of leave for a total period of ten years both by the G.C.D.A. as well as the covernment which may not be relevant for the purpose of this case. 3. While the petitioner was on leave he has given notional promotion as Executive Engineer from 26-6-1980, the date on which his immediate junior in the category of Assistant Executive Engineer was promoted as Executive Engineer. But since the petitioner continued on leave without allowance and in the meantime five of his juniors who were promoted as Executive Engineers completed their probation, the petitioner who was yet to commence his probation, was reverted as Assistant Executive Engineer by proceedings of the Secretary, G.C.D. A. dated 2-3-1987. The petitioner moved this Court in O.P. No. 2349/1987 to quash this proceeding dated 2-3-1987 and for a declaration that he is entitled to join duty as Executive Engineer and commence his probation with effect from 28-2-1987. When the above O.P. came up for disposal the petitioner desired to withdraw the O.P. with liberty to approach this Court in future if so advised and accordingly the O.P. was dismissed on 11-11-88. When the above O.P. came up for disposal the petitioner desired to withdraw the O.P. with liberty to approach this Court in future if so advised and accordingly the O.P. was dismissed on 11-11-88. The present O.P. is filed on 5-4-1989 seeking to quash the same proceedings dated 2-3-1987 and also to declare that Rules 8,9 and 31 of K.S.& S.S.R.1958 as amended are only prospective in nature and do not apply to the petitioner or alternatively to strike down the amended provisions as unconstitutional, and for a further direction to consider the case of the petitioner for promotion to the post of Superintending Engineer. 4. The relevant rule relating to absence from duty is Rule 8 of Part II K.S.&S.S.R.,1958, hereinafter referred to as 'the Rules'. The portion of the relevant Rule for our purpose is as follows: "8. Members absent from duty: -The absence from duty in such service, whether on leave, other than leave without allowances for taking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn, xxx xxx xxx (b) for promotion from a lower to higher category in such service; xxx xxx xxx xxx xxx xxx Provided that subject to the provisions of Rule 18 he shall satisfactorily complete the period of probation on his return. xxx xxx xxx xxx xxx xxx Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appoinouent to another service not being Military service, solely on his own -application, unless such appoinouent is made in the exigencies of public service". 5.. By amendment dated 30-9-1986 the words "other than leave without allowances for taking up other employment" were inserted. The case of the petitioner is lliat during the relevant time, ie. from 1-3-1977 to 28-2-1987, the petitioner was on leave without allowances and this will not disentitle him to claim promotion to the post of Executive Engineer. 5.. By amendment dated 30-9-1986 the words "other than leave without allowances for taking up other employment" were inserted. The case of the petitioner is lliat during the relevant time, ie. from 1-3-1977 to 28-2-1987, the petitioner was on leave without allowances and this will not disentitle him to claim promotion to the post of Executive Engineer. But the last proviso to Rule 8 states that by reason of his own application if he absented from duty this rule shall not apply to him, unless such appoinouent is made in the exigencies of public service. The first proviso which says that he shall satisfactorily complete the period of probation on his return will also oblige the petitioner to begin and complete the period of probation after he returned to India. 6. The petitioner submitted his application for the grant of leave on loss of pay and by proceedings dated 28-2-1977 the 3rd respondent granted leave subject to the condition that the leave of absence will not be counted as service for the purpose of seniority and for the purpose of promotion. The order on his application makes it clear that he is not entitled to avail of seniority and promotion. The proceedings of the 3rd respondent is obviously based on a covernment Order in G.O. (P) 274/70/Fin. dated 29-4-1970. In the said covernment Order the covernment issued guidelines for the grant of leave. Clauses (b) and (d) of sub-clause (ni) are relevant for our purpose: "(b) [n the case of an officer who is eligible for appoinouent to a selection post but who has not been included in the "selection list' at the time of granting leave, appoinouent to the selection post will be made only after his performance- is assessed ;uid his case reconsidered by the Deparouental Promotion Committee, on his return from leave. (d) In the case of non-selection posts, appoinouent will be made during the period of leave and the officer allowed to continue on leave, subject to other conditions being satisfied". As per this covernment Order an officer is not eligible to he considered for the selection post and any such appoinouent can he done only after his performance is assessed on his return from leave. Contrary to this specific provision he was given a notional promotion as Executive Engineer from 26-6-1980 during his leave. As per this covernment Order an officer is not eligible to he considered for the selection post and any such appoinouent can he done only after his performance is assessed on his return from leave. Contrary to this specific provision he was given a notional promotion as Executive Engineer from 26-6-1980 during his leave. However when the petitioner rejoined duty after 10 years and reported for duty with effect from 28-2-1987 he was reverted as Assistant Executive Engineer and admitted to duty as Assistant Executive Engineer with effect from 28-2-1987, by order dated 2-3-1987, the impugned order herein. Thereafter the petitioner was promoted by order dated 7-10-1987 as Executive Engineer in an upgraded post and allowed to commence his probation in the category of Executive Engineer from 7-10-1987 and completed the probation on 6-10-1988. Therefore his rank and seniority has to be assigned only from the date of his completion of his probation in the cadre of Executive Engineer. The petitioner's claim that he must be assigned his rank based on his notional promotion date of 1980 cannot at any stretch of imagination be sustained. The order of reversion of the petitioner to the post of Assistant Executive Engineer dated 2-3-1987 has become final. By virtue of the provision of Rule 8 read with covernment order dated 29-4-1970 and Hie specific condition while granting the leave by the 3rd respondent dated 28-2-1977 (Ext. P2), the petitioner is not eligible to count the period during his leave for the purpose of seniority and promotion. 7. In Krishna Pillai v. State of Kerala (1988 (2) KLT 106) a question arose whether a covernment servant who was granted leave to take employment abroad is entitled to count the period for the purpose of service and promotion. In that case the petitioner was granted leave without allowances and it was also stated that the leave will not count for increment, pension or any other service benefits. The contention of the petitioner in that case was that the condition thus imposed was contrary to Rule 8 of the Rules. The Division Bench held that the petitioner had gone abroad on leave without allowances and therefore lie was not eligible for the privileges conferred by Rule 8. The contention of the petitioner in that case was that the condition thus imposed was contrary to Rule 8 of the Rules. The Division Bench held that the petitioner had gone abroad on leave without allowances and therefore lie was not eligible for the privileges conferred by Rule 8. The Division Bench also took note of the fourth proviso and held that since the appointment was secured by him solely on his application, the fourth proviso was attracted and inasmuch as the appoinouent secured was not in the exigencies of public service but for the personal benefit the entire Rule 8 become inapplicable. The petitioner tried to distinguish this judgment stating that at the time when the petitioner was granted leave the expression "other then leave without allowances for taking up other employment" was not there and the same was inserted only in the year 1986. Assuming for the sake of argument the order of granting leave (Ext. P2) and covernment Order dated 29-4-1970 (Ext. P4) were ignored, the fourth proviso will he attracted in his case and therefore the petitioner is not entitled to the benefit under Rule 8. 8. The said judgment of the Division Bench has been consistently followed in W.A. No. 952 of 1989 dated 21-2-1990, W.A. No. 463 of 1989 dated 5-6-1989, W.A. Nos. 4 and 18 of 1986 dated 17-6-1988 and S.L.P. Nos. 15150 & 15151 of 1988 against W.A. Nos.4& 18 of 1986 which were dismissed by order dated 13-12-1988 and W.A. No. 644'of 1,987 dated 3-12-1987. In all the decisions the Division Bench has taken consistent view and followed Krishna Pillai's case (1988(2) KLT 106). Further it has been held that members of the service who have completed their probation arc entitled to seniority over and above the memhcrs who have gone on leave for taking employment abroad. It has been held in all these case that the officers availing leave are bound by the conditions stipulated in the orders granting leave besides Rule 8 of the Rules. 9. The learned counsel for the petitioner referred to an unreported decision of the Supreme Court in T. Krisluuniknlly v. State of Kerala & others (Civil Appeal No. 1275/1990) by virtue of this decision the matter was referred textile Full Bench. 9. The learned counsel for the petitioner referred to an unreported decision of the Supreme Court in T. Krisluuniknlly v. State of Kerala & others (Civil Appeal No. 1275/1990) by virtue of this decision the matter was referred textile Full Bench. In the case before the Supreme Court the appellant sought for promotion to the post of Headmaster in an aided school and also wauled to count the period of his absence of four years for the purpose of his eligibility. The Supreme Court while dealing with the covernment Order dated 29-4-1970 invoked clause (d) wherein it was specifically staled that in the case of non-selection posts, appoinouent will be made during the period of leave and the officer allowed to continue on leave, subject to other conditions being satisfied. Besides the Supreme Court also referred to Rule 26 of the Kerala Education Rules wherein it was provided that the time passed on leave with or without, allowances will count as qualifying service unless otherwise specified. The Supreme Court specifically declined to consider Rule 8 of the K.S.& S.S.R. stating that it is unnecessary to consider because those regulations do not apply as the appellant's conditions of service are governed by the Kerala Education Rules. Under those circumstances the Supreme Court held that the appellant thereunder was entitled to count his leave as part of his service, and also held that his reversion was not justified. But the case on hand is factually and legally different. The rule that applies in the case of the petitioner is Rule 8 of the Rules and clause (b) of the covernment Order dated 29-4-1970. Besides the petitioner is entitled to count his probation only from the date of his assuming charge and discharging the functions of the Executive Engineer after his return from leave. By virtue of the fact that the petitioner commenced his probation after his return and completed his probation only on 6-10-1988 and much earlier his juniors have been appointed in the post of Executive Engineer and completed their probation, he is not entitled to claim seniority from the dale of his notional promotion. It is not the case of the petitioner that he could have been declared to have completed probation even earlier. The Supreme Court decision in C. A. No. 1275/90 will not apply to the facts of the case and is distinguishable. It is not the case of the petitioner that he could have been declared to have completed probation even earlier. The Supreme Court decision in C. A. No. 1275/90 will not apply to the facts of the case and is distinguishable. The petitioner has not addressed any argument on the unconstitutionality of the amendment whereby a member of service who was granted leave without allowances is also entitled to the benefits of Rules 8,9 and 31 of K.S.& S.S.R. The rule which disentitles those who were on leave without allowances is a salutory provision and is reasonable. The members of service who absented themselves from duly without allowances for taking up other employment cannot be allowed to lake away the rights accrued to the members of service who are already in service. A member of service who takes up employment after availing leave cannot be allowed to have the double benefit of service/ promotion as well his leave. The condition imposed on the petitioner while granting leave was in accordance with the covernment Order and the Service Rules. In any event the prayer of the petitioner in reference to the amendment to Rules 8,9 and 31 is only academic inasmuch as the petitioner become ineligible for promotion to the post of Executive Engineer during the period of his leave by virtue of the two provisos to Rule 8. 10. The learned counsel placed reliance on Rule 3 of the Kerala covernment Servants' Application for Posts (Private Employment and covernment service) Rules, 1958. From the rules we do not find any other right than already conferred under Rule 8 of the Service Rules. 10. The learned counsel placed reliance on Rule 3 of the Kerala covernment Servants' Application for Posts (Private Employment and covernment service) Rules, 1958. From the rules we do not find any other right than already conferred under Rule 8 of the Service Rules. Condition (2) of Rule 3(B)(4)(b)(ni) as originally stood is as follows: "(2) In the case or 'an officer who is eligible for appoinouent to a selection post but who has not been included in the "Select List' at the lime of graining leave, appoinouent to the selection post will be made after his suitability is assessed by the Deparouental Promotion Committee on the basis of his confidential reports for the periods immediately preceding the period for which leave has been granted and if the confidential reports of these periods are not available on account of the fact that Hie nature of service during the periods is one for which no confidential records is obligatory, on the basis of his confidential report of one year on joining duty alter Jcave. (sub-rule (4) of rule 3(B) in sub-clause (ni) of clause (b)(2) amended vide G.O.(NMS) No. 39/77/GAD dated 4th February, 1977)". Similarly condition (4) of R.3(B)(4)(b)(ni) is as follows: "(4) In the case of non-selection posts, appointment will be made during the period of leave and the officer allowed to continue on leave, subject to other conditions being satisfied." The rule 3(b)(4)(ni)(1) as it stands today makes it clear that the period spent on leave without/ allowances shall be treated as 'dies-non' for all kinds of service benefits. The rule 3(B)(4)(h)(ni)(2) makes it clear that the officer will forfeit the service benefits mat have accrued to them prior to their proceeding on leave and they will be deemed as new entrants to covernment Service on return from leave. Condition (6) of Rule 3(B)(4)(h)(ni) slates that in the case of non-selection posts, appoinouent shall be made only after his return from leave subject to availability of vacancy. Thus the amended rule as it stands today gives no room for doubt whatsoever that the officer who goes on leave to lake employment elsewhere is not end lied to any service benefits and as a matter of fact, he will be deemed to be a new entrant to covernment Service forfeiting service benefits accrued earlier if he has not completed his probation. In the case of non-selection post, he will be considered for the vacancy only if there is availability of the post. Even based on the unamended Rules the petitioner cannot have any better rights than available under R.8 of the Service Rules, as it. could be seen from the rules extracted above. For all these reasons we hold that the Original Petition is devoid of any merit. Accordingly the Writ Petition is dismissed, no order as to costs.