G. DEENAPALAN NAIR Vs. THE GOVERNMENT OF KERALA

JUDGEMENT

(1.) PETITIONER and second Respondent were working as Senior Hydro geologist in 1985. Second Respondent applied for Half Pay Leave from 6th April 1985 to 30th April 1985. The Director of Ground Water Department granted that leave. He put in an application for leave without allowance for two years for seeking employment abroad. Without getting that leave sanctioned he left the service. He is the holder of passport No. P. 862574 issued by the Regional Passport Office, Cochin. The passport shows that he left Bombay for the Sultanate of Oman on 6th May 1985. The passport which is in evidence shows that a visa was granted by the Sultanate of Oman which has been stamped on page 9 of the passport. That entry shows that Zubair Enterprises, 4127 RUWI is the employer at whose instance visa was issued. He returned to India on 2nd January 1986. This is evidenced by the seal affixed by the Air Port immigration Office, Bombay on page 7 of the passport. Petitioner's case is that second Respondent left India on 6th May 1985 for taking up employment under Zubair Enterprises and returned to India on 2nd January 1986.

(2.) BY G.O. (Ms) No. 53/85/W and P, dated 2nd August 1985 a new post of Superintending Hydro geologist was created in the Ground Water Department. Second Respondent having left India the next senior -most Senior Hydro geologist was to be promoted to the post under Rule 31(a)(1) of the Kerala State and Subordinate Service Rules. Petitioner being the immediate Junior to the second Respondent was thus posted as Superintending Hydro geologist by G.O. (Rt) No. 518/85/R.P.N., dated 11th September 1985. While the Petitioner was thus holding the post, second Respondent after return from abroad put in an application on 13th January 1986 praying for cancellation of the leave applied for, for seeking employment abroad and for permission to join duty with effect from 14th January 1986.

(3.) LEARNED Counsel representing the second Respondent raised a preliminary objection on the maintainability of this Original Petition. It is argued that the regularisation of the period of absence of the second Respondent is a matter concerning him and the Government. Petitioner has no voice in that issue, when the Government after applying its mind to the various provisions contained in the K.S.R. has granted the leave, Petitioner has no locus standi to challenge the same under Article 226 of the Constitution. On account of the regularisation of the period of absence he being the senior most Senior Hydro geologist is entitled to get the post of Superintending Hydro geologist as per Rule 31(a)(1) of the Kerala State and Subordinate Service Rules. The mere fact that Petitioner got a provisional posting as Superintending Hydro geologist in the absence of the second Respondent is no basis for challenging the regularisation of second Respondent's period of absence.