The State Of Kerala vs K.V. Majeed and Others

Abdul Rehim, J.—The respondents in the writ petition, the State Government and the Assistant Educational officer, are in appeal against judgment of the single Judge holding that the period spend as leave without allowance by the writ petitioner shall be reckoned as eligible service for the purpose of giving grade promotion. Learned single Judge relied on Ext.P1 Government order as well as Ext.P3 judgment of the hon''ble Supreme Court for holding that the writ petitioner is entitled for reckoning the period of leave without allowance availed from 02-06-1979 to 30-06-1981, for the purpose of employment abroad. Learned Government Pleader on behalf of appellants contended that, Ext.P1 Government order is only concerned with promotional chances and it cannot be applied to those who availed leave for taking up employment abroad or within the country. It is also pointed out that in Ext.P3 judgment the hon''ble Supreme Court held that in such cases the incumbent cannot be denied of promotion. But with respect to sanctioning grade promotion the situation is different. Since the petitioner has not worked during the period of leave he cannot be considered for grant of grade promotion, is the contention.

Learned Government Pleader relied on the decision of this court in Abdul Razak Vs. State of Kerala, . This court held that a person may retain his position of seniority for whatever reasons, but it does not automatically lead to a presumption that he is to be deemed as having rendered service all throughout. Conferment of grade promotion is for ensuring that there is no stagnation in service and disgruntlement does not result. The absence of a higher post itself is immaterial for giving such benefit. But with respect to a person who could able to secure promotion, benefit of grade promotion is not admissible. The Division Bench observed that, naturally it has to be presumed that the officer is aware of possibility of set backs in his service, as he is voluntarily keeping away from service. It will not therefore be justifiable on the part of such incumbent to contend that notwithstanding the leave without allowance availed, he will be entitled for grade promotion.

Learned counsel appearing for the legal heirs of the writ petitioner, who were impleaded as additional respondents, that the leave without allowance was availed during a period prior to introduction of Rule 4 of appendix XIIA. Even assuming that the relevant Rule was not in existence at that time, the petitioner cannot claim grade promotion without actually worked in the post in question, notwithstanding the fact that he may be entitled for other service benefit or that he could not be denied promotion chances. Since the writ petitioner has not worked during the relevant period, we cannot presume that there created any stagnation in the service for which he is entitled for grade promotion. Under the above mentioned circumstances we are of the considered view that the stand taken by the learned single Judge is not sustainable. Accordingly we allow the writ appeal and set aside the judgment through which benefit of grade promotion was allowed to the writ petitioner. The writ petition will stand dismissed.