P. M. Joseph v. State of Kerala, Represented By The Secretary To Government, Department of Animal Husbandry
2026-05-18
Anil K Narendran, Muralee Krishna S
body2026
DailyLaw.ai
JUDGMENT : Muralee Krishna, J. The applicant in T.A.No.5291 of 2012 on the file of the Kerala Administrative Tribunal, Thiruvananthapuram (the ‘Tribunal’ for short) filed this original petition invoking the supervisory jurisdiction of this Court under Article 227 of the Constitution of India , challenging Annexure A1 order dated 10.08.2018 passed by the Tribunal in that Transferred Application. 2. The petitioner, a Veterinary Surgeon previously working as Livestock Inspector in the Animal Husbandry Department, approached this Court by filing W.P.(C)No.20619 of 2011 under Article 226 of the Constitution of India seeking the following reliefs; “(i) to issue a writ of certiorari quashing Ext.P11 as unjust, illegal and unsustainable; (ii) to issue a writ of certiorari quashing Ext.P9 as unjust, illegal and unsustainable; (iii) to declare that the petitioner is entitled to leave for study purpose for the from 20.09.2005 to 19.09.2007 as per Rule 99 read with Rule 91 of Part I KSR”. 3. Going by the averments in the writ petition, the petitioner submitted Ext.P1 application dated 07.10.2004 for earned leave for 123 days, half pay leave for 160 days and study leave for the remaining days up to 5 years from 11.12.2004 onwards. By Ext.P2 letter dated 08.10.2004 addressed to the 3 rd respondent District Animal Husbandry Officer, the 4 th respondent Assistant Project Officer, recommended to grant the petitioner earned leave for 123 days and half pay leave for 160 days. Thereafter Ext.P3 letter dated 13.06.2005 was issued by the 4 th respondent to the 3 rd respondent in which it was stated that the petitioner was granted Leave Without Allowance for study purposes with effect from 08.11.2004, pointing out that the classes in the veterinary college started on 08.11.2004 and the petitioner was supposed to join the classes on 11.12.2004 and was relieved with effect from 10.12.2004. The 4 th respondent requested the 3 rd respondent to grant the petitioner study leave for five years, with effect from 11.12.2004, excluding the aforesaid 123 days of earned leave and 160 days of half pay leave as Leave Without Allowance. Accordingly, the 4 th respondent sought modification of the government order, which granted five years leave to the petitioner.
The 4 th respondent requested the 3 rd respondent to grant the petitioner study leave for five years, with effect from 11.12.2004, excluding the aforesaid 123 days of earned leave and 160 days of half pay leave as Leave Without Allowance. Accordingly, the 4 th respondent sought modification of the government order, which granted five years leave to the petitioner. Thereafter, the Government issued Ext.P4 order dated 26.03.2007 modifying the leave granted to the petitioner as earned leave for 123 days from 11.12.2004 to 13.04.2005, half pay leave for 160 days from 14.05.2005 to 20.09.2005, and Leave Without Allowance under Rule 88 of Part I Kerala Service Rules (‘KSR’ for short) for the remaining period from 21.09.2005. By Ext.P5 letter dated 21.05.2007 issued to the 3 rd respondent, the 4 th respondent pointed out a minor discrepancy with respect to the dates from which the leave had to be sanctioned to the petitioner. By Ext.P6 letter dated 26.07.2007, the 4 th respondent requested the petitioner to submit a representation for rectification of the mistake in the dates of sanctioning of the leave. Thereafter, the Government issued Ext.P7 order dated 24.11.2007 rectifying the dates of sanctioning of three types of leave as sought for in Ext.P5, i.e., earned leave for 123 days from 11.12.2004 to 12.04.2005, half pay leave for 160 days from 13.04.2005 to 19.09.2005 and Leave Without Allowance from 20.09.2005 to 10.12.2009. 3.1. The petitioner thereafter submitted Ext.P8 representation dated 15.01.2008, requesting to split up the Leave Without Allowance granted to him for the period from 20.09.2005 to 19.09.2007, granting salary for the said period of leave and to treat the leave period after 19.09.2007 as Leave Without Allowance. Along with Ext.P8 representation, the petitioner submitted various applications for leave in the prescribed form and enclosed the Government Order dated 16.10.2000. By Ext.P9 letter dated 23.01.2009 addressed to the 2 nd respondent, it is stated by the Government that the petitioner has applied for study leave for two years from 21.09.2005 to 20.09.2007 as per Rule 99 of Part I KSR, after deletion of the said provision as per Government Order dated 19.02.2007. It is also stated in Ext.P9 that, as per the Ruling below Rule 11 of Part I KSR, an officer’s eligibility for leave is to be determined by the Rules in force at the time when the leave is applied for and granted.
It is also stated in Ext.P9 that, as per the Ruling below Rule 11 of Part I KSR, an officer’s eligibility for leave is to be determined by the Rules in force at the time when the leave is applied for and granted. Thus, it is stated in Ext.P9 that the petitioner is not eligible for study leave under Rule 99 of Part I KSR. 3.2. The petitioner again submitted Ext.P10 representation dated 20.08.2009, challenging Ext.P9 and seeking a reconsideration of the same. In Ext.P10, the petitioner contended that the date of Ext.P1 has to be taken as the date of application, and at that time, the note under Rule 99 of Part I KSR was in force, which makes him eligible for study leave for two years. Thereafter, the Government issued Ext.P11 letter dated 20.04.2010 rejecting the request of the petitioner on the ground that the leave was granted to undergo B.V.Sc degree. Thereafter, the petitioner approached this Court with the writ petition. 3.3. On behalf of the 3rd respondent, a counter affidavit was filed in the writ petition, opposing the reliefs sought for and producing therewith Exts.R3 (a) to R3(c) documents. In the counter affidavit, it is inter alia contended that the leave application submitted by the petitioner was not for study leave for five years from 11.12.2004, but for various leaves for higher studies. In the application dated 07.10.2004, the petitioner has not mentioned study leave anywhere, and Ext.P1 is not a copy of the leave application submitted on 07.10.2004 to the Assistant Project Officer. The true copy of the leave application dated 07.10.2004 is produced along with the counter affidavit as Ext.R3(a). It is further contended by the 3 rd respondent in the counter affidavit that since Rule 99 of Part I KSR has been deleted with effect from 19.02.2007 and Ext.P8 request was made after the said amendment, study leave cannot be granted to the petitioner. 4. When the Tribunal was constituted under the provisions of the Administrative Tribunals Act , the writ petition was transferred to the Tribunal, which was renumbered as T.A.No. 5291 of 2012. 5. After hearing both sides, the Tribunal, by the impugned Annexure A1 order dated 10.08.2018, dismissed the transferred application. Paragraphs 7 to 9 of that order read thus; “7.
4. When the Tribunal was constituted under the provisions of the Administrative Tribunals Act , the writ petition was transferred to the Tribunal, which was renumbered as T.A.No. 5291 of 2012. 5. After hearing both sides, the Tribunal, by the impugned Annexure A1 order dated 10.08.2018, dismissed the transferred application. Paragraphs 7 to 9 of that order read thus; “7. Learned counsel for the applicant contends that declining study leave stating that Rule 99 was not in existence cannot be supported. He submits that when Ext.P1 application was submitted , Rule 99 was in force and the respondents ought to have sanctioned study leave to the applicant under Rule 99 . 8. It is pointed out by the learned Government Pleader that the applicant did not object to Ext.P4, when LWA was sanctioned, specifically referring to Rule 88 and mentioning that it will not count for any service benefits. Ext.P8 request was made more than 6 months after Ext.P4. Learned counsel for the applicant also submits that Ext.P4 was mentioned in Ext.P7 and it is only in Ext.P7 that the sanctioning of leave became final. But the error in Ext.P4 was noticed only after 4 months and until then the applicant had no grievance regarding the grant of LWA under Rule 88 . 9. in such circumstances, there are no good grounds to interfere with Ext.P9 order, though the reasons stated in Ext.P11 are not satisfactory. The contentions of the applicant fail. The Transferred Applications is therefore dismissed”. 6. Being aggrieved by the dismissal of the transferred application, the petitioner is now before this Court with this original petition. 7. Heard the learned counsel for the petitioner and the learned Senior Government Pleader. 8. The learned counsel for the petitioner would argue that the reasons stated by the Government for rejecting the application submitted by the petitioner by way of Ext.P9 order dated 23.01.2009 to treat the leave from 21.09.2005 to 20.09.2007 as study leave as per Rule 99 of Part I KSR are different from that stated in Ext.P11 order.
8. The learned counsel for the petitioner would argue that the reasons stated by the Government for rejecting the application submitted by the petitioner by way of Ext.P9 order dated 23.01.2009 to treat the leave from 21.09.2005 to 20.09.2007 as study leave as per Rule 99 of Part I KSR are different from that stated in Ext.P11 order. When in Ext.P9, it is stated that the application of the petitioner cannot be considered due to the deletion of Rule 99 of Part I KSR with effect from 19.02.2007, in Ext.P11, the reason stated is that the acquisition of B.V.Sc degree has no impact with regard to the exigency of public service, and the intention is only personal interest for career advancement. In fact, the initial application of the petitioner by way of Ext.P1 was prior to the deletion of Rule 99 of Part I KSR and this aspect was not properly considered by the Tribunal. 9. On the other hand, the learned Senior Government Pleader would submit that Ext.P1 is not the true copy of the original application submitted by the petitioner. Ext.R3(a) is the correct application wherein the leave requested is earned leave for 123 days, half pay leave for 160 days and Leave Without Allowance for the remaining period up to five years from 08.11.2004 onwards. So also is the case of Ext.R3(b), the revised leave application dated 11.07.2005 submitted by the petitioner. The revised leave application for sanctioning study leave for two years from 20.09.2005 to 19.09.2007 under Rule 99 of Part I KSR, by way of Ext.R3(c) application dated 15.01.2008, was submitted after the deletion of Rule 99 of Part I KSR with effect from 19.02.2007 by the Government Order. As per the Ruling below Rule 11 of Part I KSR, Ext.R3(c), the application of the petitioner was considered in the light of the Rules in force at that time and was rightly rejected. Therefore, no interference is needed on the impugned order of the Tribunal. 10. We have perused the materials placed on record and appreciated the rival submissions made at the Bar. 11. Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 12.
11. Article 227 of the Constitution of India deals with the power of superintendence over all courts by the High Court. Under clause (1) of Article 227 of the Constitution, every High Court shall have superintendence over all courts and tribunals throughout the territories in relation to which it exercises jurisdiction. 12. In Estralla Rubber v. Dass Estate (Pvt.) Ltd [ (2001) 8 SCC 97 ] , the Apex Court held thus; "The scope and ambit of exercise of power and jurisdiction by a High Court under Art.227 of the Constitution of India is examined and explained in number of decisions of this Court. The exercise of power under this Article involves a duty on the High Court to keep inferior courts and tribunals within the bounds of their authority and to see that they do duty expected or required by them in a legal manner. The High Court is not vested with any unlimited prerogative to correct all kinds of hardship or wrong decisions made within the limits of the jurisdiction of the courts subordinate or tribunals. Exercise of this power and interfering with the orders of the courts or tribunal is restricted to cases of serious dereliction of duty and flagrant violation of fundamental principles of law or justice, where if High Court does not interfere, a grave injustice remains uncorrected. It is also well settled that the High Court while acting under this Article cannot exercise its power as an appellate court or substitute its own judgment in place of that of the subordinate court to correct an error, which is not apparent on the fact of the record. The High Court can set aside or ignore the findings of facts of inferior court or tribunal, if there is no evidence at all to justify or the finding is so perverse, that no reasonable person can possibly come to such a conclusion, which the court or Tribunal has come to." 13. In Shalini Shyam Shetty v. Rajendra Shankar Patil [ (2010) 8 SCC 329 ] the Apex Court, while analysing the scope and ambit of the power of superintendence under Article 227 of the Constitution, held that the object of superintendence, both administrative and judicial, is to maintain efficiency, smooth and orderly functioning of the entire machinery of justice in such a way as it does not bring it into any disrepute.
The power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and courts subordinate to the High Court. 14. In Jai Singh v. Municipal Corporation of Delhi [ (2010) 9 SCC 385 ] , while considering the nature and scope of the powers under Article 227 of the Constitution of India , the Apex Court held that, undoubtedly the High Court, under Article 227 of the Constitution, has the jurisdiction to ensure that all subordinate courts, as well as statutory or quasi-judicial tribunals exercise the powers vested in them, within the bounds of their authority. The High Court has the power and the jurisdiction to ensure that they act in accordance with the well-established principles of law. The exercise of jurisdiction must be within the well-recognised constraints. It cannot be exercised like a 'bull in a china shop', to correct all errors of the judgment of a court or tribunal, acting within the limits of its jurisdiction. This correctional jurisdiction can be exercised in cases where orders have been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. 15. In K.V.S. Ram v. Bangalore Metropolitan Transport Corporation [ (2015) 12 SCC 39 ] the Apex Court held that, in exercise of the power of superintendence under Article 227 of the Constitution of India , the High Court can interfere with the order of the court or tribunal only when there has been a patent perversity in the orders of the tribunal and courts subordinate to it or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 16. In Sobhana Nair K.N. v. Shaji S.G. Nair [2016 (1) KHC 1] a Division Bench of this Court held that, the law is well settled by a catena of decisions of the Apex Court that in proceedings under Article 227 of the Constitution of India , this Court cannot sit in appeal over the findings recorded by the lower court or tribunal and the jurisdiction of this Court is only supervisory in nature and not that of an appellate court.
Therefore, no interference under Article 227 of the Constitution is called for, unless this Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law. 17. In view of the law laid down in the decisions referred to supra, the High Court, in exercise of its supervisory jurisdiction under Article 227 of the Constitution of India , cannot sit in appeal over the findings recorded by a lower court or tribunal. The supervisory jurisdiction cannot be exercised to correct all errors of the order or judgment of a lower court or tribunal, acting within the limits of its jurisdiction. The correctional jurisdiction under Article 227 can be exercised only in a case where the order or judgment of a lower court or tribunal has been passed in grave dereliction of duty or in flagrant abuse of fundamental principles of law or justice. Therefore, no interference under Article 227 is called for, unless the High Court finds that the lower court or tribunal has committed manifest error, or the reasoning is palpably perverse or patently unreasonable, or the decision of the lower court or tribunal is in direct conflict with settled principles of law or where there has been gross and manifest failure of justice or the basic principles of natural justice have been flouted. 18. Before going into the merits of the contentions raised by the parties regarding the entitlement of the petitioner to treat the period from 21.09.2005 to 20.09.2007 as study leave as per Rule 99 of Part I KSR, we notice that the petitioner has not approached this Court with clean hands. As per the pleadings in the writ petition, which was later converted into a transferred application, Ext.P1 is the copy of the application dated 07.10.2004 submitted by the petitioner for three types of leave. But as per the counter affidavit filed on behalf of the 3 rd respondent, Ext.P1 is not the true copy of the original leave application, but Ext.R3(a) is the true copy of the said application. While perusing Ext.P1 and Exts.R3(a) to R3(c) applications produced along with counter affidavit, we notice that the similarity is there between Ext.P1 and Ext.R3(b) application. However, the dates entered on these applications are different.
While perusing Ext.P1 and Exts.R3(a) to R3(c) applications produced along with counter affidavit, we notice that the similarity is there between Ext.P1 and Ext.R3(b) application. However, the dates entered on these applications are different. Apart from that, we notice that there are corrections in Ext.P1 at the place of pay and scale of pay and also the nature and periods of leave applied for in these documents. 19. From the reading of Exts.P1 and R3(b), it can be seen that the word ‘LWA’ mentioned in Ext.P1 is corrected as ‘study leave’ by overwriting. Similarly, there is a correction in the date under the signature of the applicant and also in the scale of pay. This unexplained anomaly, even after filing a counter affidavit from the part of the 3 rd respondent, prompts us to observe that the petitioner has not approached this court with clean hands as mentioned above. 20. While coming to the merits of the contentions raised by the petitioner, as seen from the materials placed on record, the petitioner had applied for three types of leave, including leave without allowance for five years from 11.12.2004 onwards and was sanctioned with those leaves. It is thereafter that he came up with Ext.P8 representation to convert a portion of the said leave sanctioned as study leave. Admittedly, at the time of submission of Ext.P8 application, Rule 99 of Part I KSR relied on by the petitioner, was deleted by the order of the Government. Though the petitioner says that Ext.P1 leave application is under Rule 99 of Part I KSR, the document shows otherwise. When the contentions of the petitioner is appreciated in the light of the Ruling below Rule 11 of Part I KSR, it is apparently clear that the petitioner is not entitled for the reliefs sought in the writ petition, which was later converted as transferred application. Having considered the pleadings and materials on record and the submissions made at the Bar in the light of the judgments referred to supra, we find no ground to hold the impugned Annexure A1 order of the Tribunal as perverse or patently illegal, which warrants interference by exercising supervisory jurisdiction under Article 227 of the Constitution of India . In the result, the original petition stands dismissed.