IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR MONDAY, THE 27TH SEPTEMBER 2010 / 5TH ASWINA 1932 WP(C).No. 1280 of 2010(H) ---------------------------------------- PETITIONER(S): ------------------------- DR.A.V.ABDULLA, CIVIL SURGEON (RETIRED), DISTRICT HOSPITAL, KANNUR, RESIDING AT "ESTANA", CHENOLI JUNCTION, SOUTH BAZAR, KANNUR-2. BY ADV. SRI.P.M.PAREETH RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, FINANCE DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HEALTH SERVICES, THIRUVANANTHAPURAM. 3. ACCOUNTANT GENERAL, THIRUVANANTHAPURAM-695 039. R1 TOR3 BY GOVERNMENT PLEADER SRI, MOHAMMED FAZYAZ THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 27/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.1280/2010 H APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE ORDER G.O.(RT) NO.338/86/H&FWD DTD. 31/01/86. P2: COPY OF THE G.O.(RT) NO.1415/88/H&FWD DTD. 31/05/88. P3: COPY OF THE ORDER NO.EB1-72636/08/DHS DTD. 23/01/2009 ISSUED BY THE 2ND RESPONDENT. P4: COPY OF THE VERIFICATION REPORT DTD. 9/12/2008 ISSUED BY THE 3RD RESPONDENT TO THE 2ND RESPONDENT. P5: COPYOF THE REPRESENTATION DTD. 9/07/2009 SUBMITTED BY THE PETITIONER BEFORE THE 3RD RESPONDENT. P6: COPY OF THE LETTER DTD. 26/08/2008 ISSUED BY THE 3RD RESPONDENT TO THE PETITIONER. P7: COPY OF THE CIRCULAR NUMBER 72/2005/FIN. DTD. 30/12/2005 ISSUED BY THE 1ST RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss T.R.RAMACHANDRAN NAIR,J. ------------------------------------- W.P.(C)No.1280 Of 2010 ----------------------------------------------------- DATED THIS THE 27th DAY OF SEPTEMBER, 2010 JUDGMENT The petitioner retired as Civil Surgeon from the District Hospital, Kannur. The grievance raised in this Writ Petition relates to the non-reckoning of certain periods availed as study leave under Rule 91 of Part I KSR for the purpose of pension. The proceedings Exhibit P6 of the Accountant General shows that they have relied on Exhibit P7 circular to hold that leave without allowance for study purposes sanctioned as per rule 91 will not count for pension. The petitioner challenges Exhibit P6 as well as the circular Exhibit P7. 2. The petitioner was sanctioned leave as per Exhibit P1 from 28.1.1984 to 27.1.1986 for study purpose under Rule 91 Part I KSR. The period of leave was extended from 21.8.1986 to 31.12.1986 again under Rule 91 Part I KSR as per Exhibit P2. Exhibit P3 is an order by which the petitioner was granted 114 days half pay leave from 7.1.1994 to 30.4.1994 and 99 days leave without allowance from 1.5.1994 to 7.8.1994. W.P.(C)No. 1280/10 -2- 3. Reliance is placed on Rule 26 Part III KSR, which provides that time passed on leave of all kinds with or without allowance will count as qualifying service unless otherwise specified. It is pointed out that in Exhibits P1 and P2, it is not specified that the period availed for study purpose will not count for pension. The order Exhibit P2 refers to leave under Rule 88 Part I KSR as not to be reckoned for the purpose of service benefits, including pension. Therefore, the learned counsel for the petitioner submitted that the Circular, Exhibit P7 could not have been relied upon to deny the benefit of service during the period of study leave, for reckoning due pension. 4. A reading of Exhibit P7 circular shows that the same could not have been relied upon to deny the benefits to the petitioner. Paragraph No.3 of the circular only explains the principle under Rule 26 Part III KSR. It also mentions about the period of leave without allowance availed of by a person under Appendix XIIA, XIIB and XIIC, and that the said period will not count for pension. Therefore, the Government was only cautioning the leave sanctioning authorities that they should incorporate a particular clause while sanctioning leave under W.P.(C)No. 1280/10 -3- Rules 88 and 91 that the period will not count for the purpose of pension. Therefore, evidently, it was only for future application. That cannot modify the terms of Exhibits P1 and P2 orders which were passed long back and at any rate the circular cannot be held as retrospective also. 5. The principle under which Rule 26 of Part III KSR operates is therefore significant. Going by the same leave of all kinds with or without allowance will count as qualifying service unless otherwise specified. The words “unless otherwise specified” if applied to the case of the petitioner, it can be seen that in Exhibits P1 and P2 such a specification has not been made. Therefore, while sanctioning the leave, the petitioner was never told that the leave period will not count for pension. Obviously, after retirement, the petitioner cannot therefore be denied the benefit of the said service, while computing pension. 6. Paragraph No.6 of the counter affidavit goes to show that the earned leave for 175 days from 16.7.1993 to 6.1.1994 and half pay leave for 114 days from 7.1.1994 to 30.4.1994 will be treated as qualifying service for granting increment, higher grade and pensionary benefits. Therefore, the same are also W.P.(C)No. 1280/10 -4- liable to be reckoned for the purpose of computing pension. 7. In that view of the matter, Exhibit P6 is quashed. There will be a declaration that the periods from 20.1.1984 to 27.1.1986, 28.1.1986 to 31.12.1986 and the period mentioned in paragraph No.6 of the counter affidavit, namely, earned leave for 175 days from 16.7.1993 to 6.1.1994 and half pay leave for 114 days from 7.1.1994 to 30.4.1994 will be reckonable as qualifying service for pension. The respondents are therefore directed to sanction pension accordingly. Appropriate orders shall be passed within three months from the date of receipt of a copy of this judgment. Since the petitioner has already been sanctioned pension, naturally it will result in revision of pension and payment of arrears, which shall also be effected accordingly. The Writ Petition is allowed as above. No costs. Sd/-( T.R.RAMACHANDRAN NAIR, JUDGE) dsn