LUKOSE Vs. STATE OF KERALA

JUDGEMENT

(1.) W.A. No. 986/1993 was referred to the Full Bench by the Division Bench on the question of interpretation of the fourth proviso to R.8 of Part II of the Kerala State and Subordinate Services Rules and R.31 (a)(i) of the Kerala State and Subordinate Services rules read with Appendix XII-A of the Kerala Service Rules (clause 4). The above O.P. was subsequently referred by a learned single Judge to the Full Bench to be posted along with W.A. No. 986/93. However, W.A. No. 986/93 was allowed to be withdrawn and dismissed. Therefore, O.P. No. 3250/1989 is taken up for consideration.

(2.) The petitioner, while working as Assistant Executive Engineer under the Greater Cochin Development Authority applied for leave for five years for going abroad for seeking private employment. Even though the Secretary, Greater Cochin Development Authority (G.C.D. A.) granted him leave for two years from 1-3-1977 to 28-2-1979, the petitioner got extension of his leave for a further period of three years from 28-2-1979 and a further extension of leave for five years from 1-3-1982. He joined the service back on 28-2-1987. Before he was allowed to join duty there were a number of proceedings in reference to his leave application for extensions of the leave and the grant of leave for a total period of ten years both by the G.C.D.A. as well as. the Government which may not be relevant for the purpose of this case.

(3.) While the petitioner was on leave he has given notional promotion as Executive Engineer from 26-6-1980, the date on which his immediate junior in the category of Assistant Executive Engineer was promoted as Executive Engineer. But since the petitioner continued on leave without allowance and in the meantime five of his juniors who were promoted as Executive Engineers completed their probation, the petitioner who was yet to commence his probation, was reverted as Assistant Executive Engineer by proceedings of the Secretary, G.C.D.A. dated 2-3-1987. The petitioner moved this Court in O.P. No. 2349/1987 to quash this proceeding dated 2-3-1987 and for a declaration that he is entitled to join duty as Executive Engineer and commence his probation with effect from 28-2-1987. When the above O.P. came up for disposal the petitioner desired to withdraw the OP. with liberty to approach this Court in future if so advised and accordingly the O.P. was dismissed on 11-11-88. The present O.P. is filed on 5-4-1989 seeking to quash the same proceedings dated 2-3-1987 and also to declare that R.8,9 and 31 of K.S. & S.S.R.1958 as amended are only prospective in nature and do not apply to the petitioner or alternatively to strike down the amended provisions as unconstitutional, and for a further direction to consider the case of the petitioner for promotion to the post of Superintending Engineer.