K. Chandrasekharan Nair v. Additional Chief Secretary, Home (B) Department & Others

# **`IN THE HIGH COURT OF KERALA AT ERNAKULAM`** ``` PRESENT THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE ``` ``` & ``` ``` THE HONOURABLE MRS. JUSTICE SHOBA ANNAMMA EAPEN TUESDAY, THE 31[ST] DAY OF OCTOBER 2023 / 9TH KARTHIKA, 1945 OP(KAT) NO. 103 OF 2023 ``` ``` KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM ``` ``` ------- ``` ## **`PETITIONER:`** ``` K.CHANDRASEKHARAN NAIR, AGED 62 YEARS S/O.N.KUMARA PILLAI, HOUSE NO.16/308, KODUTHARAVEEDU, MARUTHOORKONAM, KOTTUKAL P.O., THIRUVANANTHAPURAM, PIN – 695501. ``` ``` BY ADVS. S.M.PREM H.NARAYANAN ``` ## **`RESPONDENTS:`** - **`1 ADDITIONAL CHIEF SECRETARY, HOME (B) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN – 695001.`** - **`2 THE DIRECTOR GENERAL OF PRISONS & CORRECTIONAL SERVICES, PRISONS HEAD QUARTERS, POOJAPPURA P.O., THIRUVANANTHAPURAM, PIN – 695012.`** - **`3 SUPERINTENDENT, CENTRAL PRISON, PALLIKKUNNU, KANNUR, PIN – 670004.`** ``` O.P.(KAT) No.103 of 2023 Nos ``` -:2:- - **`4 SUPERINTENDENT, CENTRAL PRISON, POOJAPPURA P.O., THIRUVANANTHAPURAM, PIN – 695012.`** ``` BY SENIOR GOVERNMENT PLEADER, SRI.A.J.VARGHESE ``` ``` THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING BEEN FINALLY HEARD ON 26.09.2023, THE COURT ON 31.10.2023 DELIVERED THE FOLLOWING: ``` ``` O.P.(KAT) No.103 of 2023 Nos ``` -:3:- ## **`A.MUHAMED MUSTAQUE & SHOBA ANNAMMA EAPEN, JJ. -----------------------------------------`** ## **`O.P.(KAT) No.103 of 2023`** ``` ----------------------------------------- ``` ``` Dated this the 31[st] day of October, 2023 ``` ``` J U D G M E N T ``` ``` A.Muhamed Mustaque, J. ``` ``` This original petition, questioning an order of the Kerala Administrative Tribunal (hereinafter referred to as the “Tribunal”), was filed almost after eight years of the dismissal of the petition filed by the petitioner. ``` ``` 2. The petitioner approached the Tribunal to refix the pay after reckoning the period of leave sanctioned as leave without allowance for counting the period for increment, higher grade, pension etc. The Tribunal dismissed the challenge. ``` ## **`O.P.(KAT) No.103 of 2023 Nos`** ## -:4:- ``` 3. The petitioner, on attaining the age of superannuation, retired from service as Assistant Superintendent Grade-II in the Department of Prisons, on 31.05.2015. As seen from the impugned order, pleadings etc., the petitioner in order to wriggle out from the departmental disciplinary action, applied for leave without allowance. This was allowed by order dated 28.9.2011 on condition that it will not count for increment, higher grade, pension etc. It is to be noted that he had no eligible leave in his credit. His earlier application for leave on medical grounds was unsupported by any medical certificate. Thus, it is clear that the Government took a lenient view on the matter. ``` ``` 4. The main argument before us as raised by the learned counsel for the petitioner, Shri S.M. Prem was by placing reliance on Rule 26 of Part III K.S.R. before its amendment in the year 2009. It is appropriate to refer to Rule 26 of Part III KSR before amendment and after amendment. ``` ``` Rule 26 of Part III KSR as it stood prior to the amendment made effective as per SRO No.918/2009 with effect from 05.11.2009 provided as follows:- ``` ``` “Rule 26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified.” ``` ``` O.P.(KAT) No.103 of 2023 Nos ``` ## -:5:- ``` Rule 26 has been amended as per SRO No.918/2009 w.e.f. 05.11.2009 and after such amendment Rule 26 reads as follows:- ``` ``` “Rule 26. (a) Time passed on leave of all kinds with allowances shall count as qualifying service. ``` ``` (b) Time passed on leave of all kinds without allowances shall not count as qualifying service, except the period of Leave Without Allowances availed of under Rule 88, Part I, Kerala Service Rules, on medical certificate, Leave Without Allowances availed of under Rule 91 A, Part I, Kerala Service Rules for study purposes subject to the condition laid down in proviso to Rule 33(b)(2), Part I, Kerala Service Rules and Leave Without Allowances upto 60 days taken under the proviso to Rule 102, Part I, Kerala Service Rules in continuation of maternity leave.” ``` ``` It is to be noted that in this case, the amended rule would apply as it was allowed only on 28/9/2011. The amended rule clearly states that the time passed on leave without allowances shall not count as qualifying service. ``` ``` 5. The petitioner has placed reliance on the judgment of this Court in W.A.No.1004/2021, dated 16/11/2021, which in turn relied on another judgment of a Division Bench of this Court in ``` ## **`Elizabath v. Director of Health Services [1998 KHC 596 = 1998 (2)`** ``` KLT (SN) 82]. It is to be noted that both cases are related to unamended rule. In the light of the amended rule, there is no ``` ``` O.P.(KAT) No.103 of 2023 Nos ``` -:6:- ``` room for raising a complaint that too after dismissal of the original application many years ago. The original petition thus fails and, it is accordingly dismissed. ``` ``` Sd/- ``` ``` A.MUHAMED MUSTAQUE ``` ``` JUDGE ``` ``` Sd/- ``` ``` SHOBA ANNAMMA EAPEN ``` ``` JUDGE ``` ``` ms ``` ``` O.P.(KAT) No.103 of 2023 Nos ``` ## -:7:- ## **`APPENDIX OF OP(KAT) NO.103/2023`** ``` PETITIONER'S ANNEXURES: ``` - **`ANNEXURE A1 TRUE COPY OF THE ORDER NO. E2/512/08 DATED 118-2008 TRANSFERRING THE APPLICANT FROM CENTRAL PRISON, THIRUVANANTHAPURAM TO CENTRAL PRISON, KANNUR`** - **`ANNEXURE A2 TRUE COPY OF THE ORDER NO. J.O.B. 279/08 DATED 28-8-2008 ADMITTING THE APPLICANT TO JOIN DUTY AT CENTRAL PRISON, KANNUR`** - **`ANNEXURE A3 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR JANUARY, 2008`** - **`ANNEXURE A4 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR FEBRUARY, 2008`** - **`ANNEXURE A5 TRUE COPY OF THE DPPLICOTION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR MARCH, 2008`** - **`ANNEXURE A6 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR APRIL, 2008`** - **`ANNEXURE A7 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR MAY, 2008`** - **`ANNEXURE A8 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR JUNE, 2008`** - **`ANNEXURE A9 TRUE COPY OF THE LEAVE APPLICATION FOR JULY 2008`** ``` O.P.(KAT) No.103 of 2023 Nos ``` ## -:8:- - **`ANNEXURE A10 TRUE COPY OF THE LEAVE APPLICATION FOR THE MONTH OF AUGUST 2008 WITH MEDICAL CERTIFICTE FOR THE MONTHS OF JULY & AUGUST 2008`** - **`ANNEXURE A11 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR SEPTEMBER, 2008`** - **`ANNEXURE A12 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR OCTOBER, 2008`** - **`ANNEXURE A13 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR NOVEMBER €Ž 2008`** - **`ANNEXURE A14 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR DECEMBER 2008`** - **`ANNEXURE A15 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR JANUARY, 2009`** - **`ANNEXURE A16 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR FEBRUARY, 2009`** - **`ANNEXURE A17 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR MARCH, 2009`** - **`ANNEXURE A18 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR APRIL 2009`** - **`ANNEXURE A19 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR MAY 2009`** ``` O.P.(KAT) No.103 of 2023 Nos ``` ## -:9:- - **`ANNEXURE A20 TRUE COPY OF LEAVE APPLICATION FOR JUNE 2009 ANNEXURE A21 TRUE COPY OF LEAVE APPLICATION FOR JULY 2009`** - **`ANNEXURE A22 TRUE COPY OF THE MEDICAL CERTIFICATE SUBMITTED FOR THE MONTHS OF JUNE & JULY 2009`** - **`ANNEXURE A23 TRUE COPY OF THE APPLICATION FOR LEAVE WITH MEDICAL CERTIFICATES SUBMITTED BY THE APPLICANT FOR AUGUST, 2009`** - **`ANNEXURE A24 TRUE COPY OF LEAVE APPLICATION FOR SEPTEMBER 2009`** - **`ANNEXURE A25 TRUE COPY OF LEAVE APPLICATION FOR OCTOBER 2009.`** - **`ANNEXURE A26 TRUE COPY OF THE MEDICAL CERTIFICATE SUBMITTED FOR THE MONTHS OF SEPTEMBER & OCTOBER 2009`** - **`ANNEXURE A27 TRUE COPY OF THE RELIEVING ORDER NO. J.O.B. 273/09 ISSUED BY THE SUPERINTENDENT, CENTRAL PRISON, KANNUR, DATED 26-10-2009`** - **`ANNEXURE A28 TRUE COPY OF THE GOVERNMENT CIRCULAR NO. 36/94/FIN DATED 14-6-94`** - **`ANNEXURE A29 TRUE COPY OF LETTER NO. 53293/B3/2010/HOME DATED 28-7-2011 FROM ADDITIONAL CHIEF SECRETARY HOME (B) DEPARTMENT TO ADDITIONAL DIRECTOR GENERAL OF POLICE (JAIL)`** - **`ANNEXURE A29(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A29`** - **`ANNEXURE A30 TRUE COPY OF THE ORDER NO, G.O. (RT) 2899/2011/HOME DATED 28-9-2011 GRANTING LEAVE WITHOUT ALLOWANCE NOT ON MEDICAL CERTIFICATE`** - **`ANNEXURE A30(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A30 ORDER`** ``` O.P.(KAT) No.103 of 2023 Nos ``` ## -:10:- - **`ANNEXURE A31(A) TRUE COPY OF THE LETTER NO. 4390/B3/2012/HOME DATED 25-1-2012 REJECTING THE REQUEST SUBMITTED BY THE APPLICANT TO REVIEW THE ANNEXURE A30 ORDER`** - **`ANNEXURE A32 TRUE COPY OF THE LETTER NO. 91821/B3/2012/HOME DATED 7-11-2013 REJECTING THE REQUEST SUBMITTED BY THE WIFE OF THE APPLICANT TO REVIEW THE ANNEXURE 430 ORDER`** - **`ANNEXURE A32(A) TRUE ENGLISH TRANSLATION OF ANNEXURE . A32`** ``` ANNEXURE A33 TRUE COPY OF THE LAST APPLICATION OF THE APPLICANT DATED 23-4-2014 TO HOME MINISTER REQUESTING TO REVIEW THE ANNEXURE A30 ORDER ``` ``` ANNEXURE A33(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A33 REPRESENTATION ``` ``` ANNEXURE A34 TRUE COPY OF THE ORDER BEARING NO. 42654/B3/2014/HOME DATED 18-8¬2014 REJECTING ANNEXURE A33 REPRESENTATION ANNEXURE A34(A) TRUE ENGLISH TRANSLATION OF ANNEXURE A34 ORDER ANNEXURE A35 TRUE COPY OF THE LETTER NO, E2/14810/2014 DATED 1-9-2014 BY THE DIRECTOR GENERAL OF PRISONS AND CORRECTIONAL SERVICES COMMUNICATING THE ANNEXURE A 34 ORDER ANNEXURE A35(A) TRUE TRANSLATION OF ANNEXURE A 35 LETTER EXHIBIT P1 TRUE COPY OF G.O. (RT) NO. 2899/2011/HOME DATED 28-09-2011 ISSUED BY THE 1ST RESPONDENT EXHIBIT P2 TRUE COPY OF THE ORDER DATED 18-08-2014 ISSUED BY THE 1ST RESPONDENT REJECTING THE PETITIONER'S REPRESENTATION SUBMITTED ON 23-04- 2014 ``` ``` O.P.(KAT) No.103 of 2023 Nos ``` -:11:- ## **`EXHIBIT P3`** ``` TRUE COPY OF O.A. NO. 2197 OF 2014 WITH ANNEXURES A1 TO A35(A) FILED BY THE PETITIONER IN OCTOBER 2014 BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL ``` - **`EXHIBIT P4 TRUE COPY OF THE REPLY STATEMENT DATED 05-052015 FILED BY THE 1ST RESPONDENT IN O.A. NO. 2197 OF 2014`** ``` EXHIBIT P5 TRUE COPY OF THE REJOINDER STATEMENT DATED 15- 05-2015 FILED BY THE PETITIONER IN O.A. NO. 2197 OF 2014 ``` ``` EXHIBIT P6 TRUE COPY OF THE ORDER DATED 23-09-2015 PASSED BY THE HONOURABLE KERALA ADMINISTRATIVE TRIBUNAL IN O.A. NO. 2197 OF 2014 ```