Pradeepkumar P. Mundyeri v. State of Kerala, Registrar (Subordinate Judiciary), High Court of Kerala, Kochi, and Chief Judicial Magistrate, Kozhikode

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **THURSDAY, THE 7TH DAY OF FEBRUARY 2013/18TH MAGHA 1934** ## **WP(C).No. 19814 of 2012 (R)** **---------------------------** **PETITIONER(S) :** **PRADEEPKUMAR P.MUNDYERI HOUSE, P.O. NANMINDA,KOZHIKODE DISTRICT. (FORMERLY WORKING AS JUNIOR SUPERINTENTENT JUDICIAL FIRST CLASS MAGISTRATE COURT - I, PERAMBRA)** **BY ADVS.SRI.P.C.SASIDHARAN SRI.E.S.ASHRAF** **RESPONDENT(S) :** **1. STATE OF KERALA REPRESENTED BY ADDITIONAL CHIEF SECRETARY TO GOVERNMENT HOME(L) DEPARTMENT, SECRETARIAT THIRUVANANTHAPURAM-695001.** **2. THE REGISTRAR (SUBORDINATE JUDICIARY), HIGH COURT OF KERALA, KOCHI-682031** **3. THE CHIEF JUDICIAL MAGISTRATE, KOZHIKODE - 673001.** **R1 BY SENIOR GOVERNMENT PLEADER SRI.M.A. FAYAZ R2 & R3 BY ADV. SRI.ELVIN PETER P.J. SRI.T.G.SUNIL (PRANAVAM) SRI.K.R.GANESH** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07-02-2013, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 19814 of 2012 (R)** ## **APPENDIX** **PETITIONER(S) EXHIBITS** **EXT.P1TRUE COPY OF THE G.O.(RT)4661/89/HOME DATED 25/09/1989.** **EXT.P2TRUE COPY OF THE G.O(MS)NO.104/2006/HOME DATED 21/07/2006.** **EXT.P3TRUE COPY OF THE NOTE OF THE 3RD RESPONDENT IN RETURNING THE PENSION PAPER.** **EXT.P4TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER. EXT.P5TRUE COPY OF THE NOTE MADE BY THE 3RD RESPONDENT.** **EXT.P6TRUE COPY OF THE APPEAL PREFERRED BEFORE THE 2ND RESPONDENT. EXT.P7TRUE COPY OF THE LETTER SENT TO THE GOVERNMENT DATED 23/04/2012. EXT.P8TRUE COPY OF THE LETTER SENT BY THE 1ST RESPONDENT. EXT.P9TRUE COPY OF THE CIRCULAR NO.72/2005/FIN.DATED 30/12/2005** **RESPONDENTS' EXHIBITS : NI.** **//TRUE COPY//** **P.A. TO JUDGE** **BP** ## **“C.R”** ## **P.N.RAVINDRAN, J.** ## **----------------------------------------W.P.(C).No.19814 of 2012 ----------------------------------------Dated this the 7[th] day of February, 2013** ## **JUDGMENT** The petitioner retired from service on 31.5.2012 on attaining the age of superannuation while he was working as Junior Superintendent in the Court of the Judicial Magistrate of the First Class-I, Perambra. In this writ petition he challenges Exts.P3 and P5 endorsements made by the Chief Judicial Magistrate, Kozhikode and P8 letter dated 5.7.2012 sent by the State Government, declining to treat the study leave availed by him during the period from 1.10.1989 to 31.3.1994 as service qualifying for pension. The brief facts of the case are as follows: 2. The petitioner entered service as Lower Division Clerk in the Criminal Judicial Department on 25.5.1984. While he was working as Lower Division Clerk he applied for study leave to undergo the LL.B degree course in Government Law College, Calicut. The application was filed under rule 91 of Part I, Kerala Service Rules which enables officers with a continuous officiating ## **W.P(C).No.19814 of 2012** -:2:- or temporary service of two years or more to apply for study leave for obtaining superior qualifications like B.A. and B.L. By Ext.P1 Government order dated 25.9.1989, the Government granted the leave applied for, for a period of four years and six months from 1.10.1989 to 31.3.1994. The petitioner availed the leave, completed the course of study and was awarded the LL.B. degree by the University of Calicut. He was thereafter promoted as Upper Division Clerk. He was appointed as temporary Munsiff-Magistrate in the Kerala Judicial Service by G.O.(MS)No.104/2006/Home dated 21.7.2006 under rule 9(1) of the Kerala Judicial Service Rules, 1991. The petitioner served as temporary MunsiffMagistrate in various stations for about 3 years. He was thereafter reverted to the category of Upper Division Clerk and was later promoted as Junior Superintendent. It was while he was working as Junior Superintendent that he retired from service on 31.5.2012, on attaining the age of superannuation. 3. Prior to his retirement, the petitioner submitted his pension papers to the Chief Judicial Magistrate, Kozhikode, the third respondent herein, through the Judicial Magistrate of the First Class-I, Perambra. The Chief Judicial Magistrate returned the pension papers with the endorsement that the leave without **W.P(C).No.19814 of 2012** -:3:- allowances for four years and six months availed by the petitioner to undergo the LL.B. degree course has not been deducted from the service qualifying for pension. The petitioner thereupon resubmitted the pension papers along with Ext.P4 representation dated 3.1.2012 to the third respondent through the Judicial Magistrate of the First Class-I, Perambra. In that representation he contended that in view of the stipulations contained in rule 26 of Part III, Kerala Service Rules and in the absence of any stipulation in rule 91 of Part I, Kerala Service Rules, that the leave period will not be counted as qualifying service, the study leave granted to him is liable to be reckoned as service qualifying for pension. The Chief Judicial Magistrate once again returned the pension papers with the endorsement that the period of leave without allowance is not seen deducted from the service qualifying for pension and that leave without allowances sanctioned under rule 91 of Part I, Kerala Service Rules cannot be reckoned as qualifying service. The petitioner thereupon submitted Ext.P6 representation before the Registrar (Subordinate Judiciary) of this Court wherein he requested that appropriate directions may be issued to the third respondent to treat the study leave availed by him as service qualifying for pension. The Registrar (Subordinate ## **W.P(C).No.19814 of 2012** -:4:- Judiciary) of this Court forwarded the said representation to the Government along with Ext.P7 letter dated 23.4.2012. The Government in turn sent Ext.P8 letter dated 5.7.2012 wherein, relying on Ext.P9 circular dated 30.12.2005, the Government took the stand that leave without allowances availed under rule 91 of Part I, Kerala Service Rules, for study purposes cannot be treated as qualifying service for pension. Hence this writ petition challenging Exts.P3 and P5 endorsements made by the Chief Judicial Magistrate, Kozhikode and Ext.P8 letter and seeking the following reliefs:- - _i) Issue a writ of certiorari or any other writ, order or direction to quash Exts.P3, P5 and P8;_ - _ii) Declare that the leave granted to the petitioner to study purpose is entitled to be treated as qualifying service;_ - _iii) Further declare that Ext.P9 cannot have any retrospective operation and that Ext.P9 cannot have any application in the case of the petitioner._ - _iv) Issue a writ of mandamus or any other writ, order or direction commanding and compelling the respondents to treat the period of leave of the petitioner as qualifying service._ 4. The main contention raised in the instant writ petition is that Ext.P9 circular, which was issued only on 30.12.2005, cannot **W.P(C).No.19814 of 2012** -:5:- govern the conditions subject to which leave without allowances was granted to the petitioner way back in the year 1989 by Ext.P1 order dated 25.9.1989. Yet another contention raised is that in the absence of any stipulation in rule 91 of Part I, Kerala Service Rules as it then stood to the effect that the leave granted thereunder will not count for any purpose whatsoever, the period of leave availed by the petitioner to undergo the LL.B. degree course cannot be excluded from the service qualifying for pension. Reference is also made to the stipulations in rule 26 of Part III Kerala Service Rules. It is also contended that the higher qualification acquired by the petitioner had helped him in the discharge of his duties and that based on the LL.B. degree possessed by him, he was appointed as temporary Munsiff Magistrate and had served as temporary Munsiff Magistrate during the period from 10.8.2006 to 28.2.2010. 5. The second respondent has filed a statement dated 19.1.2012 wherein it is stated that in view of Ext.P8 letter, the study leave availed by the petitioner cannot be treated as qualifying service for pension. It is also stated that on account of Ext.P8 the petitioner has not submitted his pension papers till date, but the amounts standing to his credit in the General ## **W.P(C).No.19814 of 2012** -:6:- Provident Fund Account, surrender value of earned leave, arrears of dearness allowance etc. have been disbursed to him. It is also stated that respondents 2 and 3 have no objection in disbursing pension and other pensionary benefits if the petitioner submits the pension papers after deducting the period of leave without allowances for four years and six months, sanctioned under rule 91 of Part I, Kerala Service Rules. 6. I heard Sri.P.C.Sasidharan, learned counsel appearing for the petitioner, Sri.M.A.Fayaz, learned Government Pleader appearing for the first respondent and Sri.Elvin Peter, learned counsel appearing for respondents 2 and 3. I have also gone through the pleadings and the materials on record. The petitioner was granted leave without allowances for a period of four years and six months from 1.10.1989 to 31.3.1994 to undergo the LL.B. degree course in Government Law College, Calicut by Ext.P1 Government order dated 25.9.1989. At that point of time he was working as Lower Division Clerk in the Judicial Second Class Magistrate Court, Thamarassery. He had also completed more than two years of service as on that date. In Ext.P1 Government order it was not stipulated that the period of leave will not be reckoned for service benefits or for increments or pension. In rule ## **W.P(C).No.19814 of 2012** -:7:- 26 of Part III of the Kerala Service Rules as it stood in force at the time Ext.P1 order sanctioning leave to the petitioner was issued, it was stipulated that time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified. Rule 26 was amended with effect from 5.11.2009 by G.O.(P)No.456/2009/Fin. dated 19.10.2009. Clause (a) of rule 26 of Part III, Kerala Service Rules, as amended with effect from 5.11.2009 stipulates that time passed on leave of all kinds with allowances will count as qualifying service. In clause (b) of rule 26 of Part III, Kerala Service Rules it is stipulated that 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 of Part I, Kerala Service Rules, on medical certificate; leave without allowances availed of under rule 91A of Part I, Kerala Service Rules for study purposes subject to the conditions laid down in proviso to rule 33(b) (2) of Part I, Kerala Service Rules and leave without allowances upto 60 days taken under the proviso to rule 102 of Part I, Kerala Service Rules, in continuation of maternity leave. 7. In the instant case, the petitioner was sanctioned leave without allowances by Ext.P1 Government order dated 25.9.1989. ## **W.P(C).No.19814 of 2012** -:8:- Therefore, the provisions in rule 26 of Part III, Kerala Service Rules as amended with effect from 5.11.2009 can have no application. In rule 26 of Part III, Kerala Service Rules as it stood at the time when Ext.P1 Government order was passed, it was stipulated that time passed on leave of all kinds with or without allowances will count as qualifying service, “unless otherwise specified”. It was not “otherwise specified” in Ext.P1 Government order. Nor did rule 91 of Part I, Kerala Service Rules contain a stipulation to the effect that leave availed thereunder will not count as qualifying service for pension. Even today there is no such stipulation in rule 91. It was only on 30.12.2005 that the Government issued Ext.P9 circular to stipulate that while sanctioning leave under rules 88 and 91 of Part I, Kerala Service Rules, the leave sanctioning authority shall clearly mention in the order sanctioning leave without allowances that the period of leave will not count for the purpose of pension. It is evident from paragraph 3 of Ext.P9 circular that there is no express provision in rule 91 to the effect that the leave sanctioned thereunder will not count for pension. Ext.P9 circular cannot, on the terms of it, apply to or govern the leave sanctioned to the petitioner as per Ext.P1 Government order dated 25.9.1989. It was only by Ext.P9 ## **W.P(C).No.19814 of 2012** -:9:- circular issued on 30.12.2005 that it was stipulated that the leave without allowances availed under rule 91 of Part I, Kerala Service Rules for study purposes will not count for increment/higher grade/pension or accumulation of earned leave. In such circumstances as Ext.P9 circular has only prospective effect and it was not stipulated in Ext.P1 Government order granting leave without allowances to the petitioner that the period of leave will not count for any service benefit or will not count as qualifying service for pension, I am of the considered opinion that the stand taken by the Government in Ext.P8 cannot be sustained. ## 8. In _**Mahesh v. State of Kerala**_ , 2011 (2) KLT 930, a learned single Judge of this Court considered the question whether an Upper Primary School Assistant, who had availed leave under rules 82 and 88 of Part I Kerala Service Rules to undergo M.Sc. degree course in Physics is entitled to have the leave sanctioned to him converted into leave under rule 91-A of Part I Kerala Service Rules. The Government rejected that request on the ground that acquisition of the post graduate degree will only benefit the incumbent and will not in any way be beneficial to the State and therefore rule 91-A is not attracted. The Upper Primary School Teacher moved this Court. Allowing the writ petition, a ## **W.P(C).No.19814 of 2012** -:10:- learned single Judge of this Court held that acquisition of a post graduate degree in Physics will certainly be of benefit to the State in the sense that the teacher would be better equipped to teach students and thereby serve the State better. Though the State of Kerala carried the matter in appeal, the appeal was dismissed by a Division Bench of this Court. Affirming the judgment of the learned single Judge, the Division Bench in _**State of Kerala v. Mahesh**_ , 2012 (3) KLT 675, held that what is required to be considered is the nature of service rendered by the applicant, not only in the post he was holding at the time of applying for leave, but the eligibility for promotion on acquiring higher educational qualification and the potential in him to serve the community in higher positions to which he is likely to be promoted. In the instant case, it is not in dispute that having regard to the LL.B. degree possessed by the petitioner, he was found fit to be appointed as temporary Munsiff-Magistrate and he was appointed as Temporary Munsiff-Magistrate by G.O.(MS)No.104/2006/Home dated 21.7.2006. He served as temporary Munsiff-Magistrate during the period from 10.8.2006 to 28.2.2010, for more than three years. On being repatriated to his parent cadre he was also promoted to the category of Junior Superintendent. Therefore, ## **W.P(C).No.19814 of 2012** -:11:- the acquisition of LL.B. degree by the petitioner was beneficial to the State in the sense that he was able to serve the State better. Though rule 91-A of Part I, Kerala Service Rules has no application to the case on hand, as rule 91 contemplates grant of leave for obtaining superior qualifications (a degree in Law is specifically mentioned therein), in the absence of a stipulation in rule 26 of Part III, Kerala Service Rules as it stood in force on the date of Ext.P1 order, or in rule 91 of Part I, Kerala Service Rules, or in Ext.P1 Government order granting leave without allowances to the petitioner to undergo the LL.B. degree course, that the period of leave will not count for pension, I am of the opinion that the petitioner is entitled to have the period of leave without allowances availed by him to undergo the LL.B. degree course, reckoned as service qualifying for pension. The stand taken by the respondents cannot therefore be sustained. For the reasons stated above, I allow the writ petition, set aside Ext.P8 Government letter and the impugned endorsements made by the Chief Judicial Magistrate, Kozhikode and declare that the petitioner is entitled to have the period of leave without allowances sanctioned as per Ext.P1 Government order reckoned for the purpose of determining the service qualifying for pension. ## **W.P(C).No.19814 of 2012** **==> picture [28 x 9] intentionally omitted <==** The competent authority shall, in the event of the petitioner resubmitting the pension papers, sanction payment of pension to him on that basis expeditiously and in any event within two months from the date of receipt of the pension papers. The pensionary benefits shall be disbursed within another month thereafter. The parties shall bear their respective costs. **P.N.RAVINDRAN, Judge.** **ahg.** **P.N.RAVINDRAN, J. --------------------------W.P.(C).No.19814 of 2012 ----------------------------** ## **JUDGMENT** **7[th] February, 2013**