IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA No. 1238 of 2007()
1. STATE OF KERALA, REPRESENTED BY THE
... Petitioner
2. THE DIRECTOR OF PUBLIC INSTRUCTIONS,
3. THE ASSISTANT EDUCATIONAL OFFICER,
Vs
1. P.K.ZAINUDEEN, UPPER DIVISION CLERK,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice K.S.RADHAKRISHNAN
The Hon'ble MR. Justice ANTONY DOMINIC
Dated :09/07/2007
O R D E R
K.S.Radhakrishnan
&
Antony Dominic, JJ.
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W.A.No.1238 of 2007
========================
Dated this the 9th day of July, 2007.
JUDGMENT
Antony Dominic,J.
Writ Petition was filed by the first respondent praying for a
direction to the appellants to grant the time bound first higher grade
with effect from 16.9.1985, the second time bound higher grade with
effect from 3.1.1995 and third higher grade with effect 3.1.1998.
Writ Petition was allowed by a learned single Judge following the
judgment in the case of K.S.R.T.C. v. Noorudeenkutty – 2005(3)
K.L.T. 504. Aggrieved by the same, the respondents have come up
with this appeal.
2. First respondent had joined duty in the Education Department
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as L.D.C. on 3.1.1975 and availed of leave without allowance for the
period from 17.8.1978 to 18.8.1983 for taking up employment abroad.
Ext.P1 is the Government Order sanctioning such leave. It is clear
from Ext.P1 that the leave so granted was subject to the conditions in
G.O.(P) No.274/70/Fin dated 29.4.1970, G.O.(P) No.65/76/Fin dated
25.2.1976 and the guidelines issued in circular
No.117546/SD3/76/GAD dated 19.5.1977 and subject to further
conditions that the period of leave would not count for pension or any
other service benefits and this fact was recorded in his service book.
The period of leave was thereafter extended till 18.8.1988 and before
the expiry of the said period, first respondent re-joined duty on
3.11.1986. Thereafter, he claimed that the aforesaid period of leave
should be reckoned for sanctioning time bound higher grades and this
was considered by the appellants and by Ext.P7 order, he was
informed that the period of leave availed of by him for employment
abroad would not be reckoned for granting higher grades and that he
was eligible for higher grade excluding the period of leave without
allowance availed of by him. Original Petition was therefore filed to
quash Ext.P7 and also for other reliefs mentioned above.
3. Appellants contended that while granting leave without
allowance, it was clarified by the Government in Ext.P1 order that the
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period of leave would not count for pension or any other service
benefits. Further it was contended that the claim for higher grade was
a service benefit which had been specifically excluded in Ext.P1 and
therefore the first respondent could not claim the same. It was also
contended referring to Annexure A 1 G.O.(Ms) No.68/72/G.Edn. dated
2.5.1972 that Government had ordered that leave on loss of pay which
was sanctioned on specific condition that it would not count for pension
as well as for sanctioning higher scales of pay. Government Pleader
also made reference to Annexure A2, G.O.(P) No.828/81(397)/Fin
dated 9.12.1981 whereby, Government had clarified that except the
leave without allowances availed of by the officers for taking up
appointments outside Government service and also that availed of by
female officers for accompanying their husbands abroad, all other
kinds of leave without allowances will be reckoned as qualifying service
for computing the 13 years service for grade promotion.
4. Counsel for the petitioner also made reference to Ext.P2
Government Order dated 29th April, 1970, which provides that leave
without allowance, if any, granted will not be counted for pension and
according to him, it is reiterated in Ext.P3 dated 19.5.1977 also. He
would therefore contend that in the light of Exts.P2 and P3
Government Orders the condition in Ext.P1 that the period of leave will
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be excluded for any other service benefits is of no consequence in as
much as what is not allowed to be excluded by rules, could not have
been excluded by a Government Order. Counsel also made reference
to the decision of this Court reported in K.S.R.T.C. v.
Noorudeenkutty – 2005(3) K.L.T. 504.
5. We have heard counsel on either side and have considered
their submissions. Reference to Ext.P1 would show that specific
provision has been made therein that the period of leave without
allowance availed of by the petitioner would not count for pension or
any other service benefits. The purport of the expression “any other
service benefits”, has come up for consideration before this Court in
the case of Dr.Krishna Pillai v. State of Kerala – 1988 (2) K.L.T.
106. That was a case in which leave without allowance was granted,
with an identical condition and dealing with a claim made for
reckoning the period for promotion, this Court held as follows:
“Having regard to the express conditions imposed at
the time of granting leave as incorporated in Ext.P1 which
we have extracted above, it is clear that the period during
which the appellant was on leave for taking up
employment abroad cannot count for ‘increment, pension
or any other service benefits’. The expression ‘any other
service benefits’ includes the benefit of service rendered
during the period of absence. Hence on the language of
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Ext.P1 it is obvious that the appellant having secured leave
subject to certain conditions after having taken advantage
of the said order Ext.P1 cannot now turn round and try to
wriggle out of the conditions that were imposed by Ext.P1
of denying him the service benefits during the period of his
absence.”
Following the said judgment of the Division Bench, another Division
Bench of this Court in the case of Secretary to Government v.
Jayaprakash – 2004(2) K.L.T. SN. 16 held as follows:
“Leave without allowances was granted to the
respondent for five years subject to the condition that the
period of leave will not count for pension or any other
service benefit. In view of this express condition imposed
at the time of granting leave, as incorporated in Ext.P1, we
have no doubt in our mind that the period during which the
respondent was on leave for taking up employment abroad
cannot count for “pension or any other service benefits”.
The period spent on leave without allowances shall be
treated as ‘dies non’ for all kinds of service benefits
including pension. When the leave period is excluded, it is
clear that the respondent completed 25 years of service
only in March 2002. In this view of matter, he was not
eligible at the time when the select list was prepared by
the Departmental Promotion Committee in November
2000. No fault can, thus, be found with the action of the
appellants in not including the name of the respondent in
the select list.
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In the light of these two judgments rendered by two Division Benches
of this Court, we are of the view that the petitioner is not entitled to
claim that the period spent by him on leave without allowance should
be reckoned for granting higher grade or any other purpose.
6. Judgment of this Court in K.S.R.T.C. v. Noorudeenkutty –
2005(3) K.L.T. 504 is clearly distinguishable on facts. It is not clear
whether a condition that the period will be excluded for any other
service benefits was incorporated in the order granting leave in that
case. A contention to that effect was also seen not raised before the
Division Bench. Noorudeenkutty’s Case is therefore of no assistance
to the first respondent. Further, the first respondent has also not
raised any prayer in the Writ Petition seeking to challenge the
conditions incorporated in Ext.P1. Since leave without allowance was
granted by Ext.P1 with the conditions mentioned above and in the
absence of any challenge to any of the conditions incorporated therein,
the first respondent is bound by the conditions in Ext.P1. In that view
of the matter also, the writ petitioner is not entitled to the reliefs
sought for.
4. For the aforesaid reasons, we hold that the first respondent is
not entitled to have the period of leave without allowance availed of by
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him reckoned for the purpose of higher grade. Learned single Judge,
in our view, was not right in allowing the Writ Petition. Accordingly,
the judgment of the learned single Judge is set aside and the appeal is
allowed, without any order as to costs.
K.S.Radhakrishnan,
Judge.
Antony Dominic,
Judge.
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