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2022 ICO 300

04-02-2022
High Court of Kerala

O.P. (KAT) No. 344 of 2021

Justice Alexander Thomas, Justice Viju Abraham

Deepu K C ( Represented by, Renjith Thampan (Sr. Adv.) & P N Santhosh (Adv.) & K P Geetha Mani (Adv.)
)

Vs.

State of Kerala & Ors ( Represented by, B Unnikrishna Kaimal (Sr. GP) )

Headnotes :-

A. Kerala Service Rules, 1958- Part-I Appendix XIIA- Leave Without Allowances (LWA)- G.O.(P)
No.152/2020/Fin. dated 05.11.2020- where the incumbent has already secured leave extensions beyond
05.11.2020 and he has already entered into a foreign service contract prior to 05.11.2020, then
ordinarily, the same treatment given to incumbents whose leave extensions are pending as on
05.11.2020 for taking in to consideration their foreign service contract, should be equally made
applicable to an incumbent. ( Para 15 )

JUDGMENT

Alexander Thomas , J.

1. Being aggrieved by the impugned Ext.P-3 final order dated 23.11.2021 in O.A. (Ekm) No.1591/2021, the
original applicant therein has filed the instant original petition under Articles 226 & 227 of the Constitution
of India with the following prayers:-

“i) Issue a writ of mandamus or any other appropriate writ, order or direction calling for the records
leading to Exhibit P-3 Order of the Hon’ble Kerala Administrative Tribunal and set aside the same by
allowing the Original Application No.1591 of 2021 filed by the petitioner. and

ii) Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances
of the case.”

2. Heard Sri.Ranjith Thamban, learned Senior counsel instructed by Sri.P.N. Santhosh, learned counsel
appearing for the petitioner in the O.P./applicant in the O.A. and Sri.B. Unnikrishna Kaimal, learned Senior
Government Pleader appearing for the respondents in the O.P./respondents in the O.A.

3. The original petitioner herein has filed the instant Ext.P-2 O.A.(Ekm) No.1591/2021 with the following
prayers:-

“I. Call for the records leading to Annexure A-11 and set aside the same.

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ii. Declare that the prescription contained in Clause 2 and Clause 4 of Annexures A-4 and A-5
respectively that the application submitted prior to 5-11-2020 only are to be considered is
discriminatory and in violation of Article 14 of the Constitution of India.

iii. Declare that the applicant who is on sanctioned leave and is continuing on foreign contract while
issuing Annexure A-5 G.O. is entitled to get the leave extended up to the completion of contract
period in the light of the saving clauses contained in Annexures A- 4 and A-5.

iv. Declare that the applicant is entitled to get Leave Without Allowance for a further period of four
years (upto 06/08/2025) on the basis of Annexure A-3 employment contract entered into between the
applicant and the foreign employer in the light of the saving Clause 2 and Clause 4 of Annexures A-4
and A-5 respectively without restricting the same to the applications submitted prior to 5-11-2020.
And

v. Pass such other orders or directions as deemed just, fit and necessary in the facts and circumstances
of the case.”

4. The Tribunal, after hearing both sides, has rendered the impugned Ext.P-3 final order on 23.11.2021
whereby O.A.(Ekm) No.1591/2021 has been dismissed.

5. A brief recital of the facts of this case will be pertinent. The original petitioner herein will be referred
hereinafter for short and convenience as “the original applicant/applicant.” The applicant had entered service
of the State Government in the Co-operative Department as Lower Division Clerk (LDC) on 03.07.2000 and
he was subsequently appointed by way of promotion to the category of Upper Division Clerk (UDC) in the
year 2003 and was later promoted as Junior Co-operative Inspector in the year 2005. He has also secured
further promotion to the post of Senior Co-operative Inspector on 20.06.2015 and his probation in that
category has already been duly declared with effect from 05.08.2016.

6. While holding the post of Junior co-operative Inspector the applicant had availed Leave Without
Allowances (‘LWA’ for short), for taking up employment abroad, drawn in terms of Appendix XIIA of Part-I
Kerala Service Rules (‘KSR’ for short), for a period of 5 years from 10.02.2010 to 09.02.2015. The
abovesaid LWA period was extended for a further period of 5 years by order issued on 17.01.2015, which
was current up to 16.01.2020. However, the applicant had rejoined duty on 25.05.2015 on cancelling the un-
availed portion of the LWA. Thus the applicant had availed LWA for a total period of 5 years, 3 months and
16 days. Later the applicant could secure sanction for LWA for a further period of 5 years from 20.08.2016
to 19.08.2021, as can be seen from Anx.A-2 order dated 19.08.2016 issued by the 2nd respondent. As to the
pleadings and materials on record the applicant had, thereupon, gone abroad and continued under the
Foreign Employment in the United Kingdom. It is the case of the original petitioner that he had executed a
foreign employment contract with a foreign employer for a further period of 5 years as per Anx.A-3 dated
07.08.2020 and the said contract period is upto 06.08.2025.

7. While the original petitioner was thus on LWA for a period of 5 years from 20.08.2016, the competent
authority of the State Government has issued Anx.A-4 G.O.(P) No.152/2020/Fin. dated 05.11.2020, as per
which it has been ordered that the maximum period of LWA which an employee is eligible under Rule 6 of
Appendix XIIA of Part-I KSR would be reduced from the earlier stipulated period of 20 years to a period of
5 years. However, it is further provided in Anx.A-4 G.O. dated 05.11.2020, that if an employee fails to
rejoin duty after the period of 5 years, then it has to be considered as deemed resignation. It is further
ordered that the restriction imposed reducing the maximum period of LWA to 5 years will not apply in the
case of employees who have already secured orders of extensions. Further, it is also ordered in Anx.A-4
G.O. dated 05.11.2020 that while taking decisions on applications for extension, which are pending as on the
date of issuance of Anx.A-4 dated 05.11.2020, the existence of foreign service contract should also be taken
into consideration by the competent authority.

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8. Later on, it appears that, the Government has issued Anx.A-5 circular dated 30.12.2020, primarily for
clarifying Anx.A-4 G.O. dated 05.11.2020, wherein it has been mentioned that any application for LWA for
a period beyond 5 years, submitted after 05.11.2020 (the date of issuance of Anx.A-4 G.O.), should be
rejected and that the employee should be informed to rejoin duty on the expiry of the existing term of leave
and whenever he fails to comply with such request, disciplinary action for removal from service will be
taken, etc. However, it has again reiterated in Anx.A-5 circular that applications for extension of leave
submitted before 05.11.2020 shall be considered in the light of the existing foreign service contract, if any,
entered into by the employee with the foreign employer, etc. and that in such cases, application for extension
should be forwarded to the Government through proper channel for taking appropriate decision, along with
recommendation of the controlling authority.

9. After the issuance of Anx.A-4 G.O. dated 05.11.2020, the original petitioner had filed an application
seeking extension of the leave for a further period of 5 years. The applicant had submitted the application as
per Anx.A-6 dated 30.12.2020, seeking for an extension of the LWA for a further period of 4 years from
20.08.2021 up to 06.08.2015 (date of expiry of the foreign service contract covered by Anx.A-3). It is the
case of the original petitioner that a copy of Anx.A-3 foreign service contract was also enclosed along with
Anx.A-6 application dated 30.12.2020.

10. It appears that the 3rd respondent Assistant Registrar (General) had rejected the said application for
extension of LWA as per Anx.A-6 without forwarding the same to the Government, as can be seen from
Anx.A-7 letter. This constrained the applicant/the petitioner to approach the Tribunal by filing O.A. (Ekm)
No.726/2021 in which the Tribunal has rendered verdict as per Anx.A-8 whereby O.A. (Ekm) No.726/2021
has been disposed of, finding that the action of the 3rd respondent Assistant Registrar (General) in rejecting
the application without forwarding the same to the Government is legally unsustainable as the decision on
an application for leave extension could have been taken only by the competent authority, viz., the State
Government along with the recommendation of the Head of the Department. Hence, the Tribunal found that
the action of the 3rd respondent Assistant Registrar (General) in rejecting Anx.A-6 application for extension
of LWA period is not proper and correct and hence the rejection order at Anx.A-7 was set aside and
respondents 2 & 3 were directed to forward Anx.A-6 application, along with their appropriate
recommendations/remarks, to the 1st respondent State Government to consider the same for decision in
accordance with law.

11. It is thereafter that the competent authority of the State Government has now issued the impugned
Anx.A-11 rejection order on 29.09.2021, ordering that since the application for leave extension made by the
original petitioner as per Anx.A-6 dated 30.12.2020 has been submitted after the issuance of Anx.A-4 G.O.
dated 05.11.2020, the benefit of para No.2 of Anx.A-4 G.O. dated 05.11.2020 for consideration of foreign
service contract in applications pending as on 05.11.2020 cannot be granted to the present petitioner, etc. It
is this rejection order at Anx.A-11 dated 29.09.2021, made at the behest of the State Government that is
under challenge in this O.A. The challenge has been repelled by the Tribunal on the reason that the ground
of rejection cited in Anx.A-11 rejection order does not warrant any legal interference. In other words, the
Tribunal has found that the ground of rejection stated by the State Government in Anx.A-11 that the benefit
of consideration of foreign service contract while taking decision on application for extension of LWA, as
ordered in para No.2 of Anx.A-4 G.O. dated 05.11.2020 cannot be extended in the case of the present
applicant inasmuch as the application for leave extension as per Anx.A-6 has been made only on
30.12.2020, which is after the issuance of Anx.A-4 G.O. dated 05.11.2020.

12. The main ground urged by Sri.Ranjith Thamban, learned Senior counsel instructed by Sri.P.N. Santhosh,
learned counsel appearing for the petitioner is that the Government, on their own volition, had made
relaxation, in para No.2 of Anx.A-4 G.O. dated 05.11.2020 that in the case of those incumbents, whose
application for leave extension is pending as on 05.11.2020, then the foreign service contract entered into by
them with the foreign employer will be duly taken into account by the State Government while taking a
decision on their application for extension of leave, etc. Further that, the main ground of rejection in Anx.A-
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11 is that since the applicant has indisputably submitted application for leave extension as per Anx.A-6 only
on 30.12.2020, which is after the date of issuance of Anx.A-4 G.O. dated 05.11.2020, his application for
leave extension cannot be said to be pending as on 05.11.2020 and therefore, the benefit of para No.2 of
Anx.A-4 cannot be availed in this case. In that regard, the fine tuned contention urged by the learned Senior
Counsel is that while it is open to the Government to issue some relaxation as referred to in para No.2, it is
also equally open to them to refuse to grant any such relaxation. When such relaxation is ordered in terms of
para No.2 of Anx.A-4 G.O., then the same should be done in such a manner that it does not lead to hostile
discrimination. In the instant case, it is submitted that the Government themselves had granted extension of
the LWA period to the applicant up to 19.08.2021, as can be seen from Anx.A-2. As far as an incumbent like
the present applicant is concerned, it was impossible for him to seek for extension of leave application as on
05.11.2020 (the date of issuance of Anx.A-4 G.O.), as the said question does not arise as, indisputably, the
petitioner was already granted leave extension up to 19.08.2021. Hence an incumbent like the applicant,
who has already secured leave extension as per Anx.A-2, up to 19.08.2021, could have submitted
application for leave extension only just prior to the expiry of the extended leave period.

13. That, the applicant has indeed made the said request for leave extension as per Anx.A-6 order dated
30.12.2020, hence, if the aspect of foreign service contract in the case of incumbents, whose application for
leave extension is pending as on 05.11.2020 is taken into consideration by the Government, then the
principles of non- discrimination and non-arbitrariness would demand that the same consideration is also
given to an incumbent like the present applicant who could have sought for leave extension only after
05.11.2020, inasmuch as he had already been granted leave extension beyond 05.11.2020. Further that the
applicant had entered into foreign service contract with the foreign employer on 07.08.2020 as per Anx.A-3,
which period is admittedly before the issuance of Anx.A-4 G.O. dated 05.11.2020. That, at the time when
the applicant had entered into foreign service contract with the foreign employer as per Anx.A-3 on
07.08.2020, it was virtually impossible for him to know as to whether the Government would have issued an
order in the future as per Anx.A-4 on 05.11.2020, changing their policy altogether. In the instant case, the
applicant has bona-fide entered into the foreign service contract with the foreign employer on 07.08.2020,
which was before the issuance of Anx.A-4. Hence, it is urged that in the case of an incumbent like the
present, who has entered into a foreign service contract with a foreign employer prior to 05.11.2020 and
whose leave extension application can be submitted only after 05.11.2020, then the same treatment given to
incumbents whose leave extensions are pending on 05.11.2020 should also be given to an incumbent like the
present applicant or otherwise it would amount to nothing but rank arbitrariness and hostile discrimination,
etc. Yet another technical contention is also urged by the learned Senior counsel that it is reliably learnt that,
till date, the Government has not incorporated Anx.A-4 executive instructions by way of statutory
amendment of Appendix XIIA of Part-I KSR.

14. After hearing both sides, we are inclined to strongly take into consideration the first contention. In the
instant case, there is no dispute that the applicant was already granted a leave extension up to 19.08.2021, as
can be seen from Anx.A-2 dated 19.08.2016, the applicant has entered into foreign service contract with the
foreign employer as per Anx.A-3 on 07.08.2020, which is indisputably, before the date of issuance of
Anx.A-4 G.O. dated 05.11.2020. As on 07.08.2020, an incumbent like the applicant could not have known
or foreseen that a drastic change of policy would have been made by the Government subsequently as per
Anx.A-4 G.O. dated 05.11.2020. Therefore, the entering in to a foreign service contract as per Anx.A-3 on
07.08.2020, was completely bona-fide and cannot be seen as an attempt made by the applicant to evade the
new policy imposed as per Anx.A-4.

15. So, in such a case where the incumbent has already secured leave extensions beyond 05.11.2020 and he
has already entered into a foreign service contract prior to 05.11.2020, then ordinarily, the same treatment
given to incumbents whose leave extensions are pending as on 05.11.2020 for taking in to consideration
their foreign service contract, should be equally made applicable to an incumbent like the present applicant.
It is reiterated that we are reaching this conclusion mainly because the applicant had already secured a leave
extension beyond 05.11.2020 and therefore, there was no necessity for him to make an application for leave
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extension as on 05.11.2020 and further he had entered into a foreign service contract as per Anx.A-3 dated
07.08.2020 with the foreign employer not after the issuance of Anx.A-4 G.O. dated 05.11.2020 but before
the issuance of Anx.A-4 G.O. dated 05.11.2020, inasmuch as Anx.A-3 contract is made with the foreign
employer on 07.08.2020. The core of the matter is that the Government is giving due consideration for
foreign service contracts entered prior to Anx.A-4 dated 05.11.2020 as can be seen from Anx.A-4 and
Anx.A-5. In the instant case, the appellant had already secured leave enxtension beyond 05.11.2020, even
prior the issuance of Anx.A-4 dated 05.11.2020 and had entered into foreign service contract as per Anx.A-3
dated 07.08.2020, which is before the cut off date of 05.11.2020. So the yardstick for giving due
consideration of foreign service contract to avoid hostile discrimination is to examine whether the foreign
service contract was executed bona-fide and before the issuance of Anx.A-4 dated 05.11.2020. If this vital
yardstick is satisfied then it is a matter not, whether or not leave extension application was pending on
05.11.2020, in cases where leave extension was lawfully obtained for period beyond 05.11.2020, by moving
application in due time before that day.

16. Hence, we have no doubt that the impugned rejection order at Anx.A-11 for the grounds stated therein
would amount to hostile discrimination, in the peculiar facts and circumstances of this case. Hence, the
contentions raised by the applicant regarding non- incorporation of the executive instructions as per Anx.A-
4 in the statutory amendments to Appendix XIIA of Part-I KSR need not be gone into by us. In the result,
we hold that the rejection order at Anx.A-11 would require interdiction in judicial review and the contrary
view taken by the Tribunal cannot be sustained. Accordingly, it is ordered that Anx.A-11 rejection order as
per G.O. (Rt) No.585/2021/coop. dated 29.09.2021, issued by the 1st respondent State Government will
stand set aside and quashed. The application for leave extension made by the petitioner as per Anx.A-6
dated 30.12.2020 will stand remitted to the competent authority of the State Government for consideration
and decision afresh. The competent authority of the State Government will afford reasonable opportunity of
being heard to the petitioner and then will take a final decision on the plea for leave extension as per Anx.A-
6, duly taking note of the foreign service contract entered into by the petitioner with the foreign employer as
per Anx.A-3 on 07.08.2020 and should also take the uniform yardstick as given to the cases covered by para
No.2 of Anx.A-4 G.O. dated 05.11.2020, then pass appropriate orders thereon, without much delay,
preferably within a period of 3 months from the date of production of a certified copy of this judgment.
Until then, there is no question of taking any adverse proceedings against the petitioner for treating his case
as deemed resignation as conceived in Anx.A-4 Government Order & Anx.A-5 circular. These relevant
aspects of the matter have not been duly taken note of in the rendering of the impugned verdict of the
Tribunal. In such circumstances, the impugned Ext.P-3 final order dated 23.11.2021, rendered by the Kerala
Administrative Tribunal, Ernakulam Bench in O.A. (Ekm) No.1591/2021, will stand set aside.

With these observations and directions the above original petition will stand finally disposed of.

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