A retired lecturer sought pension benefits treating a prolonged period abroad as qualifying service. The Court held that specific government orders regularizing his absence expressly excluded pension benefits, so the claim was rejected and the petition dismissed.
Petitioner's claim for pensionary benefits reckoning the period from 1981 to 1997 was rejected.
This page shows the compact analysis of this judgement. The full analysis — procedural history, issue-by-issue holdings with ratio and obiter, advocates, and paragraph-level evidence for every claim — is being added to the record in batches and will appear here when this judgement has been through it.
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)
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PETITIONER(S):
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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):
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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.
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O.P.NO.5317 OF 2001(G)
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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.
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OP.No.5317/2001
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.
OP.No.5317/2001
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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.
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
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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.
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OP.No.5317/2001
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.
and P18 cannot be faulted.
Writ petition fails and is dismissed.
(ANTONY DOMINIC) JUDGE
vi/
OP.No.5317/2001
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ANTONY DOMINIC, J.
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O.P.NO.5317 OF 2001(G)
-----------------------------------------------Dated this the 20th day of July, 2010
J U D G M E N T
3 issues framed by the court
Whether the petitioner is entitled to pensionary benefits reckoning the period of unauthorized absence from 1981 to 1997 as qualifying service.
Whether previous Government orders regarding leave without allowance apply to the petitioner's case where specific conditions were attached.
Whether the rejection of the petitioner's claim regarding pension and service benefits is sustainable.
K. VIJAYAN
STATE OF KERALA
THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM
THE SECRETRY, N.S.S. COLLEGES CENTRAL COMMITTEE, CHANGANASSERY-2
THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM
ANTONY DOMINIC
As recorded by the court registry
Judgements on the same questions, provisions and authorities, from every court
