KRISHNANKUTTY Vs. STATE OF KERALA

JUDGEMENT

(1.) THE only question which is urged before me is as regards the constru" ction of R. 12 (7) (iii)of Part I of the Kerala Service rules. THE sub-rule reads: " (7) Duty. Duty includes (i) Service as a probationer or apprentice, provided that such service is followed by confirmation. (ii) Joining time. (iii) A course of instruction or training which an officer undergoes specially ordered by Government to be treated as duty " (emphasis supplied) THE contention of the petitioner is that clause (iii)would apply only when a person was ordered by the government to undergo the course, and not when he went on his own and the government later ordered, as in the case of the 3rd respondent, to treat his period of leave as duty.

(2.) THE petitioner is admittedly junior to the 3rd respondent in the cadre of Tutor in Psychiatry.- THE petitioner completed his probation on 8-9-1973 and took leave to study for M. D. Examination in psychiatry. He obtained the degree in May 1976 THE 3rd respondent took leave as from 1-7-1974 to study for M. D. in Psychiatry. She passed the M D. Examination and rejoined duty on 30-6-1976. THE vacancy in question for the post of Asst. Professor in Psychiatry aroses on 30-8-1977. By Ext. P3 order dated 18-11-1978 the Government treated the period of leave granted to the 3rd respondent as duty in terms of R. 12 (7) (iii) for the limited purpose of probation As a result of Ext P3, the 3rd respondent was considered to have completed her probation well before the vacancy in question arose. THE petitioner challenges Ext. P3 contending that the Government could not so treat the 3rd respondent's leave as duty for the purpose of counting it towards probation as such power is not vested in the Government in terms of R. 12 (7 ).

(3.) THE relevant clause is not very clearly worded. A literal interpretation would seem to suggest that the order of the Government has to be made before a person goes on leave, unless the clause is read widely enough to include subsequent orders treating past leave as duty. If the clause were read: "a course of instruction or training which an officer undergoes or has undergone and specially ordered by the government. " (emphasis supplied ). there would be no difficulty But that is not how it is worded. "undergoes" is in the present tense and would, if read literally, suggest that the order of the Government must be made prior to or at the time of granting a person leave to undergo the course and not subsequently. Such strict interpretation, as rightly pointed out by the Government Pleader, would defeat the beneficial object of the clause, which is to enable the government to treat as duty time spent on studies which are beneficial to the government If a person went on studies, but did not return after the studies, as it often happens in these days of 'brain-drive', or if a person went on wasting his time, and did not complete his studies, as it happens alas! -not too infrequently, in any such eventuality, it would be open to the Government to deny a person's claim to treat his leave as duty. So the object is to enable the Government to make use of the time usefully and beneficially spent by a person to the mutual advantage of himself and the Government. Looking it at from the point of view of the benefits meant to be derived and the object sought to be achieved, and adopting such beneficial and purposeful interpretation, I am of the view that R. 12 (7i (iii), insufficiently worded as it may on the face of it appear to be. ought to be read in the manner suggested above, viz , " undergoes or has undergone and specially ordered". This would mean that it is open to the Government to order either before or at the time a person is allowed to go on leave to undergo a course or subsequently in terms of that provision, so as to treat his leave as duty. This is what the government have done In the circumstances the challenge against Ext. P3 fails. THE O. P. is dismissed. No costs. Dismissed. . .