Safiya Malik

The Kerala High Court Division bench comprising Justice A. Muhamed Mustaque and Justice P. Krishna Kumar dismissed a review petition challenging the ineligibility for service increments during a leave period taken before completing probation. The court upheld its prior decision, affirming that the petitioner was bound by the conditions stipulated under the Kerala Service Rules (KSR), as referenced in the leave order.

The case involved Dr. Aruvi T.P., an Assistant Surgeon employed by the Kerala government, who was granted leave without allowance for study purposes from April 10, 1997, to April 9, 1999. The leave order explicitly cited Appendix XIIB, Part I of the Kerala Service Rules (KSR), which does not allow increments for employees who have not completed probation before availing of the leave.

The petitioner later contended that the leave should have been granted under Rule 91A of Part I of KSR instead of Appendix XIIB and cited an executive order (Annexure A5) that later relaxed the five-year service requirement. The petitioner argued that similar relaxations had been granted to other officials and that her leave should also have been considered under Rule 91A, which would have entitled her to service increments.

The respondents, including the Additional Chief Secretary (Health and Family Welfare Department), the Director of Health Services, and the Accountant General of Kerala, maintained that the petitioner’s leave was explicitly sanctioned under Appendix XIIB and that government orders issued later did not retroactively apply to her case. They further asserted that the review petition introduced arguments that were not raised in the original proceedings before the Kerala Administrative Tribunal (KAT) and should not be entertained at this stage.

The Kerala High Court examined the petitioner’s claims and upheld its previous judgment. The court stated:

“In view of Annexure A1, the petitioner should be governed by the provisions of Appendix XIIB, and not Rule 91A. In that case, we fail to understand the contention that the Annexure A5 Government order would be helpful to the petitioner.”

The judgment confirmed that the petitioner’s leave order explicitly referenced Appendix XIIB, meaning that its conditions applied in full. Appendix XIIB stipulates that employees who have not completed their probation before availing of leave without allowance shall be deemed as new entrants upon their return. As a result, the petitioner could not claim service increments during her leave period. The court further held:

“When the leave itself was granted subject to the conditions mentioned in Appendix XIIB, the petitioner is bound by Clause 2 of Appendix XIIB which states that in the case of employees who have not completed probation in the entry grade, they shall be deemed as new entrants to the Government service on return from leave without allowance granted for study purpose.”

The petitioner also argued that the reference to Appendix XIIB in the leave order was a clerical error. The court rejected this contention, stating:

“Though it is contended that the reference to Appendix XIIB in Annexure A1 was a mistake, we find no material to supplement that contention. This is also a contention newly introduced at the time of filing the review petition.”

The review petition also cited an executive order (Annexure A5) that later relaxed the five-year continuous service requirement for eligibility under Rule 91A. The court observed:

“At any rate, it is the admitted case of the petitioner that at the time of granting leave (1998), Rule 91A mandated that a leave under that provision could be given only to a person who has completed five years of service and the petitioner had not completed five years. Annexure A5 order also was not in force then.”

Additionally, the petitioner cited a previous judgment in W.A. No. 1978/2006 to support her claim. However, the court found that the precedent was not applicable to cases where leave without allowance was granted before the completion of probation. It stated:

“Ext.P4 judgment in W.A.No.1978/2006 could not be cited as a precedent in favour of the petitioner as there is nothing in the said judgment to show that the case under consideration was in respect of availing of leave without allowance before completing probation.”

The petitioner contended that the observation made in paragraph 2 of the court’s judgment contained an error apparent on the face of the record. The review petition stated:

“The findings and observations of this Hon'ble Court in Paragraph 2 of the judgment suffer an error apparent on the face of the records which requires review of the judgment.”

The petition further argued that at the time of granting leave in 1998, Rule 91A required five years of continuous service but that the government later relaxed this requirement in response to concerns raised by tutors in medical colleges. The government, through executive orders, exempted certain categories of employees from this requirement. The petitioner asserted that this relaxation should have been applied in her case.

The review petition also referenced earlier service rules, particularly Rule 99, which was replaced by Rule 91A. Rule 99 stated:

“Leave may be granted to officers on such terms as the Government may by general order prescribe to enable them to study scientific, technical or similar problems or to undergo special courses of instruction. The detailed rules framed under this rule are given in Appendix-Vocational Instructor.”

It was argued that before the introduction of Rule 91A, study leave was governed by Rule 99 and its corresponding Appendix VI, which allowed service benefits, including increments. The petitioner maintained that her case should have been considered in light of these prior provisions.

The court held that new arguments introduced at the review stage could not be entertained if they were not raised in the original petition. It observed:

“After considering the submissions made at the Bar and the challenges raised in the review petition, we find no reason to review the impugned judgment. The contention stated as Ground B in the review petition was not raised while submitting the original petition challenging the order passed by the Kerala Administrative Tribunal. We find no reason to entertain a new contention for challenging the impugned order which was not raised at the first instance.”

The court also rejected the petitioner’s claim that the reference to Appendix XIIB in the leave order was erroneous. It noted that the leave order explicitly stated:

“Dr.T.P.Aruvi, Assistant Surgeon is granted leave without allowance for study purpose for the period from 10.4.1997 to 9.4.1999 subject to the conditions laid down in Appendix XIIB, Part I, Kerala Service Rules.”

Given the clear terms of the leave order, the court held that the petitioner was bound by Appendix XIIB, which meant she could not claim service increments during the leave period.

After considering the submissions of both parties, the High Court dismissed the review petition. The judgement stated:

“As a result, we find no reason to review the impugned judgment for any of the grounds raised in the review petition. The Review Petition is dismissed.”

Case Title: Dr. Aruvi T.P. v. Additional Chief Secretary & Others
Case Number: R.P. No. 270 of 2020
Bench: Justice A. Muhamed Mustaque and Justice P. Krishna Kumar

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