IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 9TH NOVEMBER 2011 / 18TH KARTHIKA 1933 OP.No. 22920 of 2001(C) ----------------------- PETITIONER: --------------- ALEKUTTY THOMAS, KATTAPPURAM, NEAR ESI DISPENSARY, KOTTAYAM BY ADV. MR. MATHEW JOHN (K) MR. BABY THOMAS RESPONDENTS: --------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 2. THE DEPUTY DIRECTOR OF EDUCATION KOTTAYAM BY GOVERNMENT PLEADER MR. NOUSHAD THOTTATHIL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 09/11/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(c) NO. 22920 OF 2001 APPENDIX PETITIONER'S EXHIBITS : EXT. P1 : A TRUE COPY OF THE CERTIFICATE ISSUED BY THE HEADMASTER DATED 14.07.1982 EXT. P2 : A TRUE COPY OF THE PETITIONR SUBMITTED BY THE PETITIONR DATED 21.06.1995 BEFORE THE MINISTER FOR EDUCATION. EXT. P3 : A TRUE COPY OF THE COMMUNICATION DATED 06.10.1997 BY THE SECOND RESPONDENT. EXT. P4 : A TRUE COPY OF THE COMMUICATION DATED 05.12.1997 BY THE SECOND PETITIONER. /TRUE COPY/ P.A. TO JUDGE P.R. RAMACHANDRA MENON J. ~~~~~~~~~~~~~~~~~~~~~~~ O.P. No. 22920 of 2001 ~~~~~~~~~~~~~~~~~~~~~~~ Dated, this the 9th day of November, 2011 JUDGMENT The issue pertains to the consequences resulted, because of the non-sanctioning of extension of leave without allowances for employment abroad. 2. The petitioner's husband was employed as HSA, who was appointed w.e.f 28.07.1961 in the Government service. While working in the Government High School, Kumarakam, the petitioner's husband was deputed in foreign service w.e.f 09.09.1967 till 08.09.1970. The period of deputation was subsequently extended till 31.12.1979. The request made by the petitioner to have the same extended further was not considered favourably. In spite of the specific direction given by the respondents to come and join, the petitioner's husband did not turn up and in the said circumstances, after completing the procedural formalities, he was removed from service w.e.f. 01.01.1980. 3. The petitioner's husband took his last breath on 08.05.1990. It was after the death of the petitioner's husband, that the petitioner chose to approach this Court by filing the above original petition, with a prayer to direct the respondents to sanction pensionary benefits due to O.P. No. 22920 of 2001 : 2 : the her deceased husband, reckoning the service till 31.03.1988, treating the period of over stayal in terms of the Rule 96 of Part I KSR. The petitioner has also got a claim for interest in respect of the due amount. 4. The Original Petition was considered and allowed as per verdict dated 30th May of 2006, directing the respondents to disburse the benefits due to the petitioner's husband with interest @ 12 % p.a. . But, on filing a review petition by the State as R.P. No. 1118 of 2009, pointing out that, no benefit was liable to be given, by virtue of the Rule position, the Review Petition was allowed as per order dated 07.10.2010 re-calling the judgment and restoring the Writ Petition and it is accordingly taken up for final hearing. 5. Referring to the contents of the statement filed, the learned Government Pleader submits that, by virtue of the mandate under Rule 29 (a) of Part III KSR, the persons like the petitioner's husband, who have been removed/dismissed from the service are not entitled to get any benefit, as the entire past service will end up in forfeiture. The said 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. O.P. No. 22920 of 2001 : 3 : In the above circumstances, the idea and understanding of the petitioner as to the eligibility to obtain the retirement benefits/formal pension is quite wrong and misconceived. 6. The learned counsel for the petitioner fairly concedes the legal position as above; however, makes a submission that, in view of the stand taken by the respondents, the petitioner is entitled to have refund of the amount covered by Ext. P1, which is the contribution already effected by the deceased husband of the petitioner, for making him eligible to get the benefit. True, by virtue of the Rule 29 (a) of Part III KSR, the past service of the petitioner's husband, who was removed from the service stands forfeited. But, the factual position that the petitioner's deceased husband had effected contribution of Rs. 7,266.20 as per Ext. P1 stands not disputed. Whether there should any unlawful enrichment to the State in respect of the said amount, is point to be considered. 7. Considering the facts and circumstances, this Court finds that there cannot be any hurdle in getting back the amount said to have been remitted by the petitioner's husband. No Rule or binding judicial precedents to the contrary have been brought to the notice of this Court, from the part of the respondents. In the said circumstances, the O.P. No. 22920 of 2001 : 4 : respondents are directed to disburse the sum of Rs. 7266.20 covered by Ext. P1, to the petitioner as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment. The Original Petition is disposed of P. R. RAMACHANDRA MENON, JUDGE kmd