'Employer Can't Act Arbitrarily On Grant Of Leave To Employee': Kerala High Court, Allows Postal Assistant To Take 1 Year Leave For PhD

Observing that the State cannot act arbitrarily and unfairly when it comes to grant of leave to employees, the Kerala High Court Tuesday directed the department of posts to permit a Postal Assistant to take an extraordinary unpaid leave of one year to enable her to pursue a PhD Course in Malayalam.

The division bench of Justice A. K. Jayasankaran Nambiar and Justice Mohammed Nambiar C. P said:

"While we are aware that the grant of leave to an employee in the prerogative of the employer it does not follow that an employer who answers to the description of 'state' under Article 12 of the Constitution can act arbitrarily and unfairly in such matters" 

The petitioner, a 32-year-old woman, had earlier moved an application before the Central Administrative Tribunal challenging the order issued by the Superintendent of Post Offices, Ottapalam division rejecting her request for extraordinary leave to pursue her studies to get a PhD in Malayalam, citing an acute shortage of Postal Assistants in the divisions as the reason. When she could not get any relief from the tribunal, she filed a petition before the court.

The department of posts in response to the petition submitted there is acute shortage of staff and granting extra ordinary leave for 36 months to the petitioner would seriously affect the functioning of the office where she is working.

On the enquiry of the court as to whether the petitioner can pursue her studies on part time basis, Standing Counsel for Calicut University submitted that a full time registration can be converted to part time only on the completion of first year or when the candidate successfully completes the course work.

However, the department of posts filed an additional affidavit reiterating that there is an acute shortage of employees and therefore the petitioner cannot be granted leave even for 12 months.

It was contended by the department that presently the staff strength of the Ottapalam Division is 55 percent indicating a shortage of 45 percent and therefore they cannot spare the service of the petitioner. 

However, the Counsel appearing for the petitioner, submitted that there are 117 posts of Postal Assistant available out of the sanctioned strength of 131.

The Counsel also pointed out previous instances when the department had permitted the candidates to go on leave for 36 months for pursuing higher studies. it was also contended that the statistics projected by the department are factually wrong and that the respondents are "finding out reasons to some how" deny the request of the petitioner. 

The department however contended that no employee is entitled to get leave as a matter of right and it is the prerogative of the employer. 

Observing that there cannot be any quarrel with the said proposition of law, the court said the petitioner was given NOC by the department for pursuing the PhD and her track record shows her academic abilities. 

"We do not think that the respondents are in such a precarious position that they cannot make alternate arrangements so as to grant the petitioner extra ordinary leave for 12 months, instead of 36 months as sought for, in which event the petitioner will be able to complete the course work within such time and compete the rest of the course as a part time scholar," it added.

The court also noted that the department admits that employees in the past have been permitted to take leave for pursuing higher studies. 

"...but in the instant case the only reason put forth is shortage of staff. On the pleadings before us, we do not think that the respondents are placed in a situation where they are helpless to make alternate arrangement or to make stop gap arrangements to accommodate the petitioner's request for extra ordinary leave without pay. The petitioner has successfully got registration from the Calicut University and if this chance is lost, she may not get another chance to pursue her Doctorate Research," said the court,

The bench said one of the endeavours of the State or its instrumentality is to promote education ideally by encouraging and facilitating higher studies. We also do not want the merit and academic ability of the petitioner to become "a casualty in view of the stubborn stand of the respondents", it added.

"Taking into account the entire circumstances emanating in the case, as also on perusing the records produced by the parties, we are of the firm view that the respondents can be directed to grant extra ordinary leave without pay to the petitioner for 12 months so as to enable her to pursue the P.hD course," the court said.

Considering that details produced by the petitioner regarding availability of Postal Assistants in the service were not controverted by the department through any material on record, the court said the refusal of the application for leave, for the limited period of one year, cannot be legally sustained.

"In the result, the original petition is allowed and the order rejecting the original application by the Tribunal is set aside. The respondents shall pass orders as directed above within a period of two weeks' from the date of receipt of a copy of this judgment so as to enable the petitioner to produce the same before the University of Calicut for further processing to commence the course without any further delay," said the division bench.

Advocates Shafik M. A., P.V. Saleem, K.E. Hadhik Jazar and Mohammed Rashid K.H appeared for the petitioner.  

Case Title: Rousha P Ali v. Union Of India 

Citation: 2022 LiveLaw(Ker) 564

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