IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE P.BHAVADASAN FRIDAY, THE 13TH NOVEMBER 2009 / 22ND KARTHIKA 1931 W.A.No. 1966 of 2009 ----------------------------------- AGAINST THE JUDGEMENT IN WPC.29721/2007 Dated 11/12/2008 .................... APPELLANT(S)/RESPONDENTS. ------------------------------------- 1. THE PRINCIPAL SECRETARY TO GOVERNMENT OF KERALA, DEPARTMENT OF GENERAL EDUCATION, SECRETRIAT,THIRUVANANTHPURAM. 2. STATE OF KERALA, REPRESENTED BY THE SECRETARTY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETRIAT,THIRUVANANTHPURAM. 3. DISTRICT EDUCATIONAL OFFICER, KOLLAM. BY GOVERNMENT PLEADER SMT. R. BINDU. RESPONDENT(S)/PETITIONER. ------------------------ P.K.LALITHA BAI, AGED 62 YEARS, W/O.C.P.SUBHASHITHAN, HSA (HINDI), RETIRED, SCHSS CLAPPANA, KOLLAM. RESIDING AT MANNOOTHARA HOUSE, ALUMPEEDIKA P.O., PRAYAR SOUTH, OACHIRA, KOLLAM. BY ADV. SRI. C. UNNIKRISHNAN. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 13/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K. BALAKRISHNAN NAIR & P. BHAVADASAN, JJ. ------------------------------ W.A.No.1966 of 2009 ------------------------------ Dated this, the 13th day of November, 2009 JUDGMENT Balakrishnan Nair, J. The respondents in the Writ Petition are the appellants. The respondent herein was the writ petitioner. The brief facts of the case are the following: The respondent/writ petitioner was a Hindi teacher in S.V.Higher Secondary School, Clappana, Kollam. The details regarding the periods during which she worked in the school are the following:- 01.11.1977 to 31.01.1978 Lower Grade Hindi Teacher 24.09.1981 to 11.12.1981 Lower Grade Hindi Teacher 01.10.1986 to 04.12.1986 Lower Grade Hindi Teacher 08.06.1988 to 11.08.1988 Lower Grade Hindi Teacher 06.10.1988 to 05.01.1989 H.S.A. Hindi 04.06.1990 to 04.03.1991 H.S.A. Hindi 14.07.1991 to 30.06.1992 Lower Grade Hindi Teacher 01.07.1992 to 14.07.1995 Lower Grade Hindi Teacher 22.01.1996 to 25.03.1996 Lower Grade Hindi Teacher 01.06.1997 to 30.06.1999 Lower Grade Hindi Teacher W.A.No.1966 of 2009 - 2 - The respondent retired from service on 30.6.1999. She claimed regularisation of her service from 14.7.1995 to 21.1.1996 and from 26.3.1996 to 1.6.1997 as leave without allowance on the strength of Ext.P1, Government Order. The relevant portion of Ext.P1 Government Order, reads as follows: “In the Government Order read as 1st paper above, orders were issued to protect all aided regular teachers who were retrenched due to fall in divisions after completing 7 years of service on or before 15.7.1995. In the G.O. read as second paper above, it was ordered that all aided school teachers who were in service as on 14-7-1996 will be given protection by retaining them in the respective schools. 2. Subsequently, Government have received representations from non-protected teachers who did not complete seven years of regular service on or before 15-7-1995 and who were not in service against a regular division W.A.No.1966 of 2009 - 3 - vacancy as on 14-7-1996. 3. Having examined the matter in detail in consultation with the Director of Public Instruction, Government are pleased to order that all aided school regular teachers who did not complete seven years of service on or before 15-7-1995 and who were not in service as on 14-7-1996 will be given protection. They will be absorbed in the future vacancies arising under the respective management. The period during which they are out of service till the date of deployment on protection will be regularised as eligible leave or Leave Without Allowance.” Her claim for the benefit of Ext.P1 was considered by the District Educational Officer pursuant to the direction of this Court and Ext.P4 order was passed. Though, Ext.P1 was issued only on 26.3.2001, which was after the retirement of the respondent/petitioner, the Government issued a clarification on 17.5.2002, stating that the retired hands were W.A.No.1966 of 2009 - 4 - also eligible to get the benefit of protection. Taking note of the said clarification, the D.E.O. by Ext.P4 order, granted the benefit of Ext.P1 to the respondent and her periods of service from 14.7.1995 to 21.1.1996 and 26.3.1996 to 1.6.1997 were regularised as leave without allowance. But, the D.E.O. added a rider that the aforementioned period will not count for any service benefits. The relevant portion of Ext.P4 reads as follows: “In view of the factual position supra and in the wake of the judgment in O.P.No.7637/2002 dt.21.3.2002, the Dist. Edl. Officer, Kollam is pleased to order that the retrenched period of Smt.Lalitha bai, HSA (Hindi) Retd., SVHSS, Clappana from 14.7.95 to 21.1.96 and from 26.3.96 to 1.6.97 stands regularised as Leave without allowances subject to the condition that the aforementioned period will not count for any service benefits. The judgment in O.P.No.7637/2002 of the Hon'ble High Court stands implemented in this effect.” (emphasis supplied) W.A.No.1966 of 2009 - 5 - Challenging the above objectionable part in Ext.P4, the respondent moved the Government by filing Exts.P5 and P6 representations. The Government rejected the representations by Ext.P8 order dated 12.4.2007. The relevant portion of the said order reads as follows: “Since Leave Without Allowance will not count for any pensionary benefits, the petitioner had only a total qualifying service of 8 years 5 months and 10 days and it does not allow to give minimum pension. Hence, the request of the petitioner for minimum pension cannot be considered. She is sanctioned ex-gratia pension as per G.O.(P) No.1851/99/Fin. dated 18.9.1999” The Government proceeded on the footing that leave without allowance will not count for any pensionary benefits. In that view of the matter, the respondent's objection against Ext.P4 was repelled. Challenging Exts.P4 and P8, the respondent filed the Writ Petition. The Government filed a counter affidavit, supporting the impugned orders. The learned Single Judge, after hearing both sides, allowed the Writ Petition. Hence, this appeal. W.A.No.1966 of 2009 - 6 - 2. We heard the learned Government Pleader, who appeared for the appellants and the learned counsel for the respondent. 3. It is not in dispute that the respondent is entitled to get the benefit of Ext.P1 Government Order and the same has been granted to her also as per Ext.P4. But, the D.E.O. added a condition that the said period will not be counted for service benefits. We notice that Ext.P1 does not contain any such condition. If extending the benefit of Ext.P1 order to retired hands should have any meaning, the service, so regularised, should count for pensionary benefits also. The Government while issuing Ext.P8 proceeded on the footing that generally, leave without allowance will not count for pensionary benefits. But, the said stand of the Government runs counter to Rule 23 of Part III of the Kerala Service Rules, which states that, “time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified”. We do not find anything W.A.No.1966 of 2009 - 7 - specified contrary in Ext.P1. If that be so, the respondent is entitled to reckon the regularised service also for computing pensionary benefits. So, we find no reason to interfere with the judgment of the learned Single Judge. The Writ Appeal, therefore, fails and accordingly, it is dismissed. Sd/- K. Balakrishnan Nair, Judge. Sd/- P. Bhavadasan, Judge. DK. (True copy)