IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 23297 of 2008(W)
1. NITHA RAMACHANDRAN, ASSISTANT GRRADE -1,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
2. GREATER COCHIN DEVELOPMENT AUTHORITY,
3. THE SECRETARY, GREATER COCHIN
For Petitioner :SRI.ELVIN PETER P.J.
For Respondent :SRI.P.R.RAMACHANDRA MENON, SC,GCDA
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :12/06/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C)No.23297 of 2008
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Dated 12th June, 2009
JUDGMENT
Heard Sri.Elvin Peter, the learned counsel appearing for
the petitioner, Sri.Antony Mukkath, the learned Government Pleader
appearing for the State of Kerala and Sri.M.K.Thankappan, the learned
Standing Counsel appearing for the Greater Cochin Development
Authority.
2. The petitioner entered service as Assistant Grade II in
the Greater Cochin Development Authority (hereinafter referred to as
`the Authority’ for short) on 24.10.1996. After her probation in the
category of Assistant Grade II was declared she was promoted to the
category of Assistant Grade I. The petitioner’s husband is employed
abroad. With a view to join him, the petitioner initially applied for
leave without allowances for a period of one year from 21.4.2003.
That request was granted by order dated 24.7.2003 issued by the
Secretary of the Authority. On the expiry of the said period of leave,
the petitioner rejoined duty. She again applied for leave without
allowances for a period of three years to join her husband under
Appendix XII C of Part I of the Kerala Service Rules. By Ext.P1 order
dated 9.3.2005 the said application was allowed and the petitioner was
WP(C).No.23297/2008 2
granted leave without allowances for a period of three years with effect
from 10.3.2005 subject to the conditions laid down in G.O.(P)
No.209/84/Fin. dated 12.4.1984 and Appendix XII C of Part I of the
Kerala Service Rules.
3. When the leave granted as per Ext.P1 order was about
to expire, the petitioner submitted an application dated 21.1.2008
requesting for extension of the leave without allowances for a further
period of three years with effect from 10.3.2008. The executive
committee of the Authority that met on 25.2.2008 considered the
petitioner’s application and taking note of the dearth of Assistants in
the Authority resolved to reject the petitioner’s application. The
decision taken by the Authority was communicated to the petitioner by
Ext.P2 letter dated 6.3.2008. On the very next day, the petitioner
requested the Authority to reconsider its decision. That request was
also rejected by Ext.P3 order dated 15.3.2008. The petitioner
thereupon moved the Government by submitting Ext.P4 representation
dated 25.3.2008. That request was turned down by the Government
and the decision of the Government was communicated to the
petitioner by Ext.P7 letter dated 5.7.2008 which was forwarded to the
petitioner by the Secretary of the Authority along with Ext.P6 letter
dated 18.7.2008. By Ext.P6 letter the petitioner was also directed to
WP(C).No.23297/2008 3
report for duty forthwith. She was also informed that if she fails to
report for duty disciplinary action will be taken against her. In this writ
petition, the petitioner challenges Exts.P2, P3 and P7 and prays for a
writ in the nature of mandamus commanding the respondents to grant
the leave applied for by her. Relying on Exts.P10, P11, P12 and P13
orders the petitioner contends that the Authority has lent the services
of employees to other institutions and has also granted leave without
allowances to a Senior Town Planner. The petitioner contends that the
decision taken by the Authority declining her request for extension of
leave is therefore arbitrary and discriminatory.
4. The second respondent has filed a counter affidavit
wherein it is stated that though the sanctioned strength of Assistants
of all grades is 52, only 26 posts are occupied and the remaining
posts are lying vacant. It is also stated that 4 out of the said 26 posts
are occupied by deputationists. It is further stated that the deputation
of Sri.T.Mohandas who was sent on deputation to the Kerala State
Pollution Control Board has been cancelled and that he rejoined duty
in the Authority on 10.6.2008. It is also stated that the deputation of
Sri.R.Chandran, Assistant Lineman who was on deputation to the
Thiruvananthapuram Development Authority, Smt.N.R.Omana,
Assistant Town Planner, who was on deputation to Command Area
WP(C).No.23297/2008 4
Development Authority, Thrissur and Smt.N.A.Suprabha, Assistant
Engineer who was on deputation to Command Area Development
Authority, Perumbavoor have been terminated and that their requests
for extension of deputation have been rejected. As regards
Sri.T.D.Sudarsanan, Section Officer on deputation to the Kerala
Building and Other Construction Workers’ Welfare Board and
Sri.S.Sunil, Attender on deputation to the Kerala Cashew Workers’
Relief and Welfare Fund Board, it is stated that there is no dearth of
Section Officers and Attenders and therefore, their deputation has not
so far been cancelled.
5. I have considered the submissions made at the Bar by
the learned counsel on either side. The pleadings and the materials on
record disclose that the petitioner was initially granted leave without
allowances for one year with effect from 21.4.2003 and thereafter for
a period of three years with effect from 10.3.2005 to join her husband
who is employed abroad. The petitioner’s request for extension of
leave from 10.3.2008 by a further period of three years stands
rejected. The petitioner is therefore absent without leave. The
petitioner challenges the decision taken by the Authority rejecting her
request for extension of leave on the ground that the Authority has
permitted other employees to continue on deputation and has also
WP(C).No.23297/2008 5
granted leave without allowances to some others. In my opinion, on
the pleadings and the materials on record, it cannot be said that the
decision taken by the Authority to reject the petitioner’s request for
extension of leave is in any way arbitrary. The pleadings disclose that
as against the sanctioned strength of 52 Assistants, only 26 Assistants
including four persons on deputation are in place. Thus there is
shortage of 26 Assistants in the Authority. As the employer, taking
note of the administrative exigencies, the Authority has decided that
leave without allowances will not be granted to certain categories of
employees whose services are essential. The petitioner was also
informed accordingly as early as on 6.3.2008. She did not however
rejoin duty. Instead, on the very next day she again applied for
extension of leave and thereafter moved the Government. The
pleadings disclose that the petitioner got employment under the
compassionate appointment scheme. Subsequent events would show
that such compassion was wholly out of place for the reason that the
petitioner’s husband is employed abroad. Rule 65 of Part I of the
Kerala Service Rules which applies to the Authority states that leave
cannot be claimed as a matter of right and that when the exigencies of
the public service so require, the discretion to refuse or revoke leave
of any description is reserved with the authority empowered to grant
WP(C).No.23297/2008 6
it. I have in W.P.(C)No.16744 of 2008 and connected cases, held that
leave without allowances under Appendices XII A, XII B and XII C
cannot be claimed as a matter of right and that Government servants
or other employees to whom the said rules apply, have no vested right
for the grant of leave without allowances for the purposes mentioned
therein. It was also held that Rule 65 reserves with the authority
competent to grant leave, the power to refuse the leave applied for or
to revoke the leave already granted. After taking note of the dire need
for the services of Assistants in the Authority, the Authority decided
that the petitioner’s request for extension of leave cannot be granted.
It cannot be said that the said decision is in any way arbitrary or
discriminatory. The employer is the best judge of the situation and
this Court exercising the discretionary jurisdiction under Article 226 of
the Constitution of India cannot compel an employer or a public
authority to grant leave to any of its employee for the purpose of
enabling him/her to join his/her spouse abroad. The petitioner does
not also deserve any sympathetic consideration of her request for
extension of leave. She was given employment on 24.10.1996 under
the scheme for compassionate appointment. Her appointment under
the said scheme has resulted in denial of employment to another
person awaiting employment. The petitioner therefore owes a duty to
WP(C).No.23297/2008 7
the Authority to work as an employee of the Authority. Instead, she
has chosen to join her husband abroad. In my opinion, the conduct
of the petitioner also dis-entitles her to any relief.
I accordingly hold that there is no merit in this writ
petition. The writ petition fails and is accordingly dismissed.
P.N.RAVINDRAN
Judge
TKS