IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29721 of 2007(L)
1. P.K. LALITHA BAI, AGED 62 YEARS,
... Petitioner
Vs
1. THE PRINCIPAL SECRETARY TO GOVT. OF
... Respondent
2. STATE OF KERALA,
3. DISTRICT EDUCATIONAL OFFICER, KOLLAM.
For Petitioner :SRI.C.UNNIKRISHNAN (KOLLAM)
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :11/12/2008
O R D E R
ANTONY DOMINIC, J.
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W.P.(C) NO. 29721 OF 2007 (L)
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Dated this the 11thday of December, 2008
J U D G M E N T
Petitioner seeks to quash Exts. P4 and P8 to the extent it imposes
the condition that the period of leave without allowances will not count for
any service benefits. She also seeks a declaration that the break in service
of the petitioner from 14/7/95 to 21/7/96 and 26/3/96 to 1/6/97 is liable to
be counted for pension and that she is entitled to be granted minimum
pension on that basis.
2. Petitioner submits that after rendering service as HSA in
S.V.H.S.S., Clappana, in a short term vacancy, from 1/11/1977, she was
relieved on 31/1/78. Subsequently, she was reappointed as a Lower Grade
Hindi Teacher w.e.f. 24/9/81 and that while working as such w.e.f.
14/7/91 to 30/6/92, she was reassigned as a Lower Grade Hindi Teacher.
She continued as such till 14/7/95 and was retrenched for want of vacancy
consequent on the staff fixation order for the academic year. She had only
less than 7 years service as on the date of retrenchment and hence was
not entitled to protection. Again she was reappointed w.e.f. 22/1/96 and
for want of vacancy was relieved w.e.f. 25/3/96. She was reappointed
w.e.f. 1/6/97 and continued till her retirement on 30/6/99 with a total
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service of 8 years, 5 months and 8 days.
3. As she did not have the minimum qualifying service of 10
years, she was not eligible for minimum pension. On 26/3/2001, the
Government issued Ext.P1 order directing that all aided school teachers
appointed prior to 14/7/96 who did not complete 7 years on or before
15/7/95 and who were not in service as on 14/7/96 will be given
protection and will be absorbed in future vacancy. It was also ordered
that the period during which they were out of service till date of
deployment of protection will be regularised as eligible leave or leave
without allowance. Claiming the benefit of Ext.P1 Government Order,
petitioner represented to the 1st respondent on 23/4/2001 and the 1st
respondent directed the DEO to take necessary steps to regularise the
break in service of the petitioner as stipulated in Ext.P1. Subsequently,
pursuant to Ext.P3 judgment of this Court in OP No.7637/02, the DEO
issued Ext.P4 order regularising the period 14/7/95 to 21/1/96 and from
26/3/96 to 1/6/97 as leave without allowances subject to the condition
that the period will not count for any service benefit.
4. Objecting to the aforesaid condition in Ext.P4, petitioner
submitted Ext.P5 representation to the 1st respondent. Though she
pursued the matter, there was no progress and therefore Ext.P6
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representation was also submitted. Still later, complaining of inaction on
Exts.P5 and P6, petitioner approached this Court and filed WP(C)
No.16447/06 which was disposed of by Ext.P7 judgment directing
consideration of the representations. Accordingly, the 1st respondent issued
Ext.P8, rejecting the claim of the petitioner in the following words.
Since Leave Without Allowance will not count for
any pensionary benefits, the petitioner had only a
total qualifying service of 8 years 5 months and 10
days and it does not allow to give minimum
pension. Hence, the request of the petitioner for
minimum pension cannot be considered. She is
sanctioned ex-gratia pension as per G.O(P)
No.1851/99/Fin dated 18.9.1999.
5. It is in these circumstances, writ petition is filed with the
prayers referred to above. Counsel for the petitioner contended that Ext.P1
is the enabling order issued by the Government for regularisation of the
break in service and that so long as Ext.P1 does not contain a provision
enabling the 3rd respondent to incorporate a condition for the exclusion of
the period for service benefits, the aforesaid condition incorporated in
Ext.P4 was illegal and without jurisdiction. It was further contended that
Rule 26 or Rule 88 of Part III KSR also did not empower the imposition of
a condition as has been done in Ext.P4. Counsel also placed reliance on
the judgments of this court in Elizabath v. Director of Health Services
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(1998(2) KLT S.N Case NO.82) and State of Kerala v.
Dr.V.M.Kurshid (ILR (2000 (1) Kerala 535).
6. In the counter affidavit filed, the respondents seek to justify
Ext.P4. They are also relying on Ext.R1(a) Circular No.38/02/Fin dated
3/6/02 issued in pursuance to Rule 26 of Part III KSR. It is also stated
that circular No.72/05/Fin dated 30th of December, 2005 has been issued
by the Government clarifying that leave without allowance other than on
medical certificate will not count for any pensionary benefits.
7. The break in service in so far as the petitioner is concerned is
during the period 14/7/95 to 21/7/96 and from 26/3/96 to 1/6/97. The
order which enabled the regularisation of the aforesaid period is Ext.P1,
GO(P) No.112/2001/G.Edn dated 26/3/2001. This order did not contain a
condition that if the break is regularised as leave without allowance, the
said period will not count for any service benefit. Therefore if Ext.P4 has
been issued on the basis of Ext.P1 Government order, so long as the
condition contained in Ext.P4 does not find a place in Ext.P1, the said
condition in Ext.P4 is erroneous.
8. True, as contended by the learned Government Pleader, in
terms of the provisions contained in Rule 26 of Part III KSR, time passed
on leave of all kinds with or without allowances will count as qualifying
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service unless otherwise specified as provided in Rule 26.
9. Though in the counter affidavit filed, the respondents are
relying on Ext.R1(a) circular dated 3/6/02 and the circular No.72/05/Fin
dated 30th of December,2005, in Ext.R1(a), it has been provided that leave
without allowance granted under Rule 91 Part I KSR for study purpose and
leave without allowance granted under Rule 88 Part I KSR will not count
for any service benefits including pension except the cases mentioned
therein which include leave without allowance granted on medical
certificate. The circular dated 30th of December, 2005 referred to above
also is of the same effect.
10. However, what is important to be noticed is that Ext.P4 was
issued by the 3rd respondent on 4/6/02 incorporating the objectionable
condition, in implementation of Ext.P2, the Government letter dated
27/12/2001. At the time when Ext.P2 Government letter directing
regularisation of the petitioner’s break in service was ordered, neither
Ext.R1(a) nor the Government circular of 30th of December 2005 were in
existence. If that be so, these circulars cannot be relied on against the
petitioner. The contention to this effect raised by the petitioner is fully
supported by the judgment of the Division Bench in Elizabath v.
Director of Health Services (1998(2) KLT S.N. Case No.82) relied to
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supra.
11. The further contention that in the absence of any specific
provision, a condition similar to what has been incorporated in Ext.P4 is
impermissible, is the principle that has been laid down by the Division
Bench in State of Kerala v. Dr.V.M.Kurshid (ILR (2000) 1 Kerala
535). Therefore, in the absence of any statutory provision or prescription
under Rule 26 of Part III KSR, at the time when Ext.P2 order was issued
by the Government directing regularisation of the break in service of the
petitioner, the 3rd respondent could not have incorporated a condition in
Ext.P4. Consequently, the rejection of the petitioner’s representation by
Ext.P8 also is erroneous.
12. Accordingly, the condition incorporated in Exts.P4 and P8 will
stand set aside and it is directed that the period covered by Exts.P2 and P4
will be counted for granting the petitioner minimum pension.
Writ petition is disposed of as above.
ANTONY DOMINIC, JUDGE
Rp