Geetha K.K vs State Of Kerala And Ors

Petitioner in the present writ petition has approached this Court by laying challenge to the order Ext.P8 dated 17.5.2010 whereby the benefit of

counting leave without allowance for the educational purposes has been rejected.

Petitioner, with effect from 24.10.1985, commenced service as Junior Lecturer under the respondents. She was sanctioned leave without allowance

from 12.12.1995 to 11.12.1998 for study purpose under Rule 88 Part I of Kerala Service Rules, Ext.P1. Government circulated Circular

No.72/2005/Fin. dated 30.12.2005 that leave without allowance for study purpose availed under Rule 88 of Part I KSR will not be counted for the

purpose of increment, higher grade, pension or accumulation of earned leave. In fact, that circular would have a prospective effect and not

retrospective. The aforementioned circular has been considered by this Court in the judgments Exts.P3 and P4 as well as the judgment of this Court in

2012 (3) KLT 675 titled as Krishnan K.K v. State of Kerala and others and urged this Court for allowing the writ petition.

The contention of the 2nd respondent in the affidavit is that the petitioner would not be entitled to any benefit as per circular dated 30.12.2005.

I have heard the learned counsel for the parties and appraised the paper book. In order to understand the controversy, it would be expedient to

extract Rule 88 Part I of Kerala Service Rules.

Leave without allowances.- (i) Leave without allowances may be granted to any officer in regular employment in special circumstances-

[a] when no other leave is by rule admissible,

or

[b] when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances.

Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 shall be regulated by rules

under Appendix VII of these rules, unless he is already an officer on regular employment.

[ii] Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion.

[iii] When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence

into leave without allowance even when any other kind of leave was admissible at the time of absence.

Exception 1.- When a period of suspension is retrospectively treated as leave without allowances by the revising or appellate authority the limitation of

admissible leave without allowances to three months to officers not in permanent employ will not apply.

Exception 2.- The limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB

and XIIC.

On plain and simple language of the aforementioned Rule, it is deciphered that the Government employee can be granted leave without allowance and

that would not entail into any benefits and the aforementioned Rules have to be read, in conjunction with clause 17 of Appendix vi of the K.S.R which

reads as follows:

“During study leave, a Government servant shall draw leave salary equal of the amount admissible during half pay leave under Rule 93 Part I.

K.S.Râ€​

The aforementioned clause leaves no manner of doubt that during study leave, a Government servant will draw leave salary equal to the amount

admissible during half-pay leave under Rule 93 Part I of K.S.R. Similar questions came to be pondered by this Court in the judgments Exts.P3 and P4

and by noticing the provisions, the relief as sought for by the petitioners therein have been allowed.

The stand of the 2nd respondent as per the paragraph 4 is as follows:

“This respondent submit that as per circular No.72/2005/Fin. Dated 30.12.2005 Government have issued an annexure which gives a clear idea of

the service benefits for which the period of leave without allowances does not count. The contention of the petitioner is that the circular has only

prospective effect, is baseless, since the above circular which clarifies Rule 88, 91 and 91A of Part I. K.S.R. In the above letter for more clarification

Government have instructed that while sanctioning leave under Rule 88 and 91 the leave sanctioning authority shall clearly mention in the order of

sanctioning leave without allowances, that the period will not count for purposes of pension. This is necessary to prevent any claim under Rule 26 of

Part II Kerala Service Rules at a later stage.

The aforementioned circular was also discussed in the judgment referred to above and has been held to have a prospective effect. For the sake of

brevity, the operative part of the judgments, is extracted herein below: Ext.P3:

Evidently, audit objection, Ext.P3, shows that it has been issued as per the circular dated 30.12.2005 referred to above. The circular cannot have any

retrospective effect and the parties are governed by the conditions imposed in Ext.P1.

In the absence of the conditions in the circular having retrospective effect and it being only prospective, the audit objection raised in Ext.P3 is

unsustainable. Therefore Exts.P2 and P3 in so far as the petitioners concerned deserve to be quashed and I do so. It is directed that the period

covered by Ext.P1 will be counted for service benefits.

Ext.P4:

I do not think that I can agree with the contentions raised by the Government. Once the Government has decided to grant study leave then it is subject

to all the conditions in Appendix VI. Clause 17 of * Appendix VI of the K.S.R. reads as follows

During study leave, a Government servant shall draw leave salary equal to the amount admissible during half-pay leave under Rule 93 Part I, K.S.R.

In the above view of the matter the Government cannot deny salary to the petitioner. Bxt.P4 order shows that the petitioner is entitled to study leave

under Rule 99 Part I of K.S.R. Hence I quash the condition in Bxt.P4 that no salary will be paid to the petitioner during the one year period from

3.3.1992 to 2.3.1993 when he was granted leave under tale 99 of the K.S.R. It is further declared that the petitioner is entitled to salary during the

above period as per clause 17 of the Appendix VI of the K.S.R. The Original Petition is allowed.

For the reason aforementioned, impugned order Ext.P8 is not sustainable and the same is accordingly set aside. Writ petition is allowed. Respondents

are directed to consider the case of the petitioner for grant of permissible service benefits, as expeditiously as possible preferably within one month

from the receipt of certified copy of the order.