K. KANCHANA v. State of Kerala and Assistant Educational Officer Kannur North, Kannur District

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE T.R.RAMACHANDRAN NAIR** ## **WEDNESDAY, THE 28TH DAY OF MARCH 2012/8TH CHAITHRA 1934** ## **WP(C).No. 25764 of 2011 (U)** **-------------------------------------** **PETITIONER(S):** ## **----------------------** **K.KANCHANA ASSISTANT(RETIRED) ATHIRAKAM UP SCHOOL, MUNDAYAD KANNUR,RESIDING AT LAKSHMI NIVAS, CHOVVA PO KANNUR 670 006.** **BY ADV. SRI.P.M.PAREETH** **RESPONDENT(S):** **---------------------------** **1. STATE OF KERALA TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT GOVERNMENT SECRETARIAT,THIRUVANANTHAPURAM 695 001.** **2. ASSISTANT EDUCATIONAL OFFICER, KANNUR NORTH, KANNUR DISTRICT 673 001.** **BY GOVERNMENT PLEADER SRI.BIJU MEENATTOOR** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28-03-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **tss** ## **W.P.(C) NO.25764/2011** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:-** **APPENDIX** ## **PETITIONER(S) EXHIBITS** ## **P1:- PHOTOCOPY OF THE G.O.(P) NO.112/01 DATED 26/3/01.** ## **P2:- PHOTOCOPY OF THE ORDER DATED 20/10/05 ISSUED BY THE SECOND RESPONDENT.** ## **P3:- PHOTOCOPY OF THE G.O.(RT) NO.856/06/G.EDN.DATED 23/2/06.** **P4:- PHOTOCOPY OF THE REPRESENTATION DATED 25/1/07 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** ## **P5:- PHOTOCOPY OF THE G.O.RT NO.1804/07 DATED 24/4/07** ## **P6:- PHOTOCOPY OF THE CIRCULAR NO.72/05/FIN DATED 31/12/05.** ## **P7:-PHOTOCOPY OF THE REPRESENTATION DATED 15/6/07 SUBMITTED BY THE PETITIONER BEFORE THE FIRST RESPONDENT.** **P8:- PHOTOCOPY OF THE GOVERNMENT LETTER NO.43339/P3/07/G.EDN DATED 24/9/08.** **P9:- PHOTOCOPY OF THE JUDGEMENT DATED 23/2/11 IN WPC NO.32807/08.** ## **P9(A):- PHOTOCOPY OF THE ARGUMENT NOTE DATED 25/5/11 SUBMITTED BY THE PETITIONER'S REPRRESENTATIVE.** ## **P10:- PHOTOCOPY OF THE G.O.RT NO.3103/11/G.EDN.DATED 1/8/11** ## **RESPONDENTS' EXHIBITS** **R2(a):- COPY OF G.O.(RT) 1104/91/G.EDN. DTD. 3.4.1991.** **R2(b):- COPY OF G.O.(RT) 512/95. G.EDN. DTD. 3.2.1995.** **NIL** **//TRUE COPY//** **P.S. TO JUDGE** **tss** ## **T.R. Ramachandran Nair, J.** **- - - - - - - - - - - - - - - - - - - - - - - -** ## **W.P.(C) No. 25764 of 2011-U** **- - - - -- - - - - - - - - - - - - - - - - - - - -** ## **Dated this the 28th day of March, 2012** ## **JUDGMENT** The petitioner's grievance is against the non reckoning of the periods sanctioned as leave without allowance, for pension. The Government rejected her claim as per Ext.P10 order. Necessary facts of the disposal of the writ petition, are the following: 2. The petitioner entered service as Upper Primary School Assistant on 2.6.1986 at Athirakam U.P. School. She retired after attaining superannuation on 31.5.2006. In fact, she had availed leave without allowance to join her spouse in India, from 2.6.1989 to 31.5.1996 and the leave was sanctioned as per separate orders by the Government. When the petitioner was continuing on leave, she was thrown out from service with effect from 15.7.1995 due to division fall. Since she was appointed prior to 14.7.1996, she was entitled for protection which was granted also. 3. It is the case of the petitioner that the petitioner rejoined duty on 1.9.2004 and continued upto 24.11.2004. She was retrenched on 25.11.2004 and reappointed on 1.4.2005 and thereafter continued upto the date of retirement on 31.5.2006. Ext.P2 is the copy of the order approving WPC. 25764/2011 2 the two spells of appointments, viz. from 1.9.2004 to 24.11.2004 and from 1.4.2005. 4. The Government by Ext.P3, regularised the period from 1.6.1996 to 31.8.2004 as leave without allowance. The present controversy arose when the petitioner sought to reckon the said period as qualifying service for the purpose of pension, as per Ext.P4 representation. But without considering her request as sought for in the said representation, the Government modified Ext.P3 and prescribed a revised condition as per Ext.P5, that the period of leave without allowance sanctioned, will not be reckoned as qualifying service for pension. It is the case of the petitioner that it was never asked for by her and the representation was actually filed to reckon the period, for pension, due to the fact that no such condition was prescribed in Ext.P3 order. The petitioner had to approach this Court challenging these orders and this Court by Ext.P9 judgment, quashed the various orders including Ext.P5 and directed reconsideration of the matter. Thereafter, Ext.P10 order has been passed. 5. Learned counsel for the petitioner submitted that the order Ext.P3 does not stipulate a condition that the leave without allowance sanctioned will not be reckoned for pension. It is submitted that in the light of Rule 26 of Part III K.S.R., unless the same is prescribed in the order, the period will WPC. 25764/2011 3 have to be reckoned for the purpose of grant of pension. It is further submitted that in the order now passed as per Ext.P10 by the Government, reliance is again placed on Ext.P5 which was quashed by this Court as per Ext.P9 judgment. Apart from the same, the petitioner has got another contention that the period from 25.11.2004 to 31.3.2005 which is the period of interruption, can be reckoned for the purpose of pension, in the light of the dictum laid down by this Court in **Mohammed Kunhi C.M. v. State of Kerala and others** (ILR 2011 (2) Ker.846). 6. In fact, a reference to the discussions in Ext.P9 judgment is necessary in the light of the contention that Ext.P5 produced herein was quashed by this Court by the said judgment. The appendix to the judgment will show that Ext.P7 order which was quashed by this Court is the same as Ext.P5 herein. Therefore, the Government was not right in relying upon the said order in the operative part of Ext.P10. After referring to the contentions of the petitioner, it is mentioned as follows: “This contention will not stand, as the said Ext.P5 Government Order had later modified by Ext.P7 Government Order.” The fact that the said order has been quashed by this Court, was overlooked by the Government while rendering Ext.P10. 7. As far as the contention raised regarding Rule 26 of Part III K.S.R. is concerned, evidently Rule 26 states as follows: WPC. 25764/2011 4 “Time passed on leave of all kinds with or without allowance will count as qualifying service unless otherwise specified.” Therefore, the leave sanctioning authority ought to have prescribed the conditions while sanctioning the leave, if the period is not to be reckoned for the purpose of any of the service benefits including pension. The same is absent in Ext.P3. If the same is absent, the representation filed by the petitioner could not have been acted upon for modifying the order Ext.P3. Thus, the period during which the leave was sanctioned, has to be reckoned as qualifying service for the purpose of pension, which alone is sought for by the petitioner. 8. With regard to the period from 25.11.2004 to 31.5.2005, it has to be examined whether the principles stated in **Mohammed Kunhi's case** (ILR 2011 (2) Ker. 846) will apply as far as the petitioner is concerned. Therein, this Court considered the applicability of Rules 14E and 31 of Part III K.S.R. It was held that the period during which the teacher remained out of service, is liable to be counted as qualifying service for pension and the principles stated in paragraphs 9, 10 and 11 are as follows: “In the light of the Government Decision No.8, it has to be found out whether the break in service occurred was due to reduction of staff strength in the school. The said aspect is clear from the averments of the petitioner as well as the averments from the WPC. 25764/2011 5 counter-affidavit filed by the Assistant Educational Officer. The third respondent--Assistant Educational Officer in paragraph (3) of the counter-affidavit has stated that the petitioner was thrown out from service on 14.7.1975 due to reduction in the staff strength as per Staff Fixation Order for the year 1975-76. Therefore, the conditions provided under Government Decision No.8 squarely are attracted to the case of the petitioner. Then what remains is to find out whether Rule 31, Part III K.S.R. will apply or not, wherein the interruption of service will have to be counted for pension. Evidently, the main body of Rule 31, Part III K.S.R. will apply in the light of the fact that there is no prohibition under the Rules not to count the interrupted service of an employee. As far as the case of the petitioner is concerned, there was no order contrary during the period of his service also. In that view of the matter, there cannot be any doubt that the Government Decision No.8 under Rule 14E, Part III K.S.R. along with Rule 31, of Part III K.S.R. will apply to the case of the petitioner. If that be so, the view taken by the Government in Ext.P2 cannot be supported. What is mentioned therein is that period during which he was remaining outside without protection cannot be reckoned. There is no such specification in Rule 14E and the Government Decision NO.8. Therefore, Ext.P2 is quashed. Necessary action will be taken by the Assistant Educational Officer to pass appropriate orders on his request for reckoning the period from 30.4.1976 to 29.7.1984 as qualifying service for pension and revised orders will be passed.” WPC. 25764/2011 6 9. In the counter affidavit filed by the second respondent, in para 5 what is mentioned is about the leave sanctioned during the former period, viz. 2.6.1989 to 31.5.1996 which is not the subject matter of dispute herein. It is finally stated therein that the Government rejected the contentions of the petitioner. 10. For all these reasons, the petitioner is entitled to succeed in the writ petition. Ext.P10 is therefore quashed. It is declared that the period covered by Ext.P3 and the period of interruption, viz. from 25.11.2004 to 31.3.2005 will be reckoned for the purpose of pension. Appropriate order will be passed by the first respondent in the light of the findings rendered above, within a period of three months from the date of receipt of a copy of this judgment. The amount of pension will be fixed accordingly and steps will be taken to disburse the same with arrears expeditiously, at any rate, within a further period of four months. The writ petition is allowed as above. No costs. ## **(T.R. Ramachandran Nair, Judge.)** ## **kav/**