The petitioner has filed this writ petition challenging Ext.P12 order of the first respondent, by which the challenge made by him against cancellation of the grade promotion granted to him was rejected. The petitioner joined service as a Reserve Conductor on 29.09.1980, on being recruited, upon being advised for such appointment by the Kerala Public Service Commission. As per the Rules applicable, Conductors and Drivers are bound to perform 240 duties before they are regularised. However, before the petitioner could complete 240 duties, on 22.09.1981, the petitioner met with an accident in which, his right leg was amputated below the knee. He was under treatment for a long period of time. The disability incapacitated him from working as a Conductor. Therefore, he applied for category change and was allotted with other duties. The petitioner had completed 240 days on 29.03.1983. As per Ext.P1, the petitioner's period of absence was ordered to be treated as Leave Without Allowances on medical certificate.
2. Thereafter, he was granted grade promotions to the post of Conductor Grade-1 in 1989, Conductor Selection Grade W.P.(C) No. 16383 of 2008 2 in 1995 and Conductor Special Grade in 1998. Counting his service from 29.09.1980, counting also the period that he was on Leave Without Allowance on medical certificate, he was also granted all the benefits of such grades. In the above circumstances, on the basis of an office memorandum dated 30.09.1999, the grade promotions granted to the petitioner were unilaterally revised and cancelled. The recovery of the amount drawn by him on the basis of the grade promotions was also ordered. Thereupon, the petitioner requested for the period of his absence on Leave Without Allowances also to be counted for the purpose of grade promotion. The said request was rejected by Ext.P2 proceedings dated 03.04.2000.
4. Aggrieved by Ext.P2, the petitioner preferred an appeal to the first respondent. However, by Ext.P4, the petitioner's appeal was rejected by the very same authority that issued Ext.P2. As per Ext.P5, the amounts drawn by the petitioner on the basis of the grade promotion granted to him were sought to be recovered. The petitioner therefore, represented to the first respondent again. He also approached this court and as per directions issued by this Court, the W.P.(C) No. 16383 of 2008 3 matter was considered by the first respondent. The petitioner was heard and by Ext.P12 order dated 27.06.2007, the request of the petitioner has been rejected.
5. According to Adv.Sri.N.UnniKrishnan, who appears for the petitioner, as per Ext.P1, the period spent by the petitioner for his medical treatment was directed to be treated as Leave Without Allowances on medical certificate. Consequently, the said period has to be counted for all purposes as duty, in view of Rule 33 (2), Part -I of the Kerala Service Rules.
6. Consequently, the finding in Ext.P12 that, the said period cannot be counted for the purpose of his grade promotion is without any justification whatsoever. It is also pointed out that, the petitioner has retired from service in 2011. Therefore, there is no justification for the recovery of any amount from him at this length of time, especially in view of the fact that he is a disabled person.
7. A counter affidavit has been filed on behalf of the respondent. Adv.Sri.Babu Joseph Kuruvathazha appears for the respondents. According to the counsel for the respondent, W.P.(C) No. 16383 of 2008 4 the stand adopted by the respondents in Ext. P10 is in accordance with law. As per the memorandum of settlement and the Rules regarding grade promotion that are applicable to the petitioner, he is not entitled to claim that the period that he had served before he was regularised should be counted for the purpose of grade promotion. Reliance is placed on Ext.P8 to contend that, the petitioner's claim for counting the said period has been rightly rejected.
8. Heard. The petitioner, as already noticed above, joined duty on 29.09.1980. The Rules, that are applicable stipulates that in the case of Drivers and Conductors, it is necessary for a newly recruited person to perform 240 duties before he is regularised in service. Accordingly, the petitioner has also performed the stipulated 240 duties and was regularised in service on 29.03.1983. Before the petitioner could complete the mandatory requirement of performing 240 duties, he was involved in a motor accident in which, he lost his right leg, which was amputated below his knee. Therefore, he had to be on Leave Without Allowances for a long period. His absence was supported by medical certificate. Therefore, it W.P.(C) No. 16383 of 2008 5 was directed to be treated as Leave Without Allowances as per Ext.P1, on production of medical certificate. Consequently, his absence cannot be treated as break in service.
9. For the above reasons, it has to be taken that he was on duty continuously from 29.03.1980 since he joined service. Rule 33 (2) of part - 1 KSR reads as follows:
" All [leave except leave without allowances taken otherwise than on Medical Certificate] and service on deputation count for increments in the time-scale applicable to a post in which an officer was officiating at the time he proceeded on leave or deputation and would have continued to officiate but for his proceeding on leave or deputation:]"
The above provision permits Leave Without Allowances on medical certificate to be counted for increments. Clause XVII of Ext.P8 provides as follows:
" The existing system and span of time bound grade promotions will be continued.
The daily wages period in respect of Drivers and Conductors and period of pre-appointment training of Mechanical Staff will also be counted as qualifying service for grade promotion. This will apply to grade promotions due on or after 1/1/191."
10. The above provision directs that, the daily wages period, namely 240 duties performed by the Drivers and Conductors also to be counted as qualifying service for grade promotion. It is further provided that the provision would apply to grade promotion due on or after 01.01.1991. W.P.(C) No. 16383 of 2008 6
11. It is true that the first grade promotion was granted to the petitioner in the year 1989. However, the second and third grade promotions granted in 1995 and 1998 are necessarily to be governed by the above extracted provisions in Ext.P8. Therefore, the finding in Ext.P12 that the grade promotions granted to the petitioners were wrong, cannot be accepted. With respect to the grade promotion granted to the petitioner in 1989, the period of his elegibility has been calculated on the basis of his initial joining date as 29.09.1980, without excluding the period that he was on medical leave. The said promotion that was granted has been revised only on the basis of an office memorandum dated 30.09.1989, after 10 years thereafter. It is not in dispute that the petitioner was not issued with any notice before the grade promotion granted to him was cancelled. The cancellation of the grade promotion after a long lapse of 10 years, without issuing notice to or hearing the petitioner cannot be justified. It is also necessary to take note of the fact that the petitioner has retired from service in the year 2008. He is a disabled person. He has lost his right leg in a motor accident. W.P.(C) No. 16383 of 2008 7 Therefore, to recover the arrears and other amounts that were paid to him on the basis of the grade promotions granted in 1989 would not be in the interests of justice.
For the above reasons, the petitioner is entitled to succeed. Exts. P2, P4 and P12 are set aside.
This writ petition is accordingly allowed.
sd/ K.SURENDRA MOHAN, JUDGE jm/