Allowed

Kerala State Electricity Board Limited v. Sherly N

Kerala HC16 Jan 2018WA/504/2017

Case brief

AI extract

What is this about?

Writ appeal by the State Electricity Board against a direction to reconsider how an employee's eight-year absence should be regularised after leave without allowances. The Division Bench held the 1984 Board order required a fresh entrant to forfeit past service, the 1998 order did not permit repeated six-month leave, and the belated writ petition was barred by delay and laches.

What did the court decide?

Writ appeal allowed; the judgment of the learned single Judge reversed and the writ petition dismissed, the parties bearing their respective costs.

Kerala State Electricity Board Limited Vs Sherly N — Service and Employment | Kerala HC (2018)

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IN THE HIGH COURT OF KERALA AT ERNAKULAM

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PRESENT: THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN & THE HONOURABLE MR. JUSTICE R. NARAYANA PISHARADI

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TUESDAY, THE 16TH DAY OF JANUARY 2018 / 26TH POUSHA, 1939

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WA.No. 504 of 2017 IN WPC. 7891/2014

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AGAINST THE JUDGMENT IN WP(C)7891/2014 of HIGH COURT OF KERALA DATED 23.11.2016

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APPELLANTS/RESPONDENTS:

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1. THE KERALA STATE ELECTRICITY BOARD REPRESENTED BY ITS SECRETARY, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.

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2. THE CHAIRMAN KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.

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3. THE CHIEF ENGINEER (HRM) KERALA STATE ELECTRICITY BOARD, VAIDYUTHI BHAVAN, PATTOM, THIRUVANANTHAPURAM - 695 004.

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BY ADVS.SRI.RAJU JOSEPH (SR.) SRI.GEORGEKUTTY MATHEW, SC, KSEB.

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RESPONDENT/PETITIONER:

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SHERLY N., ASSISTANT ENGINEER (ELECTRICAL), 110 KV, MEDICAL COLLEGE SUB STATION, KERALA STATE ELECTRICITY BOARD, THIRUVANANTHAPURAM.

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BY SRI.PIRAPPANCODE V.S.SUDHIR

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THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 16-01-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:

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vpv

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“C.R.”

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P.N. Ravindran & R.Narayana Pisharadi, JJ.

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- - - - - - - - - - - - - - - - - - - - - -- - - W.A.No.504 of 2017

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- - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 16^th January, 2018

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JUDGMENT

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P.N.Ravindran, J.

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This writ appeal arises from the judgment delivered by the learned single Judge on 23.11.2016 in W.P.(C)No.7891 of 2014. The appellants are the respondents therein. By the impugned judgment, the writ petition filed by the sole respondent was allowed, Ext.P10 order dated 19.1.2006 issued by the Chairman of the Kerala State Electricity Board (“the Board” for short) was set aside and the appellants were directed to reconsider as to how the period from 1.12.1998, the date on which the writ petitioner had to rejoin duty on the expiry of leave, till 15.2.2006, the date on which she was reinstated in service, is to be treated in accordance with the provisions contained in Part I of the Kerala Service Rules (KSR for short), without reference to Ext.P2 or any other Board order relating to grant of leave without allowances, for joining spouse abroad. The learned single Judge further directed that orders in that regard shall be passed after hearing the writ petitioner, within three months from the date of receipt of a copy of the judgment. The brief facts of the case are as

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follows:

The writ petitioner is an Assistant Engineer in the Board. She was advised for appointment by the Kerala Public Service Commission on 8.7.1997. Pursuant thereto, by Ext.P1 order dated 6.8.1997 the Chief Engineer of the Board appointed the petitioner as Assistant Engineer (Electrical) and she joined duty on 21.8.1997. About three weeks later, she submitted Ext.P3 application accompanied by P4 representation, both dated 17.9.1997, to the Chief Engineer (Electrical) requesting for grant of leave without salary for 05 years with effect from 1.10.1997 to join her husband, who was then employed in Abu Dhabi. The Chief Engineer forwarded the leave application to the Secretary of the Board, the competent authority. By Ext.P5 letter dated 12.11.1997 the Secretary of the Board informed the Chief Engineer that the writ petitioner's application for grant of leave without allowances for a period of 05 years cannot be considered on account of shortage of Assistant Engineers in the Board. The Chief Engineer in turn conveyed the said decision to the writ petitioner and forwarded the leave application and the writ petitioner's service book to the Deputy Chief Engineer along with Ext.P6 letter dated 2.5.1998.

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The petitioner thereupon filed O.P.No.12208 of 1998 in this court challenging Exts.P5 and P6, which were produced and marked as Exts.P10 and P11 therein. O.P.No.12208 of 1998 was presented in this

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court on 29.6.1998. The petitioner thereafter submitted Ext.P17 application dated 26.5.1998 for grant of leave without allowances for a period of 06 months with effect from 1.6.1998 on personal grounds. She had in Ext.P17 application stated that the purpose of applying for the leave is to join her husband and to continue the treatment for infertility. By Ext.P18 order passed on 30.5.1998, the Chief Engineer (Electrical), granted the leave applied for, subject to the condition that it will not count for increment. It was also stipulated therein that as the writ petitioner has not completed the period of probation, the date of satisfactory completion of probation will be extended for six months after she rejoins duty.

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The petitioner availed the leave granted as per Ext.P18 with effect from 1.6.1998. The period of leave granted as per Ext.P18 expired on 30.11.1998. She was therefore bound to rejoin duty on 1.12.1998. She did not however do so. Instead, she submitted an application for extension of the leave without allowances for another period of six months. That application was rejected and she was directed to rejoin duty but she did not do so. Thereupon, the Executive Engineer issued a show cause notice dated 1.12.2000, calling upon her to show cause why action should not be taken to terminate her service with effect from 1.12.1998. She submitted a reply dated 26.12.2000 stating that she has challenged the earlier decision of the Board

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declining her application dated 17.9.1997 for grant of leave without allowances for a period of 05 years in this court by filing O.P.No.12208 of 1998 and it is pending. The Chief Engineer thereupon initiated proceedings against the petitioner for unauthorized absence by issuing a memo of charges dated 1.1.2005. The petitioner submitted a reply dated 18.1.2005. As requested therein, she was heard in person on 10.2.2005. As the explanation offered by the writ petitioner was not satisfactory and acceptable, the Chief Engineer issued a show cause notice dated 31.3.2005 calling upon her to show cause why the punishment of removal from service with effect from 1.12.1998, the date of commencement of the unauthorised absence, should not be imposed on her. After considering the reply dated 18.4.2005 submitted by the petitioner, the Chief Engineer removed her from service by Ext.P8 order passed on 24.5.2005 with effect from 1.12.1998, the date on which her unauthorized absence commenced.

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O.P.No.12208 of 1998 thereafter came up for hearing before a learned single Judge of this court on 26.7.2005. Before the learned single Judge, the Board contended that, Ext.R1(a) Board order dated 23.4.1998, which is the same as Ext.P7 produced in the instant writ petition, governs the application for grant of leave without allowances for 05 years, which was rejected as per Ext.P5 order dated 12.11.1998. The learned single Judge repelled the said contention and

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held in Ext.P9 judgment that since the leave applied for was earlier in point of time namely, before 23.4.1998, Ext.P7 cannot govern the rights of parties. The learned single Judge also held that the order governing the rights of parties is Ext.P1 Board order dated 29.9.1984, which is the same as Ext.P2 produced in the instant writ petition. The learned single Judge accordingly quashed Exts.P5 and P6, which were produced and marked as Exts.P10 and P11 in O.P.No.12208 of 1998 and directed the Chairman of the Board to consider the leave application afresh. The learned single Judge also took note of the fact that challenging Ext.P8 order passed by the Chief Engineer removing her from service for unauthorized absence, the petitioner has already moved the Chairman seeking his intervention and consequently directed the Chairman of the Board to consider the petitioner's leave application along with the representation filed by her in the matter of her removal from service.

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The Chairman of the Board accordingly considered the matter and issued Ext.P10 order dated 19.1.2006, whereby, taking a lenient view, he granted leave without allowances to the petitioner for a period of 05 years with effect from 1.12.1998 and allowed her to re-enter service on condition that she will lose all past service and start service as though she is a fresh recruit on the date of re-entry into service. The Chairman also directed that her pay, seniority and such other

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service benefits shall be regulated with reference to the date of reentry into service. There was also a further stipulation to the effect that she will be on probation for a period of two years within a continuous period of three years and shall also pass all the departmental tests, within the said period of probation. The operative portion of Ext.P10 order reads as follows:

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i) In view of the above facts Chief Engineer (HRM) is directed to grant LWA to Smt.N.Sherly in view of the G.O.s and B.Os cited above.

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ii) Allow her to re-enter service on the condition that she will lose all past services and start service as though she is a fresh recruit on the date of re-entry into service. Her pay, seniority and such other service benefits shall be regulated with respect to the date of re-entry into service.

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iii) She will be on probation for two years within a continuous period of 3 years and shall pass all departmental tests within the period of probation.

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The petitioner accepted Ext.P10 order and rejoined duty as Assistant Engineer on 15.2.2006. She did not challenge the stipulation in Ext.P10 that she will lose all her past service and start her service afresh in terms of the stipulation in Ext.P10. After her probation in the category of Assistant Engineer was declared satisfactorily completed with effect from 15.2.2008, she submitted Ext.P11 representation dated 31.7.2008 to the Chairman of the Board, requesting him to restore her seniority among Assistant Engineers. This was followed by

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Ext.P12 representation dated 15.3.2010, Ext.P13 representation dated 4.1.2012 and Ext.P14 representation dated 21.10.2013. In Ext.P14, the last among the representations, she requested the Chairman of the Board to reinstate her in service with effect from 8.7.1997, namely the date of advice and grant her all service benefits. She also sought promotion to the category of Assistant Executive Engineer from the date on which her immediate junior in the advise list dated 8.7.1997 was promoted, with all consequential benefits. She thereafter filed W.P. (C) No.7891 of 2014 in this court on 16.3.2014, challenging Ext.P10 and seeking the following reliefs:

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i) Issue a writ of certiorari or any other appropriate writ, order or direction calling for the records leading to Ext.P10, to the extent giving three directions in its operative part, Ext.P15 and the endorsement in Ext.P16, of the 2^nd respondent, that he is agreeing with the contentions in Ext.P16 note, and quash them.

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ii) Issue a writ of mandamus or any other appropriate writ, order or direction commanding the respondents to reinstate the petitioner in service of the 1^st respondent Board as Assistant Engineer (Ele.) from 08.07.1997, with all consequential benefits, including promotion to the post of Assistant Executive Engineer (Ele.) with effect from the date of promotion of her immediate junior, in the advice list dated 8.7.1997.

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iii) Declare that the petitioner, in the light if Ext.P9 judgment of the Hon'ble Court is entitled to be reinstated in

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service as Assistant Engineer (Ele.) from 8.7.1997, with all consequential benefits, instead of 15.02.2006, as a fresh entrant and

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iv) Grant such other reliefs as this Hon'ble Court deems fit and proper in the circumstances of this case including the cost of this writ petition(Civil).

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It is relevant in this context to note that Exts.P15 and P16 are the reply furnished to the petitioner under the Right to Information Act, 2005 and the notes submitted by the Chief Engineer to the Chairman of the Board upon receipt of Ext.P14 representation submitted by the petitioner. The stand taken by the Chief Engineer in Ext.P16 is that the petitioner's request in Ext.P14 does not merit acceptance. The main contention raised in the writ petition is that in light of the observations in Ext.P9 judgment, the Board was bound to reinstate the petitioner in service with effect from the date of advice and grant her all consequential benefits. The petitioner also relied on the finding in Ext.P10 that the reasons stated by her for not reporting for duty on 1.12.1998 on the expiry of the leave granted to her as per Ext.P18 order dated 30.5.1998 are genuine. The appellants resisted the writ petition by filing a counter affidavit. The writ petitioner filed a reply affidavit reiterating the contentions raised in the writ petition. Along with the said reply affidavit, she produced a copy of the application for leave without allowances for a period of six months on

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personal grounds as Ext.P17 and the order granting the same as Ext.P18. The learned single Judge after considering the rival contentions held that Ext.P2 Board order dated 29.9.1984 cannot be pressed into service and that there was justification on the part of the petitioner for not joining duty on 1.12.1998. The learned single Judge accordingly directed the Board to reconsider as to how the period of absence, namely the period from 1.12.1998 till 15.2.2006 should be regularized. The Kerala State Electricity Board Limited and its officers have aggrieved thereby, filed this writ appeal.

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We heard Sri. Raju Joseph, learned Senior Advocate appearing for the appellants and Sri.Pirappancode V.S.Sudhir, learned counsel appearing for the respondent. Sri.Raju Joseph, learned senior counsel appearing for the appellants raised three main contentions. The first contention is that the challenge to Ext.P10 order dated 19.1.2006 made for the first time in the year 2014 is belated and therefore the writ petition was liable to be dismissed on the ground of delay and latches alone. Inviting our attention to the decision of the Apex Court in Karnataka Power Corporation Limited v. K.Thangappan and Another (2006) 4 SCC 322), learned senior counsel submitted that merely for the reason that the petitioner had submitted Exts.P11, P12, P13 and P14 representations over a period of six years, it cannot be said that the petitioner had shown sufficient

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cause for belatedly invoking the jurisdiction of this court. Referring to Ext.P11, learned senior counsel submitted that though Ext.P10 order was passed on 19.1.2006, the first among the representations seeking a reconsideration of Ext.P10 was submitted only on 31.7.2008, more than 2½ years thereafter and therefore, the instant writ petition is liable to be dismissed on the ground of delay and latches.

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Learned senior counsel further submitted that Ext.P10 order would itself indicate that the Chief Engineer had taken a lenient view, granted the petitioner leave without allowances and allowed her to re-join service as a new recruit. Learned senior counsel submitted that the petitioner did not challenge Ext.P10 at that point of time, but re-joined duty on 15.2.2006 within one month therefrom, completed her probation and 2½ years after Ext.P10 order was passed, submitted Ext.P11 representation seeking a reconsideration of Ext.P10. Learned counsel submitted that the petitioner who had accepted the terms and stipulations contained in Ext.P10 and re-joined service as a new recruit, cannot more than 8 years thereafter, seek the intervention of this court to have her rank and seniority restored and seek further promotions on that basis and that too in the absence of her juniors in service who have been promoted during the period of her absence from service to the category of Assistant Executive Engineer and to higher posts, in the party array. Learned senior counsel lastly

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submitted that on the merits also, the challenge to the impugned order is without any merit. Learned senior counsel submitted that as this court has in Ext.P9 judgment held that Ext.P2 governs the right of parties, the petitioner cannot any longer contend that Ext.P2 does not apply to her, and therefore, the learned single Judge erred in holding that Ext.P2 order does not govern the rights of parties. Inviting our attention to Ext.P2, learned senior counsel submitted that on the terms of Clause (v) thereof, which is pari materia with provisions contained in Appendix XIIC of Part–I KSR as it then stood in force, the petitioner who was a non-permanent employee in regular service and had not completed her probation in the entry cadre would have had to start afresh and complete her probation even if leave without allowances had been granted to her for five years. Learned senior counsel submitted that if Ext.P2 does not apply, in the absence of any other Board order governing the filed, the Board will have to refer to and rely on Appendix XIIC of Part–I KSR and therefore, even if one were to proceed on the basis that Ext.P2 does not govern the rights of parties, the petitioner cannot seek or be granted any relief, having regard to the provisions in Appendix XII-C of Part I, KSR.

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Per contra, Sri.V.S.Sudhir, learned counsel appearing for the writ petitioner contended relying on Ext.P10 that as the leave applied for as per Exts.P4 and P5 has been sanctioned by the

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Chairman, it should be deemed that the petitioner was on leave with effect from 1.10.1997 for a period of five years. Learned counsel contended that as the Chairman of the Board has found that the dismissal of the appellant for unauthorized absence with effect from 1.12.1998 was not correct, he erred in imposing a condition that she will be reinstated in service only as a fresher. Learned counsel contended that as Ext.P2 and Appendix XIIC of Part-I KSR do not apply, what governs the field is Ext.P7. Inviting our attention to the stipulations in Clause 1 of Ext.P7, learned counsel proceeded to argue that the Chairman ought to have relied on the said provision and granted leave to the writ petitioner. Learned counsel contended that Clause 1 of Ext.P7 empowers the Board to repeatedly grant leave to an employee who has not put in five years of service, for six months at a time and therefore, the absence of the petitioner after 1.12.1998 could have been condoned applying Ext.P7.

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As regards delay and latches, learned counsel contended that the cause of action for the instant writ petition arose only when the view expressed by the Chief Engineer in Ext.P16 minutes was made known to the petitioner. Learned counsel also contended that the appellants have not raised a plea in their counter affidavit or before the learned single Judge that the writ petition is liable to be dismissed on the ground of delay and latches and therefore, the writ petitioner

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cannot be non-suited on that ground.

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We have considered the submissions made at the Bar by learned counsel appearing on either side. We have also gone through the pleadings and the materials on record. Ext.P3, the petitioner's application for leave without allowances for five years to join her spouse abroad which was made way back on 17.9.1997 was rejected on 12.11.1997. Ext.P5 discloses this fact. It was challenging Ext.P5 that the petitioner filed O.P.No.12208 of 1998 in this court. While the writ petition was pending, she submitted Ext.P17 application dated 26.5.1998 for leave without allowances for a period of six months, on personal grounds. The leave applied for was granted and the petitioner left for Abu Dhabi where her husband was then employed, availing the leave sanctioned, with effect from 1.6.1998. The period of the leave expired on 30.11.1998. She was therefore bound to rejoin duty on 1.12.1998. Instead, she applied for extension of the leave by another 06 months. That application was rejected and the petitioner's continued absence even thereafter, led to Ext.P8 order removing her from service with effect from 1.12.1998.

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We shall first consider whether the contention of the petitioner which was upheld by the learned single Judge that Ext.P2 does not govern the field is correct or not. As stated earlier, Ext.P17 application for leave was submitted on 26.5.1998. The leave applied

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for was leave without allowances on personal grounds. Ext.P2 Board order which is dated 29.9.1984 was in force at that point of time. Ext.P2 Board order governs the grant of leave without allowances to employees of the Board for the purpose of joining their spouse either in India or abroad. In clause (iii) thereof it is stipulated that such leave will be granted only to permanent officers or officers who have completed probation in the entry cadre in the regular service. The petitioner was not in that category at the point of time when she applied for leave without allowances for a period of six months as per Ext.P17 application dated 26.5.1998. She was at that point of time only a non-permanent employee in regular service who had not completed her probation. Such employees are governed by Clause (iv) of Ext.P2 which reads as follows:

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“iv) In the case of non-permanent employees in regular service who have not completed probation in the entry grade, leave without allowance will be granted subject to the condition that they will have to start afresh and complete their probation on return from leave without allowances. In other words, the officers will forfeit the service benefits that have accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Board's service on return from leave. What is protected is only their right to rejoin Board service in the same

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grade as if they were new entrants.”

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The stipulation in clause (iv) of Ext.P2 is that in the case of non-permanent employees in regular service who have not completed probation in the entry cadre, leave without allowances will be granted subject to the condition that they will have to start afresh and complete their probation on return from leave. The minimum period of leave that can be granted to non-permanent employees or permanent employees is not set out either in Clause (iii) or in Clause (iv) of Ext.P2. The maximum period of leave alone is prescribed in Clause (v) which reads as follows:

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“(v) Normally, leave without allowances upto a maximum period of 5 years will be sanctioned. But applications for extension of leave for a further period of five years or part thereof will also be entertained on merits. The maximum period of leave that will be sanctioned to an officer during one's entire service will be limited to 10 years. If the officer does not return to duty on expiry of the leave sanctioned for the years, his service will stand automatically terminated. This condition will be incorporated in all individual sanctions to be issued.”

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A reading of clause (v) of Ext.P2 makes it clear that the maximum period of leave without allowances which could be granted in one occasion is 05 years. It is not stated that the minimum period of

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leave that can be granted is 05 years. In a given case, one may choose to join his or her spouse either in India or abroad for a short spell of time of 6 months or 1 year. Clause (v) of Ext.P2 cannot in our opinion be interpreted to mean that the Board cannot grant leave for a term less than five years. It prescribes only the maximum period of leave and not the minimum period. We are therefore, of the considered opinion that Clause (iv) of Ext.P2 governs the grant of leave without allowances to employees of the Board to join their spouse either in India or abroad. Apart from contending that Ext.P2 will not apply for grant of leave without allowances for a period of six months, learned counsel for the writ petitioner did not bring to our notice, any other Board order which governs the field. His argument is that even Appendix XII-C of Part-I, KSR does not govern the rights of parties. If that contention were to be accepted, we will have to certainly fall back upon Ext.P2. A learned single Judge of this court has, in Ext.P9 judgment, held that Ext.P7 Board order dated 23.4.1998 does not govern the rights of parties for the reason that it came into existence after the petitioner applied for leave on 17.9.1997. That finding was rendered in relation to the leave originally applied for by the petitioner on 17.9.1997, which was for a period of 05 years from 1.10.1997. When it comes to Ext.P17 application which is dated 26.5.1998, it cannot be said that Ext.P7 order dated 23.4.1998 will not govern that

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application. Since Ext.P7 is dated 23.4.1998 and Ext.P17 application is dated 26.5.1998, the leave applied for as per Ext.P17 will certainly be governed by Ext.P7. The relevant portion of Ext.P7 reads as follows:

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“In the circumstances it has been keenly felt that there should be some restriction in grant of leave without allowance for long periods for any purpose to the newly recruited employees as well as those employees who have only short period of service in the Board. Having considered all aspects of the matter, the Board hereby issues the following orders in partial modification of the earlier Board Orders in this regard.

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1) No employee of the Board who have not put in atleast five years service in the Board will be granted leave without allowance for any purpose except on medical or personal grounds for periods not exceeding 6 months subject to eligibility otherwise as per rules.

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2) Those orders will take effect from the date of the order.”

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The stipulation is that no employee of the Board who has not put in atleast five years service in the Board will be granted leave without allowances for any purpose except on medical or personal grounds, for periods not exceeding six months, subject to eligibility otherwise as per rules. When the petitioner submitted Ext.P17 application for leave for 06 months, she was not a permanent

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employee. She had also not put in five years of service. On the terms of Ext.P7, she was eligible only for leave without allowances either on medical or personal grounds for a period of six months, subject to being otherwise eligible. It is on personal grounds, viz to continue the treatment for infertility that the petitioner applied for six months leave from 1.6.1998. The leave applied for was granted by Ext.P18 order dated 30.5.1998 subject to the following conditions.

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“ 1. The period of leave will not count for increment.

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2. As she has not completed the period of probation, the date of satisfactory completion for probation will be extended for six months after she rejoins duty.”

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Though it was contended that Ext.P7 empowers the Board to repeatedly grant leave on personal grounds for a period not exceeding six months at a time, and therefore nothing stood in the way of the Board from extending the leave originally granted with effect from 1.6.1998, we are not persuaded to accept the said contention. As stated earlier, the writ petitioner applied for six months leave on personal grounds as per Ext.P17 application dated 26.5.1998. It is the writ petitioner's contention that Ext.P2 does not govern the grant of the leave applied for. A reading of Exts.P2 and P7 orders would show that they operate in different fields. Ext.P2 order lays down the terms and conditions subject to which leave without allowances will be

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granted to an employee of the Board for the purpose of joining his or her spouse inside the country or abroad. On the terms of Ext.P2 such leave is admissible even to non-permanent employees who have not completed probation subject to the condition that they will have to start their probation afresh on return from leave. It is also stipulated that they will forfeit the service benefits that have accrued to them prior to their proceeding on leave and they will be deemed to be new entrants in the service of the Board on their return from leave. It is specifically stipulated in clause (iv) of Ext.P2 that what is protected is only their right to rejoin the Board's service in the same grade as if they are new entrants. In clause (v) of Ext.P2 it is stipulated that normally leave without allowances upto a maximum of 05 years alone will be sanctioned. The Board has however reserved power with it to extend the leave for further periods subject to a maximum of 10 years.

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By the time the writ petitioner submitted Ext.P17 application dated 26.5.1998, Ext.P7 order had also come into force. After referring to Ext.P2 Board order dated 29.9.1984 which is read as item No.2 therein, Ext.P7 recites that there should be some restriction on the grant of leave without allowances to newly recruited employees as well as those who have only a short period of service in the Board. Ext.P7 itself refers to the fact that the leave applied for may be for taking up employment abroad or for joining spouse abroad or for undergoing

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higher studies, etc. After referring to Ext.P2, the Board has in Ext.P7 directed that no employee of the Board who has not put in at least 05 years service will be granted leave without allowances for any purpose except on medical or personal grounds for periods not exceeding 06 months subject to eligibility otherwise as per rules. The words “six months at a time” are singularly lacking in Ext.P7. Ext.P7 only empowers the Board to grant to employees who have not put in five years service in the Board, leave without allowances for a period not exceeding 06 months, if they are otherwise eligible. Ext.P7 does not in our opinion permit the Board to repeatedly grant leave without allowances for 06 months at a time, to the very same employee who has not put in five years service in the Board. As per Ext.P2 such employees will be granted leave without allowances subject to the condition that during the period of the leave they will forfeit their past service and will have to rejoin service as new entrants on the expiry of the leave. Such a stipulation is singularly lacking in Ext.P7. Therefore, Ext.P7 cannot be interpreted to be an order which exempts employees who have not completed five years service in the Board from the rigor of Ext.P2. Ext.P7 is intended to give to such employees leave for a maximum period of six months on medical or personal grounds. It does not in our opinion empower the Board to repeatedly grant leave for six months at a time to the very same employee for the very same

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purpose. In such circumstances, we find no reason or justification to hold that the Board ought to have invoked Ext.P7 and granted leave to the writ petitioner repeatedly for six months at a time.

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In our opinion, as the writ petitioner was granted leave without allowances for a period of 06 months from 1.6.1998, she was not eligible or entitled for grant of leave without allowances with effect from 1.12.1998 relying on the stipulation in Ext.P7. If the writ petitioner's contention is accepted, in a given case the Board can go on granting leave without allowances for 06 months at a time even to employees who have not completed their probation in the entry cadre, thereby defeating the stipulations contained in Ext.P2. Such being the situation, we are of the opinion that the learned single Judge erred in directing the Board to reconsider the petitioner's claim in the light of Ext.P2 Board order. As stated earlier, even if the leave originally applied for by the writ petitioner had been granted, even applying Ext.P2, she would have forfeited her past service benefits and could have joined the service of the Board after expiry of the leave, only as a new entrant. The claim made by the writ petitioner in Exts.P11, P12, P13 and P14 representations is to give her the benefit of past service. Even on the terms of Ext.P2, that request cannot be granted. The learned single Judge in our opinion, lost sight of this crucial and significant fact while directing the Board to reconsider the petitioner's

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case in the light of Ext.P2.

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There is also another reason why we are persuaded to interfere with the impugned judgment. Ext.P10 which is impugned in the instant writ petition was passed on 19.1.2006. Pursuant to Ext.P10 the petitioner rejoined duty on 15.2.2006 accepting the terms and conditions stipulated therein. Her probation in the category of Assistant Engineer was declared as satisfactorily completed with effect from 15.2.2008 on completion of 02 years service from 15.2.2006. It was only thereafter that she submitted Ext.P11 representation dated 31.7.2008 followed by Ext.12 representation dated 15.3.2010, Ext.P13 representation dated 4.1.2012 and Ext.P14 representation dated 21.10.2013. The instant writ petition was filed only on 18.3.2014 challenging Ext.P10 and seeking a declaration that she is entitled to be reinstated in service as Assistant Engineer with effect from 8.7.1997 with all consequential benefits, instead of with effect from 15.2.2006 as a fresh entrant. Having regard to the facts stated above, we are of the opinion that the writ petition is liable to be dismissed on the short ground of delay and laches. Though it was contended before us that the appellants have not in their counter affidavit raised a contention in that regard, we are of the opinion that even without the respondents in the writ petition raising a ground in that regard, it is open to the court considering a writ petition to decide whether, having regard to the

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delay and laches on the part of the petitioner, the writ petition is liable to be dismissed. Section 3 of the Limitation Act, 1963, stipulates that a suit or appeal is liable to be dismissed as barred by limitation notwithstanding the fact that a plea of limitation has not been put forward by the defendant in the suit. On the same principles we are of the opinion that in a case where the writ jurisdiction of the High Court is invoked after a long delay, notwithstanding the fact that the respondent in the writ petition has not raised such a ground, it is open to the writ court to dismiss the writ petition on the ground of delay and laches, if the delay is not adequately and satisfactorily explained.

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That apart, it is not in dispute that many among the petitioner's juniors who were recruited in the same year and had been advised and appointed in the year 1997 had stolen a march over her and have been promoted to higher posts during her absence from service. As stated earlier, the petitioner was absent from service for nearly 8 years during the period from 1.6.1998 till 15.2.2006. Her juniors who were thus promoted are not on the party array. If, at this distance of time, this court were to accept the claim of the petitioner and to direct that she be given all service benefits as if there was no break in her service, it will cause serious prejudice to persons who are not parties to the writ petition.

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In Balakrishna S.P.Waghmare v. Shree Dhyaneshwar

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Maharaj Sansthan (AIR 1959 SC 798) the Apex Court explained the concept of a continuing wrong in the context of Section 23 of the Limitation Act, 1908 (corresponding to section 22 of the Limitation Act, 1963) and held as follows:

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“It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury.”

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The principles underlying continuing wrongs and recurring/successive wrongs have been applied to service law disputes also. In M.R.Gupta v. Union of India {(1995) 5 SCC 628} the appellant before the Apex Court had approached the High Court with a complaint that his pay fixation with effect from 1.8.1978 was not in accordance with the rules. The High Court rejected the claim as it was raised after 11 years. Reversing the decision of the High Court the Apex Court held as follows:

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“........The appellant's grievance that his pay fixation was not in accordance with the rules, was the assertion of a continuing

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wrong against him which gave rise to a recurring cause of action each time he was paid a salary which was not computed in accordance with the rules. So long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to rules. It is no doubt true that if the appellant's claim is found correct on merits, he would be entitled to be paid according to the properly fixed pay scale in the future and the question of limitation would arise for recovery of the arrears for the past period. In other words, the appellant's claim, if any, for recovery of arrears calculated on the basis of difference in the pay which has become time barred would not be recoverable, but he would be entitled to proper fixation of his pay in accordance with rules and to cessation of a continuing wrong if on merits his claim is justified. Similarly, any other consequential relief claimed by him, such as, promotion etc., would also be subject to the defence of laches etc. to disentitle him to those reliefs. The pay fixation can be made only on the basis of the situation existing on 1.8.1978 without taking into account any other consequential relief which may be barred by his laches and the bar of limitation. It is to this limited extent of proper pay fixation, the application cannot be treated as time barred............” (emphasis supplied)

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It was held that so long as the appellant is in service, a fresh cause of action arises every month when he is paid his monthly salary on the basis of a wrong computation made contrary to the rules, but the claim for arrears calculated on the basis of the difference in the pay which has become time barred, would not be recoverable and he would be

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entitled only to proper fixation of his pay in accordance with rules and to cessation of the continuing wrong if on the merits his claim is justified. The Apex Court also held that any other consequential relief such as promotion, etc. would be subject to the defence of laches disentitling him to those reliefs.

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The Apex Court has in Karnataka Power Corporation Ltd. through its Chairman & Managing Director and another v. K.Thangappan and another {(2006) 4 SCC 322} held that when the writ jurisdiction is invoked, unexplained delay coupled with the creation of third-party rights in the meantime is an important factor which should weigh with the High Court in deciding whether or not the jurisdiction should be exercised in favour of the petitioner. The Apex Court has in Karnataka Power Corporation Ltd. (supra) reiterated

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the declaration of law in State of Orissa v. Pyarimohan Samantaray (AIR 1976 SC 2617) that the making of repeated representations is not a satisfactory explanation for the delay.

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In Shiv Dass v. Union of India {(2007) 9 SCC 274} the Apex Court reiterated the principle laid down in Karnataka Power Corporation Ltd. (supra) and held as follows:

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“ ...The High Court does not ordinarily permit a belated resort to the extraordinary remedy because it is likely to cause confusion and public inconvenience and bring in its train new injustices, and if writ jurisdiction is exercised after

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unreasonable delay, it may have the effect of inflicting not only hardship and inconvenience but also injustice on third parties. It was pointed out that when writ jurisdiction is invoked, unexplained delay coupled with the creation of third party rights in the meantime is an important factor which also weighs with the High Court in deciding whether or not to exercise such jurisdiction.”

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In Union of India and Others v. Tarsem Singh {(2008) 8 SCC 648} the relief sought before the High Court of Punjab and Haryana was disability pension on medical grounds. Tarsem Singh, who was invalidated from the Indian Army on medical grounds on 13.11.1983, approached the High Court in the year 1999, seeking a direction regarding payment of disability pension from 13.11.1983. A learned single Judge allowed the writ petition and directed payment of disability pension at the permissible rates but restricted the arrears to a period of 38 months prior to the filing of the writ petition. The Union of India did not challenge the said decision. Instead, Tarsem Singh went in appeal. The Division Bench allowed the appeal and held that he is entitled to disability pension from the date it fell due and it should not be restricted to a period of three years and two months prior to the date of filing of the writ petition. The Division Bench also granted interest at 6% per annum. It was challenging the said judgment of the Division Bench that the Union of India moved the Supreme Court. After referring to the earlier decisions on the point, the Apex Court

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held as follows:

“7. To summarise, normally, a belated service related claim will be rejected on the ground of delay and laches (where remedy is sought by filing a writ petition) or limitation (where remedy is sought by an application to the Administrative Tribunal). One of the exceptions to the said rule is cases relating to a continuing wrong. Where a service related claim is based on a continuing wrong, relief can be granted even if there is a long delay in seeking remedy, with reference to the date on which the continuing wrong commenced, if such continuing wrong creates a continuing source of injury. But there is an exception to the exception. If the grievance is in respect of any order or administrative decision which related to or affected several others also, and if the re-opening of the issue would affect the settled rights of third parties, then the claim will not be entertained. For example, if the issue relates to payment or refixation of pay or pension, relief may be granted in spite of delay as it does not affect the rights of third parties. But if the claim involved issues relating to seniority or promotion etc., affecting others, delay would render the claim stale and doctrine of laches/limitation will be applied. In so far as the consequential relief of recovery of arrears for a past period is concerned, the principles relating to recurring/successive wrongs will apply. As a consequence, the High Courts will restrict the consequential relief relating to arrears normally to a period of three years prior to the date of filing of the writ petition.” (emphasis supplied)

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The appeal was accordingly allowed, the judgment of the Division

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Bench was set aside and the judgment of the learned single Judge was restored.

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In the instant case, a re-opening of the issue which was concluded by Ext.P10 order would affect the settled rights of third parties for the reason that the claim made by the petitioner relates to seniority/promotion as well. Therefore, on that score also, the writ petition filed by the respondent is in our opinion liable to be dismissed. What the writ petitioner seeks is a benefit, which even on the terms of Ext.P2 cannot be granted to her. We have already held that even on the merits, no exception can be taken to Ext.P10 order. On the terms of Ext.P2 all that could have been done was to grant the leave applied for by the writ petitioner. In otherwords, all that could have been done was to grant the writ petitioner leave without allowances from 1.6.1998 till 15.2.2006. Even if that had been done in the first instance, she would have had to rejoin service as a new entrant. It cannot therefore be said that when Ext.P10 order was passed, any wrong was committed. Consequently, it follows that in the instant case, the writ petitioner cannot contend that Ext.P10 is a wrongful act of such a character that the injury caused by it continues. In our opinion, no injury was caused to the petitioner by reason of Ext.P10. We accordingly hold that the appellants are entitled to succeed.

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For the reasons stated above, we allow the writ appeal, reverse

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the judgment of the learned single Judge and dismiss the writ petition. The parties shall suffer their respective costs.

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(P.N. Ravindran, Judge)

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(R.Narayana Pisharadi, Judge)

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