SHIVADASAN N K Vs. STATE OF KERALA

JUDGEMENT

(1.) The appellants were the petitioners before the learned Single Judge. The appellants in the writ petition claimed the scale of pay of Primary School Headmasters which was denied to them despite their being promoted as such. The denial of the scale of pay was on the ground that they did not have 15 years of continuous service as on the date of promotion, since, during their permanent service, they had availed of leave without allowances for obtaining employment abroad and the period in which they were on leave cannot be included in the computation of" 15 years of continuous service. The undisputed facts are that the first appellant joined service as PD teacher on 6.6.1985 and availed leave for the purpose of taking up employment abroad between 1.4.1998 to 31.5.2005. The first appellant rejoined duty on 1.6.2005 and was promoted as Headmaster and posted in a Lower Primary School by Ext.P2 order dated 24.8.2005. The second appellant joined service as PD teacher on 20.1.1986 and remained on leave without allowances between 1.2.1994 to 30.1.1999 and from 30.3.1999 to 15.6.2003. The second appellant rejoined duty on 15.6.2003 and was also promoted as Headmaster as per Ext.P2 order dated 24.8.2005. The claim for scale of pay applicable to Headmasters was rejected on the ground that the appellants did not satisfy the prescription of 15 years continuous service as the period they continued on leave without allowances necessarily has to be excluded. It is not disputed that the appellants were granted leave without allowances in the light of Rule 88 of Part I Kerala Service Rules read with Appendix XIIA. In Clause 4 it was specified that during the currency of the period of leave the officer shall loose service benefits such as earning of leave including half pay leave, pension, gratuity increment etc., and also promotion chances that may arise with reference to their seniority in that grade for and during the currency of the leave period. The State before the learned Single Judge as also before this Court contended that the appellants having been sanctioned leave subject to the above conditions and they having always been aware of the conditions under which leave was granted cannot now turn around and seek otherwise especially since they accepted the said condition and proceeded on leave and remained as such till they rejoined duty. The learned Single Judge found favour with the contention of the Government and after an elaborate discussion of various precedents on the point dismissed the writ petition.

(2.) Before us, the Learned Counsel for the appellants, Sri. M.P. Prakash would contend that pay fixation has to be made on being promoted to a post and the promotee is entitled to pay attached to the post. The appellant's counsel would contend that going by Rule 28(A) of Kerala Service Rules as also the definition of pay and allowance the benefit of fixation cannot be altered by Ext.P17 and P18 Government Orders. The appellants, both of whom had voluntarily made applications for leave proceeded on such leave and continued as such; well aware of the condition imposed by the order which granted sanction. The appellants did not challenge the said condition at the time of sanctioning of the same nor during the period in which they were continuing on leave. The appellants having enjoyed the benefit of the leave without allowances for the entire period, in which it was sanctioned, joined for duty and was later promoted by Ext.2 order to the post of Headmaster. The cause of action according to the appellants arose when Government declined to grant them the scale of pay applicable to the Headmasters. It is then that they choose to challenge Exts.P17 and P18 orders which according to them are unconstitutional and inoperative and cannot apply to their detriment in the matter of pay fixation.

(3.) The appellants having applied for leave without allowances with their eyes open and having availed of the benefit subject to specific conditions under Rule 88 of Part I KSR read with Appendix XIIA and having never challenged the condition imposed on them cannot at a later point turn around and claim the benefit of service during the period in which they remained on leave for the purpose of pay fixation. In addition is the inordinate delay in challenging the condition imposed on them; which in fact is the challenge made, though styled as one against denial of pay fixation in the promoted post. this Court has considered the issue in a number of cases cited by the learned Single Judge and held against such period of leave without allowance being treated for availing of benefits specifically flowing from the service rendered by an employee. In Krishnapillai v. State of Kerala,1998 2 KerLT 106, a Division Bench of this Court considered the question in the context of the State and Subordinate Services Rules and held that the expression "any other service benefits" includes benefit of service rendered during the period of absence. It was held that the absence of the employee in the said case, as in this case also, is not because of the grant of leave but because of the application made by the employee for taking up employment abroad. The grant itself was only incidental. The factum of the grant or sanction cannot by itself ensure the benefits flowing from service to the employee during the period in which he/she continues on leave. The said proposition was noted with approval in a Full Bench decision of this Court reported in Lucos v. State of Kerala,1995 2 KerLT 285. The learned Single Judge also referred to Abdul Razak v. State of Kerala, 2006 1 KerLT 818 to decline the prayer for higher grade made by the appellants.