Absence After Expiry Of Authorised Leave Is 'Non-Duty' For All Purposes Other Than Pension: Kerala HC Upholds Order Setting Aside Promotion

The Kerala High Court recently upheld a Single Bench order that set aside the promotion of an employee due to a break in his service, after the expiry of his authorized leave, which was treated as unauthorized and non-duty for all purposes other than pension.

Perusing Fundamental Rule 17A and Central Civil Services (Pension) Rule 27, the Division Bench comprising Justice Amit Rawal and Justice C.S. Sudha, observed,

"On juxtaposing of the aforementioned Rules, interruption or break in service has been clarified in Rule 27 in respect of employees who had remained absent after the expiry of authorized leave whereas Fundamental Rule 17A deals with absence out of nowhere and that absence has also been considered to be a break and interruption". 

Fundamental Rule 17A stipulates what constitutes a period of 'unauthorized access', while Rule 27 stipulates the 'effect of interruption in service'. 

As per the factual matrix, the 1st respondent herein submitted that he had been appointed as Lower Division Clerk (LDC) in Cochin Port Trust, and was subsequently promoted as Upper Division Clerk (UDC), and thereafter as Operator Cum Input / Output Assistant (for short OCIOA).

The 1st respondent was included as Rank No.4 out of 13 candidates for promotion to the post of Senior OCIOA/Programmer, while the appellant herein was included at Rank No.12.

It was submitted that as per the Recruitment Rules, 2016, the post of post of senior OCIOA is to be filled up by promotion from the post of OCIOA having two years of regular service or from Accoutant with three years of regular service.

It was argued that although the appellant was senior to the petitioner in the list of OCIOA, the latter filed representations stating that since the appellant had been punished for unauthorized absence for 19 days, which period had also been considered as non-duty for all purposes except pension, the appellant did not fulfill the requirements of the Recruitment Rules. 

The representations were however rejected, and the appellant was promoted to Senior OCIOA. The said order promoting the appellant was thus assailed by the 1st respondent/petitioner in his plea, on the ground that the period of unauthorized absence, if found after conducting due disciplinary proceedings as non-duty for all purpose except pension, then there was interruption and break in service and that the appellant thereby did not fulfill the criteria for the post. 

The appellant argued that the punishment was only censure and that there was no occasion for the petitioner to challenge the same. It was contended that Cochin Port Trust employees were governed by the Fundamental Rules and Central Civil Services (Pension) Rules ('CCS Pension Rules'), and that the employer would thus not debar the appellant from consideration of promotion, since the penalty was of minor nature. 

The Single Judge allowed the plea and held that the 1st respondent was entitled to be promoted to the post of Senior OCIOA, and that he was entitled to be promoted to the post of programmer ahead of the appellant. 

The appellant thus preferred the appeal contending that the punishment did not debar him from consideration for the promotion in view of Rule 27 of CCS Pension Rules ('Effect of interruption in service'). It was averred that his absence for the said period of 19 days ought to be regarded as 'break or interruptionn in service', and would not amount to forfeiture of past service as per Rule 27. 

The respondent countered the same, submitting that since the appellant did not conform to the requirement of Rules of having minimum two years of service, the seniority was liable to be ignored and the person immediately below him such as the 1st respondent was required to be considered for promotion as senior OCIOA. It was further contended that break or interruption in service as clarified in Rule 27 would definitely take away the right for promotion and seniority of the employee. 

The Court took note that the order treating the period of 19 days as unauthorized and non-duty except for pension was unassailed. 

"There is no doubt to the proposition as culled out by the Full Bench in the judgment cited supra that any Administrative Order if remain unchallenged would have its effect," the Court observed in this regard. 

However, perusing Fundamental Rule 17A and Rule 27 of the CCS Pension Rules, the Court ascertained that the said period of absence was to be treated as unauthorized and non-duty for all purposes, save for pension. 

It thus upheld the findings of the Single Judge and dismissed the appeal. 

Counsel for the Appellant: Advocates Vinay Kumar Varma, S. Shyam, N.K. Karnis, and V.K. Balachandran

Counsel for the Respondents: Advocates Kaleeswaram Raj, Latha Anand, Thulasi K. Raj, Aparna Narayan Menon, Chinnu Maria Antony, and S. Vishnu

Citation: 2024 LiveLaw (Ker) 42

Case Title: Sabu Varghese v. Viju P. Varghese & Ors. 

Case Number: WA NO. 1929 OF 2023

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