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2000 DIGILAW 436 (KER)

Maya Raghavan v. State of Kerala

2000-08-18

C.S.RAJAN

body2000
JUDGMENT C.S. Rajan, J. 1. The petitioner was appointed as Lecturer in the Medical College under R.9(a)(i) of the K.S. & S.S.R., as per Ext. P1. Being appointed in a teaching post, she is entitled to continue for one year. She applied for leave on medical grounds enclosing the medical certificate. But, the third respondent by Ext. P9 order took the view that the petitioner was not eligible for the above leave and therefore, her appointment was terminated with effect from 28.5.2000. 2. According to the petitioner, she is entitled to get leave without allowances under R.88 of Part I K.S.R., which reads as follows:- "88. Leave without allowances:- (i) Leave without allowances may be granted to any officer in special circumstances." (a) when no other leave is by rule admissible, or (b) when other leave is admissible but the officer concerned applies in writing for the grant of leave without allowances. (ii) Except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion." 3. Under R.88 of Part I K.S.R., leave without allowances can be granted to any officer in special circumstances, when no other leave is admissible under the rules. Sub-r.(ii) of R.88 says that except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion. 4. On the other hand, the learned Government Pleader relies on Appendix VIII of the K.S.R. Appendix VIII contains the rules for the grant of leave to officers appointed for limited periods. R.1 of the above Appendix says that where the appointment is for one year or less, earned leave on full pay calculated at 1/11th of the period spent on duty may be granted subject to a maximum of 15 days on production of medical certificate. If the Officer serves in a vacation department, earned leave will not be admissible, but he may be granted leave on medical certificate on half pay not exceeding 1/11th of the time spent on duty, subject to a maximum of 15 days. Therefore, according to the learned Government Pleader, the maximum period, if at all admissible to the petitioner is 15 days. But, the petitioner has sought to grant leave for 58 days. Therefore, according to the learned Government Pleader, the maximum period, if at all admissible to the petitioner is 15 days. But, the petitioner has sought to grant leave for 58 days. The learned Government Pleader pointed out that under Note 1, R.3 of the Part I K.S.R., the K.S.R. as a whole shall not apply to the persons appointed to the service of the Government under R.9 of Part II of the Kerala State and Subordinate Service Rules, 1958, except to the extent specified by the Government. Therefore, it was argued that unless specific mention has been made with regard to the class of employees like the petitioner, who were appointed under R.9(a)(i) of K.S. & S.S.R., the rules regarding leave are not applicable to the petitioner. 5. Appendix VIII of K.S.R. refers to Appendix I and Note 1 below R.63 of Part I K.S.R.. Appendix I contains the model form of agreement referred to in R.8 of Part I K.S.R.. R.8 deals with appointments by agreement. Note 1 below R.63 of Part I K.S.R. deals with reemployment of persons after retirement on superannuation. Therefore, according to me, Appendix VIII deals with persons mentioned above who had been described as officers appointed for limited periods. Thus, Appendix VIII does not take in any appointees under R.9(a)(i) of the K.S. & S.S.R. 6. The learned Government Pleader also brought to my attention R.7(viii) Part I K.S.R. where an officer in permanent employment has been defined as an officer who holds substantively a permanent post or who holds a lien on a permanent post or who would hold a lien on a permanent post had the lien not been suspended. An officer appointed under R.9(a)(i) of K.S. & S.S.R. does not satisfy the above definition. 7. My attention was also drawn to Government decision No. 1 in Appendix VIII, wherein it has been stated that rules in Appendix VIII will apply to the provisional recruits in the matter of leave. 8. Therefore, we have to see whether Note to R.3 Part I K.S.R. specifically excludes R.9(a)(i) appointees from the sphere of the rules in K.S.R. Of course, Note I excludes the rules which have not been specifically made applicable in the case of temporary employees under R.9(a)(i) of K.S. & S.S.R. R.88(i) says that leave without allowances may be granted to any officer in special circumstances. Sub-r.(ii) of R.88 says that except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion. Therefore, according to me, persons who are appointed temporarily under R.9(a)(i) are entitled to leave without allowances not exceeding three months. When R.88(ii) mentions that persons other than in permanent employment are not entitled to leave without allowances exceeding three months, it will take in persons appointed under R.9(a)(i) of the K.S. & S.S.R. Thus, according to me, the view taken in Ext. P9 by the third respondent is incorrect. Therefore, I quash Ext. P9. The third respondent is directed to grant leave to the petitioner, for which she has applied along with the medical certificate, if they satisfy the requirements. On the above basis, the third respondent is also directed to reemploy the petitioner as Lecturer in the Medical College. Orders in this respect must be passed within two weeks from the date of receipt of a copy of this judgment. The Original Petition is disposed of as above.