Monday, 17 July 2017

When high court should not reject representation of Judicial officer without sending it government?

Claiming that petitioner was having 2 years of service as on the date on which she submitted application for leave, she submitted a representation produced as Ext. P9 dated 16.01.2014 in W.P.(C) No. 13556 of 2014, through proper channel requesting to convert the same as an application under Rule 91 of Part I KSR, as she had availed it for higher studies in law which is beneficial for the Judicial Service. By Ext. P10 representation dated 16.1.2014, she requested the District Judge to forward it to Government, through proper channel. It was followed by another representation dated 16.1.2014 (Ext. P11) stating that there was some mistake in the number of days to be converted as leave under Rule 91. By Ext. P12 letter from the High Court she was informed that the administrative committee of the High Court had already rejected her request in representation for protection of seniority and that request for commutation of leave as one under Rule 91 of Part I KSR, as per Rule 89 was also rejected, as the High Court was not in a position to forward the request to Government without offering remarks, as it will affect the settled seniority in respect of other officers.

32. When the authority which granted leave to petitioner was the Government, the request for commutation of that leave was to be considered by Government. The 2nd respondent was not therefore right in rejecting her representation, without forwarding it under the guise of the circular issued in 1986 or on the reasons stated in Ext. P12. When petitioner's request was one made in terms of the statutory provisions in KSR, even if the High Court is of the view that it is not liable to be granted or converted as requested, the 2nd respondent ought to have forwarded the representation, for consideration by the competent authority. Therefore the order Ext. P12 to the extent it rejected the representation of petitioner without forwarding it to the Government is unsustainable and hence it is quashed accordingly. The 2nd respondent shall forward the same to Government without any further delay; at any rate within a period of 3 weeks from the date of receipt of a copy of this judgment.
IN THE HIGH COURT OF KERALA AT ERNAKULAM

W.P.(C) Nos. 9440 of 2012 (R) and 13556 of 2014

Decided On: 28.04.2017

 V.G. Anupama
Vs.
 State of Kerala and Ors.

Hon'ble Judges/Coram:
P.V. Asha, J.



1. Both these writ petitions are filed by the very same petitioner. In W.P.(C) No. 9440 of 2012, petitioner challenges the condition imposed in Ext. P6 order while granting her Leave Without Allowance (LWA) for study purposes, that she had to rejoin duty as a new entrant on expiry of the leave. In W.P.(C) No. 13556 of 2014, petitioner challenges the action of the High Court in rejecting her representation without forwarding it to Government, in which she had requested for converting her application for leave as one under Rule 91. The documents referred to are as described in W.P.(C) No. 9440 of 2012 unless specified otherwise.

2. The petitioner was appointed as a Munsiff-Magistrate in Kerala Judicial Service as per Ext. P2 order dated 25.7.2008. After undergoing training for a period of one year from 18.8.2008, she took charge as Munsiff on 21.05.2009. On 30.8.2010, she submitted application for LWA for one year from 13.09.2010, for study purposes in order to undergo Ph.D at National Law School of University. By Ext. P4 order dated 4.11.2010 Government accorded sanction for the same from date of avail after that order subject to conditions laid down in Appendix XIIB, Part I KSR. Thereafter, based on request for sanctioning the leave from 13.09.2010, Government issued Ext. P6 order on 25.08.2011, in modification of Ext. P4 order, sanctioning leave without allowance to the petitioner, for study purpose for a period of one year from 13.09.2010, on condition that she has to join as a new entrant, on expiry of leave. On completion of the course, petitioner submitted Ext. P9 representation addressed to the Government requesting to protect her seniority from the date of joining as Munsiff and absolve her from the condition that she should join as fresh entrant on expiry of leave. A representation Ext. P10 was submitted before the District Judge, Manjeri, requesting to forward her representation Ext. P9 to Government through proper channel. As per Ext. P11 letter, the High Court informed that the High Court considered her representation and rejected the same. She was also informed that she was placed in the last position (190th) in the seniority list of Munsiff Magistrate then in force. The representation addressed to Government was not forwarded. W.P.(C) No. 9440 of 2012 is filed challenging the condition imposed in Exts. P6 and P11 orders to the extent they impose the condition that she has to join as fresh entrant, on expiry of leave. She challenges the Government order Ext. P8 issued on 20.01.2005 also, by which Ext. P7 order issued by Government on 19.11.2003, protecting seniority of those who avail leave under Appendix XIIA, XIIB and XIIC was cancelled. She seeks a declaration that she is entitled to be on leave without allowance without any loss of seniority or other service benefits.

3. The contention of Sri. P. Ravindran, the learned Senior Counsel appearing for the petitioner, is that the petitioner has every right to rejoin the post from which she availed leave and under Rule 8 of Part II of Kerala State and Subordinate Service Rules ('KS & SSR'), her seniority is protected and she cannot be treated as a new entrant on expiry of leave. Reliance is placed on Rule 18(g) of the General Rules (Part II of KS & SSR), the definitions of member of service, substantive appointment, etc. occurring in Part I KS & SSR; Rule 12 (28), Rule 77(viii) and provisions contained in Rules 86A, 88, etc of Part I of Kerala Service Rules (KSR) and appendix XII B thereto. It is pointed out that petitioner had passed the requisite tests which were required to be passed during probation. It is claimed that petitioner, was an officer in permanent employ and hence was entitled to leave for study purposes without imposing any restrictions.

4. According to the learned Senior Counsel, petitioner who was directly recruited as Munsiff Magistrate, was eligible for leave without allowance under Rule 88 and the restriction of LWA only to 3 months or exception 2 thereof, permitting leave without allowance under Appendix XII B was not applicable in her case, as those are applicable only in the case of those who are not in permanent employ. At the time when petitioner was granted leave, though she had not completed the period of her probation, she was a member of service and therefore she was entitled to re-join duty with all benefits, as provided in Rule 8 of the General Rules.

5. Yet another contention is that Kerala Judicial Service Rules, which governs the petitioner, make the provisions contained in KS & SSR applicable to them; at the same time there is no provision which makes the provisions contained in KSR applicable. Therefore according to the learned Senior Counsel, any order passed by the Government should be subject to the the provisions contained in KS & SSR. Therefore there cannot be any loss of seniority on her availing of LWA for study purposes and her seniority is liable to be reckoned from the date of her initial appointment, as provided in Rule 8 of KS & SSR. Therefore Ext. P6 order passed by the Government to the extent it is contrary to Rule 8 is not sustainable.

6. On the other hand the contention of Smt. Nisha Bose, the learned Senior Government Pleader is that petitioner had submitted application for leave under Appendix XII B. The petitioner is a probationer in the entry cadre and she submitted application for leave during the period of probation and therefore leave was sanctioned as provided under Appendix XII B of Part I KSR, according to which those who have not completed probation in the entry grade will have to forfeit all the service benefits which had accrued to them before they entered on leave and they can be considered only as fresh entrants. The learned Government Pleader pointed out that the petitioner chose to challenge the order passed by the Government, only after availing the leave and completing her course; Government had made it clear that she has to rejoin duty on expiry of leave, which is one of the conditions stipulated in Appendix XIIB itself, which is applicable to all those who availed leave before completing probation.

7. The learned Senior Counsel submits that petitioner being a regularly appointed Munsiff, was in fact not liable to submit an application for leave under Appendix XIIB of KSR and therefore even if her application was one under Appendix XII B, that will not disable her from claiming consideration of her application under the relevant provisions and to get the same sanctioned without any conditions of loss of seniority or to undergo probation afresh.

8. According to the learned Government Pleader, petitioner who had not completed her probation submitted application for leave under Appendix XIIB and it was sanctioned on condition that she would be a new entrant to service on re-joining duty. After applying for and after availing of the leave, under Appendix XII B, in terms of her application, she cannot turn round and now challenge the order Ext. P6. According to the respondents, the petitioner is not an officer in permanent employ and no probationer can be an officer in permanent employ and therefore leave could be sanctioned to petitioner only under the provisions contained in Appendix XIIB.

9. In this context it is necessary to examine the relevant provisions contained in KS & SSR and Kerala Service Rules (KSR) relating to leave, probation, etc.

10. Rule 8 of General Rules (Part II of KS & SSR), as it stood at the relevant time when petitioner submitted her application and Government issued the impugned order reads as follows:

8. Members absent from duty.--

The absence of a member of a service from duty in such service, whether on leave, other than leave without allowances for taking up other employment, on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn,-

(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;

(b) for promotion from a lower to a higher category in such service; and

(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate; as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence:

Provided that subject to the provisions of rule 18 he shall satisfactorily complete the period of probation on his return:

xxxxx xxxxxxxxxxxxxxxx

At the relevant time Rule 18(g) read as follows:

A probationer who before completing probation in the service, class or category to which he is first appointed proceeds on leave without allowance for taking up other employment shall commence probation afresh on his return from such leave
Member of service is defined in Rule 2(9) as follows:

2(9)" Member of a service" means a person who has been appointed to that service and who has not retired or resigned, been removed or dismissed, been substantively transferred or reduced to another service, or been discharged otherwise than for want of a vacancy. He may be a probationer, an approved probationer or a full member of that service.
Probationer is defined under Rule 2(10) as follows:

(10)" Probationer" in a service means a member of that service who has not completed his probation.
11. Chapter IX of Part I KSR deals with leave. Section II of this chapter deals with general conditions. Rule 64 provides that the power to sanction leave without allowance exceeding a period of four months at a time rests with Government. Rule 65 provides that leave cannot be claimed as a matter of right. Other provisions dealing with grant of leave in Part I KSR, which are relevant for the purpose of this case are the following:

Rule 88

Leave without allowances.--

(i) Leave without allowances may be granted to any officer in special circumstances--

(a) when no other leave is by rule admissible, or

(b) when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances.

(ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion.

(iii) When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence.

Exception 1.- When a period of suspension is retrospectively treated as leave without allowances by the revising or appellate authority the limitation of admissible leave without allowances to three months to officers not in permanent employ will not apply.

Exception 2.- The limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC.

(emphasis supplied)

12. Officer in permanent employ is defined in clause (viii) of Rule 77 of Part I KSR as follows:

77(viii) ' Officer in permanent employ' means an officer who holds substantively a permanent post or who holds a lien on a permanent post or who would hold a lien on a permanent post had the lien not been suspended.
13. Contention raised on behalf of the petitioner is that she was an officer in permanent employ, though she was a probationer. It was argued that in view of Note 3 to Rule 12(28) of Part I of KS & SSR, she was having all the attributes of substantive status, since the rules governing her did not provide otherwise and hence she was an officer in permanent employ. The contention is that going by Note 3 to Clause 28 of Rule 12 of Part I KSR, read with Rule 5 of General Rules, petitioner who was appointed by direct recruitment, was appointed against a substantive vacancy in permanent cadre and was having all the attributes of a substantive status, as there is nothing in the special rules, which prescribes otherwise. Probationer is defined under clause 28 of Rule 12 of Part I KSR as well:

12(28): Probationer means an Officer employed on probation in or against a substantive vacancy in the cadre of a Department.

Note 1.- The term 'Probationer' does not cover an Officer who holds substantively a permanent post in a cadre and is appointed 'on probation' to another post.

Note 2.- No person appointed substantively to a permanent post in a cadre is a probationer unless definite conditions of probation have been attached to his appointment such as the condition that he must remain on probation pending the passing of certain examinations.

Note 3.- The status of a probationer is to be considered as having the attributes of a substantive status except where the rules prescribe otherwise.

Note 4.- The instructions in Notes 1 and 2 above are to be taken as complementary and not as mutually exclusive. Taken together, they contain the essence of the tests for determining when an officer should be regarded as a "Probationer" or as merely "on Probation",

Irrespective of whether he is already a Permanent Officer or is merely an officer without a lien on any permanent post, while a Probationer is one appointed in or against a post substantively vacant with definite conditions of probation, a person on probation is one appointed to a post (not necessarily vacant substantively) for determining his fitness for eventual substantive appointment to that post.

14. Now it is necessary to examine the relevant provisions in Kerala Judicial Service Rules. Rule 11 and 12 provides for probation and the test to be passed during probation. Rules 13 provides for appointment of Full Members. Rules 11 to 13 read as follows:

11. (1) Every person appointed to any category shall, from the date on which he joins duty be on probation, if he is recruited direct or transfer for a total period of two years on duty within a continuous period of three years and if appointed by promotion, for a total of one year on duty within a continuous period of two years.

(2) The authority competent to extend the period of probation and to declare the satisfactory completion of the period of probation shall be the High Court of Kerala.

(3) It shall be competent to the High Court of Kerala to extend the probation for a period not exceeding three more years beyond the period of three years in the case of those recruited direct or by transfer and not more than two more years beyond the period of two years in the case of those promoted.

12. Every person appointed to category 2 shall, within the period of probation, pass the Account Test for Executive Officers or the Account Test (Lower) unless he has already passed either of those tests and also pass such other tests as may be prescribed by the High Court of Kerala.

13. An approved probationer shall, if a substantive vacancy in the permanent cadre of the category for which he was selected exists, be appointed to be a full member of the service in such category at the earliest possible opportunity; and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from such date or, as the case may be, from a subsequent date from which he was continuously on duty as a member of the service in such category or in a higher category:

Provided that where more than one approved probationer is available for such appointment, the senior most on the date of occurrence of the vacancy shall be appointed:

Provided further that if by reason of a departure from the ordinary rule in the interests of administrative convenience a member of the service completes his probation earlier than another member of the service who is senior to him, the member who so completes his probation earlier shall not be appointed as full member before appointing the member who is senior to him. The senior member shall be appointed as full member according to his seniority in the service after he completes satisfactorily the period of his probation. This does not, however, postpone the appointment of the junior member as full member when the senior member does not complete his probation for his own fault.

Explanation For determining the date from which a member has been continuously on duty for the purpose of this rule, a member who has been on authorised leave or on other duty shall be deemed to be on duty as a member of the service in the category concerned, if he would have been on duty in such category or in a higher category but for the absence on leave or on other duty.

15. From the aforesaid rules it is clear that the Special Rules do not confer any attributes of substantive status to a person undergoing probation or a probationer or at any rate before one becomes an approved probationer. On completion of training, petitioner joined as Munsiff in the Kerala Judicial Service on 21.05.2009. She commenced her probation only from that date. She availed leave from 13.09.2010. As per Rule 11 of the Kerala Judicial Service Rules, she was to be on probation for a period of 2 years within a continuous period of 3 years. Under Rule 12 of the Rules, they have to pass account test lower and such other tests prescribed by the High Court, during the period of probation. Petitioner submits that she has passed the requisite tests before she availed leave. Even if she passed the tests, it cannot be said that she was having the attributes of substantive status at the time when she applied for or availed leave. The leave was granted subject to the condition that she should join as fresh entrant. In order to be eligible for leave without allowance for a period of one year, or for a period in excess of 3 months, she should have been an officer in permanent employ. Admittedly she had completed only one year service when she availed leave, when the minimum period of probation as per the special rules is 2 years continuous duty within a period of 3 years. As the contention is that she was an officer in permanent employ, it has to be examined whether she could be said to be an officer holding permanent post substantively or whether she was holding a lien on a permanent post, as provided in Rule 77(viii) of part I KSR. A probationer cannot be one holding a permanent post or one who holds lien on such post. Under Rule 2(10) of Part I KS & SSR, a probationer is defined as follows:

"2(10): Probationer in a service means a member of that service who has not completed his probation".
A reading of the definition of 'approved probationer' and 'full member' together is required.

"2(3). Approved probationer in a service, class or category means a member of that service, class or category who has satisfactorily completed his probation and awaits appointment as a full member of such service, class or category."

(emphasis supplied)

"2(7) Full member of a service means a member of that service who has been appointed substantively to a permanent post borne on the cadre thereof."

16. A combined reading of the provisions contained in Rule 2 (10), 2 (7) and 2(3) of KS & SSR read with Rule 11 to 13 of the Kerala Judicial Service Rules, 1991 would show that even an approved probationer has to wait for his substantive appointment in a permanent post in order to become a full member. Therefore Note 3 to Rule 12 (28) of Part I KSR will not help the petitioner to be treated as one having the substantive status, and hence to be treated as an officer in permanent employ, as she had not completed the period of probation.

17. Now it is necessary to examine whether she could have been said to have any Lien in a substantive post. Lien is defined under clause 18 of Rule 12 KSR as:

"12(18): Lien : Means the title of an Officer to hold substantively, either immediately or on termination of a period or periods of absence, a permanent post to which he has been appointed substantively".
Lien is dealt with under Rule 16 of Part I KSR also, which provides as follows:

"16. Unless in any case it be otherwise provided in these rules, an officer on substantive appointment to any permanent post acquires a lien on that post and ceases to hold any lien previously acquired on any other post.
18. Substantive appointment is not defined. But Rule 24 of Part II KS & SSR would give some indications regarding it.

"24(a) Subject to the provisions of rule 8 an approved probationer shall be appointed to be a full member of the service in the class or category for which he was selected, at the earliest possible opportunity, in any substantive vacancy which may exist or arise in the permanent cadre of such class or category and if such vacancy existed from a date previous to the issue of the order of appointment, he may be so appointed with retrospective effect from the date or, as the case may be, from any subsequent date from which he was continuously on duty as a member of the service in such class or category or in a higher class or category:

Provided that where more than one approved probationer is available for such appointment as full member, the senior most approved probationer on the date of the vacancy shall be appointed.

Provided further that notwithstanding anything contained in this sub-rule, a candidate who is recruited direct to a post in any service, class, category or grade reserved for members of Scheduled Castes and Scheduled Tribes shall, on satisfactory completion of probation, be appointed to any substantive vacancy which may exist in the permanent cadre of such service, class, category or grade, or if no such vacancy exists, to the first such vacancy which may arise after the satisfactory completion of probation.

For the purposes of this sub-rule an approved probationer on leave shall be deemed to be on duty as a member of the service in the class or category concerned if he would have been on duty in such class or category or in a higher class or category but for his absence on leave.

(b) Where appointment to any service, class or category is according to rules normally both by direct recruitment and by transfer, vacancies against which persons have been recruited direct shall be regarded as a distinct group, while all other vacancies shall be regarded as another distinct group, and appointment of full members in accordance with sub-rule (a) shall be made separately in each of these groups".

19. Rule 24 of the General Rules is more or less similar to Rule 13 of the Special Rules. Thus going by Rule 24 of KS & SSR/13 of the Special Rules and Rule 16 of Part I KSR, substantive appointment to a permanent cadre is made only after one becomes an approved probationer, for which one has to complete his probation. Therefore, officer in permanent employ can only be one who completed probation. When petitioner was not an officer in permanent employ, she was not entitled to leave for a period more than 3 months except under the exemptions provided therein and petitioner had submitted her application in the proforma for leave under Appendix XIIB. Therefore she is bound by the conditions imposed while granting her leave.

20. Leave for study purposes under Rule 91 is admissible only to those officers who has 2 years or more service. Rule 91 of Part I KSR read as follows:

"Officers with a continuous officiating or temporary service of two years or more, will be granted in addition to any leave which they are eligible for, leave under this rule for obtaining superior qualifications (e.g., B.A. and B.L.) provided, however, that the two years minimum service will not be insisted on in the case of temporary or officiating officers belonging to the Scheduled Castes and Scheduled Tribes. Such leave will not, however, be given for broken periods but will cover the entire period of the course concerned. In cases of failure, extension of leave will be granted to cover the further period required for the completion of the course of study".
21. Rule 110C provides that rules for grant of leave for study purpose and for those ineligible for leave under Rule 88 or Rule 91 of Part I are given in Appendix XIIB. Appendix XIIB provides that a person who have completed probation in the entry grade, if he enters on leave without allowance, he shall lose all service benefits during the period of leave. In the case of those who have not completed probation, it is provided that he has to be a new entrant on return from leave and he shall forfeit all service benefits. As long as the petitioner is not an officer in permanent employ the contention of the petitioner that the rules contained in Appendix XII B are not applicable to her, cannot be accepted. She is therefore bound by the conditions in Appendix XIIB, which was made clear in the order Ext. P4 as well as Ext. P6.

22. The learned Senior Counsel argued that the petitioner was enjoying the status of a substantive post and therefore she was entitled to leave without allowance without any limit or conditions and relied on the judgments in Baleswar Dass and others vs. State of UP and others : MANU/SC/0411/1980 : AIR 1981 SC 41, O.P. Singla and another vs. Union of India and others : MANU/SC/0350/1984 : (1984) 4 SCC 450, Direct Recruit Class II Engineering Officers' Association vs. State of Maharashtra and others : MANU/SC/0291/1990 : (1990) 2 SCC 715, Ramesh K. Sharma and another vs. Rajasthan Civil Services and others : MANU/SC/0712/2000 : (2001) 1 SCC 637 etc. All those cases relate to seniority, confirmation etc. The provisions considered in those cases and rules governing the petitioner are entirely different and cannot be applied in the present case. At any rate there is nothing which helps the petitioner.

23. The learned Government Pleader relied on a Division Bench judgment of this court dated 11.1.2010 in W.A. No. 720 of 2016 in support of her contention that a probationer is not entitled to leave without allowance for study purposes otherwise than under Appendix 12B. In the Writ Appeal an Assistant Insurance Medical Officer who joined service on 1.4.1993 applied for leave within one year of her joining duty. She was granted leave under Appendix XII-B. Her request for counting the period of leave for the service benefits in relaxation of rule 88(ii) of Part I KSR was rejected. That rejection was under challenge in the writ petition. Rejection was held illegal by the learned senior Judge. The Division Bench found that there were no provisions in KSR which enabled the writ petitioner to join PG course immediately after her joining service, while she was a probationer and that she was eligible to get only 3 months leave in view of the provisions contained in rule 88(ii) of Part I KSR. It was further found that she could rejoin duty only because of the granting of leave under Appendix XII-B. The Division Bench further found that even though the power to relax any rule is vested in Government such relaxation cannot be granted for the personal benefits of an individual. Accordingly the Writ Appeal was allowed.

24. However as rightly pointed out by the learned Senior Counsel for the petitioner, the issue raised in the present case relating to the eligibility of the petitioner for leave, was not under dispute therein. In this case the petitioner claims that she is entitled to be granted leave under rule 88 claiming that she is in permanent employ. The eligibility of the employee therein does not appear to have been disputed in that case.

25. In yet another judgment relied on by the learned Government Pleader in Life Insurance Corporation of India and another vs. Raghavendra Seshagiri Rao Kulkarni : MANU/SC/1341/1997 : (1997) 8 SCC 461, the apex court considered the difference between the nature of service of the probationer with that of a permanent employee. In paragraph 6 of the judgment the apex court observed the period of probation is a period of test during which the work and conduct of an employee is under scrutiny. If on an assessment of his work and conduct during this period it is found that he was not suitable for the post it would be open to the employer to terminate his services. His services cannot be equated with that of a permanent employee who, on account of his status, is entitled to be retained in service and his services cannot be terminated abruptly without any notice or plausible cause. This is based on the principle that a substantive appointment to a permanent post in a public service confers substantive right to the post and the person appointed on that post becomes entitled to hold a lien on the post. He gets the right to continue in service unless he is removed from service for misconduct etc. after disciplinary proceedings in accordance with the rules in which he is given a fair and reasonable opportunity of being heard.

26. The learned Government Pleader also relied on the judgment of the apex court in Baleswar Dass and others vs. State of UP and others : MANU/SC/0411/1980 : AIR 1981 SC 41, wherein the meaning of the expression "substantive" was considered. It was held that substantive capacity refers to the capacity in which a person holds a post and necessarily not the nature or character of the post. It was held in paragraph 32 "a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.

27. In reply to this the learned Senior Counsel referred to the very same judgment in paragraph 31. Paragraphs 31 and 32 of the judgment read as follows:

"31. What, in the context, is a substantive capacity vis-à-vis an appointment to a post? In our view, the emphasis imparted by the adjective "substantive" is that a thing is substantive if it is "an essential part or constituent or relating to what is essential". We may describe a capacity as substantive if it has "independent existence" or is of "considerable amount or quantity". What is independent in a substantial measure may reasonably be described as substantive. Therefore, when a post is vacant, however designated in officialese, the capacity in which the person holds the post has to be ascertained by the State. Substantive capacity refers to the capacity in which a person holds the post and not necessarily to the nature or character of the post. To approximate to the official diction used in this connection, we may well say that a person is said to hold a post in a substantive capacity when he holds it for an indefinite period especially of long duration in contradistinction to a person who holds it for a definite or temporary period or holds it on probation subject to confirmation.

32. Once we understand "substantive capacity" in the above sense, we may be able to rationalise the situation. If the appointment is to a post and the capacity in which the appointment is made is of indefinite duration, if the Public Service Commission has been consulted and has approved, if the tests prescribed have been taken and passed, if probation has been approved, one may well say that the post was held by the incumbent in a substantive capacity".

28. There also what was held was that if the probation was approved, the incumbent can be said to be in a substantive capacity. The present case has to be considered in the light of provisions under KSR under which leave was granted with reference to the provisions contained in KS & SSR read with the special rules under the Kerala Judicial Service Rules. True that direct recruitment can be made only against a substantive vacancy in permanent cadre, as per Rule 5(b) of the General Rules. But that does not mean that it is to a substantive post. The apex court in R.K. Sabharwal v. State of Punjab : MANU/SC/0259/1995 : (1995) 2 SCC 745 while considering the question of reservation explained the difference between the expressions 'post' and 'vacancy'. It was held that the word 'post' means an appointment, job, office or employment, a position to which a person is appointed. 'Vacancy' means an unoccupied post or office. The plain meaning of the two expressions make it clear that there must be a 'post' in existence to enable the 'vacancy' to occur. When leave without allowance in excess of 3 months is admissible only to an officer in permanent employ under Rule 88 (ii) and in order to be treated as an 'officer in permanent employ' one should be an officer who holds substantively a permanent post or who holds lien on permanent post and petitioner was not holding a permanent post substantively, at a time when she had not completed even one year on probation, petitioner was not entitled to be granted leave without allowance for a period of more than 3 months except under Appendix XIIB and when leave is granted under Appendix XIIB the conditions there under shall also apply to her, according to which she has to join as a new entrant, on expiry of leave. Therefore the Government order or the order passed by the High Court cannot be said to be illegal. The only remaining question is whether the withholding of her representation by High Court, which is under challenge in W.P.(C). 13556 of 2014 by High Court was correct.

29. In W.P.(C) No. 13556 of 2014 the contention of the petitioner is that the action of the High Court in not forwarding the representation to the Governor for consideration despite her request made in her representation is also illegal. It is pointed out that when the Governor is the appointing authority in respect of the Munsiff, it is for the Governor to consider her application in respect of leave and especially when she requested for the same, the Registrar of the High Court ought to have forwarded for consideration without withholding the same.

30. The High Court has filed the counter affidavit in WP(C) No. 13556 of 2014 in which High Court has justified its action saying that the petitioner was a probationer for 2 years as per Rule 11 and 12 of the Kerala Judicial Service Rules. She applied for leave in order to do Ph.D in the National Law School of India for the period from 13.09.2010. Accordingly Government sanctioned leave for study purpose for one year from 13.09.2010 and she availed leave and rejoined duty on 25.07.2011. It is pointed out that the draft seniority list was published by the High Court in respect of the Munsiff-Magistrates in which the petitioner was placed at the last place. According to the second respondent, the representation submitted by her was considered in which she requested for protection of seniority and the High Court found that she was not entitled to protection of seniority in the light of the provisions contained in KSR since the petitioner had an alternative prayer for leave under Rule 91. It was stated that her training period cannot be reckoned for the purpose of 2 years service mentioned in Rule 91. Under the above circumstances, it was stated that in view of Circular No. 11/86, the High Court decided not to forward the representation to Government and rejected her representation on merits.

31. Claiming that petitioner was having 2 years of service as on the date on which she submitted application for leave, she submitted a representation produced as Ext. P9 dated 16.01.2014 in W.P.(C) No. 13556 of 2014, through proper channel requesting to convert the same as an application under Rule 91 of Part I KSR, as she had availed it for higher studies in law which is beneficial for the Judicial Service. By Ext. P10 representation dated 16.1.2014, she requested the District Judge to forward it to Government, through proper channel. It was followed by another representation dated 16.1.2014 (Ext. P11) stating that there was some mistake in the number of days to be converted as leave under Rule 91. By Ext. P12 letter from the High Court she was informed that the administrative committee of the High Court had already rejected her request in representation for protection of seniority and that request for commutation of leave as one under Rule 91 of Part I KSR, as per Rule 89 was also rejected, as the High Court was not in a position to forward the request to Government without offering remarks, as it will affect the settled seniority in respect of other officers.

32. When the authority which granted leave to petitioner was the Government, the request for commutation of that leave was to be considered by Government. The 2nd respondent was not therefore right in rejecting her representation, without forwarding it under the guise of the circular issued in 1986 or on the reasons stated in Ext. P12. When petitioner's request was one made in terms of the statutory provisions in KSR, even if the High Court is of the view that it is not liable to be granted or converted as requested, the 2nd respondent ought to have forwarded the representation, for consideration by the competent authority. Therefore the order Ext. P12 to the extent it rejected the representation of petitioner without forwarding it to the Government is unsustainable and hence it is quashed accordingly. The 2nd respondent shall forward the same to Government without any further delay; at any rate within a period of 3 weeks from the date of receipt of a copy of this judgment.

There shall be a further direction to the 1st respondent to consider the request of the petitioner in Ext. P9 in W.P.(C) No. 13556 of 2014 within a further period of 2 months of its receipt, after affording an opportunity of hearing to the petitioner.

Accordingly WP(C) No. 9440 of 2012 is dismissed and WP(C) No. 13554 of 2014 is disposed of as above.


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