Geetha K.S. v. State of Kerala and others

IN THE HIGH COURT OF KERALA AT ERNAKULAM ## PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 10TH JUNE 2011 / 20TH JYAISHTA 1933 WP(C).No. 27261 of 2010(G) -------------------------------- PETITIONER: -------------- GEETHA.K.S,D/O.THE LATE SANKARAN, AGED 51 YEARS,SELECTION GRADE LECTURER(VOLUNTARILY RETIRED UNDER VRS),SREE KRISHNA COLLEGE,GURUVAYOOR PO ARIYANNUR-680 102, THRISSUR DISTRICT. BY ADV. SRI.O.V.RADHAKRISHNAN, SENIOR ADVOCATE SMT.K.RADHAMANI AMMA SRI.K.RAMACHANDRAN (THYKOODAM) RESPONDENTS: ------------------ 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,HIGHER EDUCATION(D) DEPARTMENT,GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM-695 001. 2. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM - 695 001. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THRISSUR 680 003. 4. SREE KRISHNA COLLEGE,REPRESENTED BY ITS CORRESPONDENT AND ADMINISTRATOR,GURUVAYOOR DEVASWOM,GURUVAYOOR,THRISSUR DISTRICT - 680 102. 5. PRINCIPAL,SREE KRISHNA COLLEGE, GURUVAYOOR, PO ARIYANNUR,THRISSUR DISTRICT-680 102 BY ADV. SRI.B.MOHANLAL FOR R5 SRI.SAIJU S. FOR R5 SRI.C.SINOY FOR R5 - SRI.T.T.MUHAMOOD, SR.GOVERNMENT PLEADER THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.27261/2010 ## A P P E N D I X ## PETITIONER'S EXHIBITS: EXT. P1 : COPY OF PROCEEDINGS No.ECI-8965/2009 DTD. 16.1.10 OF R4. EXT. P2 : COPY OF COVERING LETTER No.A3/5040/08 DTD. 15.9.08 OF R3. EXT. P3 : COPY OF LETTER No.34144/D2/08/H.ED. DTD. 4.2.10 OF R1. EXT. P4 : COPY OF LEAVE APPLICATION DTD. 17.7.08 ALONG WITH MEDICAL CERTIFICATES. EXT. P5 : COPY OF LEAVE APPLICATION DTD. 13.12.08 ALONG WITH MEDICAL CERTIFICATE. EXT. P6 : COPY OF LEAVE APPLICATION DTD. 31.3.09 ALONG WITH MEDICAL CERTIFICATE. EXT. P7 : COPY OF CIRCULAR No.38/2002/FIN. DTD. 8.6.02 OF R1. EXT. P8 : COPY OF CIRCULAR No.72/2005/FIN. DTD. 30.12.05 OF R1 ALONG WITH ANNEXURE. EXT. P9 : COPY OF REPRESENTATION DTD. 23.3.10 OF PETITIONER TO R5. EXT. P10 : COPY OF REPRESENTATION DTD. 12.4.10 OF PETITIONER TO CHAIRMAN, DEVASWOM COMMITTEE. EXT. P11 : COPY OF MEMO DTD. 22.4.10 OF R5. EXT. P12 : COPY OF REPRESENTATION DTD. 9.5.10 OF PETITIONER TO R5. EXT. P13 : COPY OF LETTER No.LEAVE/T.S./08-09 DTD. 21.8.08 OF R5. EXT. P14 : COPY OF COMMUNICATION/D.O. LETTER No.D2/43096/2008/COLL.EDN. DTD. 24.3.09 TO R3. EXT. P15 : COPY OF LETTER No.A3/2562/09 DTD. 4.4.09 TO R5. EXT. P16 : COPY OF COMMUNICATION No.A3/2562/09 DTD. 11.8.09 OF R3. EXT. P17 : COPY OF COMMUNICATION No.A3/2562/09 DTD. 19.8.09 TO R2. EXT. P18 : COPY OF INSPECTION REPORT DTD. 23.5. WP(C).No.27261/2010 ## RESPONDENT'S EXHIBITS: EXT. R5(a) : COPY OF LETTER DTD. 2.7.08 SUBMITTED BY PETITIONER TO R1. EXT. R5(b) : COPY OF LETTER No.A3-5040/2008 DTD. 2.8.10 ISSUED BY R3. ANNEXURE R2(a): COPY OF LETTER OF PRINCIPAL DTD. 20.4.10. ANNEXURE R2(b): COPY OF APPLICATION DTD. 19.7.10. // True Copy // P.A. to Judge. smp ## **T.R. RAMACHANDRAN NAIR, J.** **--------------------------------------W.P.(C) No.27261 OF 2010 --------------------------------------Dated this the 10[th] day of June, 2011.** ## **J U D G M E N T** This is a case where the petitioner has voluntarily retired from the service of the 4[th] respondent College and the Management has also accepted it as evident from Ext.P1. 2. The petitioner is mainly aggrieved by the conditions prescribed in Ext.P3 order wherein for the period from 02.11.2007 to 27.03.2008 even though Leave Without Allowance has been granted, it is specified that leave period will not count for any service benefit including pension. 3. Heard the learned Senior Counsel for the petitioner Sri.O.V.Radhakrishnan, and the learned Government Pleader. 4. Learned Senior Counsel for the petitioner submitted that the Management has already accepted the application for voluntary retirement as evident from Ext.P1 and the petitioner is permitted to retire from service, from 01.10.2009. It is pointed out that the matter is pending before the Government for **W.P.(C) No.27261/2010** **2** approval and so far approval has not been granted. 5. The main challenge is against the condition put in Ext.P3 with regard to non reckoning of the period of Leave Without Allowance for any service benefits. It is pointed out that going by Rule 88 of Part I KSR, no such conditions can be imposed. 6. My attention was also invited to two circulars issued by the Government namely, Exts.P7 and P8. Ext.P7 is a circular dated 08.06.2002 wherein paragraph 2 states as follows: “2. Government wish to clarify that Leave Without Allowances granted under Rule 91 Part I KSRs for study purpose and Leave Without Allowance granted under Rule 88 Part I KSRs except the following will not count for any service benefits including pension. (i) Leave Without Allowances granted on Medical Certificate.” 7. Going by the same, Leave Without Allowance granted on Medical Certificate has to be treated separately and the said condition cannot be imposed. Ext.P8 is a circular issued dated 30.12.2005 wherein in paragraph 3 it is specified that in respect of Leave Without Allowances under Rules 88 and 91, there is no explicit provision in the rules stating that such Leave Without Allowances will not count for pension. In Annexure to the said **W.P.(C) No.27261/2010** **3** circular against Sl.No.1 i.e. LWA under Rule 88 on medical certificate under the heading service benefits for which the period of LWA will count, the following has been mentioned: “Seniority/Promotion, Increment, higher grade, pension and accumulation of HPL”. 8. Therein, under the heading service benefits for which LWA will not count, what is mentioned is only accumulation of earned leave. Therefore, learned Senior Counsel for the petitioner submitted that the stipulation in Ext.P3 is contrary to the same and it is ultra vires. 9. Evidently, Rule 88 of Part I KSR does not provide that Leave Without Allowance on medical grounds will not count for service benefits like pension. Rule 88 of Part I KSR reads as follows: “Leave without allowances.-(i) Leave without allowances may be granted to any officer in regular employment in special circumstances:(a) when no other leave is by rule admissible, or (b) when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances. Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Service Rules, 1958 shall be regulated by rules under Appendix VIII of these rules, unless he is already an officer on regular employment. **W.P.(C) No.27261/2010** **4** - (ii) Except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion. - (iii) When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence”. 10. In the light of the express provisions of the Rules, the condition prescribed in Ext.P3 cannot be supported legally. I am fortified by the view taken by the Division Bench in the decision in _**State of Kerala** vs._ _**Dr.V.M.Kurshid**_ (ILR 2000 (1) Ker 535). Therein, the same issue was considered and a stipulation like the one in Ext.P3 was imposed while regularising the period of absence. In paragraph 6, after referring to Rule 88 Part I KSR, the Division Bench held that “whatever be the intention, in the absence of any specific provision, the condition could not have been imposed”. Apart from that even the circulars Exts.P7 and P8 have clearly specified that Leave Without Allowance on medical certificate cannot result in such a condition to be imposed. The stipulation in Ext.P3 cannot therefore be supported. Therefore, Ext.P3 to the extent to which the said condition is provided cannot be held as valid. It is made clear **W.P.(C) No.27261/2010** **5** that Leave Without Allowance will be counted for service benefits including pension. What remains is the consideration of the applications for leave namely, Exts.P4 to P6 which are said to be pending before the Government. It is a case where the petitioner is having renal problem and he is undergoing dialysis. All the leave applications pending are supported by medical certificates. 11. Learned Government Pleader submitted that there was some delay in submitting the application. But, considering the plight of the petitioner and as it is evident that the petitioner has been undergoing treatment for a long time and the applications are supported by medical certificates, the same will have to be considered on merits as per rules. 12. In that view of the matter, Ext.P3 to the extent to which it declares that leave period will not count for any service benefits including pension is quashed. The Government will take appropriate decision on the leave applications submitted as per Exts.P4 to P6 in the light of the findings rendered above. What remains is the sanction of pensionary benefits on approval of the voluntary retirement already accepted. Learned **W.P.(C) No.27261/2010** **6** Senior Counsel for the petitioner submitted that in the light of the 3[rd] proviso to Rule 56 of Part III KSR, unless the application for voluntary retirement is rejected prior to the expiry of the date fixed for availing retirement, it will automatically come into effect. There cannot be any dispute regarding the said legal position. Herein, already voluntary retirement has been granted by the appointing authority. In that view of the matter also, final orders as above will be passed within a period of two months from the date of receipt of a copy of this judgment and the monetary benefits will be disbursed consequently. This writ petition is allowed. ## **T.R. RAMACHANDRAN NAIR JUDGE** smp