IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C) No. 18777 of 2006(I)
1. MS.J. SREEKALA, STAFF NURSE,
... Petitioner
Vs
1. THE STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR OF HEALTH SERVICES,
For Petitioner :SRI.DEVAN RAMACHANDRAN
For Respondent : No Appearance
The Hon'ble MR. Justice K.K.DENESAN
Dated :18/08/2006
O R D E R
K.K. DENESAN, J.
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W.P.(C) No.18777 OF 2006 I
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Dated this the 18th August, 2006
J U D G M E N T
What is the effect of Rule 5 of Appendix XIIA referred
to in Exception 2 to Rule 88 and Rule 110B of Part I,
Kerala Service Rules (for short, KSR) on seniority
determined as per Rule 27(c) of Part II of Kerala State &
Subordinate Service Rules (for short, KS&SSR)? Is not
seniority earned as provided in K.S. & S.S.R. a service
benefit? These questions have come up for consideration at
the instance of a government employee who is subjected to
the rigour of Rule 5 of Appendix XII A of KSR, which
directs that the service benefits that had accrued to a
probationer prior to his proceeding on leave without
allowances for taking up employment abroad or within India,
shall stand forfeited.
2. Facts ,in brief, may be stated thus:
The petitioner was advised by the State Public Service
Commission as per letter dated 19-4-1989 for the post of
Staff Nurse in the Health Services Department. She was
appointed as such by the District Medical Officer of
Health, Thiruvananthapuram vide order dated 10-5-1989. She
joined duty on 18-5-1989 F.N. By Govt. order dated
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23-10-1990 she was sanctioned leave without allowances for
5 years for the purpose of taking up employment abroad
under the terms and conditions stipulated in Appendix XII
A, Part I, K.S.R. Her request for extension of leave under
the same terms and conditions was allowed for another 5
years from 20-11-1995 as per Govt. Order dated 16-1-1996
and a further extension for 5 years from 20-11-2000 as per
Govt. Order dated 8-2-2001. She sought for permission to
rejoin duty on 30-4-2002 after cancelling the unavailed
portion of leave. The permission sought for was granted as
per order dated 30-5-2002 and she rejoined duty on
18-6-2002. The period of probation for staff nurses is a
total period of 2 years on duty within a continuous period
of 3 years. The petitioner could not complete the period
of probation prior to her proceeding on leave. Hence,
after rejoining duty also, she was on probation from
18-6-2002 to 17-6-2004. She became approved probationer
with effect from 18-6-2004.
3. In the seniority list of Staff Nurses as on July,
1990, the petitioner’s name does not find a place though
she had first commenced service as Staff Nurse with effect
from 18-5-1989 on the advice of the State Public Service
Commission. The petitioner filed representation requesting
to include her name in the seniority list taking into
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consideration the date of her first effective advice by the
P.S.C., namely, 19-4-1989. Her request was rejected as per
Ext. P9 letter dated 25-3-2006 of the 2nd respondent
informing her that those who had availed leave without
allowances for employment abroad before successfully
completing the period of probation would be treated as
fresh entrants in service on the date of rejoining duty on
return from leave and as such she could legitimately claim
seniority only with effect from 18-6-2002.
4. The petitioner has sought for a writ of certiorari
to quash Ext. P9 and for a writ of mandamus directing the
respondents to assign her rank in the seniority list of
staff nurses with reference to 19-4-989, the date of first
effective advice by P.S.C. for appointment to the post of
Staff Nurse.
5. The petitioner’s case is that she is not liable to
forfeit the seniority earned by virtue of her selection and
advice by P.S.C. for appointment to the post of Staff
Nurse, for, seniority has to be reckoned with reference to
the date of advice in terms of Rule 27(c) of Part II, K.S.
& S.S.R. and that the words service benefits in Rule 5 of
Appendix XIIA of K.S.R. do not take within its fold
seniority.
6. I have heard Shri. Devan Ramachandran, learned
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counsel for the petitioner and Shri. Manoj Kumar, learned
Senior Govt. Pleader for the respondents.
7. Rule 88, Part I, K.S.R. governs the grant of leave
without allowances. Rule 110B of Part I, K.S.R. says that
rules for the grant of leave without allowances for taking
up employment abroad or within India are given in Appendix
XIIA. Rule 4 of Appendix XIIA deals with permanent
officers and non-permanent officers who have completed
probation in their entry grade and avail leave without
allowances. Rule 5 of Appendix XIIA speaks about non-
permanent officers in regular service who avail leave
without allowances before completing probation in the entry
cadre. For the purpose of this case the relevant provision
is Rule 5. The same reads:
“In the case of non-permanent Officers in
regular service who have not completed probation
in the entry grade, leave without allowances may
be granted subject to the condition that they
will have to start afresh and complete their
probation on return from the leave without
allowances. In other words, the Officers will
forfeit the service benefits that had accrued to
them prior to their proceeding on leave and they
will be deemed as new entrants to Government
service on return from leave. What is protected
is only their right to rejoin Government service
in the same entry grade as if they were new
entrants.”
Officers who avail leave without allowances after
completing probation come within the purview of Rule 4.
They will loose benefits like leave, pension, gratuity,
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increment, etc. as also promotion chances as may arise
with reference to their seniority in the post from which
they proceeded on leave. They shall also loose seniority
in the higher grade with reference to their juniors who
might get promoted to such grades before they rejoin duty.
When compared to Rule 4, the adverse consequences of Rule 5
are graver. Officers who come within the purview of Rule
5 will have to undergo the full period of probation on
return from leave. All service benefits that had accrued
to them prior to their proceeding on leave will stand
forfeited. They will loose the rights and benefits earned
till the date of proceeding on leave, except the right to
rejoin service in the same grade as new entrants.
8. According to the counsel for the petitioners,
seniority is not a service benefit because only those
benefits accrued out of service rendered to the Government
will come within the ambit of the expression ‘service
benefits.’ It is also contended that the impact of the
words ‘fresh entrant’ will have application only on
benefits and rights like leave, pension, pay, increments
etc. regulated by Kerala Service Rules and cannot touch
the seniority of a government servant determined in terms
of Rule 27(c) of K.S. & S.S.R.
9. I am unable to agree with the above contention.
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Seniority is an incidence of service as also a condition of
service. Seniority as understood in service
jurisprudence draws its life from an appointment to a
service and grows along with the service. It has no
existence de hors service. Ordinarily, the right to earn
seniority commences with the commencement of the service of
the incumbent and that right runs along with the service.
True, there are exceptions to the above general
principle. As far as the State Government employees are
concerned, Rule 27 of K.S. & S.S.R. governs the situation.
Rule 27(c) of K.S. & S.S.R. provides that the seniority of
a person appointed to a service, class, category or grade
on the advice of the Public Service Commission commences
from the date of such advice. Since advice for appointment
precedes the date of appointment, it may appear at first
blush that there is scope for contending that those
covered by Rule 27(c) can claim seniority de hors service.
In fact, the petitioner has advanced such a contention. In
my opinion, it is a feeble ground which on closer scrutiny
will not hold water. The first proviso to Rule 27(c) says
that the seniority of candidates who have been granted
extension of time to join duty beyond three months from the
date of the appointment order, except those who are
undergoing courses of study or training which are
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prescribed as essential qualification for the post to which
they are advised for appointment, shall be determined by
the date of their joining duty. It is therefore evident
that the date of effective advice looses its relevance in
the matter of determination of seniority in cases where
the advised candidates do not join duty within the
stipulated time limit. This is one of the instances that
demonstrates the link between service and seniority despite
the fact that under Rule 27(c) the right to count seniority
commences from the date of advice by P.S.C. We cannot
think of a person claiming seniority in a service or
category or grade or post until he joins duty and becomes
a member of the service. When regulated by statutory
provisions or orders having the force of law seniority
becomes a right that could be earned by those in service in
terms of the conditions of their service as enjoined by
law. The moment the employee ceases to be in service, his
right to earn seniority comes to an end. Rule 27 of K.S.
& S.S.R. is a regulatory provision prescribing the method
to determine the seniority. Though the substantive right
to seniority exists de hors Rule 27 which only provides
the method to determine or compute the seniority, it is
open to the competent authority to lay down the principles
governing the determination of seniority and in that
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process to specify kinds of service that shall be counted
or discounted for seniority. The right to seniority
determined in terms of Rule 27 of K.S. & S.S.R. manifests
into a concrete or tangible form capable of enjoyment as a
service benefit upon the preparation of the seniority list.
Once that is done, it becomes the foundation for the
enjoyment of other rights like promotion. Hence, it is
difficult to appreciate the contention that seniority is
not a service benefit. I hold that the words ‘service
benefits’ in Rule 5 of Appendix XII A, K.S.R. take within
its fold seniority as well.
10. Now, let us go to the next point. It is not in
dispute that the petitioner’s case comes within the
mischief of Rule 5 of Appendix XIIA. Therefore, except the
right to rejoin duty as a new entrant, she has lost all
other rights and service benefits. The effect of
forfeiture is so pervasive that there is no scope for
retaining any right or service benefit except the one
specifically protected by the above rule, namely, re-entry
into service. The intention of the rule maker is evident
from the use of the words ‘will have to start afresh’,
‘will forfeit the service benefits that had accrued to
them’ and ‘will be deemed as new entrants to Government
service.’ Rule 5 does not admit any room for doubt when it
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is made clear that what is protected is only the right of
the officers to rejoin government service in the same
cadre as if they are new entrants.
11. It is true that as far as the State government
employees are concerned, seniority of a person in a
service, class, category or grade is determined as provided
in Rule 27 of K.S. & S.S.R. Except in the case of persons
appointed on the advice of the P.S.C., seniority is
determined by the date of the order of his first
appointment to such service, class, category or grade as
provided in clause (a) of Rule 27 of K.S. & S.S.R. The
seniority of a person appointed on the advice of the
Commission is determined by the date of his effective
advice made for his appointment to the class, category or
grade to which he is appointed vide clause (c) of Rule 27
of K.S. & S.S.R. which reads as follows:
“(c) Notwithstanding anything contained in
clauses (a) and (b) above, the seniority of a
person appointed to a class, category or grade in
a service on the advice of the Commission shall,
unless he has been reduced to a lower rank as
punishment, be determined by the date of first
effective advice made for his appointment to such
class, category or grade and when two or more
persons are included in the same list of
candidates advised, their relative seniority
shall be fixed according to the order in which
their names are arranged in the advice list.”
(Provisos omitted).
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12. The contention that seniority determined in terms
of Rule 27(c) of K.S. & S.S.R. shall stand unaffected
despite statutory provisions intended and designed to make
inroads into the right to seniority earned by a member of
the service, cannot be accepted as a sound proposition.
The non-obstante clause with which Rule 27(c) opens would
affect clauses (a) and (b) of that Rule but does not
control or nullify the effect of other provisions in K.S. &
S.S.R. or those in other rules including K.S.R. Rules
which govern the service conditions of government servants
such as K.S. & S.S.R, K.S.R., K.C.S. (C.C. & A) Rules etc.
owe its existence to Article 309 of the Constitution of
India and the rule making power of the Government conferred
by the Kerala Public Services Act, 1968, Section 2 in
particular. The rules thus made, though codified
separately, are intended to regulate and govern the service
conditions of government servants in the respective fields.
It is possible that the aforesaid rules may overlap each
other in certain aspects, and sometimes, may appear to be
conflicting to each other. In cases where conflict appears
between a general rule and a special rule, the well
accepted rule of construction is that the special rule will
prevail over the general rule. But, as between the
provisions of the same enactment or those of a sister
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enactment which are intended to operate in the respective
fields, with equal force, but overlaps or conflicts with
each other, any conflict shall be resolved by harmonious
construction. This also is a well settled principle of
interpretation of statutes. On a combined reading of the
relevant provisions under consideration, it is clear that
Rule 27 (c) of K.S. & S.S.R. cannot nullify the effect of
Rule 5 of Appendix XIIA, Part I, K.S.R. No irreconcilable
conflict comes in the way of resolution. Harmoniously
construed, it is just and reasonable to hold that seniority
earned and determined in terms of Rule 27(a) or (c), will
be lost not only upon reduction to a lower rank as
punishment or on mutual or inter-unit or inter-departmental
transfer on request by such persons as provided in the
aforesaid rule itself, but also by the operation of the
rules in Appendix XII A or XII B or XII C of K.S.R. Any
understanding to the contrary which would limit the scope
of Rule 5 of Appendix XII A of K.S.R. will go against the
intention of the rule making authority and the object of
that rule. The point is answered accordingly.
13. The contention of the petitioner that her
seniority is kept intact despite the conditions prescribed
in Rule 5 of Appendix XII A, K.S.R. is liable to be
rejected for yet another reason. The effect of Rule 5 is
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that the service rendered with all the benefits accrued
prior to the enjoyment of leave without allowances will
stand severed. Consequently, the officer commences a new
service because he is a new entrant in service. The
seniority earned by virtue of the prior service will also
be lost to the officer, as he is subjected to the
conditions laid down in Rule 5. I may point out at the
risk of repetition that the only right protected is the
right to rejoin the service in the same grade or post as
though he is a new entrant to the service. The message
sought to be conveyed to those who avail leave without
allowances, for certain purposes, before completion of
probation, is clear from the language of Rule 5 of
Appendix XII A of K.S.R. and the corresponding provisions
in Appendix XII B and C of K.S.R.
In the result, the challenge to Ext. P9 fails. The
rejection of the claim of the petitioner to assign her
seniority with effect from 19-4-1989 in the post of Staff
Nurse does not call for interference. The writ petition is
dismissed.
K.K. DENESAN
JUDGE
jan/-
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