Prasannakumaran Nair V.N vs State Of Kerala
2021 Latest Caselaw 4427 Ker

               IN THE HIGH COURT OF KERALA AT ERNAKULAM

                               PRESENT

          THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN

     MONDAY, THE 08TH DAY OF FEBRUARY 2021 / 19TH MAGHA,1942

                      WP(C).No.14396 OF 2019(Y)

PETITIONER:

               PRASANNAKUMARAN NAIR V.N.,
               S/O.NARAYANAN NAIR, VALIYAPURAYIDATHIL,
               KOTTANADU P.O., VRINDAVANAM, THIRUVALLA- 689592
               (LABORATORY ASSISTANT, DEVASWOM BOARD, HIGHER
               SECONDARY SCHOOL, THIRUVALLA-689101).

               BY ADV. SRI.S.SUBHASH CHAND

RESPONDENTS:

      1        STATE OF KERALA, REPRESENTED BY THE SECRETARY TO
               GOVERNMENT DEPARTMENT OF GENERAL EDUCATION (T) AND
               HIGHER EDUCATION, GOVERNMENT SECRETARIAT,
               THIRUVANANTHAPURAM- 695001.

      2        THE DIRECTOR OF HIGHER SECONDARY EDUCATION,
               OFFICE OF THE DIRECTOR OF HIGHER SECONDARY
               EDUCATION, HOUSING BOARD BUILDINGS, SHANTI NAGAR,
               THIRUVANANTHAPURAM- 695001.

      3        THE REGIONAL DEPUTY DIRECTOR,
               HIGHER SECONDARY EDUCATION, CHENGANNUR- 689121.

      4        THE CORPORATE MANAGER/SECRETARY,
               TRAVANCORE DEVASWOM BOARD SCHOOLS, NANTHANCODE,
               THIRUVANANTHAPURAM- 695004.

      5        THE JOINT DIRECTOR (ACADEMIC), OFFICE OF THE
               DIRECTOR OF HIGHER SECONDARY EDUCATION,
               HOUSING BOARD BUILDINGS, SANTHI NAGAR,
               THIRUVANANTHAPURAM- 695001.


               SR. G.P. P.M. MANOJ

     THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD           ON
08.02.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WPC 14396/19
                                       2


                                  JUDGMENT

The petitioner says that he is presently

working as a Laboratory Assistant in "Devasom

Board Higher Secondary School", Thiruvalla

and that he was originally appointed to the

said post with effect from 11.12.2003. He

says that, however, his appointment was not

approved by respondents 2 and 3, only for the

reason that it has been effected after the

cut-off date of 28.03.2003, which is the date

on which Government created the post of

Laboratory Assistant; and that he was,

therefore, constrained to challenge the said

order by filing W.P.(C) No.32945/2005 before

this Court.

2. The petitioner says while the above

said writ petition was pending before this

Court, he was retrenched from service by

respondent No.4, solely on the ground that WPC 14396/19

his original appointment had not been

approved. He says that on account of

consequent severe financial crisis, he went

abroad to seek employment from 03.06.2008 to

16.06.2013.

3. The petitioner says that while so,

the afore mentioned writ petition was allowed

through Ext.P2 judgment and the orders

impugned therein was set aside, thus paving

way for his rejoining the school, which he

did on 19.12.2013. The petitioner asserts

that Ext.P2 judgment was confirmed in appeal

by a learned Division Bench of this Court in

Ext.P3 judgment, which was, in turn,

confirmed by the Hon'ble Supreme Court when

the SLP preferred against it was dismissed.

4. The petitioner says that he is,

however, aggrieved by the fact that in spite

of all these, Ext.P7 order has been issued

declining his request for grant of Leave WPC 14396/19

Without Allowances during the period when he

was under retrenchment for the reason that he

had left India without the permission of the

Government and that this construes to be a

major misconduct under the provisions of the

Kerala Civil Services (Classification,

Control & Appeal Rules, 1960).

5. The petitioner, therefore, impugns

Ext.P7 as being illegal and unlawful and adds

that, in fact, in an identical situation,

this Court has, through Ext.P9 judgment in

W.P.C).No.30837/2018, directed a similarly

placed person to be granted Leave Without

Allowances, after regularizing his services.

6. I have heard Sri.S.Subhash Chand,

learned counsel appearing for the petitioner

and Sri.P.M.Manoj, learned Senior Government

Pleader, appearing on behalf of the official

respondents.

7. In response to the submissions of WPC 14396/19

Sri.S.Subhash Chand made as afore on behalf of

the petitioner, the learned Senior Government

Pleader submitted that Ext.P7 has been issued

only because the petitioner had taken leave

and had left India without seeking any

permission from the Government, particularly

when he had been continuing in service without

approval. He submitted that, therefore, the

competent Authority was well within its power

to have issued the said order and prayed that

this writ petition be dismissed.

8. When I consider the submissions of

Sri.P.M.Manoj - learned Government Pleader,

there is little doubt that there is a deep

flaw in the stand adopted by the Educational

Authority in issuing Ext.P7 because, at the

time when the petitioner was out of India, it

is admitted that he was retrenched and was not

in service. The fact that he was retrenched is

also reflected in Exts.P2 and P3 judgments, WPC 14396/19

wherein, the original order denying approval

to the petitioner's appointment with effect

from 11.12.2003 has been set aside and he was

allowed to continue in duty, thus conceding to

no doubt that the period of retrenchment will

have to be regularised in one manner or the

other, as per law.

9. It is in this background that the

petitioner applied for Leave Without

Allowances, which normally should have been

granted as a natural consequence of the

directions in Exts.P2 and P3 judgments; but it

has been now rejected through Ext.P7 for the

reason that the petitioner was not in India

and had availed 'unauthorised leave' during

the period when he had not been granted such

approval.

10. As I have already said above, the

fundamental flaw in the stand adopted by the

Educational Authority is that the petitioner WPC 14396/19

was not in service at the time when he went

out of India and that he was litigating before

this Court against denial of his approval with

effect from 11.12.2003.

11. Obviously, therefore, there was no

question of the petitioner applying for or

availing leave from the Government, when he

remained under retrenchment solely on account

of the fact that his earlier appointment has

not been approved.

12. In this context, I have also examined

Ext.P9 judgment and it is perspicuous that

this has also been rendered in more or less

analogous circumstances, wherein, a similarly

placed person had been ordered to be granted

the benefit of Leave Without Allowances during

the period when he also remained out of

service.

In the afore circumstances, I order this

writ petition and set aside Ext.P7 and the WPC 14396/19

consequential Ext.P8 order; with a resultant

direction to the 1st respondent-State of

Kerala to reconsider the petitioner's request

for Leave Without Allowances for the period

during which he was under retrenchment and to

issue appropriate orders thereon, adverting to

my observations above as also to the

directions in Ext.P9 judgment, as

expeditiously as is possible, but not later

than two months from the date of receipt of a

copy of this judgment.

Needless to say, once the afore exercise

is completed, all consequential benefits due

to the petitioner, including revision

benefits, if any, shall be disbursed to him

without any further delay, but not later than

one month thereafter.

Sd/-

                                        DEVAN RAMACHANDRAN
      RR                                        JUDGE
 WPC 14396/19




                          APPENDIX
      PETITIONER'S/S EXHIBITS:

      EXHIBIT P1       TRUE COPY OF THE APPOINTMENT ORDER
                       DATED 11/12/2003 ISSUED BY
                       RESPONDENT NO.4.

      EXHIBIT P2       TRUE COPY OF THE JUDGMENT DATED

3/7/2013 PASSED BY THIS HON'BLE COURT IN W.P.(C) NO.32945 OF 2005 (V).

EXHIBIT P2A TRUE COPY OF THE ORDER DATED 30/11/2013 BY WHICH THE RETRENCHMENT OF THE PETITIONER WAS CANCELLED AND HE WAS ALLOWED TO REJOIN DUTY AS LABORATORY ASSISTANT AT DEVASWOM BOARD HIGHER SECONDARY SCHOOL, THIRUVALLA.

EXHIBIT P3 TRUE COPY OF THE JUDGMENT DATED 8/9/2015 PASSED BY THIS HON'BLE COURT IN W.A.NO.761 OF 2014.

EXHIBIT P4 TRUE COPY OF THE GOVERNMENT ORDER DATED 19/7/2016 PASSED BY THE RESPONDENT NO.1.

EXHIBIT P5 TRUE COPY OF THE JUDGMENT IN CONTEMPT CASE (C) NO.272 OF 2016.

EXHIBIT P6 TRUE COPY OF THE ORDER DATED 3/11/2016 PASSED BY RESPONDENT NO.3.

EXHIBIT P7 TRUE COPY OF THE ORDER DATED 15/3/2018 ISSUED BY RESPONDENT NO.1 TO RESPONDENT NO.2.

EXHIBIT P8 TRUE COPY OF THE ORDER DATED 12/4/2019 ISSUED BY RESPONDENT NO.5 TO RESPONDENT NO.4.

WPC 14396/19

EXHIBIT P9: TRUE COPY OF THE JUDGMENT DATED 09/12/2019 IN WPC.NO.30837/2018(D) PASSED BY THIS HON'BLE COURT.

EXHIBIT P10: TRUE COPY OF THE GOVERNMENT ORDER BEARING GO.NO.2915/2020/G.EDN. DATED 02/11/2020.

EXHIBIT P11: TRUE COPY OF THE ORDER BEARING ROC NO.10955/20/EDN. DATED 30/11/2020 OF RESPONDENT NO.4.