IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON THURSDAY, THE 5TH FEBRUARY 2009 / 16TH MAGHA 1930 WA.No. 764 of 2008() -------------------- AGAINST THE JUDGEMENT IN WPC.31271/2005 Dated 15/11/2007 .................... APPELLANT: PETITIONER IN THE W.P. ------------------------------------ K.P.GEORGE, RETIRED AS SENIOR GRADE ASSISTANT, ADVOCATE GENERAL'S OFFICE, RESIDING AT KOCHUVEETTIL HOUSE,H.NO.31/154 A,JUNIOR JANATHA ROAD, P.O.VYTTILA, KOCHI-682 019. BY ADV. SRI.N.SUGATHAN RESPONDENT(S): RESPONDENTS IN THE W.P. -------------------------------------- 1. THE LAW SECRETARY, LAW (B) DEPARTMENT, GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ADVOCATE GENERAL, KERALA, ERNAKULAM. 3. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.BENNY GERVASIS THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28/01/2009, THE COURT ON 05/02/2009 DELIVERED THE FOLLOWING: “C.R” KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ------------------------------------------------- W.A.No.764 of 2008 -------------------------------------------------- Dated this the 5th day of February, 2009 JUDGMENT Kurian Joseph,J. Whether a non-permanent officer in regular service, who has not completed probation in the entry grade, availing leave without allowance is entitled to count his service prior to the leave for the purpose of pension is the question to be considered in this appeal. 2. Leave is not a matter of right. But once leave is granted, the incumbent shall be bound by the conditions attached to the leave. Appendix XII-A prescribes the rules for the grant of leave without allowances for taking up employment abroad or within India. Rule 88 Part I KSR deals with leave without allowances. Sub-rule (ii) of Rule 88 provides that “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”. However Exception 2 provides that the limitation in W.A.No.764 of 2008 -:2:- sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC. Rule 110B deals with leave for taking up employment abroad or within India. The Rule provides that “rules for grant of leave without allowances for taking up employment abroad or within India are given in Appendix XIIA.” Appendix XIIA of Part I opens with the following introduction:- “The following rules shall regulate the grant of leave without allowances to officers for taking up employment abroad or within India.” Therefore, the purpose of Appendix XIIA is to provide for rules to regulate the grant of leave without allowances for taking up employment. Rule 4 regulates the leave of permanent officers and non-permanent officers who have completed probation in their entry grade in the regular service of the Government and Rule 5 deals with non-permanent Officers in regular service who have not completed probation in the entry grade. Rules 4 and 5 are extracted below:- “4. Permanent Officers and non-permanent Officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as W.A.No.764 of 2008 -:3:- the earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty. 5. In the case of non-permanent Officers in regular service who have not completed probation in the entry grade, leave without allowances may be granted subject to the condition that they will have to start afresh and complete their probation on return from the leave without allowances. In other words, the Officers will forfeit the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government service on return from leave. What is protected is only their right to rejoin Government service in the same entry grade as if they were new entrants.” It is clearly provided under Rule 4 of Appendix XIIA that the leave period shall not be reckoned for service benefits such as earned leave, pension, gratuity, increment etc. and also for promotion during the leave period. It is also provided that such incumbents will lose seniority in the higher grade with reference to juniors who might got promoted to such grades before the expiry of the leave. 3. As far as non-permanent Officers in regular service, who have not completed probation in the entry grade, are concerned, they are also liable to be granted leave without W.A.No.764 of 2008 -:4:- allowance subject to the condition that on the expiry of the leave period they will have to start afresh and complete their probation on return from the leave. That part of Rule 5 of Appendix XIIA has been clarified and explained with the expression “in other words”, providing that such non-permanent officers, who have not completed their probation in the entry grade and who avail leave without allowances, will have to forgo the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government service on return from leave. There is also a further clarification that what is protected in such cases is only their right to rejoin Government service in the same entry grade as if they were new entrants. It is the stand of the State that the expression forfeiture of service benefits would take in the forfeiture of the service as such. In other words, the service rendered by a non-permanent officer in regular service, who has not completed the probation and who avails leave without allowance, will not be entitled to count the service rendered prior to the leave even for pension. 4. Rule 10 of Appendix XIIA provides that the rules W.A.No.764 of 2008 -:5:- apply in all cases of grant of leave without allowances on or after 16-12-1983, whether in extension of the leave already granted or otherwise. The Rule reads as follows:- “10. These rules shall apply to all cases of grant of leave without allowances on or after the 16th December, 1983 whether in extension of the leave already granted or otherwise and such leave granted before that date shall be reckoned for applying the 20 years limit under Rule 6 above.” A Note is also provided under Rule 10, further clarifying the position. The note reads as follows:- “Note:- Notwithstanding anything contained in these rules those who have proceeded on leave for taking up employment abroad or within the country before the commencement of these rules, after obtaining permission of Government will continue to be governed by the conditions laid down in G.O(P)274/70/Fin. dated 29 th April 1970 for the leave granted to them even if it extends beyond 16-12-1983.” A conjoined reading of Rule 10 and the Note makes it clear that only the leave without allowance granted on 16-12-1983 or thereafter will be governed by the Rules contained in Appendix XIIA. It makes no difference whether such grant of leave on or after 16-12-1983 is a fresh grant or in extension of the leave already granted. In other words, even if an extension of leave already granted in terms of the 1970 government order dated W.A.No.764 of 2008 -:6:- 29-4-1970 is extended on or after 16-12-1983, such extension will be governed by Appendix XIIA and not by the conditions of the leave already granted prior to 16-12-1983. The leave already granted prior to 16-12-1983 will be reckoned only for the purpose of counting the total period of leave without allowances as provided under Rule 6. In fact this position has been settled by a Bench decision of this court in K.S.R.T.C. v. Noorudeenkutty, 2005(3) KLT 504, (ILR 2005 (3) Kerala 490 = 2005 (2) KLJ 609). 5. Whether the service benefit as referred to in Rule 5 of Appendix XIIA would include seniority has been considered by this court in the Bench decision of this court in Unnikrishna Panicker v. Bhasi, 2001(1) KLT 449, single Bench decision in Sreekala v. State of Kerala, 2007 (1) KLT 903 and another Bench decision in Yesodhari Devi M.G. v. State of Kerala & Others, 2007(2) KLJ 799. The law has been well settled by those decisions to the effect that a probationer availing leave without allowance will not be entitled to claim service seniority on the basis of the date of initial joining duty since the service W.A.No.764 of 2008 -:7:- benefits have been forfeited. Whether pension is a service benefit has not so far been considered by any of the decisions of this court, in the background of Appendix XIIA. 6. Before analysing the legal position, it is necessary to refer to the facts. Petitioner entered service as LDC in the Harijan Welfare Department on 15-11-1976. His probation was declared on 29-11-1978 (Ext.P1). On appointment as Assistant Grade II in the Advocate General's Office he was relieved from the Harijan Welfare Department on 29-2-1980 and joined the Advocate General's Office on 1-3-1980 (Ext.P2). On 1-3-1981 he was granted annual increment. The period of probation is two years. While on probation, as per Ext.P3 the petitioner was granted leave without allowance for five years with effect from 23-12-1981 to seek employment abroad. The leave was granted as per government order dated 29-4-1970 (Ext.P4). The following are the conditions under Ext.P4 government order dated 29-4-1970:- (1) The leave period will not be counted for pension; (2) In the case of eligibility for appointment to selection post, the performance will be assessed afresh on W.A.No.764 of 2008 -:8:- rejoining duty after the leave. (3) The person already in the select list will be appointed only subject to availability of vacancy on return from leave; and (4) In the case of non-selection post he will be appointed to such post and allowed to continue on leave. It is significant in this context to note that the 1970 government order did not make any difference as to whether an employee is permanent, non-permanent or probationer. During the currency of the leave without allowance from 23-12-1981 to 22-12-1986, Appendix XIIA was introduced with effect from 16-12-1983. 7. Petitioner applied for leave for another term of five years with effect from 23-12-1986 and that application was recommended by the Advocate General. That leave was sanctioned as per Ext.P6 by the Government. The order reads as follows:- “Government are pleased to sanction leave without allowance to Sri.K.P.George, Assistant Grade II, Office of the Advocate General, Ernakulam for a further period of five years with effect from 23-12-1986 subject to the terms and conditions laid down in the G.O. read as 3 rd paper above . (Appendix XIIA). If the officer does not return to duty on expiry of the leave sanctioned as per this order, his service will stand terminated automatically.” W.A.No.764 of 2008 -:9:- It is to be noted that Ext.P6 was a sanction order of leave for a period of five years with effect from 23-12-1986, of course a further period of leave, subject to the terms and conditions in Appendix XIIA. Petitioner was again sanctioned leave for another term of five years with effect from 23-12-1991 (Ext.P7). He rejoined duty on 1-2-1993 after cancelling the unavailed portion of leave. On 9-12-1993 he was again sanctioned leave without allowance with effect from 28-12-1993 and as per Ext.P10 for another period of five years also he availed leave without allowance. On 2-5-2000 he rejoined duty after cancelling the unavailed portion of leave (Ext.P11) and as per Ext.P12 his probation was declared with effect from 4-10-2002. On 30-6- 2005 he retired on superannuation. The stand of the State is that for the purpose of pension and pensionary benefits, the service rendered by the petitioner prior to the leave without allowance period cannot be counted, since that service has been forfeited in terms of Rule 5 of Appendix XIIA. Only as a probationer he availed the leave. The disputed periods of service are from 1-3-1980 to 22-12-1981 and 1-2-1993 to 27-12-1993. W.A.No.764 of 2008 -:10:- The former one year, nine months Twentytwo days and the latter ten months and twentyseven days. 8. The contention advanced by Sri.Sugathan, learned counsel appearing for the appellant is that Appendix XII-A can only be treated as an Appendix to the Kerala Service Rules and hence the claims otherwise protected for counting the service rendered by an incumbent as qualifying service as per Rules for the purpose of pension cannot be forfeited. It is further contended that forfeiture of service is dealt with only under Rule 29 of part III KSR wherein it is provided that resignation, dismissal or removal from service only entail forfeiture of past service. The Rule reads as follows:- “29. Resignation and Dismissals.--(a) Resignation of the Public Service or dismissal or removal from it, entails forfeiture of past service. (b) Resignation of an appointment to take up another appointment, the service in which counts is not resignation from public service. Note:- The break between the two appointments should not exceed the joining time admissible under the service rules plus the public holidays.” Qualifying service is dealt with in Chapter II of Part III KSR. Rules 9, 10 and 11 are relevant. To the extent required for the W.A.No.764 of 2008 -:11:- purpose of the present issue, the rules read as follows:- “9. Beginning of Service.--(a) Except for compensation gratuity, an employee's service does not qualify till he has completed 18 years of age. (b) In other cases, unless it be otherwise provided by special rule or contract, the service of every employee begins when he takes charge of the office to which he is first appointed. 10. The service of an employee does not qualify for pension unless he is appointed, his duties regulated and paid by the Government or under conditions determined by the Government. 11. Notwithstanding the provisions of Rule 10, the Government may, (1) declare that any specified kind of service rendered shall qualify for pension; and (2) in individual cases, and subject to such conditions as they may think fit to impose in each case, allow service rendered by an employee to count for pension.” Th expression 'appointed to a service' is defined under Rule 2(1) of the Kerala State and Subordinate Service Rules, 1958. The rule reads as follows:- “2(1). A person is said to be “appointed to a service” when in accordance with these rules or in accordance with the rules applicable at the time as the case may be, he discharges for the first time the duties of a post borne on the cadre of such service or commences the probation, instruction or training prescribed for members thereof; W.A.No.764 of 2008 -:12:- Rule 31 Part III of the Kerala Service Rules provides for interruption in service wherein it is prescribed that interruption in service of an employee will count for pension provided it is not specifically laid down in the rules or otherwise ordered by competent authority and recorded accordingly in the service book. Appendix XIIA is a set of comprehensive rules dealing with leave without allowance. It is part and parcel of the Kerala Service Rules. Rule 110B of Part I KSR comes under Section XIB. It is provided in the Rules that “Rules for the grant of leave without allowances for taking up employment abroad or within India are given in Appendix-XIIA”. Therefore, there is no basis for the contention that Appendix XIIA is not part of the Kerala Service Rules. Merely because it is given as an Appendix to the Rules, it does not cease to have the status and force of the Service Rules. They are rules prescribed in detail in the Appendix and it has to be read along with Rule 110-B of Part I KSR. That is why Appendix XIIA itself is captioned as “Rules for the Grant of Leave Without Allowances for Taking up Employment Abroad or Within India”. W.A.No.764 of 2008 -:13:- 9. The Rules in Appendix XIIA are intended to regulate the grant of leave without allowances. Leave is not a matter of right and more so in the case of those employees, who have not completed probation since long absence during the period of probation visits the employees with other consequences as well. Therefore, while regulating the leave of employees who have not completed their probation, the Government has not taken away any right of the probationers. In fact Rule 5 has only conferred a benefit on them, by way of a concession. By that concession only, they are in a position to avail long leave without allowance while on probation. But the grant of leave is subject to rigorous conditions. Being a mere concession, the Government is fully justified, apart from being well within its powers, in prescribing such conditions. The main condition is that if a probationer takes leave, what is protected is only his right to re- entry in service as a new entrant. The former part of Rule 5 specifically provides that such probationers availing leave without allowance will have to start afresh and complete the probation. The expression “start afresh” has been explained in the latter W.A.No.764 of 2008 -:14:- portion with the expression “in other words”. The expression “in other words” is intended to explain a position in different words conveying the same sense. The explanation is intended to clarify any ambiguity in the sense and intention already expressed in different words. True, such explanation cannot introduce a new notion and cannot carry a different sense and meaning. But the Legislature is competent to explain the intention in different words so as to clarify the expressions otherwise used in the rule and that is the purpose of the expression “in other words”. In the instant case the expression “start afresh” has been explained that it is starting afresh in service for all purposes as if they are new entrants and as if they are first appointed. It is further explained that what is protected is only the right to rejoin government service in the very same entry grade as a new entrant. Therefore, when a probationer proceeds on leave and rejoins duty after the leave without allowance period, the expression “appointed to a service” as appearing under Rule 2(1) of the Kerala State and Subordinate Service Rules has to be understood as discharge of the duties attached to the post borne W.A.No.764 of 2008 -:15:- on the cadre for the first time when he comes back and joins duty. His service as a probationer prior to the availing of leave without allowance has to be completely ignored since he is starting afresh in service. Yet another contention of Sri.Sugathan is that what is forfeited is only the service benefit and not service. As rightly pointed out by Sri.Benny Gervasis, learned Senior Government Pleader, pension is also a service benefit under the KSR. It is a benefit earned from the service. That is why in terms of what is earned only the pension is computed under Section III 'Amount of pension'. True, pension is neither a bounty nor a matter of grace, depending upon the sweet will of an employer and that it is not an ex gratia payment, as held by the Division Bench of this court in Board of Revenue v. Parameswaran Nair 2000(1) KLT 227. But as the Bench itself has made it clear, it is a payment for the past service rendered by an employee. That past service is the qualifying service. Part III of the KSR provides for the comprehensive set of rules for pension. Chapter I Section I Rule 1 provides that it is open to the Government to prescribe that the service of any class of W.A.No.764 of 2008 -:16:- employees under them does not qualify for pension. Rule 1(a) reads as follows:- “1.(a) The pension of all employees to whom these Service Rules apply are regulated by the rules in this Part; Provided that it is open to Government to rule that the service of any class of employees serving under them does not qualify for pension.” Thus under Rule 110-B read with Appendix XIIA of Part I KSR Government has classified a group of employees, namely employees who are probationers and who availed leave at that stage. They have been made ineligible to count their service prior to the leave without allowance period to be counted as qualifying service for the purpose of pension. That is a prescription made in addition to Rule 29 of Part III KSR wherein the forfeiture of past service pertains only to resignation, dismissal or removal from service. Such restriction is permissible under Rule 10 of Part III, by prescribing conditions for the grant of leave. Rule 31 of Part III KSR also makes it clear that it is open to the Government to specifically lay down the rules that certain interruptions do not count for pension. Under Rule 11 of Part III KSR the Government is competent to declare that any W.A.No.764 of 2008 -:17:- specified kind of service rendered by any employee shall qualify for pension. Inferentially, even without a specific prescription the Government is competent to declare that any specified kind of service is not liable to be counted as qualifying service for the purpose of pension. Therefore, a conjoined reading of the various provisions referred to above as appearing under the Kerala State and Subordinate Service Rules and Kerala Service Rules makes it clear that the service rendered by a probationer in regular service prior to the leave without allowance period will not count for pension. For such a probationer his only right is to join service in the same entry grade as a new entrant, starting afresh in service, ignoring the past service for all purposes. 10. As far as the factual matrix in the present case is concerned, there is yet another issue to be resolved as to what is the impact of the leave without allowance availed by the probationer prior to Appendix XIIA. As we have already referred to above, that position is settled in Noorudeenkutty's case (supra). Rule 10 of Appendix XIIA read with the Note provided thereunder and even without the Note also, makes the position W.A.No.764 of 2008 -:18:- clear. Any leave availed prior to 16-12-1983 will be governed by the 1970 government order and nothing more and nothing less. It is unambiguously provided under Rule 10 that Appendix XIIA applies only to the cases where grant of leave without allowance is on or after 16-12-1983 whether it is in extension of leave or otherwise. Such an interpretation is required to do justice to the provisions of the Statute and also to the petitioner. Pension is a social welfare measure, rendering socio economic justice to those who have rendered qualifying service to the Government. While interpreting such a provision, as held by the Supreme Court in Workmen of F.T.& R. Co. v. The Management, AIR 1973 SC 1227, the courts should adopt a beneficent rule of construction. To quote: “In construing the provision of a welfare legislation, courts should adopt beneficent rule of construction. As far as reasonably possible construction furthering the policy and object of the Act and more beneficial to the employees has to be preferred, Act intended to improve and safeguard the service conditions of an employee should be liberally interpreted according to its plain words and without doing violence to the language used by the Legislature, bearing in mind the principles laid by the Supreme Court.” The order sanctioning leave without allowance after the W.A.No.764 of 2008 -:19:- introduction of Appendix XIIA in the case of the appellant is Ext.P6, which we have already referred to above. The Government has ordered that the said leave for a period of five years with effect from 23-12-1986 had been sanctioned in terms of Appendix XIIA. Therefore, in terms of the order sanctioning the leave, in terms