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Judgment
T.R. Ramachandran Nair, J.—The petitioner is challenging Exhibit P9 order whereby the request to reckon the period of leave without allowance availed by the petitioner for granting service benefits including pension stands rejected. Heard the learned counsel for the petitioner, the learned counsel for the Manager and the learned Government Pleader.
The petitioner was an Assistant Teacher in the 4th respondent-school from 2.8.1993 and the appointment was approved. She was granted higher grade on completion of 10 years. It is stated that the petitioner had to avail leave without allowance from 11.7.1977 to 8.9.1999 and the leave was granted as per Exhibit P1 order by the Government. This was granted under Rule 88 of Part I of Kerala Service Rules.
It appears that the petitioner had to face certain adverse circumstances and hence requested the Manager to allow her to take voluntary retirement, as per Exhibit P4. The Manager forwarded the request to the Accountant General, who sought clarifications from the Assistant Educational Officer as per Exhibit P5 and the original application was returned along with the service book.
The Assistant Educational Officer took up the matter before the Government for certain clarifications and the Government clarified that the leave was granted without the condition that the period of leave will not count for any service benefits including pension. But, still, the view taken is that the period cannot be counted for service benefits including pension as per the existing Rules.
The petitioner again took up the matter before the Government by filing Exhibit P7 and approached this Court by filing W.P. (C)No. 22196/2005, which was disposed of by Exhibit P8 judgment. Thereafter the matter was reconsidered by the Government by Exhibit P9, which is under challenge herein.
The learned counsel for the petitioner raised the following arguments.
It is submitted that the leave was granted Rule 88 of Part I KSR without expressly providing any condition that the leave period will not count for service benefits including pension. It is submitted that if such conditions are not imposed, then Rule 26 of Part III KSR will apply. In the light of the operation of these two Rules cumulatively, the learned counsel for the petitioner submitted that the view taken by the Government in Exhibit P6 as affirmed in Exhibit P9 cannot be supported. The learned counsel for the petitioner also relied upon the decision of a Division Bench of this Court in Elizabath v. Director of Health Services(1998 (2) KLT SN 67) (C. No. 82) and State of Kerala v. Dr. V.M. Kurshid (ILR 2000 (1) Ker 535).
First I will consider the facts with reference to the documents. Exhibit P1 is the order by which leave was granted under Rule 88 of Part I KSR. The order does not provide for any condition that the leave period will not be counted for service benefits. Exhibit P6 order passed by the Government will also show that on verification of the disposal leading to Exhibit P1, it is noted that the condition, viz;"subject to the condition that the period of leave will not count for any service benefits including pension", is seen deleted. But the Government took the view that as per the existing Rules, leave without allowance on private affairs under Rule 88 of Part I KSR cannot be counted for service benefits including pension. A reference to Rule 88 of Part I KSR will show that such a condition is not incorporated in the Rule. For easy reference, I am extracting the whole of Rule 88 of Part I KSR hereunder.
Leave Without Allowances:
(i) Leave without allowances may be granted to any officer in regular employment in special circumstances-
Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Service Rules 1958 shall be regulated by rules under Appendix VIII of these rules, unless he is already an officer on regular employment.
(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.
Evidently, the Rule applies in cases where no other leave is by rule admissible. Therefore the question is whether in the light of the impact of Rule 26 of Part III KSR, the conclusion arrived at by the Government in Exhibits P6 and P9 are correct. Rule 26 of Part III KSR reads as follows:
Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified.
GOVERNMENT DECISION
The authority competent to declare a spell of leave as non-qualifying for pension will be the Government and the grounds on which the periods of leave will be treated as non-qualifying, will be laid down by general or special orders issued from time to time.
Therefore, there should be specifications either in the order or by any other special order that the leave without allowance will not count for service benefit or pension so as to delete the said period from being reckoned as qualifying service. Interpreting the said Rule, a Division Bench of this Court in Elizabath v. Director of Health Services (1998 (2) KLT SN 67) (C. No. 82) held as follows:
We are unable to share the views of the learned single Judge on Rule 26 Part in of the Kerala Service Rules. Rule 26 stipulates for counting the time passed on leave of all kinds with or without allowances as qualifying service unless otherwise specified, and it does not empower the Government to impose a condition while granting the leave without allowances that the period granting the leave will not count for any service benefits including pension. Even assuming that Rule 26 empowers the Government to do so, the grounds on which the period will be treated as non- qualifying will have to be laid down by general or special order issued from time to time. In this case no such order has been issued by the Government. As per the note to Rule 65 while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. In this case the Government has not refused or revoked the leave without allowances applied for by the Government, but, in effect, has altered the nature of the leave applied for by the appellant as one under Appendix XII-A of the Kerala Service Rules, viz. leave without allowances for employment else where, which will not count for any service benefits including pension. It is not the case of the Government that the appellant has taken up any employment elsewhere. The appellant had applied for leave without allowances on medical grounds.
Therefore in the light of Rule 26 of Part III KSR, it can be seen that in the absence of a specification that the leave period cannot be counted for service benefits including pension, the same cannot be imposed against the petitioner.
In Exhibit P9, the view taken by the Government is that the petitioner was granted leave without leave allowance under Rule 88 of Part I KSR and the specific condition that the leave period will not count for any service benefits including pension is seen deleted. But it was held that as per existing Rules leave without allowance on private affairs under Rule 88 of Part I KSR cannot be counted for service benefits including pension. In support of the said finding, no other Rule is relied upon.
I have already extracted Rule 88 of Part I KSR, which does not provide for such a condition. Whether Rule 88 of Part I KSR can be invoked in such a case was specifically considered by a Division Bench of this Court in State of Kerala v. Dr. V.M. Kurshid (ILR 2000 (1) Ker 535). Paragraph Nos.4 and 6 of the judgment are extracted below.
The main ground of challenge in this appeal by the State is that the condition that the period of absence will not be counted for any service benefits including pension was intended to control the employee from availing of advantageous and benefit during unauthorised absence. As per rule 88 of Part of the Kerala Service Rules, (in short "the Rules"), the period of leave was dealt with and it was directed that the said period would be without allowance. With reference to Appendix XIIA(referred to in Exception 2 to rule 88 and rule 110b of Part I.K.S.Rs.) which deals with rules for grant of leave without allowances for taking up employment abroad or within India, it is submitted that the person who is granted leave has to forego certain benefits, and in case of unauthorised absence a more advantageous position cannot be conceived.
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In order to appreciate the rival submissions, Rule 88of Part I of the Rules needs to be noted. The same reads as follows:
Leave without allowance:-(i) Leave without allowance 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 employment, the duration of leave without allowances shall not exceed 3 months on any one occasion. It is fairly accepted that there is nothing in rule 88 which has application to the case at hand.....
Both these decisions will squarely apply here. Herein in the order sanctioning leave, admittedly no restrictions were there. In that view of the matter, the petitioner is entitled to succeed in the Writ Petition. Exhibits P6 and P9 are quashed. It is declared that the period of leave availed by the petitioner as per Exhibit P1 as leave without allowance will be reckoned for the purpose of pension and other pensionary benefits. Appropriate orders will be passed to revise the benefits already sanctioned, within a period of two months from the date of receipt of a copy of this judgment and the monetary benefits along with arrears will be disbursed to the petitioner, accordingly.
The Writ Petition is allowed as above. No costs.