IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 1280 of 2010(H)
1. DR.A.V.ABDULLA, CIVIL SURGEON (RETIRED),
... Petitioner
Vs
1. STATE OF KERALA,
... Respondent
2. DIRECTOR OF HEALTH SERVICES,
3. ACCOUNTANT GENERAL,
For Petitioner :SRI.P.M.PAREETH
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :27/09/2010
O R D E R
T.R.RAMACHANDRAN NAIR,J.
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W.P.(C)No.1280 Of 2010
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DATED THIS THE 27th DAY OF SEPTEMBER, 2010
JUDGMENT
The petitioner retired as Civil Surgeon from the District
Hospital, Kannur. The grievance raised in this Writ Petition
relates to the non-reckoning of certain periods availed as study
leave under Rule 91 of Part I KSR for the purpose of pension.
The proceedings Exhibit P6 of the Accountant General shows that
they have relied on Exhibit P7 circular to hold that leave without
allowance for study purposes sanctioned as per rule 91 will not
count for pension. The petitioner challenges Exhibit P6 as well
as the circular Exhibit P7.
2. The petitioner was sanctioned leave as per Exhibit P1
from 28.1.1984 to 27.1.1986 for study purpose under Rule 91
Part I KSR. The period of leave was extended from 21.8.1986 to
31.12.1986 again under Rule 91 Part I KSR as per Exhibit P2.
Exhibit P3 is an order by which the petitioner was granted 114
days half pay leave from 7.1.1994 to 30.4.1994 and 99 days
leave without allowance from 1.5.1994 to 7.8.1994.
W.P.(C)No. 1280/10 -2-
3. Reliance is placed on Rule 26 Part III KSR, which
provides that time passed on leave of all kinds with or without
allowance will count as qualifying service unless otherwise
specified. It is pointed out that in Exhibits P1 and P2, it is not
specified that the period availed for study purpose will not count
for pension. The order Exhibit P2 refers to leave under Rule 88
Part I KSR as not to be reckoned for the purpose of service
benefits, including pension. Therefore, the learned counsel for
the petitioner submitted that the Circular, Exhibit P7 could not
have been relied upon to deny the benefit of service during the
period of study leave, for reckoning due pension.
4. A reading of Exhibit P7 circular shows that the same
could not have been relied upon to deny the benefits to the
petitioner. Paragraph No.3 of the circular only explains the
principle under Rule 26 Part III KSR. It also mentions about the
period of leave without allowance availed of by a person under
Appendix XIIA, XIIB and XIIC, and that the said period will not
count for pension. Therefore, the Government was only
cautioning the leave sanctioning authorities that they should
incorporate a particular clause while sanctioning leave under
W.P.(C)No. 1280/10 -3-
Rules 88 and 91 that the period will not count for the purpose of
pension. Therefore, evidently, it was only for future application.
That cannot modify the terms of Exhibits P1 and P2 orders which
were passed long back and at any rate the circular cannot be held
as retrospective also.
5. The principle under which Rule 26 of Part III KSR
operates is therefore significant. Going by the same leave of all
kinds with or without allowance will count as qualifying service
unless otherwise specified. The words “unless otherwise
specified” if applied to the case of the petitioner, it can be seen
that in Exhibits P1 and P2 such a specification has not been
made. Therefore, while sanctioning the leave, the petitioner was
never told that the leave period will not count for pension.
Obviously, after retirement, the petitioner cannot therefore be
denied the benefit of the said service, while computing pension.
6. Paragraph No.6 of the counter affidavit goes to show
that the earned leave for 175 days from 16.7.1993 to 6.1.1994
and half pay leave for 114 days from 7.1.1994 to 30.4.1994 will
be treated as qualifying service for granting increment, higher
grade and pensionary benefits. Therefore, the same are also
W.P.(C)No. 1280/10 -4-
liable to be reckoned for the purpose of computing pension.
7. In that view of the matter, Exhibit P6 is quashed.
There will be a declaration that the periods from 20.1.1984 to
27.1.1986, 28.1.1986 to 31.12.1986 and the period mentioned
in paragraph No.6 of the counter affidavit, namely, earned leave
for 175 days from 16.7.1993 to 6.1.1994 and half pay leave for
114 days from 7.1.1994 to 30.4.1994 will be reckonable as
qualifying service for pension. The respondents are therefore
directed to sanction pension accordingly. Appropriate orders
shall be passed within three months from the date of receipt of a
copy of this judgment. Since the petitioner has already been
sanctioned pension, naturally it will result in revision of pension
and payment of arrears, which shall also be effected accordingly.
The Writ Petition is allowed as above. No costs.
Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE)
dsn
