IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.BALAKRISHNAN NAIR & THE HONOURABLE MR. JUSTICE M.L.JOSEPH FRANCIS MONDAY, THE 2ND MARCH 2009 / 11TH PHALGUNA 1930 WA.No. 404 of 2006(A) --------------------- AGAINST THE JUDGEMENT IN OP.12739/2001 Dated 05/01/2006 .................... APPELLANT: PETITIONER: ------------------------- THOMAS DANIEL, SREELAKSHMI, PUNNATHANAM JUNCTION, ULIYAKOVIL, KOLLAM-19. BY ADV. SRI.BECHU KURIAN THOMAS RESPONDENTS/RESPONDENTS: --------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY, DEPARTMENT OF EDUCATION, GOVERNMENT SECRETARIAT, TRIVANDRUM. 2. DIRECTOR OF PUBLIC INSTRUCTIONS, TRIVANDRUM. 3. DEPUTY DIRECTOR OF EDUCATION, KOLLAM. 4. DISTRICT EDUCATIONAL OFFICER, KOLLAM. 5. THE ACCOUNTANT GENERAL OF KERALA, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.NOBLE MATHEW THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 02/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.BALAKRISHNAN NAIR & M.L.JOSEPH FRANCIS, JJ. ----------------------------------------- W.A. NO. 404 OF 2006-A ----------------------------------------- Dated 2nd March, 2009. JUDGMENT Balakrishnan Nair, J. The petitioner is the appellant. The appellant approached this Court, feeling aggrieved by the omission of the respondents to count certain periods spent by him on leave for various service benefits, including pensionary benefits. 2. The brief facts of the case are the following: The appellant was initially appointed as High School Assistant on 19.8.1964, as an untrained hand. He was relieved from service on 31.3.1965. He joined B.Ed course on 21.6.1965 and completed the course on 27.4.1966. His qualified service as High School Assistant commenced on 25.7.1966. While so, he took leave without allowances from 20.10.1972 to 31.3.1973 for joining M.Sc. (Chemistry) and again from 2.7.1973 to 28.3.1974, for completing the said course. Thereafter, he availed leave without allowances to take up employment abroad from 23.1.1978 to 9.9.1984. He again availed leave WA 404/2006 2 without allowances for private affairs from 23.2.1989 to 28.2.1989. Thus, the total period of leave without allowances availed by the appellant came to seven years, ten months and seven days. The appellant was promoted as Headmaster on 1.6.1989 and he retired from service on 31.3.1999. While he was in service, he was served with Ext.P1 audit objection for the year 1995- 96. The said objection was concerning reckoning of the leave period for granting increment and also for grade promotion. The appellant submitted his reply by Ext.P2, followed by Ext.P3 representation. But, the Accountant General without considering his objections, by Ext.P4 letter, granted the pensionary benefits, treating his qualifying service as 22 years. The appellant's claim for counting the leave period also for various service benefits was also rejected by the Government, by Ext.P9 communication. So, the Original Petition was filed, challenging Exts.P4 and P9 and also seeking consequential reliefs. 3. The respondents filed a counter affidavit, in which it is submitted that the appellant's qualifying service for pensionary benefits was wrongly taken as 22 years. In fact, he has got 26 years' qualifying service. So, the terminal benefits payable to him will be revised accordingly. It was also stated that leave without allowances availed by the appellant for undergoing M.Sc course and for taking up employment abroad will not be counted for WA 404/2006 3 any service benefits. The same was the case with the short spell of leave availed by him for private affairs from 23.2.1989 to 28.2.1989. The appellant did not file any reply affidavit. The learned Single Judge, after hearing both sides, dismissed the Original Petition. 4. The untrained service rendered by the appellant as High School Assistant and the period during which he underwent B.Ed course were reckoned for various service benefits, as evident from the counter affidavit filed by the respondents. The main dispute relates to the period he went for M.Sc course and also the period he worked abroad. When the appellant availed the leave, only Rule 91 of Chapter I of the Kerala Service Rules was in force. Rule 91A was introduced only in 1976. Rule 91 is silent regarding the eligibility for service benefits while the incumbent is on study leave granted under the said Rule. But, Rule 26 of Part III of the Kerala Service Rules says that the time passed on leave of all kinds with or without allowances will count as qualifying service, unless otherwise specified. Rule 33 of Part I of the Kerala Service rules says that the periods spent on leave without allowances, except taken on medical grounds, will not count for increments. That means, such service cannot be counted for grant of higher grade also. The appellant is a person who availed of leave without allowances for study purpose. If there was any condition in the said WA 404/2006 4 order regarding reckoning of that period for various service benefits, he could have produced it and satisfied the court about it. So, it can be presumed that if the said order is produced, it will be against him. The same is the case with the order granting leave without allowances for taking up employment abroad. Before the introduction of Appendix 12A to the Kerala Education Rules, leave without allowances was granted by the Government subject to a stipulation that the same will not count for any service benefits. The same will be evident from the decision of this Court in Dr.Krishna Pillai v. State of Kerala [1988(2) KLT 106]. As mentioned earlier, the order granting leave without allowances for taking up employment is not produced by the appellant to prove the conditions, subject to which it was granted. In view of the above position, we find no reason to interfere with the stand of the Government that the period spent on leave without allowances cannot be reckoned for grant of service benefits, including pensionary benefits. The appellant has been granted various benefits, reckoning the above service period also. On realising the mistake, action was taken. Since the appellant has already received excess amount, steps are being taken to recover the same. Since public money is paid to the appellant wrongly, the same has to be recovered from him. We find nothing wrong with the action of the Government taken in this regard. The WA 404/2006 5 learned Single Judge has already noticed the averments in the counter affidavit of the respondents that the appellant will be granted various service benefits, treating the qualifying service rendered by him as 26 years and issued consequential direction also. In view of the said direction of the learned Single Judge, we are of the view that whatever reliefs that could be granted, have already been granted to the appellant. In the result, the appeal is devoid of any merit and it is accordingly dismissed. K.BALAKRISHNAN NAIR, JUDGE. M.L.JOSEPH FRANCIS, JUDGE. nm/