Kerala High Court
The Chairman And Managing Director vs Mathew John on 7 July, 2025
W.A.No.331 of 2016 1 2025:KER:49102
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR.JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
THE HONOURABLE MR. JUSTICE SYAM KUMAR V.M.
TH
MONDAY, THE 7
DAY OF JULY 2025 / 16TH ASHADHA, 1947
WA NO. 331 OF 2016
AGAINST THE JUDGMENT DATED 22.11.2013 IN WPC NO.6492 OF
2009 OF HIGH COURT OF KERALA
PPELLANTS/RESPONDENTS 1 TO 3 IN THE
A WP(C): 1 HE CHAIRMAN AND MANAGING DIRECTOR, T KERALA STATE ROAD TRANSPORT CORPORATION, KSRTC, FORT, THIRUVANANTHAPURAM-695023. 2 HE GENERAL MANAGER, T KERALA STATE ROAD TRANSPORT CORPORATION, THIRUVANANTHAPURAM. 3 HE DISTRICT TRANSPORT OFFICER, T KERALA STATE ROAD TRANSPORT CORPORATION, PALAKKAD DEPOT, PALAKKAD. Y ADVS. B SRI.M.GOPIKRISHNAN NAMBIAR, SC, KSRTC SHRI.DEEPU THANKAN, SC, KSRTC W.A.No.331 of 2016 2 2025:KER:49102 RESPONDENT/PETITIONER IN THE WP(C): ATHEW JOHN, M S/O. P.M. JOHN, (RETIRED AS INSPECTOR FROM KSRTC), RESIDING AT: PARANATTU HOUSE, HARITHA NAGAR, NOORANI (P.O.), PALAKKAD. THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 01.07.2025 THE COURT ON 07.07.2025, DELIVERED THE FOLLOWING: W.A.No.331 of 2016 3 2025:KER:49102 JUDGMENT Sushrut Arvind Dharmadhikari ThepresentintracourtappealunderSection5oftheKeralaHigh Court Act, 1958, assails the judgment dated 22.11.2013 passed in W.P(C)No.6492 of 2009, whereby the learned Single Judge has allowed the writ petition and directed the appellants herein to re-compute the pension and other retirement benefits reckoning the periodofleavealongwithconsequentialbenefits.Theappellantswere the respondents in the writ petition and the respondent was the petitioner. 2. The brief facts of the case are that therespondentjoinedthe services of Kerala State Road Transport Corporation (KSRTC) as conductor in the year 1977. He availed Leave Without Allowance (LWA) fortheperiodfrom21.08.1981to20.08.1986andrejoinedduty on 21.08.1986. Thereafter he was promoted as Station Master and thenasInspector.HeretiredfromservicewhileofficiatingasInspector on 31.12.2008. 3. The issue involved in the writpetitionwaswhethertheperiod of LWA can be reckoned as qualifying service for the purpose of W.A.No.331 of 2016 4 2025:KER:49102 computing pension and other retirement benefits. Vide the impugned order, the appellant authorities had reduced the above mentioned period while reckoning the qualifying service. Being aggrieved, the respondent had filed the writ petition seeking a declaration that he is entitled to count his past services including the period of leave for computing the pension and other benefits. He also prayed for consequential benefits with regard to disbursement of pension. 4. The learned Single Judge relying on the unamended provisions of Rule 26 of Part III of Kerala Service Rules came to the conclusion that leave of all kinds with or without allowance will count forqualifyingservice,unlessorotherwisespecified.Theamendmentin this regard was adopted by the appellantCorporationwitheffectfrom 10.06.2010,withtheriderthattheamendedprovisionwouldapplywith respect to all employees who retired after 10.06.2010. The learned Single Judge came to the conclusion that since LWA was availed by the respondent in the year 1981, neither the amended provision of Rule 26 nor Rules contained in Appendix XIIA would have anyeffect and therefore, the same cannot be deducted from the qualifying service. W.A.No.331 of 2016 5 2025:KER:49102 5. The learned counsel for the appellants submitted that the learned Single Judge did not take into account Ext.P1 which is the leave sanction order dated 23.07.1981 whereby Clause 2 specifically mentions "the leave without allowance grantedwillnotbecountedfor pension, granting leave, increment or any other service benefits". Clause6providesfor"theperiodofLeaveWithoutAllowancegranted, thedateofavailingleave,etc.shouldberecordedintheServiceBook of the employee in red ink with Chief Office reference with specific indication that the period will not count for pension, granting leave, incrementoranyotherservicebenefitsandadulyattestedcopyofthis order should be pasted in the Service Book". 6. The learned counsel submits that in view of Clauses 2and6 above, the respondentcannotchallengetheordersobelatedly inthe year2009withouttherebeinganyexplanationforinordinatedelayand laches. He further submitted that as per the leave sanction order, certain conditions have been imposed therein and after having taken advantage of the same, the respondent cannot now turn round and challenge the conditions which were imposed to deny the service benefits during the period of his absence. W.A.No.331 of 2016 6 2025:KER:49102 7. The learned counsel for the appellants contended that the doctrine, viz "Approbate and Reprobate/Qui Approbat/Non Reprobat" would apply to the facts and circumstances of the present case. The learnedcounselfortheappellantshasplacedrelianceonthejudgment of the Apex Court in the case of Union of India and Others v. N.MurugesanandOthers[(2022)2SCC25]wheretheApexCourtin respect of the aforesaid doctrine has held as under:- " Approbate and reprobate 26.These phrases are borrowed from the Scots law. They would onlymeanthatnopartycanbeallowedtoacceptand rejectthesamething,andthusonecannotblowhotandcold. The principle behind the doctrine of election is inbuilt in the concept of approbate and reprobate. Once again, it is a principleofequitycomingunderthecontoursofcommonlaw. Therefore, he who knowsthatifheobjectstoaninstrument, he will not get the benefithewantscannotbeallowedtodo so while enjoying the fruits. One cannot take advantage of onepartwhilerejectingtherest.Apersoncannotbeallowed tohavethebenefitofinstrumentwhilequestioningthesame. eSuchapartyeitherhastoaffirmordisaffirmthetransaction. This principle has to be applied with more vigour as a commonlawprinciple,ifsuchapartyactuallyenjoystheone part fully and on near completion of the said enjoyment, thereafter questions theotherpart.Anelementoffairplayis inbuiltinthisprinciple.Itisalsoaspeciesofestoppeldealing with the conduct of a party. We have already dealt with the provisions of the Contract Act concerning the conduct of a party, and hispresumptionofknowledgewhileconfirmingan offer through his acceptance unconditionally." W.A.No.331 of 2016 7 2025:KER:49102 8. The learned counsel for the appellants submitted thatinview of the above, the orderpassedbythelearnedSingleJudgedeserves to be set aside and the writ appeal ought to have been dismissed. 9.Eventhoughnoticehasbeenvalidlyservedontherespondent, there was no appearance for him. 10. The respondent in the writ petition had contended that Rule 26 Part III of KSR provides for leave of all kinds with or without allowances will count as qualifying service unless otherwisespecified in general or special orders are issued from time to time. Therefore, Ext.P1totheeffectthattheperiodofleavewillnotcountforpensionis unsustainable.Hemayloseseniorityincasetheperiodisnotcounted. Someofthesimilarlysituatedemployeeshavebeenpermittedtocount the period of Leave Without Allowances, while some others like him have been denied the benefit on the sole ground that there is an endorsement in the leave sanction order. Discriminatory attitude has been adopted by the appellants. 11.Heardthelearnedcounselfortheappellantsandperusedthe records. W.A.No.331 of 2016 8 2025:KER:49102 12. The learned Single Judge erred in allowing the writ petition inasmuchasitfailedtoconsiderClauseNos.2and6inExt.P1,which specificallyprovidesthattherespondentwouldnotbeeligibletocount the period of absence for the purpose of pensionary benefits. The respondent was sanctioned leave in the year 1981 and rejoined in service in the year 1986. The writ petition was filed in the year 2009 withinordinatedelayandlachesforwhichnoplausibleexplanationhas been put forth in the writ petition. The learned single Judge failed to consider the delay aspect and went on to decide the writ petition on merits, which could not have been done without addressing the delay. 13. Admittedly there is a huge unexplained delay of about 20 yearsinfilingthewritpetition.Evenotherwiseapplyingthedoctrineof approbate and reprobate, as held by the Apex Court in the case of N.Murugesan (Supra), the respondent after having enjoyed the one part fully and thereafter questioning the other part with an inordinate delay, an element of fair play is inbuilt inthisprinciple.Therefore,the principleofestoppelwouldapplytothefactsandcircumstancesofthis case. W.A.No.331 of 2016 9 2025:KER:49102 In view of the above, we are of the considered opinion that the learned Single Judge erred in allowing the writ petition. Accordingly, the order passed by the learned Single Judge is set aside. As a consequence, the writ petition stands dismissed. The present writ appeal is allowed. No order as to costs. Sd/- SUSHRUT ARVIND DHARMADHIKARI JUDGE Sd/- SYAM KUMAR V.M. JUDGE MC/02.07