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2002 DIGILAW 632 (KER)

State of Kerala v. C. Thomas Oommen

2002-09-20

K.A.ABDUL GAFOOR, K.K.DENESAN

body2002
Judgment :- Abdul Gafoor, J. Government has come up in appeal assailing the judgment in O.P.No.6710 of 1992 whereby it has been declared that the respondent/petitioner shall be entitled to seniority in the cadre of Asst. Town Planner with effect from the date of advice made for such appointment, viz. 13.10.1988. Few facts are essential, to decide this appeal. Parties shall be described as arrayed in the original petition. 2. Petitioner was advised by the Public Service Commission (for short P.S.C.) for appointment as Asst. Town Planner on 13.10.1988. He joined duty on 11.11.1988. For the purpose of seniority the relevant date is 13.10.1988; whereas for the purpose of probation it was 11.11.1988. Petitioner has Post Graduate qualification in B.Sc. Engineering. He aspired to take a further advanced qualification in Town Planning. For that purpose he required leave without allowance. Rule 91 Part I K.S.R. provides that leave for study purpose shall be granted only to the govt. servants who did have at least two years' service. The only exemption available in that rule is in the case of Schedule Castes and Schedule Tribes candidates. Therefore the petitioner was not entitled to get leave for study purpose in terms of the said Rule. He applied for exemption from the said rigorous condition. That was granted as per Ext.P1 order dated 28.7.1989 "subject to the condition laid down in G.O.(P) No.524/84/Fin.dated 18.9.1984." Ext.P2 is the said Govt. Order dated 18.9.1984. It contains certain guidelines for relaxation from the condition in Rule 91 Part I K.S.R. Any person who is availing leave in terms of Rule 91 on the strength of relaxation shall loose all his service benefits as per Ext.P2. He shall have to commence probation afresh and he shall be treated as new entrant on return from leave, the order provides. When a person is so treated as new entrant necessarily for the purpose of seniority also the date of new entry alone will be counted. In other words the seniority on the strength of the date of advice as provided in Rule 27(c ) of the General Rules in Part II of the K.S. & S.S.R. will no longer be available to such a person. It applied to the petitioner. So, for the purpose of his seniority instead of 13.10.1988, he would be considered as re-entered service after expiry of the leave granted in terms of 19.2.1991. 3. It applied to the petitioner. So, for the purpose of his seniority instead of 13.10.1988, he would be considered as re-entered service after expiry of the leave granted in terms of 19.2.1991. 3. Petitioner, immediately on obtaining Ext.P1, represented against this condition and contended that he shall be granted the leave without such condition as that condition of forfeiture of seniority run contrary to the statutory entitlement for seniority in terms of Rule 27(c ) in Part II of the K.S. & S.S.R. It was answered in Ext.P5 in the negative. He applied for a reconsideration. Govt. turned down that request as well, as is reflected in Ext.P7. It is in the above circumstances the writ petitioner approached this Court challenging Exts.P5 and P7 orders and seeking a declaration that he was entitled to count his seniority from his original date of advice rather than the date of new entry in service. The learned Single Judge, considering the matter in detail found that the condition contained in Ext.P1 read with Ext.P2 to forfeit the seniority acquired by a person on the strength of the date of effective advice is contrary to Rule 27(c ) and thus takes away the valuable statutory right in reckoning seniority. Accordingly, learned Single Judge granted the declaration that he shall be entitled to seniority in the cadre of Asst. Town Planner with effect from 13.10.1988 as if the petitioner is not governed by the condition imposed in clause (i) of Ext.P2. 4. It is contended by the Govt. Pleader that exemption or relaxation orders are issued by Government invoking the power vested in Rule 39 of the General Rules, Part II K.S. & S.S.R. That power enables the Government to deal with any case in any manner as the Government feels just and equitable. In this case petitioner was granted a benefit relaxing the rigorous condition in Rule 91, Part I, K.S.R. In such circumstances Government was perfectly justified to treat that case in a manner, as felt by them, just and equitable, to forfeit the seniority as ordered in Ext.P1 read with Ext.P2. Therefore there is nothing unjust or inequitable in that order, as the petitioner was by reason of acquisition of a new qualification will be placed in a better manner and in such situation others already in service shall not be adversely affected. Therefore there is nothing unjust or inequitable in that order, as the petitioner was by reason of acquisition of a new qualification will be placed in a better manner and in such situation others already in service shall not be adversely affected. That was why such condition had been imposed to avail of relaxation. 5. It is further contended that having obtained a benefit in Ext.P1 read with Ext.P2 and availed of leave and acquired the qualification the petitioner cannot contend that the condition under which the leave had been granted shall be taken away. In other words, he cannot seek the benefit and discard condition in the same breath, Govt. Pleader submits. Therefore the judgment shall have to be set aside, he contends. 6. On the other hand it is submitted by the counsel for the respondent/writ petitioner that when the power for relaxation available to Government is traceable to Rule 39 Part II, K.S. & S.S.R. necessarily the proviso to the said rule shall also have to be conceived. The said proviso reads as follows: "Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders." (emphasis supplied). The main part of Rule 39 has a non-abstante clause referring to the clause contained in the General Rules, Special Rules or any other rules and Govt. Orders. It is referring to those Rules and Govt. Orders, proviso is legislated and that proviso makes it clear that while granting exemption in terms of the main part of the Rules and in such manner as may appear to the Government to be just and equitable, it shall not be in a less favourable manner to the incumbent concerned with regard to any of the provisions contained in the General Rules, Special Rules or the Govt. Orders out of which the incumbent concerned draws any benefit. In other words, relying on proviso the counsel contends that the seniority is a benefit available in terms of Rule 27(c ) and that on the basis of the said statutory provision he has a right to count the seniority from the date of original advice, viz. 13.10.1988. Orders out of which the incumbent concerned draws any benefit. In other words, relying on proviso the counsel contends that the seniority is a benefit available in terms of Rule 27(c ) and that on the basis of the said statutory provision he has a right to count the seniority from the date of original advice, viz. 13.10.1988. The relaxation order contained in Ext.P1 read with Ext.P2 takes away this benefit and treat him in a less favourable manner than as provided by the provisions in Rule 27 of the General Rules. Therefore the condition contained in Ext.P1 relaxation referring to Ext.P2, that he shall loose his seniority and will be treated as a new entrant is contrary to the proviso to Rule 39 and therefore the judgment shall have to be sustained. 7. When the proviso thus categorically provides that any benefit already available cannot be taken away in any manner less favourable in respect of any matter covered by the Rules, the condition contained in Ext.P1 read with Ext.P2 to forfeit the seniority and to treat the incumbent as a new entrant is unjustified. So it is opposed to Rule 27 (c ) of the General Rules in K.S. & S.S.R, as held by the learned Single Judge. Petitioner is entitled to get his seniority counted from 13.10.1988. But he shall have to commence probation from the date of his re-entry in service. The writ appeal fails and it is dismissed.