S. Vijayan Nair v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** ## **THE HONOURABLE MR. JUSTICE AMIT RAWAL** **TUESDAY, THE 5[TH] DAY OF OCTOBER 2021 / 13TH ASWINA, 1943** ## **WP(C) NO. 26219 OF 2014** ## **PETITIONER/S:** S.VIJAYAN NAIR RETIRED LECTURER, SELECTION GRADE (BOTANY), S.D COLLEGE, ALAPPUZHA, RESIDING AT RAJ NIVAS, PAZHAVEEDU P.O, ALAPPUZHA 688009 BY ADVS. SRI.ELVIN PETER P.J. SRI.K.R.GANESH SRI.T.G.SUNIL PRANAVAM ## **RESPONDENT/S:** 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM 695001 2 THE DIRECTOR OF COLLEGIATE EDUCATION THIRUVANANTHAPURAM 3 THE PRINCIPAL SANATANA DHARMA COLLEGE, ALAPPUZHA 3 BY ADV GOVERNMENT PLEADER ## **OTHER PRESENT:** GP SRI JIMMY GEORGE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 26219 OF 2014** **2** ## **JUDGMENT** The grievance of the petitioner has arisen out of an order dated 14.6.1985 specifying that leave without allowance taken by a Private College employee will not be counted for service benefits. But subsequently, vide order dated 6.5.1987, Ext.P5 clarified that the leave without allowance granted by the management of Private Colleges falling under the Direct Payment Scheme to their staff, prior to issuance of G.O dated 14.6.1985 can be reckoned as qualifying service for the purpose of pension, unless otherwise specified in the orders sanctioning leave. 2. It is a matter of record that the petitioner had obtained leave without allowance for a period of first two years with effect from 1.6.1982 to 27.12.1983 for taking teaching assignment in Nigeria subject to all leave rules under the 1[st] statutes, University of Kerala and other rules of the Higher Education Department of State Govt. in respect of personnel accepting assignments abroad. Before the expiry of the leave period, the petitioner rejoined for duty on 28.12.1983 as evident from Ext.P2. He had completed 8 years of service and thus entitled to become Senior Grade Lecturer and after **WP(C) NO. 26219 OF 2014** **3** 16 years of service, Selection Grade Lecturers. The entire tenor and mode of the submissions and the pleadings are that order Ext.P4 dated 14.6.1985 was modified vide order dated 6.5.1987, Ext.P5. 3. Respondents opposed the aforementioned contentions by submitting that Government found that there were number of representation from similarly placed persons requesting to count the Leave without Allowance availed by them as Qualifying Service for the purpose of pensionary benefits. The Government examined such cases together and issued revised general orders dated 14.6.1985, the LWA availed by the teachers will not be reckoned as Qualifying Service for pension. The controversy was again raised on the basis of the judgment rendered by this Court and accordingly an order dated 15.6.2002 was issued stating that there is no provision for counting the Leave Without Allowance period as qualifying service for pensionary benefits. The grievance of the petitioner was heard by the Deputy Secretary to Government, Higher Education Department in 1997 and 2000 as evidenced from Exts. P8 and P9. The petitioner filed a representation before the first respondent Government claiming period of LWA as Qualifying Service and to grant consequential benefits to him. The **WP(C) NO. 26219 OF 2014** **4** Hon'ble Court directed the first respondent to consider and pass fresh orders in the representation. The controversy with regard to counting of leave without allowance for the purpose of pensionary benefits has already been put to rest by the Full Bench of this Court in _**2015 (1) KLT 863 State Of Kerala And Others v. Thomas.**_ 4. I have heard the learned counsel for the parties and appraised the paper book. In para 31, 33 and 34 of the aforementioned judgment, this Court held as under: 31. In the judgment in W.A No.1287/2005, the Division Bench was considering the case of a private aided college teacher who took leave for a period of 5 years from 23.7.1977 initially, which was extended for a further period from 23.7.1982 and finally rejoined duty and retired on 31.3.1998. The Division Bench found that the original leave was granted by the management as per the First Statutes 1972 framed by the Government under S.76 of the Kerala University Act, 1969. The Division Bench took note of the fact that the Kerala Univeristy Act ,1969 was repealed on enactment of the Kerala University Act, 1974. In these circumstances, it is to be noted that the pensionary benefits of teachers of Private Colleges affliated to the Kerala University are governed by Kerala University First Statutes in respect of Pension, Provident Fund, Gratuity, Insurance and Age of Retirement of Teachers of Private Colleges 1976 framed under S.83 of the Kerala University Act, 1974. Taking note of the provisions of Statute 5 therein, it was held that the Private College Teachers are eligible for pensionary benefits as laid down in Part III K.S.R. It was further found that as per R.26, the time passed on leave of all kinds with or without allowances will count for pension unless otherwise specified and that in the absence of any specific orders issued, to exclude any part of the service, the entire service rendered by the private college teacher, including the period during which he was under leave was liable to be reckoned **WP(C) NO. 26219 OF 2014** **5** towards qualifying service. The Division Bench held that R.88 of Part I is not applicable to the Private College Teachers, since they are governed by Statute 25(2) of the First Statutes, 1979 which empowers the management to sanction leave. The Division Bench also added that the Government did not have any case that the leave was granted with or without proper sanction. Further, referring to the G.O.(MS) 137/85/H.Edn. 14.6.1985 (the order Ext.P11 herein) the Division Bench held that it was only after the issuance of the order i.e., after 14.6.1985, that the Private College Teachers were to loose any benefit on availing leave without allowance and that too in cases where orders granting leave were issued subsequent to 14.6.1985. It was held that since all these spells of leave granted to the petitioner therein was prior to 14.6.1985, the service rendered by the petitioner therein including that covered by the period of leave without allowance for employment abroad, was liable to be reckoned towards pensionary benefits. On the basis of the above findings, the Division Bench upheld the judgment of the Single Bench and directed payment of all pensionary benefits reckoning the entire period including that covered by leave without allowance. In view of our finding in respect of the various provisions of the University Statutes read with the provisions in K.S.R. as discussed in paragraphs 14 to 30, we are unable to agree with the finding of the Division Bench that R.88 of Part I K.S.R. was not applicable to Private College Teachers and what was applicable was only Statute 25 Chapter II of the First Statutes, 1979. We do not also agree with the view that the period of LWA in the case of Private College Teachers for employment abroad, granted before 14.6.1985 can be reckoned towards pension. 33. It is to be noted that the teachers in Government colleges and officers under the Government in respect of whom also Government is the pay master, are not eligible for pension or any other service benefits towards the period during which they were on leave without allowance for the purpose of employment abroad. It is a fact that leave was granted to them on the basis of the orders stipulating restrictions and in the absence of such orders they were also not permitted to accept employment abroad. Directing grant of pensionary benefits for the period during which the Private College Teachers were serving another country on the basis of orders issued by the respective managements, even in the absence of any provision for the same, cannot be permitted, when it is the Government who had to make the payments towards pension. It was only by the **WP(C) NO. 26219 OF 2014** **6** issuance of the Government Order issued on 14.6.1985 that the Government, for the first time decided to issue specific orders to permit the Private College Teachers to take up other employment abroad and to accord sanction for leave without allowance for that purpose, on certain conditions. That means until 14.6.1985 any grant of leave without allowance by the respective educational agencies, for the purpose of employment abroad was without authority and hence illegal. At any rate, that cannot burden the Government by making payments to such teachers. Therefore, the leave without allowance mentioned in R.26 of Part III K.S.R. can only be understood as the leave without allowance which is permissible as per rules or orders issued by the Government from time to time. The absence of any stipulation or restriction regarding the loss of benefits on availing leave in the event of the same being taken for employment abroad in such circumstances where the leave is granted and availed in the absence of any provision for the same and contrary to the provisions stipulating that no other employment shall be accepted by an officer, cannot be a reason for reckoning the period under the leave without allowance for the purpose of qualifying service for pension. Qualifying service for the purpose of pension can only be that service during which the teacher discharged his duties for which he was paid by Government, as provided in R.10 of Part III K.S.R. In the above circumstances, the findings arrived at in W.A. No.1287 of 2005 cannot be said to be correct. 34. In this context, it is relevant to note that the respondents in these Writ Appeals have relied on a Government letter 12259/D2/87/ H.Edn. issued on 6/8.5.87 (Ext.P12) issued by the Under Secretary to Government in order to assert their claim that leave without allowance granted by the management of private colleges coming under the Direct Payment Scheme prior to the issuance of G.O.(MS) 136/85/H.Edn. dated 14.6.85 can be reckoned as qualifying service for the purpose of pension. It is to be noted that this letter is seen issued by an Under Secretary to Government on behalf of the Commissioner & Secretary to Government. All the points have been noticed by the Full Bench and after pondering over the question, it has been held that the period of **WP(C) NO. 26219 OF 2014** **7** leave without allowance cannot be reckoned for the purpose of pensionary benefits. Thus the claim of the petitioner is wholly unwarranted and cannot be granted. Writ petition is dismissed. Sd/- sab **AMIT RAWAL JUDGE** **WP(C) NO. 26219 OF 2014** **8** ## **APPENDIX OF WP(C) 26219/2014** PETITIONER EXHIBITS EXHIBIT P1 TRUE COPY OF THE ORDER DATED 24-05-1982 ISSUD BY THE 3RD RESPONDENT TO THE PETITIONER EXHIBIT P2 TRUE COPY OF THE RELEVANT EXTRACT OF THE SERVICE BOOK OF THE PETITIONER EXHIBIT P3 TRUE COPY OF THE CONTRACT AGREEMENT DATED 15-03-1983 ENTERED INTO BETWEEN THE PETITIONER AND THE SECRETARY, CIVIL SERVICE COMMISSION,MINISTRY OF EDUCATION, KANO STATE, NIGERIA EXHIBIT P4 TRUE COPY OF THE G.O (MS) NO 13/85/H.EDN DATED 14-06-1985 ISSUED BY THE IST RESPONDENT EXHIBIT P5 TRUE COPY OF THE LETTER NO 12259/D2/B7/H EDN DATED 06-05-1987 ISSUED BY THE GOVERNMENT EXHIBIT P6 TRUE COPY OF THE LETTER DATED 27-06-2011 ISSUED BY THE 3RD RESPONDENT TO THE IST RESPONDENT EXHIBIT P7 TRUE COPY OF THE REVISED PENSION ORDER DATED 21-03-2002 ISSUED BY THE ACCOUNTANT GENERAL (A & E) KERALA EXHIBIT P8 TRUE COPY OF THE G.O(RT) NO 1395/97/H.EDN DATED 17-11-1997 ISSUED BY THE IST RESPONDENT EXHIBIT P9 TRUE COPY OF THE G.O(MS) NO 63/2000/H.EDN DATED 19-04-2000 ISSUED BY THE IST RESPONDENT **WP(C) NO. 26219 OF 2014** **9** EXHIBIT P10 TRUE COPY OF THE JUDGMENT DATED 20-06-1995 IN OP NO 7378/1993 OF THIS HON'BLE COURT EXHIBIT P11 TRUE COPY OF THE JUDGMENT DATED 20-09-01 IN OP NO 14224/1996 OF THIS HON'BLE COURT EXHIBIT P12 TRUE COPY OF THE JUDGMENT DATED 06-09-2002 IN OP 16423/1998 OF THIS HON'BLE COURT EXHIBIT P13 TRUE COPY OF THE JUDGMENT DATED 15-10-2008 IN W.A NO 1287/2005 OF THIS HON'BLE COURT EXHIBIT P14 TRUE COPY OF THE REPRESENTATION DATED 27-06-2011 SUBMITTED PETITIONER BEFORE THE GOVERNMENT EXHIBIT P15 TRUE COPY OF THE JUDGMENT DATED 26-09-2013 IN WPC NO 23574/2013 OF THIS HON'BLE COURT EXHIBIT P16 TRUE COPY OF THE JUDGMENT DATED 22-08-2014 IN CON.CASE (C) NO 654/2014 OF THIS HON'BLE COURT EXHIBIT P17 TRUE COPY OF THE ORDER NO 21963/D1/11/G.EDN DATED 07-02-2013 ISSUED BY THE GOVERNMENT