KERALA STATE ROAD TRANSPORT Vs. A NOORUDEENKUTTY MECHANIC

JUDGEMENT

(1.) Respondent/petitioner entered service of the Kerala State Transport Corporation on 9.10.1972 as a Cleaner in the Alappuzha Depot. He was promoted as Junior Mechanic on 13.1.1978. While working at Kollam Depot, he applied for leave without allowance for taking up employment abroad. The Corporation granted him leave for a period of five years, ie., from 6.6.1982 to 5.6.1987, as per order dated 3.4.1982. Thereafter, he applied for extension of leave and his leave was further extended from 6.6.1987 to 5.6.1992 and thereafter, from 6.6.1992 to 5.6.1997. Thus he was on leave for 15 years. As per the provisions of the Kerala Service Rules, existed at the time when he took leave, the period of leave without allowance for taking up employment abroad was also considered for counting seniority and promotion. Appendix XIIA of the Kerala Service Rules was introduced with effect from 16.12.1993, regulating the conditions of granting leave without allowance for taking up other employment. It was adopted by the Corporation with effect from 23.6.1984. Clause 4 of Appendix XIIA clearly specifies that those who were on leave without allowance with effect from 16.12.1983 (in Government) and 23.6.1984 (in K.S.R.T.C.) will lose all the service benefits including seniority and promotion that became due during the currency of the leave. In Rule 10 it is specified that this Rule shall apply to all cases of leave without allowance granted on or before 16.12.1983/23.6.1984, in Ext.P1 Government Order it was stated as follows:

(2.) Ext.P1 is a clarificatory order protecting employees who were already on leave on 16.12.1983 as they have availed leave on the basis of conditions of service at the time of granting leave. They are not affected by the subsequent amendment and they will continue to get the benefit. But that benefit will not be available if the application for extension of leave is after 16.12.1983. One is bound by the Rules existing at the time of application for extension of leave. Admittedly, petitioner was working in Sharjah for fifteen years. His second spell of leave started from 6.6.1987 on application for extension of leave made after the amendment of the Rules on 16.12.1983. Therefore, he is not entitled to the benefit of Ext.P1 for the period of leave granted with effect from 6.6.1987, even though for the period from 1982 to 1987 he will get the benefit. The judgment passed in O.P.No. 27663 of 2001, which is under challenge in W.A. No. 787 of 2002, was consequential to the judgment passed in O.P.No. 21665 of 2001. Since appeal filed against the judgment in O.P. No. 21665 of 2001 is allowed, appeal filed against the judgment in O.P.No. 27663 of 2001 is also automatically allowed. On the basis of the impugned judgment, petitioner worked for some time in the higher post. Since he was working in the higher post, salary paid to him for that period shall not be recovered.