The petitioner entered service of the 2nd respondent Board as Assistant Engineer in the year 1990. He got promotion as Assistant Executive Engineer in the year 1998. Subsequently he was promoted as Executive Engineer in the year 2006. Issue involved in this writ petition relates to sanctioning of Leave Without Allowance (LWA) for taking up employment abroad. Initially the petitioner availed LWA for a total period of 4 years, 8 months and 19 days from 14-06- 2000 to 01-03-2005. While working as Executive Engineer in the year 2008 he again requested for sanctioning LWA for a period of 18 months with effect from 15-09-2008. Exhibit P2 request made in this regard was allowed through Ext.P3. But the LWA period was limited only for 3 months, with effect from 15-09-2008. By virtue of Ext.P6 representation the petitioner had approached the 1st respondent seeking modification of Ext.P3 order requesting to grant LWA for 18 months in terms of Board order No.961/96/Estt. I/1687/96 dated 23-04-1996. But the request was declined in Ext.P7 through a cryptic order saying that the petitioner is not eligible for further extension of LWA. It is revealed that the petitioner availed leave sanctioned as per Ext.P3 with effect from 14-11-2008. Evidently thereafter the petitioner again made Ext.P9 request for extension of the leave period, which was not considered. It is revealed that the Board permitted the petitioner to rejoin duty through Ext.P12 proceedings, with effect from 23-05-2011, without prejudice to the disciplinary action if any proposed. The period from 14-02-2009 to 22-05-2011 which the petitioner had overstayed above the sanctioned period of leave was not regularised. Through Ext.P14 the petitioner made a request to regularise the said period as LWA and to drop the disciplinary action if any initiated. So also he made request for treating the waiting period after reporting for duty from 23-05-2011 to 16-06- 2011 as eligible leave. But the petitioner was issued with a Memo of Charges in the year 2011 alleging unauthorised absence for the period from 14-02-2009 to 13-05-2010.
2. Contention of the petitioner is that during the time when he applied for LWA the relevant order which governed the field was G.O (P) No.169/96/Fin dated 05-02- 1996 (Ext.P5). The said Government order was adopted by the Board through Board order No.961/96/Estt. I/1687/96 dated 23-04-1996. By virtue of the said order it was clarified that the maximum period of LWA which can be granted to an officer during his entire service should be restricted to 15 years. Therefore it is contended that limitation stipulated in Ext.P3 order to the extent of granting leave only for a period of 3 months, was not legal and justified. Per contra, the respondents are taking the stand that, at the time when the petitioner had applied for leave, Ext.P4 order of the Board was operating the field. It is evident from Ext.P4 that the Board took a decision to regulate sanctioning of LWA with respect to Sub Engineers, Assistant Engineers and Assistant Executive Engineers of the Civil and Electrical wing of the Board with a view to ensure availability of staff for the timely completion of the projects undertaken. The stipulation contained in Ext.P4 is to the effect of imposing moratorium of sanctioning of leave without allowance for a period of one year from 01-10-2007. Further it stipulated that maximum period of 5 years alone can be sanctioned and the application for extension of leave beyond 5 years shall be rejected. According to respondents 3 months period was sanctioned because the petitioner had already availed leave earlier for a period of 4 years 8 months and 19 days.
3. Learned counsel for the petitioner pointed out that Ext.P4 was not applicable in the case of the petitioner, because those regulations were brought only to regulate sanctioning of LWA with respect to Assistant Engineers, Assistant Executive Engineers and Sub Engineers of the Civil and Electrical wing, whereas the petitioner was officiating in the relevant time as Executive Engineer. Further it is pointed out that there is no merit in contending that leave was not sanctioned for the total period of 18 months because of Ext.P4. By virtue of Ext.P4 a total moratorium on sanctioning of LWA was imposed for one year from 01-10-2007. It is also contended that Ext.P7 and P9 representations made by the petitioner seeking extension of leave based on the relevant Government order and the Board order cited above, was not considered by the authorities. At any rate it is contended that since the petitioner was allowed to rejoin duty the respondents ought to have regularised the period of overstay as LWA, taking a lenient view. Learned counsel had drawn attention of this court to Ext.P8 and had pointed out in that certain other cases the Board had sanctioned LWA for a period of more than 5 years. Hence it is contended that discrimination has been shown in the case of the petitioner.
4. From the facts enumerated it is evident that, the petitioner was sanctioned with leave as per Ext.P3 for a period of 3 months from 15-09-2008. It is further evident that he requested for extension of the leave period for 18 months, which was not considered. The petitioner availed leave with effect from 14-11-2008 and the leave period sanctioned under Ext.P3 expired on 14-11-2009. While considering contention of the respondents regarding applicability of Ext.P4 it is pertinent to note that the said Board order is only a regulation introduced with respect to granting leave for a particular category of employees. The petitioner was not officiating in any of the categories mentioned in Ext.P4 at the relevant time. The guidelines governing the field during the relevant period, except the regulations introduced through Ext.P4, was Ext.P5 Government order which was adopted by the Board with effect form 23-04-1996. Therefore there is no merit in the contention that the petitioner could not have allowed LWA beyond a total period of 5 years in his service. The petitioner in the present writ petition is challenging Exts.P3 & P7 to the extent it restricted the leave for 3 months and refused to extent the same on the basis of the request made by the petitioner.
5. Considering the fact that the relevant orders regulating the field had permitted sanctioning of leave for maximum period of 15 years and taking note of the non- consideration of Exts.P7 & P9 requests in a proper manner and further considering the permission granted to the petitioner to rejoin duty, this court is inclined to direct the respondents to treat the period of overstay from 14-02-2009 to 22-05-2011 as LWA. It is made clear that all restrictions applicable with respect to service benefits of the petitioner during the period of LWA will equally apply in the case of the above said period also.
6. Hence this writ petition is allowed formulating relief to the extent of regularising the alleged unauthorised absence of the petitioner for the period from 14-02-2009 to 22-05-2011 as LWA to be treated as continuation of the LWA period availed by virtue of Ext.P3 order. Needless to observe that no disciplinary action need be pursued on the basis of alleged unauthorised absence since the period of leave is directed to be regularised as LWA.
AMG Sd/-
C.K. ABDUL REHIM JUDGE True copy P.A. to Judge