Kerala High Court
Pushpadharan Nair V.A vs State Of Kerala on 28 May, 2024
Author: A. Muhamed Mustaque
Bench: A.Muhamed Mustaque
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR. JUSTICE S.MANU
TUESDAY, THE 28TH DAY OF MAY 2024 / 7TH JYAISHTA, 1946
OP(KAT) NO. 222 OF 2024
AGAINST THE ORDER DATED 11.08.2023 IN OA NO.362 OF 2017
OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT:
PUSHPADHARAN NAIR V.A, AGED 63 YEARS, S/O.
VENKULAM ACHUTHAN P, UD CLERK HIGHER GRADE
(RTD), DISTRICT SOIL TESTING LABORATORY,
KARIMBAM -1, THALIPARAMBA KANNUR, RESIDING AT
'KAMBIL', KOLENCHERY PO, PIN - 670 601
BY ADVS.
JINSON OUSEPH
S.VIJAYAN
V.PRINCE DEV
C.RAJESWARA KUMAR
CHITRA VIJAYAN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA, REPRESENTED BY SECRETARY TO
GOVERNMENT, AGRICULTURE DEPARTMENT, GOVERNMENT
SECRETARIAT, THIRUVANANTHAPURAM, PIN - 695 001
2 DIRECTOR OF AGRICULTURE, AGRICULTURE
DIRECTORATE, VIKAS BHAVAN, THIRUVANANTHAPURAM,
PIN - 695 033
3 ASSISTANT DIRECTOR AGRICULTURE, OFFICE OF THE
ASSISTANT DIRECTOR AGRICULTURE, VAMANAPURAM,
THIRUVANANTHAPURAM, PIN - 695 606
O.P.(KAT) No.222 of 2024
..2..
4 THE PRINCIPAL AGRICULTURAL OFFICER, PRINCIPAL
AGRICULTURAL OFFICE, STATUE, THIRUVANANTHAPURAM,
PIN - 695 001
B VINITHA SR GP
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME
UP FOR ADMISSION ON 28.05.2024, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
O.P.(KAT) No.222 of 2024
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JUDGMENT
A. Muhamed Mustaque, J.
The petitioner was the applicant before the Kerala
Administrative Tribunal. The petitioner, while officiating as LD
Clerk in Agricultural Department, abstained from the service.
Disciplinary proceedings were initiated. Thereafter, disciplinary
proceedings were cancelled for non- compliance of the
mandatory procedure. The period of absence was 784 days.
The petitioner applied for leave without allowance. This was
sanctioned vide Annexure A4 proceedings dated 7.08.2007. It
is specifically ordered that the leave granted other than on
medical certificate will not count for increment, higher grade,
accumulation of Earned Leave, pension etc. The petitioner
also retired from the service in the year 2012.
2. Thereafter, it appears that the petitioner moved the
Government as well as the Lokayuktha for the relief to reckon
the above period for pensionary benefits. Ultimately, he
approached the tribunal in the year 2017, challenging the
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order of the Government rejecting his request vide the
proceedings dated 4.08.2014. This original application itself
was in the year 2017 and the same was disposed of in the
year 2023.
3. The tribunal noted that this period cannot be
reckoned for the pensionary benefits, after adverting to Rules
65 and 88 of Part I KSR. It appears that the tribunal condoned
the delay in filing the original application and entertained the
matter. It is also seen that a review petition was filed by the
petitioner on the dismissal of his application. In review
petition also, the tribunal reiterating the Rule 65 Part I KSR
held that the petitioner was not entitled to reckon the period
for pensionary benefits.
It is to be noted that while sanctioning the leave, the
authority specifically noted that the petitioner is not entitled to
reckon the above period for the purpose of pensionary
benefits. However, the petitioner had not chosen to challenge
the sanction order immediately thereafter. He took steps to
challenge the same only after his retirement. We may not be
able to entertain this sort of challenge at the belated stage,
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though tribunal had chosen to condone the delay and
entertained the challenge. No Government Servant can claim
leave as a matter of right. If there are conditions imposed in
granting leave and such conditions, according to the
Government Servant, are against a Rule, he is bound to
challenge such order immediately. Merely for the reason that
the tribunal had entertained such belated challenge, we should
also not countenance such a challenge by invoking our power
under Article 227 of the Constitution of India, especially when
we are also of the view that there is no patent illegality in the
order passed by the authority while sanctioning leave. When
the matter is viewed in the above angle, we find no reason to
entertain this original petition and accordingly, this original
petition stands dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
S.MANU
JUDGE
PR
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APPENDIX OF OP(KAT) 222/2024
PETITIONER ANNEXURES
Annexure A1 TRUE COPY OF THE ORDER NO.
E(2)10936/02 DATED 03.02.2004 ISSUED
BY THE 4TH RESPONDENT.
Annexure A2 TRUE COPY OF THE ORDER NO.
E(2)10936/02 DATED 10.03.2004 ISSUED
BY THE 4TH RESPONDENT.
Annexure A3 TRUE COPY OF THE ORDER NO.
E(2)10936/02 DATED 18.09.2006 ISSUED
BY THE 4TH RESPONDENT
Annexure A4 TRUE COPY OF THE G.O.(RT)
NO.1466/07/AD DATED 07.08.2007 ISSUED
BY THE 1ST RESPONDENT
Annexure A5 TRUE COPY OF THE LETTER NO.
26693/EB3/07/AGRI DATED 03.11.2009
ISSUED BY THE 1ST RESPONDENT TO THE
2ND RESPONDENT.
Annexure A6 TRUE COPY OF THE REPRESENTATIONS DATED
NIL SUBMITTED BY THE APPLICANT BEFORE
THE CHIEF MINISTER.
Annexure A7 TRUE COPY OF THE REPRESENTATIONS DATED
06.09.2013 SUBMITTED BY THE APPLICANT
BEFORE THE CHIEF MINISTER
Annexure A8 TRUE COPY OF LETTER
NO.32943/EB3/12/AGRI DATED 04.08.2014
ISSUED BY THE 1ST RESPONDENT TO THE
PETITIONER.
Annexure A9 TRUE COPY OF ORDER DATED 05/08/2016 IN
COMPLAINT NO.773/2015-B OF HON'BLE
KERALA LOKAYUKTA
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Annexure 10 TRUE COPY OF THE PROCEEDINGS NO: SA(1)
20970/05 DATED 08/05/2006 ISSUED BY
THE 2ND RESPONDENT
Annexure 11 TRUE COPY OF THE LETTER OF
COMMUNICATION NO: SA(1) 20970/05 DATED
17/04/2007 OF THE 2ND RESPONDENT
Annexure RA1 TRUE COPY OF THE ORDER DATED
11/08/2023 IN OA 362/2017 OF THE
HON'BLE KAT, THIRUVANANTHAPURAM
Exhibit P1 TRUE COPY OF THE ORIGINAL APPLICATION
362 OF 2017ALONG WITH ANNEXURES A1 TO
A9 FILED BY THE PETITIONER BEFORE THE
KAT,THIRUVANANTHAPURAM
Exhibit P2 TRUE COPY OF THE REPLY STATEMENT DATED
07.06.2018 FILED BY THE 1ST
RESPONDENT.
Exhibit P2(a) TRUE COPY OF THE REJOINDER ALONG WITH
ANNEXURE A10 AND A11 SUBMITTED BY THE
COUNSEL FOR THE APPLICANT ON
28.09.2020
Exhibit P3 TRUE COPY OF THE MA 2158 OF 2021 IN OA
362 OF 2017 FILED BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL
Exhibit P3(a) TRUE COPY OF THE MA 2159 OF 2021 IN OA
362 OF 2017 FILED BEFORE THE KERALA
ADMINISTRATIVE TRIBUNAL
Exhibit P3(b) TRUE COPY OF THE OBJECTION FILED ON
BEHALF OF THE 1ST RESPONDENT TO THE
DELAY CONDONATION APPLICATION IN MA
2159 OF 2021 FOR AMENDING THE OA
Exhibit P4 TRUE COPY OF THE MEMO FILED BY THE
GOVERNMENT PLEADER PRODUCING CIRCULAR
NO 36/94/FIN DATED 14.06.1994.
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Exhibit P5 TRUE COPY OF THE JUDGMENT IN
PUSHPANGADAN VS. STATE OF KERALA,
2002(3) KLT 519
Exhibit P6 CERTIFIED COPY OF THE ORDER DATED
11/08/2023 IN OA 362 OF 2017
Exhibit P7 TRUE COPY OF THE RA 55/2023 FILED BY
THE PETITIONER ALONG WITH THE COPY OF
THE ORDER DATED 11.08.2023 IN OA
Exhibit P8 CERTIFIED COPY OF THE ORDER IN RA
55/2023 IN OA 362/2017 DATED
12/01/2024 OF KERALA ADMINISTRATIVE
TRIBUNAL.
