High Court Kerala High Court

P.K. Lalitha Bai vs The Principal Secretary To Govt. … on 11 December, 2008

Kerala High Court
P.K. Lalitha Bai vs The Principal Secretary To Govt. … on 11 December, 2008
       

  

  

 
 
  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.
                         ==============
                     W.P.(C) NO. 29721 OF 2007 (L)
                    ====================

              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

WPC 29721/07
:2 :

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

WPC 29721/07
:3 :

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

WPC 29721/07
:4 :

(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

WPC 29721/07
:5 :

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

WPC 29721/07
:6 :

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