STATE OF KERALA Vs. N RAMANI

JUDGEMENT

(1.) THIS appeal is preferred by the State of Kerala and the Registrar of this Court against the judgment of A. S. venkatachala MOORTY, J. dated June 30, 1999 in O. P. No. 20000 of 1995. The respondent, who was working as a Senior Grade Assistant in this Court, filed the Original Petition seeking to quash Exts. P2, P3 and P5 and the conditions imposed in Ext. P1, and also to declare that the conditions imposed in Ext. P1 is illegal and that the petitioner/respondent herein is entitled to all service benefits for the period from August 23, 1993 to August 22, 1994 when she was on leave in continuation of her maternity leave. A further prayer by way of mandamus was also asked for the grant of eligible benefits of increment due in July, 1994 and other attendant benefits to the petitioner for the period she was ,on leave without allowances from August 23, 1993 to August 22, 1994.

(2.) THE respondent herein was sanctioned maternity leave from May 25, 1992 to August 22, 1992 as per High Court order dated May 28, 1992. In continuation of the said leave she was sanctioned leave without allowances for one year from August 23, 1992 to August 22, 1993 by the Hon'ble Chief Justice of this Court and notified as per High Court order No. A2/2410/92 dated August 26, 1992 under Rule 102 of Part I of the Kerala Service Rules (hereinafter referred to as 'the Rules' ). Thereafter she applied for extention of the leave for one more year from August 23, 1993 to August 22, 1994 in continuation of the maternity leave. According to the respondent her application was supported by medical certificate as required under Rule 102 of the Rules and the extension of leave had to be applied for due to absolute necessity of her presence to look after the new born baby. This Court duly recommended the leave for sanctioning and sent to the first appellant State of Kerala, being the authority to sanction leave beyond a period of one year. The Government of Kerala, while sanctioning the leave under Rule 102 of the Rules, imposed a condition that the period of leave will not count for any service benefits including pension. Copy of the order G. O. Rt. No. 2742/93 Home C. Department dated December 3, 1993 is marked as Ext. P1 in the Original Petition. Being aggrieved by the conditions imposed in Ext. P1 order, the respondent herein made a representation on March 28, 1994 to the State of Kerala specifically praying to extend to her the eligible benefits under the note to Rule 102 of the rules. The said representation was rejected by the Government by Ext. P2 letter dated June 16, 1994 stating that the disability imposed is justifiable. It was observed therein that unless the baby is suffering from any ailment of prolonged nature requiring constant personal attention, there is no reason why the mother should be granted leave for two years with eligibility for increment and other: attendant benefits. Along with Ext. P2, Ext. P3 Government Order G. O. (Rt.) 1134/94/home dated June 17, 1994 was also communicated to the respondent wherein it was stated that "rule 102 Part I of the Kerala Service Rules" appearing in the Government Order, Ext. P1, was substituted by "rule 88 Part I Kerala Service Rules". The petitioner/respondent herein submits that Ext. P2 and P3 are absolutely illegal arid incorrect and that Rule 88 has no application at all in this case. According to the respondent, it was not an ordinary leave that she had applied for, but it was leave in continuation of the maternity leave sanctioned to her and hence the only rule applicable in her case is Rule 102 of the Rules. The respondent again made another representation on August 2, 1994 for extending the benefits under the note to Rule 102 of the Rules. The said representation is marked as Ext. P4 in the Original Petition. On expiry of the leave the respondent herein rejoined duty on August 23, 1994. On December 20, 1994 she was required by this Court to produce an Essentiality Certificate describing the absolute necessity of her presence by the side of the baby and requested for the benefits of Rule 102 of the Rules. The said representation was also rejected by the State by Ext. P5 letter dated June 5, 1995 stating that her request to modify the leave without allowances as under Rule 102 of the Rules cannot be agreed to as it is not in the spirit of the leave rules. The respondent has, therefore, filed the above Original Petition for the reliefs mentioned above.

(3.) THE first appellant herein filed a counter affidavit in the Original Petition through its Joint Secretary, Home Department. According to them there is nothing illegal and incorrect in Exts. P2 and P3 and that the relevant rule for granting leave without allowances is Rule 88 Part I of the Kerala Service Rules and that was why Ext. P1 Government order dated December 3, 1993 was modified by Ext. P3 Government order dated June 17, 1994. It is further stated that the respondent herein has not stated any special reasons as to why her child had required her personal attention during the period and that though the personal attention and care of mothers in the upbringing of their new born babies can generally be appreciated, Government employees cannot be expected to absent themselves from duty for long periods and leave cannot be granted for long periods with the attendant service benefits, for which the employees perform no service. It is, therefore, contended that the condition in Ext. P1 is not unfair and that the Government have acted well within its powers, derived from the provisions of the Kerala Service Rules, especially Rule 26, Part III of the Kerala Service Rules. This apart, it is contended that the essentiality certificate was furnished only on December 20, 1994 i. e. well after the period of leave and that the decision to grant leave without allowances, which will not count for any service benefit including pension was taken in good faith and on relevant consideration of the facts of the case.