PRINCIPAL SECRETARY TO GOVERNMENT Vs. K P JAYAPRAKASH

JUDGEMENT

(1.) THE respondent joined the Collegiate Education Department of the State Government on 8. 3. 1972 as a Demonstrator in Physics. While he was working as Lecturer he availed leave without allowances for a period of five years in order to take up employment abroad. Leave was sanctioned to him as per government Order dated 28. 8. 1981 (copy Ext P1 with the Writ Petition) subject to the conditions and the restrictions stipulated in Government orders dated 29. 4. 1970 and 25. 2. 1976 and the guidelines issued in circulars dated 19. 5. 1977 and 10. 7. 1978. THE grant of leave was subject to the further condition that "the period of leave will not count for pension or any other service benefits and this fact will be recorded in his service book".

(2.) APPOINTMENT to the post of Principal is governed by the Special Rules for the Kerala Collegiate Education service, 1994 (for short the Rules) which have been framed under Section 2 of the Kerala Public Services Act, 1968. According to section B of the Table referred to in Rule 5 of the Rules, a person who could be appointed as Principal should have completed a minimum period of 25 years of service in the Collegiate Education Department. The Departmental Promotion committee (Higher) in its meeting held on 15. 11. 2000 prepared a select list of lecturers (Selection Grade) who were suitable for promotion to the post of Principal and this list was approved by the State Government on 7. 3. 2001. This list did not contain the name of the respondent. He then made a representation to the state Government that since he had completed 25 years of service in March 1997 he was eligible for being promoted as Principal. This representation was rejected by order dated 9. 12. 2002 a copy of which is Ext. P6 on the record. The respondent was informed that 25 years of service in the Collegiate Education department was necessary for promoting a Selection Grade Lecturer to the post of Principal if he/she was otherwise qualified. He was also informed that since he availed leave without allowances for the period from 12. 10. 1981 to 11. 10. 1986 for employment abroad, he completed 25 years of service in the Collegiate Education Department only on 17. 3. 2002 and was not eligible for promotion as Principal with effect from 1. 6. 2001 the date from which he sought promotion. Feeling aggrieved by this order, the respondent filed O. P. No. 3186 of 2003 in this Court. The learned single Judge observed that since the leave had been sanctioned before the introduction of Appendix 12a to the Rules, the respondent was entitled to count the said period for promotion. The petition was allowed and the order dated 9. 12. 2002 quashed. It is against this order that the State Government has come up in appeal under section 5 of the Kerala High Court Act.

(3.) LEARNED counsel for the respondent placed reliance on the judgments of this Court in P. P. Mathew v. The Director of Collegiate education, Thiruvananthapuram and others ( W. A. No. 121 of 2001 decided on 20. 1. 2001), M. Abdul Jabbar and others v. State of Keralaand others ( O. P. No. 16143 of 1998 decided on 6. 9. 2002 ). O. C. Manomohanan v. State of Kerala and others (O. P. No. 7378 of 1993 decided on 20. 6. 1995) and N. Mukundan v. State of Kerala and others (O. P. No. 14224 of 1996 decided on 20. 9. 2001 ). We have carefully gone through these judgments and find that those are on different facts and do not advance the case of the respondent. In none of these cases there was a condition that the period of leave without allowances shall not count for any service benefits. In the result, the appeal is allowed, the impugned order of the learned single Judge set aside and O. P. No. 3186 of 2003 dismissed with no order as to costs. . .