JUDGMENT
AR. Lakshmanan, J.
1. This appeal is preferred by the State of Kerala and the Registrar of this Court against the judgment of A. S. vENKATACHALA MOORTY, J. dated June 30, 1999 in O.P. No. 20000 of 1995. The respondent, who was working as a Senior Grade Assistant in this Court, filed the Original Petition seeking to quash Exts. P2, P3 and P5 and the conditions imposed in Ext. P1, and also to declare that the conditions imposed in Ext. P1 is illegal and that the petitioner/respondent herein is entitled to all service benefits for the period from August 23, 1993 to August 22, 1994 when she was on leave in continuation of her maternity leave. A further prayer by way of mandamus was also asked for the grant of eligible benefits of increment due in July, 1994 and other attendant benefits to the petitioner for the period she was ,on leave without allowances from August 23, 1993 to August 22, 1994.
2. The respondent herein was sanctioned maternity leave from May 25, 1992 to August 22, 1992 as per High Court order dated May 28, 1992. In continuation of the said leave she was sanctioned leave without allowances for one year from August 23, 1992 to August 22, 1993 by the Hon’ble Chief Justice of this Court and notified as per High Court order No. A2/2410/92 dated August 26, 1992 under Rule 102 of Part I of the Kerala Service Rules (hereinafter referred to as ‘the Rules’). Thereafter she applied for extention of the leave for one more year from August 23, 1993 to August 22, 1994 in continuation of the maternity leave. According to the respondent her application was supported by medical certificate as required under Rule 102 of the Rules and the extension of leave had to be applied for due to absolute necessity of her presence to look after the new born baby. This Court duly recommended the leave for sanctioning and sent to the first appellant State of Kerala, being the authority to sanction leave beyond a period of one year. The Government of Kerala, while sanctioning the leave under Rule 102 of the Rules, imposed a condition that the period of leave will not count for any service benefits including pension. Copy of the order G.O. Rt. No. 2742/93 Home C. Department dated December 3, 1993 is marked as Ext. P1 in the Original Petition. Being aggrieved by the conditions imposed in Ext. P1 order, the respondent herein made a representation on March 28, 1994 to the State of Kerala specifically praying to extend to her the eligible benefits under the note to Rule 102 of the rules. The said representation was rejected by the Government by Ext. P2 letter dated June 16, 1994 stating that the disability imposed is justifiable. It was observed therein that unless the baby is suffering from any ailment of prolonged nature requiring constant personal attention, there is no reason why the mother should be granted leave for two years with eligibility for increment and other: attendant benefits. Along with Ext. P2, Ext. P3 Government Order G.O. (Rt.) 1134/94/Home dated June 17, 1994 was also communicated to the respondent wherein it was stated that “rule 102 Part I of the Kerala Service Rules” appearing in the Government Order, Ext. P1, was substituted by “Rule 88 Part I Kerala Service Rules”. The petitioner/respondent herein submits that Ext. P2 and P3 are absolutely illegal arid incorrect and that Rule 88 has no application at all in this case. According to the respondent, it was not an ordinary leave that she had applied for, but it was leave in continuation of the maternity leave sanctioned to her and hence the only rule applicable in her case is Rule 102 of the Rules. The respondent again made another representation on August 2, 1994 for extending the benefits under the note to Rule 102 of the Rules. The said representation is marked as Ext. P4 in the Original Petition. On expiry of the leave the respondent herein rejoined duty on August 23, 1994. On December 20, 1994 she was required by this Court to produce an Essentiality Certificate describing the absolute necessity of her presence by the side of the baby and requested for the benefits of Rule 102 of the Rules. The said representation was also rejected by the State by Ext. P5 letter dated June 5, 1995 stating that her request to modify the leave without allowances as under Rule 102 of the Rules cannot be agreed to as it is not in the spirit of the leave rules. The respondent has, therefore, filed the above Original Petition for the reliefs mentioned above.
3. The first appellant herein filed a counter affidavit in the Original Petition through its Joint Secretary, Home Department. According to them there is nothing illegal and incorrect in Exts. P2 and P3 and that the relevant rule for granting leave without allowances is Rule 88 Part I of the Kerala Service Rules and that was why Ext. P1 Government order dated December 3, 1993 was modified by Ext. P3 Government order dated June 17, 1994. It is further stated that the respondent herein has not stated any special reasons as to why her child had required her personal attention during the period and that though the personal attention and care of mothers in the upbringing of their new born babies can generally be appreciated, Government employees cannot be expected to absent themselves from duty for long periods and leave cannot be granted for long periods with the attendant service benefits, for which the employees perform no service. It is, therefore, contended that the condition in Ext. P1 is not unfair and that the Government have acted well within its powers, derived from the provisions of the Kerala Service Rules, especially Rule 26, Part III of the Kerala Service Rules. This apart, it is contended that the essentiality certificate was furnished only on December 20, 1994 i.e. well after the period of leave and that the decision to grant leave without allowances, which will not count for any service benefit including pension was taken in good faith and on relevant consideration of the facts of the case.
4. The learned single Judge of this Court, on a consideration of Rule 102 of the Rules and after hearing both sides, came to the conclusion that the authorities are not empowered to impose the condition as in Ext. P1 while sanctioning the leave and, therefore, the learned Judge set aside that part of the order, Ext. P1 dated December 3, 1993 as unsustainable in law. The learned Judge also observed that the learned Government Pleader has not pointed out any other rule in the Kerala Service Rules to justify the action of the 1st respondent in imposing such a condition in his order dated December 3, 1993. Being aggrieved by the above judgment, the State of Kerala and the Registrar of this Court have filed the above writ appeal.
5. The learned Government Pleader Mr. Alexander Thomas submitted that leave cannot be claimed as a matter of right and that when exigencies of public service so requires, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. He contended that the above position stitpulated under Rule 65 Part I of the Kerala Service Rules highlights the propriety of stipulation of condition while granting leave to the respondent and that the condition so stipulated was by exercising the discretion by the Government and the respondent accepted the same. The Government Pleader, therefore, submitted that the respondent cannot depart from the earlier stand regarding the grant of leave and accordingly the respondent is estopped from making contentions like those raised in the Original Petition. It is further submitted that the continuity of service is dependant on the duty actually done by the incumbant and the non-duty period cannot be counted for the length of service for the purpose of according pensionary benefits to an employee. According to the appellants, the leave enjoyed by the respondent was not the leave which was statutorily due to the petitioner. It is further submitted that according to Rule 102 of the rules the continuation of maternity leave is allowed only upon request supported by medical certificate and the said rule cannot be interpreted as an enabling provision for granting other kinds of leave. If the Original Petition is allowed to stand and the impugned judgment is upheld, it is submitted that it may open flood gates of litigations by the employees claiming service benefits for the long periods of absence from duty.
6. We have carefully gone through the entire pleadings and the relevant rules. We also heard the respective counsel appearing on either side. Rule 102 Of the Rules reads thus:
“102. Maternity leave may be combined with leave of any other kind but leave applied for in continuation of the former may be granted only if the request be supported by a medical certificate.
Provided that no medical certificate shall be necessary for grant of any leave for a period not exceeding sixty days in continuation of maternity leave.
Note:- Regular leave in continuation of maternity leave may also be granted to a female on her producing a medical certificate to the effect that the new born baby requires personal attention of the mother and her presence by the side of the baby is absolutely necessary,
Explanation:- The kinds of leave coming under regular leave mentioned in the the Note are Earned Leave, Half-Pay Leave, Leave Not Due and Leave without Allowances only.”
In the instant case, the leave without allowances was applied for due to extreme exigencies and it was supported by requisite medical certificates as provided in Rule .102 of the Rules. In fact the leave was originally sanctioned by the appellant rightly under Rule 102. It was only when the respondent submitted her representation regarding the condition imposed in Ext. P1 order that the first appellant State of Kerala modified the order granting leave substituting Rule 88 Part I of the Kerala Service Rules in the place of Rule 102, without even any notice to the respondent. The benefits under Rule 102 of the Rules would be available to the leave availed in continuation of maternity leave and hence, the denial of such benefits in our opinion is illegal and arbitrary. The sanctioning of leave which was not applied for is also against the rules. The contention that the Essentiality Certificate was furnished only on December 20, 1994 is also not correct. It is seen that leave without allowance applied for by the respondent was supported by medical certificate and the same was sent to the first appellant from this Court along with letter No. A2/105/93 dated September 13, 1993. Subsequently another photocopy of the same was again sent along with letter No. A2/234/94 dated October 19, 1994 in response to letter No. 47790/C2/94 Home (C) Department dated September 22, 1994 from the first appellant. Strangely again, the 1st appellant called for copy of medical certificate, if any, by letter No. 57790/C2/94 Home (C) dated November 29. 1994, Thereupon, the Essentiality Certificate dated December 20, 1994 was again obtained and submitted to the first appellant along with letter No. A2/234/94 dated January 30. 1995. We are of the opinion that the leave applied for being of acute medical necessity and in continuation of the maternity leave, to look after the new bora child, who was suffering from disability, the benefits under the Note to Rule 102 was to be extended to the petitioner/respondent herein. The respondent had also explained the absolute necessity and the compelling reasons for availing the leave for the care of the disabled infant. It is to be noted that the respondent has never claimed the leave as a matter of right, and Rule 65 Part I of the Kerala Service Rules has no application in the case on hand as the leave applied for by the respondent was leave without allowances in continuation of maternity leave and the same was originally sanctioned by the first appellant under Rule 102 of the Rules. It is only when the respondent filed a representation against the conditions imposed in Ext. P1 order sanctioning leave that the first appellant modified the order sanctioning leave to be one under Rule 88 of the Rules. Rule 88 specifically provides that the officer concerned should apply in writing for the grant of leave without allowances under this Rule. Hence, the changing of the rule in the leave sanctioning order is illegal and cannot be justified. In our opinion, the first appellant having granted leave under Rule 102 of the Rules cannot later turn round and say that the said rule is not applicable and Rule 88 alone is applicable. The contentions raised by the State of Kerala in its counter affidavit is against the facts and the law. We are, therefore, of the opinion that the respondent herein is entitled to succeed in the Original Petition filed by her and the appeal filed by the State is liable to be rejected.
In view of the above, we dismiss the appeal and hold that the respondent herein is entitled to the benefits under the note to Rule 102 Part I of the Kerala Service Rules as all the conditions stipulated therein have been duly satisfied and that Rule 88 Part I of the Kerala Scrvice-Rules has no application to the facts of this case. We accordingly confirm the judgment of the learned single Judge and dismiss the Writ Appeal. There will be no order as to costs.