IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE J.B.KOSHY & THE HONOURABLE MR. JUSTICE K.P.BALACHANDRAN WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WA.No.1287 of 2005 ------------------------ AGAINST THE JUDGMENT IN O.P.16508/2002 Dated 07/01/2005 .................... APPELLANTS/RESPONDENTS 1 AND 2 IN THE O.P. ----------------------------------------------------------- 1. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, TRIVANDRUM. BY SR. GOVERNMENT PLEADER SRI.BENNY GERVACIS RESPONDENTS/PETITIONERS AND RESPONDENTS 3 & 4 IN O.P.: ---------------------------------------------------------------------------- 1. K.N.SUKUMARAN KARTHA, S/O.LATE NARAYANAN KARTHA, AGED 60 YEARS, RESIDING AT RAJITHA, NO.I, KATTU ROAD, POOJAPPURA, TRIVANDRUM. 2. THE SECRETARY, N.S.S. COLLEGE GENERAL COMMITTEE, CHANGANASSERRY-2. 3. THE PRINCIPAL, M.G.COLLEGE, TRIVANDRUM. ADV. SRI.P.R.RAMACHANDRA MENON FOR R1 SRI.P.G.PARAMESWARA PANICKER (SR.) FOR R2 SRI.P.GOPAL FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: J. B. KOSHY & K. P. BALACHANDRAN, JJ. ------------------------------------------------ W. A. No.1287 of 2005 ------------------------------------------------ Dated this the 15th day of October, 2008 JUDGMENT Koshy, J Entitlement of reckoning the period of leave without allowance availed by the respondent/writ petitioner for the purpose of computing his pensionary benefits is the short question that is for consideration in this writ appeal. The respondent/writ petitioner joined in a Private Aided College affiliated to the Kerala University. He took five years leave with effect from July 23, 1977. Subsequently, the leave was extended for a further period with effect from July 23, 1982. Thereafter, he rejoined duty and retired on superannuation on March 31, 1998. As far as the Kerala University employees are concerned, leaves are to be sanctioned as per the First W. A. No.1287 of 2005 -2- Statute, 1972. The original leave was granted by the Management as per the First Statute, 1972 framed by the Government in accordance with Section 76 of the Kerala University Act, 1969. Statute 25 provides authority for the Management to grant leave. Thereafter, the Kerala University Act, 1969 was repealed and Kerala University Act, 1974 came into force. 2. As far as pensionary benefits of Teachers of Private Colleges affiliated to the Kerala University are concerned, what is applicable is Statute, 1976 framed under Section 83 of the Kerala University Act, 1974 in respect of Pension, Provident Funds, Gratuity, Insurance and Age of Retirement of Teachers of Private Colleges; and Chapter II of above Statute deals with pension with regard to the teachers who retired at the age of 55. Under Statute 5 Chapter-II of Kerala University First Statute, 1976 it is stated W. A. No.1287 of 2005 -3- that the teachers who retire at the age of 55 shall be entitled to receive the same pensionary benefits as are allowed to similar categories of teachers in Government Colleges including family pension and death-cum- retirement gratuity and all the conditions for the grant of these benefits are the same as applicable to Government Servants as laid down in Part-III of the Kerala Service Rules as amended from time to time. Rule 26 Part-II of the Kerala Service Rules states that time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified. So, the Government has to pass specific orders if the leave period has to be excluded for non-qualifying services. It is true that as far as Government servants are concerned Rule 88 Part-I of K.S.R. deals with grant of leave without allowances. But the above Rule 88 is not W. A. No.1287 of 2005 -4- applicable to teachers of private colleges affiliated to Kerala University. Statute 25(2) of the First Statutes, 1979 empowers the Management to sanction leave and Government has also no case that leave is granted to the respondent/petitioner without proper sanction. Appendix-XII-A of the Kerala Service Rules was framed only in 16/12/1983 and admittedly it is also not applicable in this case as that Appendix itself specifically states that it is not applicable to aided college teachers. Further, the above Appendix was framed after sanctioning of the leave in question to the respondent/petitioner. Learned Government Pleader pointed out that in Annexure-A produced along with the appeal dt.14/06/1985 it is stated that during the leave period without allowance employees will lose service benefits. On the same day Annexure-B was passed clarifying that the leave period during which an employee W. A. No.1287 of 2005 -5- spent on leave without allowance will not be counted for pensionary benefits also. As far as the teachers in Private Colleges are concerned, this will show that after 14/06/1985 from the date of Annexure-B, if any leave is granted without allowance, that leave period without allowance, will not be counted for pensionary benefits. Here, the leave was granted before Annexure-B order dt.14/06/1985. Even the second spell of leave is granted in 1982. Learned Government Pleader referred to Annexure-C. That is a specific order passed in accordance with the direction of this court to the Government in a particular case and that has no application at all in this case. It is not a general order. Further, Government cannot retrospectively take any of the benefits already granted by Government Orders. Petitioner also referred Ext.P4 Government letter dt.06/05/87 wherein it is stated as W. A. No.1287 of 2005 -6- follows:- “With reference to your letter cited, I am to inform you that the leave without allowances granted by the Management of Private Colleges coming under the D.P. Scheme to their staff, prior to the issuance of G.O.(MS) 136/35/H. Edn. dt.14/06/85 can be reckoned as qualifying service for purpose of pension unless otherwise specified in the orders mentioning leave.” (emphasis supplied) 3. It is also pointed out by referring Ext.P5 Government Order that for other teachers the period of leave without allowance was counted as qualifying service. Ext.P4 letter is stated to have been cancelled by Ext.P7 wherein it is stated that the above order has been cancelled prospectively with effect from the date of the order i.e. 02/04/01. The leave without allowances in question were sanctioned much prior to 2001. Respondent/Petitioner retired in 1998. Hence, Ext.P7 also has no application in this case. Considering these aspects, learned Single Judge correctly held that petitioner is W. A. No.1287 of 2005 -7- entitled to get the entire pensionary benefits treating the period of leave without allowance as part of his qualifying service. We agree with the views of the learned Single Judge. Hence, writ appeal is liable to be dismissed. 4. The learned Judge also directed to disburse the entire arrears of pension payable to the petitioner with 9% interest from 01/07/1998 till the date of payment and also directed the Government to comply with the direction within two months from the date of receipt of a copy of the judgment. It is submitted that since the respondent/petitioner was being paid pension excluding the period, direction to pay interest is arbitrary. Further, period of two months to comply with the directions of the judgment was already over in view of the pendency of the writ appeal. Interim stay was also granted by this Court. In the above circumstances, while W. A. No.1287 of 2005 -8- confirming the impugned judgment, we dispose of this appeal by directing the Government to disburse the pension within three months from the date of receipt of a copy of the judgment and if the arrears of pension is not paid within three months from the date of receipt of a copy of the judgment, interest at 9% thereon from 01/07/1998 shall be paid as ordered by the learned Single Judge in the impugned judgment. J. B. KOSHY JUDGE K.P.BALACHANDRAN, JUDGE kns/-