IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 5TH JULY 2010 / 14TH ASHADHA 1932 WP(C).No. 17332 of 2004(L) -------------------------- PETITIONER(S): --------------------- DR.T.L.JAMES, CIVIL SURGEON (RTD), 11/407, ANURASMI, DEVASWOM BOARD JUNCTION, THIRUVANANTHAPURAM. BY ADV. SRI.G.UNNIIKRISHNON RESPONDENT(S): ----------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT, HEALTH AND FAMILY WELFARE (E) DEPARTMENT, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. SRI.GOVT.PLEADER SRI.P.NANDAKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 05/07/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.17332/04 APPENDIX PETITIONER'S EXHIBITS EXT.P1: COPY OF LEAVE APPLICATION DT 18.10.01 SUBMITTED BY THE PETITIONER. EXT.P2: COPY OF COVERING LETTER DT 18.10.01 ENCLOSING EXT.P1. EXT.P3: COPY OF ORDER DT 22.10.01 ISSUED BY DMOH, TVM. EXT.P4: COPY OF ORDER DT 9.2.04 ISSUED TO THE PETITIONER BY THE JOINT SECRETARY. EXT.P5: COPY of LETTER DT 26.2.04 ISSUED BY THE FIRST RESPONDENT. EXT.P6: COPY OF LEAVE APPLICATION DATED 12.7.99 SUBMITTED BY PETITIONER. EXT.P7: COPY OF LEAVE APPLICATION DATED 11.8.99 SUBMITTED BY PETITIONER. EXT.P8: COPY OF LEAVE APPLICATION DATED 25.9.99 SUBMITTED BY PETITIONER. EXT.P9: COPY OF LEAVE APPLICATION DATED 4.11.99 SUBMITTED BY PETITIONER. EXT.P10: COPY OF LEAVE APPLICATION DATED 2.1.00 SUBMITTED BY PETITIONER. EXT.P10(a): COPY OF ACKNOWLEDGEMENT CARD. EXT.P11: COPY OF LEAVE APPLICATION DATED 3.3.00 SUBMITTED BY PETITIONER. EXT.P11(a): COPY OF ACKNOWLEDGEMENT CARD. EXT.P12: COPY OF LETTER DT 6.4.00 SENT TO THE PETITIONER BY M.O.IN CHARGE, PHC PERUMKADAVILA. //TRUE COPY// P.A. TO JUDGE Rp ANTONY DOMINIC, J. ================ W.P.(C) NO. 17332 OF 2004 (L) ===================== Dated this the 5th day of July, 2010 J U D G M E N T The challenge in the writ petition is two fold. 2. First is against Ext.P4 Government Order dated 9/2/04 to the extent the leave without allowance granted to the petitioner for the period from 12/7/99 to 30/4/2000 is subject to the condition that the period will not count for pension. Petitioner submits that in view of the provisions contained in Rule 26 of Part III KSR and in the light of the judgment of the Division Bench in Dr.Elizabeth Vijayan Zacharia v. Director of Health Services (ILR 1999(1) Kerala 521), the Government could not have imposed such a condition. 3. However, the learned Government Pleader points out that prior to the period 12/7/99 to 30/4/2000, petitioner was on leave without allowance availed under Appendix XIIA of Part I KSR for the period 18/8/89 to 2/7/99. It is stated that thereafter he applied for continuation of the leave without rejoining duty, and therefore, the leave granted for the period from 12/7/99 till 30/4/2000 was in continuation of the leave without allowances WPC No. 17332/04 :2 : granted to him for the period 18/8/89 to 2/7/99. 4. A reading of Ext.P4 order itself supports the said contention raised by the learned Government Pleader. If that be the case, the leave granted to the petitioner is fully covered by Rule 4 of Appendix XIIA of Part I KSR, which will disentitle the petitioner to claim pension for the said period. 5. The other contention raised by the counsel for the petitioner is that he joined service as Assistant Surgeon on 22/6/1970 and was granted first time bound higher grade in the scale of Civil Surgeon Grade II w.e.f. 21/10/84 on completion of 10 years service. It is stated that he ought to have granted IInd time bound higher grade on completion of 18 years service. It is complained that the said benefit was not granted. However, learned Government Pleader points out on instructions that it was because the petitioner did not render service for the prescribed period of 18 years. It is pointed out that he was on leave without allowances under Appendix XIIA for the period 15/3/78 to 20/5/78, 12/12/81 to 9/4/83 and for the period from 18/8/89 onwards till 30/4/2000 when he retired from service. It is also pointed out that a claim made by the petitioner in this behalf was considered WPC No. 17332/04 :3 : by the Government and was rejected by order dated 15/7/04. 6. On the facts, therefore, it can be seen that the petitioner did not discharge duties for the prescribed period of 18 years and it was therefore that his claim was turned down by the Government. Further, the order dated 15/7/04 issued to the petitioner is also not under challenge. In such circumstances, petitioner can have no grievance that the second time bound higher grade was declined to him. Writ petition fails and is dismissed. ANTONY DOMINIC, JUDGE Rp