State of Kerala and others v Chandrakala Devi S.

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE ALEXANDER THOMAS** ## **&** **THE HONOURABLE MR. JUSTICE A. BADHARUDEEN** **THURSDAY, THE 7[TH] DAY OF OCTOBER 2021 / 15TH ASWINA, 1943** ## **OP(KAT) NO. 272 OF 2021** **AGAINST THE ORDER DATED 14.11.2018 IN TA 3980/2012 OF KERALA** **ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM** ## **PETITIONERS/RESPONDENTS IN T.A:** **1 STATE OF KERALA, REPRESENTED BY ITS PRINCIPAL SECRETARY TO GOVERNMENT, FINANCE (PWC-A) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM, PIN-695 001. 2 THE ACCOUNTANT GENERAL, OFFICE OF THE ACCOUNTANT GENERAL, THIRUVANANTHAPURAM, PIN-695 001.** **3 THE DISTRICT MEDICAL OFFICER (HEALTH), OFFICE OF THE DISTRICT MEDICAL OFFICER, THIRUVANANTHAPURAM, PIN-695 004.** **SRI.SAIGI JACOB PALATTY, SR.GOVT.PLEADER** ## **RESPONDENT/APPLICANT IN THE T.A:** **CHANDRAKALA DEVI.S., AGED 66 YEARS D/O.MOHANAN NAIR, RESIDING AT 'SREEDHAN', KONKALAM, ARAMADA, THIRUVANANTHAPURAM, PIN-695 032, RETIRED LOWER DIVISION CLERK (SELECTION GRADE), PUBLIC HEALTH CENTRE, VELLAYANI, THIRUVANANTHAPURAM, PIN-695 522.** **THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP FOR ADMISSION ON 07.10.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** O.P (KAT) No.272 of 2021 2 # **ALEXANDER THOMAS & A.BADHARUDEEN, JJ.** ## **========================================= O.P (KAT) No.272 of 2021** [ _arising out of the impugned final order dated 14.11.2018 in T.A No.3980/2012 on the file of the KAT, TVM Bench_ ] **=========================================** Dated this the 07[th] day of October, 2021 ## **JUDGMENT** ## **Alexander Thomas, J.** The sole respondent herein, had preferred a Writ Petition (Civil) W.P(C) No.33579/2012 before this Court on 03.11.2010 with the following prayers [ _see page No.25 of the paper book of the O.P_ ] : - _“A)Issue a writ of certiorari or any other appropriate writ or order quashing and settling aside Exhibits P-2, P-4 and P-6._ - _B) Issue a writ of mandamus, or any other appropriate writ or order directing the respondents to reckon the 536 days leave without allowance availed by the petitioner towards qualifying service._ - _C) Issue a writ of mandamus, or any other appropriate writ or order directing the respondents to re-fix the petitioner's pensionary benefits after reckoning the 536 days LWA availed by her towards qualifying service and disburse the arrears, and_ - _D) issue such other writ, order or direction as are deemed just and proper on the facts and circumstances of the case”_ 2. After the establishment of the Kerala Administrative Tribunal in accordance with the provisions contained in the Administrative Tribunal's Act, 1985, the above writ petition (civil) was O.P (KAT) No.272 of 2021 3 transferred to the Tribunal for consideration and adjudication. The Tribunal has re-numbered the writ petition (civil) as the instant Transferred Application, T.A No.3980/2012. The Tribunal after hearing both sides, has rendered the impugned Annexure-A4 final order on 14.11.2018, allowing the main pleas in the said application and holding that in view of the provisions contained in the unamended provisions of Rule 26 of Part-III KSR, as it stood at the relevant time and in view of the provisions contained in Ext.P-1 circular, the applicant is entitled to reckon the 536 days of Leave Without Allowance (LWA) claimed on medical grounds under Rule 88 of Part-I KSR, shall be counted as qualifying service for pension and that she is thus entitled to get revised pensionary benefits and that, R1 in the O.A shall issue orders in that regard within three months and that the monetary benefits arising out of the revision of pensionary benefits shall be released to the applicant within one month thereafter, etc. The respondents in the said T.A, have now preferred the instant original petition under Articles 226 & 227 of the Constitution of India as follows [ _see page No.16 of the paper book of the O.P_ ] : - _“1. To set aside the Annexure A4 order of the Kerala Administrative Tribunal in T.A No.3980/2012._ _2. To dismiss the Annexure A1 Transferred Application No.3980/2012 filed by the Respondent before the Kerala_ O.P (KAT) No.272 of 2021 4 _Administrative Tribunal, holding that the Respondent is not eligible for any of the reliefs claimed in the Annexure A1 Transferred Application._ _3. To declare that Exhibit P2, P4 and P4 issued by the Petitioner are valid and legally sustainable, and valid._ _4. Any other order or direction as this Honourable Court may deem fit and proper in the facts and circumstances of the case.”_ 3. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in the O.P/respondents in the T.A. In the nature of the orders proposed to be passed by this Court in this O.P, notice to the sole respondent in the O.P/sole applicant in the T.A, will stand dispensed with. 4. The applicant had availed 536 days of LWA on medical grounds, as envisaged in Rule 88 Part-I KSR during various spells. After her retirement from service on 31.05.2008 while holding the post of Lower Division Clerk (Selection Grade) from the Health & Family Welfare Department, her pension papers were returned by the Accountant General on the ground that the abovesaid period of LWA of 536 days cannot be reckoned as qualifying service for pension. Thereupon, R3 in the O.A, had submitted the revised proposal excluding the 536 days from the qualifying pensionable service and the pensionary claims of the applicant was settled excluding the said O.P (KAT) No.272 of 2021 5 period. Being aggrieved thereby, the applicant has challenged the said action of the respondents in the T.A to the extent they have excluded 536 days of LWA for the purpose of being reckoned as pensionable service and has sought consequential directions. From the pleadings and materials on record, it appears that the abovesaid 536 days of LWA on medical grounds has been availed by the applicant, prior to the issuance of Ext.P-1 Government Circular dated 30.12.2005. Part-III KSR deals with pensionary benefits and Rule 26 of Part-III KSR, as it stood prior to the amendment made effective as per SRO No.918/2009 w.e.f 05.11.2009, provided as follows : _“_ _**26** . Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified.”_ Subsequently, the said provision contained in Rule 26 of Part-III KSR, has been amended as per the abovesaid SRO No.918/2009 w.e.f 05.11.2009 and after such amendment Rule 26 provides 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 91A, 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 up to 60 days taken under the proviso to Rule 102, Part I, Kerala Service Rules in continuation of maternity leave.”_ O.P (KAT) No.272 of 2021 6 5. Since LWA for 536 days on medical grounds under Rule 88 of Part-I KSR, has infact been availed by the applicant prior to December, 2005, the applicable statutory Rule that governs the field, is the one as per Rule 26 of Part-III KSR, as it stood prior to the amendment made effective from 05.11.2009. Hence, going by the said Rule as it stood then, as per Rule 26 of Part-III KSR time passed on leave of all kinds with or without allowances will count as qualifying service, unless otherwise specified. The Government has also issued Ext.P-1 Government Circular No.72/2005/Fin. dated 30.12.2005, wherein in para No.3, it has been categorically held that, in view of the mandate contained in Rule 26 of part-III KSR, nothing is mentioned in the leave sanctioning order about non-reckoning of the period of pension, the said period will count for pension. The abovesaid statement in the beginning portion of para.3 of Ext.P-1 circular dated 30.12.2005, is only reflecting the correct statutory position, as borne out from Rule 26 of Part-III KSR, as it stood prior to 05.11.2009. Hence, the Government has also instructed in Annexure-A1 that, to avoid unnecessary confusion and to prevent claim under Rule 26 of Part-III KSR, the leave sanctioning authority may clarify in the order sanctioning Leave Without Allowances that, the period will O.P (KAT) No.272 of 2021 7 not count for purposes of pension, etc. The specific case of the applicant is that, since the abovesaid LWA period of 536 days on medical grounds has been availed by her prior to Ext.P-1 circular dated 30.12.2005 and as no condition has been stipulated in the proceedings ordering not to treat that period for pension, then that period will count for pension, going by the rule and Ext.P-1, etc. Since the pension papers were returned by the Accountant General for getting the abovesaid 536 days of LWA on medical grounds excluded from the pensionable service, the applicant received the pensionary benefits, without counting the said period but has thereafter challenged the same. Thereupon, the Government has taken the stand in Ext.P-4 letter dated 25.06.2010 that, irrespective of the entry or non-entry in the service book, the period of LWA of the applicant, whether it is on medical certificate or not, cannot be reckoned for increment as per Rule 33 (b)(2) of Part-I KSR and hence, the same cannot be reckoned for pension as well. However, the Government has taken the stand in Ext.P-5 letter dated 26.08.2010 that, it is fundamental that LWA under Rule 88 of Part-I KSR, will not count for pension and other pensionable service. A reading of Ext.P-5 dated 26.08.2010 would disclose that the Government has proceeded on the premise as if, the amended provision O.P (KAT) No.272 of 2021 8 of Rule 26 made effective prospectively from 05.11.2009 onwards, will govern the applicant's case as well. The said stand of the Government appears to be plainly wrong, inasmuch as, the LWA period is prior to Ext.P-1 circular dated 30.12.2005 and the applicable Rule was the one as per Rule 26 as it stood prior to the amendment made effective from 05.11.2009 and the said pre-amended Rule clearly mandates that, time allowed on leave of all kinds with or without allowances, will count as qualifying service unless otherwise specified. This position is amply clarified in Ext.P-1 circular, more particularly, in para.3 of Ext.P-3. The petitioners have no case that, a specific condition has been imposed in the order sanctioning Leave Without Allowances that, the same shall not count for pension. That apart, since the LWA period is prior to the issuance of Ext.P-1 circular dated 30.12.2005, the applicant has got a specific case that, the said circular cannot govern the applicant's leave period. 6. A Division Bench of this Court in the decision in _**Elizabeth** v._ _**Director of Health Services**_ [1998 KHC 596 = 1998 (2) KLT (SN) 82], has _inter alia_ dealt with the application of the unamended provisions of Rule 26 of Part-III KSR in para.7 of the said judgment and it has been held therein that, Rule 26 stipulates for counting the time O.P (KAT) No.272 of 2021 9 passed on leave of all kinds with or without allowances as qualifying service for pension, unless otherwise specified and it does not empower the Government to impose a condition while granting the Leave Without Allowances, that the period of such leave, will not count for any service benefits including pension and that, even assuming that Rule 26 empower the Government to do so, the grounds on which the period will be treated as non-qualifying, will have to be laid down by general or special order issued from time to time and that in the said case, no such order has been issued by the Government. Further, by placing reliance on Rule 65 of Part-I KSR, the Division Bench has held therein that, while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to the authority to alter the nature of such leave. Therein, it has also been held that the impugned order issued by the Government in that case had the effect of altering the nature of the leave sought for by the incumbent concerned. Further, it can be seen that, even if the un-amended provisions of Rule 26 have the effect of empowering the Government to make a contraspecification that, the LWA will not count for qualifying service for pension, etc., the same should have been done only with prior notice to the applicant, which has not been done in the instant case. It will be O.P (KAT) No.272 of 2021 10 relevant to refer to the decision of a Division Bench of this Court in **Elizabeth's case** supra [1998 KHC 596], para 7, which reads as follows : - _"_ _**7** . In this case, the leave application was made under Ext. P1 on 16th February 1991 wherein the appellant requested the Director of Health Services to permit her to proceed on leave without allowances from 16[th] February 1991. She made a further representation to the Commissioner and Secretary to Government, Health Department through the District Medical Officer, Idukki which is a notice under R.56 Part III of the Kerala Service Rules requesting sanction for her retirement with effect from 30th June 1992. By Ext. P-3 the Government permitted the appellant to retire voluntarily with effect from 30th June 1992 pending settlement of liabilities, if any outstanding against her. It is after that the Government by Ext. P-4 order dated 16th July 1993 sanctioned the leave without allowances applied for by the appellant subject to the condition that the period of leave will not count for any service benefits including pension. We have carefully considered the submissions made by the respective parties. R.64, 65, 77 (ix) and 88 of Part I and R.26 of Part III of the Kerala Service Rules are the provisions relevant for the purpose of deciding the question involved in this case. Those provisions are extracted hereunder._ _"64. The Government may issue orders specifying the authority by whom leave, other than study leave and leave without allowances exceeding a period of four months at a time, may be granted. The power to sanction leave without allowances exceeding a period of four months at a time will rest with Government._ _65. Leave cannot be claimed as a matter of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. Note. The nature of the leave due and applied for by an officer cannot be altered at the option of the sanctioning authority and while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave._ * * * * ** O.P (KAT) No.272 of 2021 11 77. In these rules: * * * * ** _(ix) 'Completed years of service' and 'one year's continuous service' mean continuous service of the specified duration under the Government of Kerala and include periods spent on duty as well as on leave including leave without allowances._ * * * * ** _88. Leave without allowances. (i) Leave without allowances may be granted to any officer in special circumstances_ _(a) when no other leave is by rule admissible, (b) when other leave is admissible by the concerned applies in writing for the grant of leave without allowances._ _(ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion."_ * * * * ** ## _Part III_ _26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified. The authority competent to declare a spell of leave as non qualifying for pension will be the Government and the grounds on which the periods of leave will be treated as non qualifying, will be laid down by general or special orders issued from time to time. This decision takes effect from 27th June 1974. [G. O. (P) 32/77 / Fin., dated 22nd January 1977.]"_ _We are unable to share the views of the learned Single Judge on R.26 Part III of the Kerala Service Rules. R.26 stipulates for counting the time passed on leave of all kinds with or without allowances as qualifying service unless otherwise specified, and it does not empower the Government to impose a condition while granting the leave without allowances that the period of such leave will not count for any service benefits including pension. Even assuming that R.26 empowers the Government to do so, the grounds on which the period will be treated as non qualifying will have to be laid down by general or special order issued from time_ O.P (KAT) No.272 of 2021 12 _to time. In this case no such order has been issued by the Government. As per the note to R.65 while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. In this case the Government has not refused or revoked the leave without allowances applied for by the Government, but, in effect, has altered the nature of the leave applied for by the appellant as one under Appendix XII - A of the Kerala Service Rules, viz. leave without allowances for employment elsewhere, which will not count for any service benefits including pension. It is not the case of the Government that the appellant has taken up any employment elsewhere. The appellant had applied for leave without allowances on medical grounds."_ 7. From a perusal of the pleadings and materials on record, it can be seen that, the pension papers were initially submitted by the governmental authorities themselves by including the said LWA period of 536 days, for reckoning pension and later, it was returned by the Accountant General and it is thereafter, that the authorities concerned have excluded the said period. Therefore, these factual aspects would clearly show that, the petitioners-departmental authorities concerned themselves had initially recommended that the pensionable period of the applicant shall be taken into account by reckoning the abovesaid LWA period of 536 days as well. This would clearly show that, no specific condition was imposed at any point of time, that the said period will not count for pension. That being so, the inevitable consequence of the mandate of the pre-amended provision of Rule 26 is that, the said period shall count for pension. Further, even if, such a condition had O.P (KAT) No.272 of 2021 13 then been imposed while sanctioning Leave Without Allowances that the said LWA period will not count for pension, etc., the same could have been done only with prior notice and after reasonable opportunity of being heard to the applicant, which has not been done. That apart, the Division Bench of this Court has held in **Elizabeth's case** supra that, even assuming that Rule 26 empowers the Government to do so, the grounds on which the period will be treated as non-qualifying, will have to be laid down by general or special order issued from time to time and the same has not been done in the instant case. Merely, prescribing a condition as in Ext.P-1 that, the authorities shall ensure that, while sanctioning LWA as above, it should be mentioned by them that the period shall not count for pension, may not legally suffice, in view of the dictum laid down by the Division Bench of this Court in **Elizabeth's case** supra. That aspect need not be probed any further for the simple reason that it appears that the petitioners-departmental authorities themselves had recommended that the said LWA period shall be counted as pensionable service, while forwarding the pension papers of the applicant, after her retirement, to the Accountant General. The objection was raised at the instance of the Accountant General, which resulted in the present controversy. Further, it appears that the O.P (KAT) No.272 of 2021 14 LWA period taken by the applicant was prior to the issuance of Ext.P-1 Government Circular dated 30.12.2005 and hence, the concluding portion of para.3 of Ext.P-1, may not have any application in the instant case and going by the categorical statement made by the Government in the beginning portion of para.3 of Ext.P-1 circular, so long as the adverse condition that the LWA period will not count for pension, is not specifically imposed in the proceedings granting leave, the said LWA period mentioned therein, will count for pension. The said position is not on the basis of the stipulations in the executive order at Ext.P-1, but only on account of the mandate of the pre-amended Rule 26 of Part-III KSR, as mentioned above. In other words, the Tribunal is right in holding that the said period has to be counted for pension in the case of the applicant. 8. The upshot of the above discussion is that, no interference is called for with the verdict of the Tribunal in this case. However, we note that the instant writ petition has been filed by the applicant as early as on 30.11.2010, which was later transferred to the Tribunal, which culminated in Annexure-A4 final verdict on 14.11.2018. The present O.P(KAT) has been filed before this Court on 05.10.2021, there has been long delay in the matter. Accordingly, it is ordered that the O.P (KAT) No.272 of 2021 15 competent authority among the petitioners in the O.P will immediately ensure the strict compliance of the directions issued by the Tribunal at para.12 of Annexure-A4 final order, without much delay, at any rate, within six weeks from the date of receipt of a copy of this judgment. The Secretary to the office of the Advocate General will immediately forward copies of this judgment to the petitioners in the O.P, for necessary information and immediate compliance. The Registry will forward a copy of this judgment to the respondent in the O.P, for necessary information. With these observations and directions, the above Original Petition, will stand dismissed. ## **Sd/-** ## **ALEXANDER THOMAS, JUDGE** **Sd/-** ## **A.BADHARUDEEN, JUDGE** vgd O.P (KAT) No.272 of 2021 16 ## **APPENDIX OF OP(KAT) 272/2021** ## **PETITIONERS' ANNEXURES** **ANNEXURE A1 TRUE COPY OF THE TA NO.3980/2012 ALONG WITH EXHIBITS BEFORE THE KERALA ADMINISTRATIVE TRIBUNAL.** **EXHIBIT P1 TRUE COPY OF CIRCULAR DATED 30.12.2005.** **EXHIBIT P2 TRUE COPY OF LETTER DATED 19.12.2009 FROM THE THIRD RESPONDENT TO THE 2ND RESPONDENT.** **EXHIBIT P3 TRUE COPY OF REPRESENTATION DATED NIL SUBMITTED BY THE PETITIONER.** **EXHIBIT P4 TRUE COPY OF THE LETTER DATED 25.06.2010 ISSUED BY THE 1ST RESPONDENT. EXHIBIT P5 TRUE COPY OF LETTER DATED 26.08.2010 ISSUED BY THE 1ST RESPONDENT. ANNEXURE A2 TRUE COPY OF THE REPLY STATEMENT DATED 29.10.2018 FILED BY THE FIRST PETITIONER. ANNEXURE A3 TRUE COPY OF THE REPLY STATEMENT DATED 04.10.2018 FILED BY THE SECOND PETITIONER. ANNEXURE A4 COPY OF THE ORDER OF THE KERALA ADMINISTRATIVE TRIBUNAL DATED 14.11.2018.**