B. Surendran vs Vice Chancellor
2022 Latest Caselaw 8888 Ker

                IN THE HIGH COURT OF KERALA AT ERNAKULAM
                                 PRESENT
              THE HONOURABLE MR. JUSTICE P.B.SURESH KUMAR
                                    &
                 THE HONOURABLE MRS. JUSTICE C.S. SUDHA
         THURSDAY, THE 7TH DAY OF JULY 2022 / 16TH ASHADHA, 1944
                           WA NO. 1618 OF 2021
AGAINST THE JUDGMENT DTD 7/10/2021 IN WP(C) 24530/2020 OF HIGH COURT
                                OF KERALA
APPELLANT/PETITIONER:

             B. SURENDRAN
             AGED 77 YEARS
             S/O.BHANU, THAKADIVILA HOUSE,MAITHANAM, VARKALA P.O.,
             THIRUVANANTHAPURAM - 695 141.
             BY ADV S.MOHAMMED AL RAFI


RESPONDENTS/RESPONDENTS:

     1       VICE CHANCELLOR
             UNIVERSITY OF KERALA, OFFICE OF THE UNIVERSITY OF KERALA,
             PALAYAM, THIRUVANANTHAPURAM - 695 034.
     2       THE REGISTRAR
             UNIVERSITY OF KERALA, OFFICE OF THE UNIVERSITY OF KERALA,
             PALAYAM, THIRUVANANTHAPURAM - 695 034.
             BY ADV SHRI.THOMAS ABRAHAM, SC, UNIVERSITY OF KERALA



     THIS WRIT APPEAL HAVING COME UP FOR FINAL HEARING ON 07.07.2022,
THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:
                                            2
W.A.No.1618 of 2021

                 P.B.SURESH KUMAR & C.S.SUDHA, JJ.
                   --------------------------------------------------
                             W.A.No.1618 of 2021
                       -------------------------------------------
                      Dated this the 7th day of July, 2022


                                 JUDGMENT

C.S.Sudha, J.

This appeal is against the judgment dated 07/10/2021 in W.P.(C)

No.24530/2020. The appellant is the petitioner and the respondents herein,

the respondents in the writ petition. The parties and the documents in this

writ appeal will be referred to as described in the writ petition.

2. The petitioner retired from the University of Kerala as Deputy

Registrar. While working as Senior Grade Assistant, the petitioner was

granted leave without allowance (LWA) for a period of five years w.e.f.

21/02/1977 with permission to accept private employment abroad. This

leave was further extended for a period of five years w.e.f. 21/02/1982.

Based on Exts.P3 and P4 judgments of this Court, the petitioner submitted

Ext.P5 representation to the Registrar, University of Kerala, for considering

the LWA from 21/02/1977 to 15/02/1987 as qualifying service for pensionary

benefits. This was rejected by Ext.P6 letter of the Registrar. Against Ext.P6

W.A.No.1618 of 2021

order the petitioner approached the University Appellate Tribunal and by

way of Ext.P7 order, Ext.P6 order of the Registrar was set aside. Ext.P7

judgment was submitted to the Registrar along with Ext.P8 representation

dated 08/08/2018. However, no action was taken and hence the petitioner

moved the writ petition for directing the second respondent for granting

pensionary benefits for the period the petitioner had availed LWA.

3. The learned Single Judge relying on the Full Bench decision in

State of Kerala v. Thomas, 2015(1)KLT 863, dismissed the writ petition

holding that the period of leave taken without allowance cannot be reckoned

for the purpose of pensionary benefits. Aggrieved, the petitioner has come

up in appeal.

4. Heard Adv.S.Mohammed Al Rafi, the learned counsel for the

appellant and Adv.Thomas Abraham, the learned Standing Counsel for

University of Kerala.

5. It was submitted on behalf of the petitioner that the decision of

the Full Bench in Thomas (Supra), is not applicable to the facts of the

present case as the same relates to teachers of Private Aided Colleges.

Reference was made to the decision in KSRTC vs. A.Noorudeenkutty,

W.A.No.1618 of 2021

2005(3) KLT 504, in support of the argument that the petitioner is entitled to

the benefits claimed.

6. Clause 4 of Chapter XVI of the Kerala University First

Ordinances, 1978 dealing with 'pension' says that the teaching and non-

teaching staff of the University shall be entitled to pension in accordance

with the provisions in the Kerala Service Rules (KSR) made applicable to

them by the Statutes. Statute 2 in Chapter 4 of the Kerala University First

Statutes, 1977 says that subject to the provisions of the Act and the Statutes

issued hereunder, the Kerala State and Subordinate Services Rules, 1958, the

Kerala Service Rules, 1959 and the Government Servants Conduct Rules,

1960 as amended from time to time in so far as may be applicable and except

to the extent expressly provided for in these Statutes, shall apply in the

matter of all the service conditions of the University employees in the

University service. The proviso says that the said Rules shall, in their

application to the members of the University service, be construed as if the

employer were the Kerala University instead of the Kerala State

Government.

7. Appendix XII A of the KSR was introduced w.e.f. 16/12/1993,

W.A.No.1618 of 2021

regulating the conditions of granting LWA for taking up other employment.

Therefore referring to the same it was submitted that both the applications

for LWA had been submitted by the petitioner much before Appendix XII A

came into the statute book. Hence the condition in Exts.P1 and P2 orders

sanctioning leave by which it has been stipulated that the period of leave

granted would not be counted for pension and other service benefits, is void.

It is true that in Noorudeenkutty (Supra), it has been held that one is bound

by the Rules existing at the time of the application for leave. It is also true

that in this case it is subsequent to Exts.P1 and P2 orders granting LWA to

the petitioner, Appendix XII A had come into the statute book. However,

that does not prevent the University, that is, the employer, from imposing any

condition(s) in the grant of LWA. Exts.P1 and P2 are the orders by which the

petitioner was granted LWA for a period of 10 years. In both the orders it is

made clear that the period of leave granted would not be counted for pension

and other service benefits and this fact would be recorded in red ink in the

service book of the incumbent. The petitioner never challenged Exts.P1 and

P2 orders. He has availed the benefit and now he cannot turn around and

contend that the said orders are void.

W.A.No.1618 of 2021

We find no infirmity in the judgment of the learned Single Judge. The

writ appeal is found to be without any merits and hence the same is

dismissed.

All interlocutory applications, if any pending, shall stand disposed of.

Sd/-

P.B.SURESH KUMAR JUDGE

Sd/-

C.S.SUDHA JUDGE ami/