Kerala High Court

K.K.Mammed Koya vs The Managing Director on 1 July, 2021

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                     PRESENT
                 THE HONOURABLE MR. JUSTICE AMIT RAWAL
                          ST
        THURSDAY, THE 1        DAY OF JULY 2021 / 10TH ASHADHA, 1943
                           WP(C) NO. 37055 OF 2015
PETITIONER/S:

           K.K.MAMMED KOYA
           AGED 53 YEARS
           S/O.ABOOBACKER, KUZHICKANDATHIL HOUSE,CHATHAMANGALAM
           P.O., PIN : 673 601,KOZHIKODE DISTRICT (DRIVER,
           KSRTC,THAMARASSERY DEPOT).

           BY ADV SRI.K.P.JUSTINE (KARIPAT)



RESPONDENT/S:

    1      THE MANAGING DIRECTOR
           KSRTC, TRANSPORT BHAVAN, EAST FORT,THIRUVANANTHAPURAM
           - 695 023.

    2      THE EXECUTIVE DIRECTOR ADMINISTRATION
           KERALA STATE ROAD TRANSPORT CORPORATION,TRANSPORT
           BHAVAN, EAST FORT,THIRUVANANTHAPURAM - 695 023.

    3      THE ASSISTANT TRANSPORT OFFICER
           KSRTC, THAMARASSERY DEPOT. 673 603

           SRI. T.P SAJAN, KSRTC


     THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON
01.07.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
 WP(C) NO. 37055 OF 2015
                                     2



                            JUDGMENT

Petitioner, on competition of probation on 20.6.2003, joined the

service of Kerala State Road Transport Corporation with effect from

26.7.2000. Vide order dated 5.5.2007, Ext.P2, was sanctioned leave

without allowance for seeking employment abroad with effect from

11.5.2007. He readmitted to duty on 18.1.2010. The petitioner was on

LWA w.e.f 11.5.2007 to 18.1.2010 and rejoined the duty on

19.1.2010. At the time of availing LWA, the rank number was 1807A

which was reduced on re-joining to 6483R as evident from the

impugned order dated 3.10.2015, Ext.P4.

2. Learned counsel representing the petitioner submitted that

the rule regarding the granting of leave without allowance for

employment abroad to the Government employees is provided in

Appendix XII A of KSR Part I, Ext.P5. Respondent adopted the afore-

mentioned provision vide proceedings dated 21.8.1984. There is no

provision for reduction of the seniority and the rank; the only bar is

that in case some junior was promoted ie, during the period the

petitioner remained leave without allowance otherwise the seniority

as per the judgment of the Supreme Court in Mohammed Abdulla

v. State of Kerala in 2008 (1) KLT 712 (SC) cannot be lost. WP(C) NO. 37055 OF 2015

3. No counter has been filed on behalf of the KSRTC, opposing

the aforementioned grounds.

4. I have heard the learned counsel for the parties and

appraised the paper book and of the view that the judgment relied

upon by the petitioner is purely applicable to the facts of the case.

Supreme Court in paragraph 14 and 15 taking into consideration the

Appendix XII A of Kerala Service Rules observed as under:

14. Appellant availed leave without allowance in terms of para. 4 of the said rules while he was working as Audit Officer of Local Fund Accounts. But prior thereto he had already entered the cadre of Grade II Auditor and completed his period of probation. He was a permanent Government servant. Once he became permanent Government servant, the question of his availing leave while he had not completed the period of probation in the entry grade as envisaged in para. 5 of Appendix XIIA of the rules would not arise. Distinction between paras. 4 and 5 is apparent. Para. 4 deals with the cases of permanent officers who have completed the period of probation in their entry cadre in the regular service, whereas para.5 speaks of non-permanent officers in regular service who have not completed probation in their entry grade. In the latter case, all the service benefits which had accrued to the officer prior to his proceeding on leave, would be forfeited and he has to be treated as new entrant when he rejoins his post. It has categorically been stated in para. 5 that only the service of the concerned officer is protected but any benefit thereof is not to be given. Para.4, on the other hand, deals with a situation where a person availing leave thereunder would lose his seniority in the higher grade with reference to his juniors who might get senior grade before he rejoins his duty.

15. Condition precedent for denying the concerned officer the benefit of his seniority is that his junior in the meantime must obtain a senior grade before he rejoins his duty. Para.4, in our opinion, speaks of the entry in the regular service of the Government, whatever be the cadre held by the employee.

WP(C) NO. 37055 OF 2015

5. On consideration of the rival contention and the case law

on the point held as under:

21. The High Court furthermore wrongly applied Cl.(c) of R.27 of the Kerala State and Subordinate Service Rules, as the question of fixation of the relative seniority and the order in which their names are arranged in the revised list (as recommended by Public Service Commission) would not arise in a case of this nature where the question is as to whether the entry in the State Service is by way of transfer from Subordinate Service or by promotion as such a situation has to be made from amongst the existing Government servants and not outsiders.

22. R.3 of the Kerala Local Fund Audit Service Special Rules in no unmistakable term says that even for the purpose of appointment by transfer to the post of Audit Officer, the names of the employees mentioned in the select list prepared from amongst the eligible officers on the basis of their merit and ability are to be taken into consideration as the seniority is to be considered only when merit and ability are approximately equal. Once, therefore, the appellant was found to be eligible for promotion or for that matter, for recruitment by transfer, to the post of Audit Officer on the basis of his merit and ability, although seniority being the relevant criteria, provided merit and ability of the respective candidates were approximately equal, in our opinion, his promotion shall not have been cancelled.

23. For the reasons aforementioned, we are of the opinion that the impugned judgment cannot be sustained, which is set aside accordingly. The appeal is allowed. However, in the facts and circumstances of this case, there shall be no order as to costs.

We make it clear that this order shall not affect the benefits which might have been given to the third respondent herein pursuant to the order impugned in the Writ Application.

Similar is the controversy involved in this case where vide

impugned order Ext.P4, the petitioner's seniority and the rank was WP(C) NO. 37055 OF 2015

reduced from 1807A to 6483R. Thus, impugned order Ext.P4 is not

sustainable, accordingly it is quashed. The writ petition is allowed.

The respondents are directed to restore the seniority and the original

rank of the petitioner, in accordance with the observation made

herein above.

Sd/-

sab AMIT RAWAL

JUDGE WP(C) NO. 37055 OF 2015

APPENDIX OF WP(C) 37055/2015

PETITIONER ANNEXURE