STATE OF KERALA Vs. C THOMAS OOMMEN

JUDGEMENT

(1.) 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. R.91 Part. I KSR provides that leave for study purpose shall be granted only to the Government servants who did have at least two years service. The only exemption available in that rule is in the case of Scheduled Castes and Scheduled 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 Government Order dated 18.9.1984. It contains certain guidelines for relaxation from the condition in R.91 Part I K.S.R. Any person who is availing leave in terms of R.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 R.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.) 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 R.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. Government 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 R.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.