IN THE HIGH COURT OF KERALA AT ERNAKULAM
WA.No. 1966 of 2009()
1. THE PRINCIPAL SECRETARY TO GOVERNMENT
... Petitioner
2. STATE OF KERALA, REPRESENTED BY THE
3. DISTRICT EDUCATIONAL OFFICER,
Vs
1. P.K.LALITHA BAI, AGED 62 YEARS,
... Respondent
For Petitioner :GOVERNMENT PLEADER
For Respondent : No Appearance
The Hon'ble MR. Justice K.BALAKRISHNAN NAIR
The Hon'ble MR. Justice P.BHAVADASAN
Dated :13/11/2009
O R D E R
K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ.
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W.A.No.1966 of 2009
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Dated this, the 13th day of November, 2009
JUDGMENT
Balakrishnan Nair, J.
The respondents in the Writ Petition are the
appellants. The respondent herein was the writ petitioner.
The brief facts of the case are the following:
The respondent/writ petitioner was a Hindi teacher
in S.V.Higher Secondary School, Clappana, Kollam. The
details regarding the periods during which she worked in the
school are the following:-
01.11.1977 to 31.01.1978 Lower Grade Hindi Teacher
24.09.1981 to 11.12.1981 Lower Grade Hindi Teacher
01.10.1986 to 04.12.1986 Lower Grade Hindi Teacher
08.06.1988 to 11.08.1988 Lower Grade Hindi Teacher
06.10.1988 to 05.01.1989 H.S.A. Hindi
04.06.1990 to 04.03.1991 H.S.A. Hindi
14.07.1991 to 30.06.1992 Lower Grade Hindi Teacher
01.07.1992 to 14.07.1995 Lower Grade Hindi Teacher
22.01.1996 to 25.03.1996 Lower Grade Hindi Teacher
01.06.1997 to 30.06.1999 Lower Grade Hindi Teacher
W.A.No.1966 of 2009
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The respondent retired from service on 30.6.1999. She
claimed regularisation of her service from 14.7.1995 to
21.1.1996 and from 26.3.1996 to 1.6.1997 as leave without
allowance on the strength of Ext.P1, Government Order. The
relevant portion of Ext.P1 Government Order, reads as
follows:
“In the Government Order read as 1st
paper above, orders were issued to protect all
aided regular teachers who were retrenched due to
fall in divisions after completing 7 years of service
on or before 15.7.1995. In the G.O. read as
second paper above, it was ordered that all aided
school teachers who were in service as on
14-7-1996 will be given protection by retaining
them in the respective schools.
2. Subsequently, Government have
received representations from non-protected
teachers who did not complete seven years of
regular service on or before 15-7-1995 and who
were not in service against a regular division
W.A.No.1966 of 2009
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vacancy as on 14-7-1996.
3. Having examined the matter in detail
in consultation with the Director of Public
Instruction, Government are pleased to order that
all aided school regular teachers who did not
complete seven years of service on or before
15-7-1995 and who were not in service as on
14-7-1996 will be given protection. They will be
absorbed in the future vacancies arising under the
respective management. The period during which
they are out of service till the date of deployment
on protection will be regularised as eligible leave or
Leave Without Allowance.”
Her claim for the benefit of Ext.P1 was considered by the
District Educational Officer pursuant to the direction of this
Court and Ext.P4 order was passed. Though, Ext.P1 was
issued only on 26.3.2001, which was after the retirement of
the respondent/petitioner, the Government issued a
clarification on 17.5.2002, stating that the retired hands were
W.A.No.1966 of 2009
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also eligible to get the benefit of protection. Taking note of
the said clarification, the D.E.O. by Ext.P4 order, granted the
benefit of Ext.P1 to the respondent and her periods of service
from 14.7.1995 to 21.1.1996 and 26.3.1996 to 1.6.1997 were
regularised as leave without allowance. But, the D.E.O. added
a rider that the aforementioned period will not count for any
service benefits. The relevant portion of Ext.P4 reads as
follows:
“In view of the factual position supra and in the
wake of the judgment in O.P.No.7637/2002
dt.21.3.2002, the Dist. Edl. Officer, Kollam is
pleased to order that the retrenched period of
Smt.Lalitha bai, HSA (Hindi) Retd., SVHSS,
Clappana from 14.7.95 to 21.1.96 and from
26.3.96 to 1.6.97 stands regularised as Leave
without allowances subject to the condition that
the aforementioned period will not count for any
service benefits. The judgment in
O.P.No.7637/2002 of the Hon’ble High Court
stands implemented in this effect.”
(emphasis supplied)
W.A.No.1966 of 2009
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Challenging the above objectionable part in Ext.P4, the
respondent moved the Government by filing Exts.P5 and P6
representations. The Government rejected the
representations by Ext.P8 order dated 12.4.2007. The
relevant portion of the said order reads as follows:
“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”
The Government proceeded on the footing that leave without
allowance will not count for any pensionary benefits. In that
view of the matter, the respondent’s objection against Ext.P4
was repelled. Challenging Exts.P4 and P8, the respondent
filed the Writ Petition. The Government filed a counter
affidavit, supporting the impugned orders. The learned Single
Judge, after hearing both sides, allowed the Writ Petition.
Hence, this appeal.
W.A.No.1966 of 2009
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2. We heard the learned Government Pleader, who
appeared for the appellants and the learned counsel for the
respondent.
3. It is not in dispute that the respondent is
entitled to get the benefit of Ext.P1 Government Order and
the same has been granted to her also as per Ext.P4. But, the
D.E.O. added a condition that the said period will not be
counted for service benefits. We notice that Ext.P1 does not
contain any such condition. If extending the benefit of Ext.P1
order to retired hands should have any meaning, the service,
so regularised, should count for pensionary benefits also.
The Government while issuing Ext.P8 proceeded on the
footing that generally, leave without allowance will not count
for pensionary benefits. But, the said stand of the
Government runs counter to Rule 23 of Part III of the Kerala
Service Rules, which states that, “time passed on leave of all
kinds with or without allowances will count as qualifying
service unless otherwise specified”. We do not find anything
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specified contrary in Ext.P1. If that be so, the respondent is
entitled to reckon the regularised service also for computing
pensionary benefits. So, we find no reason to interfere with
the judgment of the learned Single Judge.
The Writ Appeal, therefore, fails and accordingly, it
is dismissed.
Sd/-
K. Balakrishnan Nair,
Judge.
Sd/-
P. Bhavadasan,
Judge.
DK.
(True copy)