IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC TUESDAY, THE 20TH JULY 2010 / 29TH ASHADHA 1932 OP.No. 5317 of 2001(G) --------------------------------- PETITIONER(S): ------------------------ K. VIJAYAN, (RETIRED SENIOR SCALE LECTURER IN CHEMISTRY, V.T.M.N.S.S. COLLEGE, DHANUVACHAPURAM), HOUSE NO.307, GANDHI NAGAR, THIRUVANANTHAPURAM. BY ADV. SRI.ELVIN PETER P.J. RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. THE SECRETRY, N.S.S. COLLEGES CENTRAL COMMITTEE, CHANGANASSERY-2. 4. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. R1, R2 & R4 BY GOVT. PLEADER MR.P. NANDAKUMAR. R3 BY ADV. SRI.P.GOPAL THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 20/07/2010,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: OP.No. 5317 of 2001(G) APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE COMMUNICATION DATED 20/12/1978 ISSUED BY THE GOVT. EXT.P2: COPY OF THE COMMUNICATION DATED 12/11/1986 SENT TO THE GOVT. EXT.P3: COPY OF THE COMMUNICATION DATED 14/05/1987 ISSUED BY THE GOVT. EXT.P4: COPY OF THE COMMUNICATION DATED 19/01/1996 SENT BY THE 3RD RESPONDENT. EXT.P5: COPY OF THE ORDER G.O.(RT)NO.263/97/H.EDN. DATED 11/03/1997 ISSUED BY THE GOVERNMENT. EXT.P6: COPY OF THE APPLICATION FOR LEAVE SUBMITTED BY THE PETITIONER. EXT.P7: COPY OF THE LETTER DATED 06/05/1987 ISSUED BY THE GOVT. EXT.P8: COPY OF THE ORDER G.O.(RT)NO.1436/96/H.EDN. DATED 04/12/1996 ISSUED BY THE GOVT. EXT.P9: COPY OF THE ORER G.O.(RT)NO.1395/97/H.EDN. DATED 17/11/1997 ISSUED BY THE GOVT. EXT.P10: COPY OF THE REPRESENTATION DATED 26/02/1998 FILED BY THE PETITIONER BEFORE THE GOVT. EXT.P11: COPY OF THE REPRESENTATION DATED 25/07/1998 FILED BY THE PETITIONER BEFORE THE GOVT. EXT.P12: COPY OF THE REPRESENTATION DATED 10/02/1999 FILED BY THE PETITIONER BEFOE THE GOVT. EXT.P13: COPY OF THE PENSION PAYMENT ORDER OF THE PETITIONER. EXT.P14: COPO JUDGMENT DATED 13/08/1998 IN O.P. NO. 15445/98 OF THIS HONOURABLE COURT. EXT.P15: COPY OF THE JUDGMENT DATED 16/09/1999 IN R.P.NO.243/1999 OF THIS HONOURABLE COURT. EXT.P16: COPY OF THE JUDGMENT DATED 11/11/1999 IN O.P. NO. 21490/1999 OF THIS HONOURABLE COURT. EXT.P17: COPY OF THE ORDER DATED 23/08/2005 ISSUED BY THE GOVT. OP.No. 5317 of 2001(G) EXT.P18: COPY OF THE ORDER DATED 04/10/2006 ISSUED BY THE GOVT. EXT.P19: COPY OF THE ORDER G.O. DATED 14/06/1985. EXT.P20: COPY OF THE LETTER DATED 06/08/1984 ISSUED BY THE GOVT. OF NIGERIA. EXT.P21: COPY OF THE LETTER DATED 22/04/1987 ISSUED BY THE GOVT. OF INDIA. //TRUE COPY// P.S. TO JUDGE rs. ANTONY DOMINIC, J. -------------------------------------------------- O.P.NO.5317 OF 2001(G) -------------------------------------------------- Dated this the 20th day of July, 2010 J U D G M E N T On 21.8.1967, petitioner was appointed as Lecturer in Chemistry in a college under the N.S.S Management. While continuing as such, he availed of leave without allowance for a period of 3 years with effect from 23.11.1978 and went abroad for employment. From Ext.P1 order dated 20.12.1978 it is revealed that the period was treated as deputation. On expiry of the leave, with effect from 23.11.1981, petitioner requested for extension by 7 years. Extension was not granted and the petitioner continued on unauthorized absence. 2. Subsequently, on 14.5.1987 first respondent issued Ext.P3, rejecting the request of the petitioner for extension of the period of deputation. However, he was informed that the period of over stay abroad beyond 22.11.1981 till the date of rejoining will be regularized as leave without allowance and that it will not be reckoned for any service benefits including non-cadre promotion and pension . Even thereafter the petitioner did not join duty and it OP.No.5317/2001 :2 : would appear that action was ordered to be initiated against the petitioner. Again on a request made by the petitioner for regularization of his leave without allowance, finally Government issued Ext.P5 order dated 11.3.1997, regularizing his absence till the date of his rejoining duty on condition that the period will not be counted for any service benefits including pension. It was thereafter the petitioner rejoined duty on 17.3.1997. 3. Accordingly, petitioner continued in service and on attaining the age of superannuation he retired from service on 31.3.1998. Thereupon he submitted Exts.P10, P11 and P12 representations requesting that the period when he was on leave without allowance, including the period subsequent to 1981, should be counted for pension. The request of the petitioner was rejected by Exts.P17 and P18 orders. It is challenging Exts.P17 and P18 and for a direction to the respondents to grant the petitioner pensionary benefits reckoning the period from 1981 to 1997 also that the writ petition is filed. 4. Learned counsel for the petitioner mainly relies on Ext.P19 order dated 14.6.1985 and Ext.P7 order dated 6.5.1987 clarifying OP.No.5317/2001 :3 : Ext.P19. He also relies on the judgment of this court in W.A.No.1287/2005, O.P.No.14224/1996 and O.P.No.16143/98. 5. I have considered the submissions made. 6. In my view, even going by Exts.P19 and Ext.P7, the case of the petitioner is not covered by these orders.Ext.P19 is the Government Order dated 14.6.1985. Sub paragraph (2) of the 2nd paragraph of this order provides that permanent officers and officers who have completed probation in their entry cadre in the regular service of the college will be granted leave without allowance for taking up employment outside the country as well as inside. It is also stated that in such cases, during the currency of the leave period, the officers shall loss all service benefits and also promotion chances that may arise with reference to their seniority in the posts from which they left on foreign service. This order has been clarified subsequently by Ext.P7 order dated 6.5.1987, which states that leave without allowance granted by management of private colleges coming under the direct payment scheme to the staff prior to the issuance of Ext.P19 order can be reckoned as qualifying service for the purpose of pension, unless otherwise OP.No.5317/2001 :4 : specified in the orders sanctioning leave. Therefore, if Exts.P19 and P7 are read together, leave without allowance granted for the period prior to 14.6.1985 can be reckoned as qualifying service for the propose of pension, unless otherwise specified in the order sanctioning leave. 7. In this case, the orders sanctioning and regularizing the leave for the period subsequent to the expiry of the initial 3 years period are Exts.P3 and P5. Ext.P3 order dated 14.5.1987 shows that overstay of the petitioner beyond 22.11.1981 till the date of rejoining was regularized as leave without allowance with a condition that the same will not be reckoned for any service benefits including pension. Similarly in Ext.P5 dated 11.3.1997 petitioner was permitted to report for duty to the Educational Agency and to apply for leave without allowance for the period of his absence from 23.11.1981 till he rejoins duty subject to the condition that the period will not be counted for any service benefits including pension, as a very special case. Evidently, therefore these orders regularizing the period of his absence beyond 23.11.1981 was with the condition that it will not be qualifying for pension. Therefore, OP.No.5317/2001 :5 : the petitioner will not be eligible to claim that the period from 23.11.1981 till he rejoined duty on 17.3.1997 should be treated as qualifying service for the purpose of pension, since it is so specified in Exts.P3 and P5 orders. 8. As rightly pointed out by the learned Government Pleader, the judgments relied on by the petitioner are of cases where leave was sanctioned without such a condition and case was dealt with by a Division Bench in W.A. 1287/05 was one which was not covered by Appendix XIIA. These judgments also will not come to the rescue of the petitioner to contend that the period from 23.11.1981 to 17.3.1987 should be reckoned as qualifying service for the purpose of pension. 9. Therefore, rejection of the petitioner's claim by Exts.P17 and P18 cannot be faulted. Writ petition fails and is dismissed. (ANTONY DOMINIC) JUDGE vi/ OP.No.5317/2001 :6 : ANTONY DOMINIC, J. ------------------------------------------------ O.P.NO.5317 OF 2001(G) ------------------------------------------------ Dated this the 20th day of July, 2010 J U D G M E N T