The petitioner joined service of the 1st respondent Corporation as 'Work Assistant' in the year 1978 and completed probation in the year 1981. He availed Leave Without Allowance for seeking employment abroad for the period from 01.01.1986 to 14.12.1998, by virtue of various orders issued by the 1st respondent Corporation sanctioning such leave. Grievance is that, despite placing of the petitioner in appropriate position of seniority in the gradation list prepared in the cadre of Mechanical Staff as on 01.04.2003, he was overlooked in the matter of promotion even after his rejoining duty on 15.12.1998. It is stated that, as per order dated 11.05.2007, the respondent Corporation had promoted juniors of the petitioner to the regular cadre of Chargeman (Auto). The 3rd respondent herein is the immediate junior of the petitioner in the seniority list of Mechanical Staff, who was promoted with effect from 11.05.2007 overlooking seniority of the petitioner. According to the petitioner his seniority was overlooked in the matter of promotion on the basis of a stand taken by the Corporation that the period availed as Leave Without Allowance cannot be considered as service period for the purpose of seniority. Challenging such decision, the petitioner is seeking direction to promote him with effect from 11.05.2007, the date on which his immediate junior (respondent No.3) was promoted as Chargeman (Auto). 2. Contention of the petitioner is that as per Paras 4 & 5 of Appendix XII-A of the Kerala Service Rules, an employee who availed leave without allowance is entitled to restoration of seniority over his juniors on his rejoining duty, provided his junior were not promoted to any higher grade before he rejoins duty. It is pointed out that Rule 27 of KS & SSR determines the seniority on the basis of the order of first appointment to the service, class, category or grade. The petitioner relies on a decision of this court in T.S. Krishna Warrier V. Devendran (2005 (4) KLT SN 51) wherein it is decided that Rule 4 of Appendix XII A does not take away the seniority once gained based on the date of appointment, even after the employee had gone on leave for employment abroad. The petitioner also pointed out various judgments of this court wherein the seniority has been upheld.
3. It is pertinent to note that, the legal position remains settled through various precedents. In Mohammed Abdulla V. State of Kerala (2008 (1) KLT 712 (SC)) the hon'ble apex court held that, para 5 of appendix XII A deals with a situation where a person availing leave thereunder would lose his seniority in the higher grade with reference to his juniors who might got senior grade before he rejoins duty. Condition precedent for denying seniority is that the junior of the employee concerned must have obtained promotion in the meantime before the employee rejoins duty. In the case at hand, specific contention of the petitioner is that his seniority was overlooked in the matter of promotion after he rejoined duty. In a very recent judgment of a Division Bench of this court in W.A. No.1810/2013 dated 20.01.2014 it is held that, when permanent employees who have completed probation in their entry cadre in the regular service are granted leave without allowance for taking up employment outside the country, the employees shall lose all seniority benefits including commutation leave benefits, half pay leave benefits, increment, pension etc. during currency of the leave period. They would also lose promotion chances as may arise with reference to their seniority in the posts from which they left on such leave. The period will be treated as “dies-non” for all service benefits. They shall also lose seniority in the grade with reference to those who might got promoted before they rejoin duty. Therefore they would only lose the seniority qua any particular person who gets promoted before they rejoin duty. Mere availing of leave without allowance under Appendix XIIA or under any of the orders of the KSRTC, will not deprive eligibility to continue at the same seniority position. This court had occasion to consider the issue again in a batch of writ petitions WP(C) No.3663/2013 and connected cases (judgment dated 01.07.2013). Considering the question regarding validity of a Circular Memorandum issued by the respondent Corporation on 06.07.2010 directing the authorities not to reckon the period of leave without allowance sanctioned without the strength of Medical Certificate with respect to employees who retired from service after 10.06.2010, this court held that the amendment to Rule 26 of Part III KSR will operate only with respect to leave availed after 10.06.2010. With respect to leave availed prior to 10.06.2010 the deduction of qualifying service for the purpose of seniority (period of seniority) cannot be permitted on the basis of such amendment. This view has been followed in many other judgments of this court.
4. It is submitted that the petitioner had retired from service with effect from 2009, while officiating as Mechanic Selection Grade. Therefore the benefits due to the petitioner in refixing his date of promotion in the post of Chargeman (Auto) has to be computed with effect from 11.05.2007. The terminal benefits due to the petitioner has to be reworked considering the period of leave availed without allowance availed as qualifying service for the purpose of seniority. However it is made clear that the petitioner will not be entitled for the difference in pay and allowances for the respective period. The respondents 1 & 2 are directed to rework the terminal benefits due to the petitioner on the above basis and to issue necessary proceedings making payment of amounts if any due, at the earliest possible, at any rate within a period of 3 months from the date of receipt of a copy of this judgment.
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C.K. ABDUL REHIM, JUDGE /true copy/ P. A. to Judge Pn