Kerala High Court
Dr.G.Vijayakumar vs State Of Kerala on 13 January, 2025
Author: A.Muhamed Mustaque
Bench: A.Muhamed Mustaque
OP(KAT)No.564 of 2023
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IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE A.MUHAMED MUSTAQUE
&
THE HONOURABLE MR.JUSTICE P. KRISHNA KUMAR
MONDAY, THE 13TH DAY OF JANUARY 2025 / 23RD POUSHA, 1946
OP(KAT) NO. 564 OF 2023
AGAINST THE ORDER DATED 12/12/2017 IN OA NO.1806 OF
2012 OF KERALA ADMINISTRATIVE TRIBUNAL, THIRUVANANTHAPURAM
PETITIONER/APPLICANT IN THE OA:
DR.G.VIJAYAKUMAR,
AGED 73 YEARS
FROM ESWAR VIHAR, THOTTAM, MANACAUD,
THIRUVANANTHAPURAM, KERALA, PIN: 695009 AND NOW
AT SAROJAM, TC 2/537 (1), CHOICE GARDENS,
SUKUMARAN LANE, CHANTHAVILA, SAINIK SCHOOL P.O.,
THIRUVANANTHAPURAM, PIN - 695595
BY ADVS.
G.SUDHEER
V.SURESH
R.HARIKRISHNAN (H-308)
RESPONDENT/RESPONDENTS IN THE OA:
1 STATE OF KERALA,
REPRESENTED BY THE CHIEF SECRETARY, SECRETARIATE,
THIRUVANANTHAPURAM, PIN - 682031
2 DIRETORATE OF MEDICIAL EDUCATION, HEALTH & FAMILY
DEPARTMENT, STATE OF KERALA
REPRESENTED BY ITS DIRECTOR, PIN - 695011
BY GOVT. PLEADER SRI.SUNIL KURIAKOSE
THIS OP KERALA ADMINISTRATIVE TRIBUNAL HAVING COME UP
FOR ADMISSION ON 13.01.2025, THE COURT ON THE SAME DAY
DELIVERED THE FOLLOWING:
OP(KAT)No.564 of 2023
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JUDGMENT
P.Krishna Kumar, J.
The petitioner, a doctor, who availed long-term
leave without allowance for foreign employment in
different spells, was denied pension for the reason
that he does not possess the minimum qualified
service of ten years. He challenged it before the
Kerala Administrative Tribunal but it did not yield
any positive result and hence this petition.
2. On 24.09.1981, the petitioner joined service
under the Directorate of Medical Education as a
Tutor. Thereafter he availed leave without
allowance for employment outside India from
16/03/1983 to 15/09/1985. After that, he rejoined
duty on 16/09/1985, but he was treated as a new
entrant as he was on probation when he availed the
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leave. Later, he was promoted as Assistant
Professor and again he went abroad on availing
leave without allowance for employment abroad for a
period of five years with effect from 26/04/1992.
The petitioner continued abroad despite the expiry
of five years. On 16/12/1998, the respondents
initiated disciplinary action against him for
unauthorised absence. On the culmination of the
disciplinary proceedings, the Government, as per
Annexure A2, decided to impose a penalty of
reducing Rs.250/- per month from his pension for a
period of six months, by invoking Rule 59(b) of
Part III of KSR, as the petitioner had attained
superannuation on 30.11.2024, while the enquiry was
pending.
3. The petitioner challenges the decision of
the Government and the Tribunal for three reasons.
Firstly, the qualifying service for the purpose of
entitlement of pension to the petitioner ought to
have been counted from 24/09/1981 to 25/04/1992 as
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he was granted leave from 16/03/1983 to 16/09/1985.
According to him, the said period could have been
counted for reckoning the qualifying service, as
Appendix XII A of Part I KSR was not in force as on
the date of granting leave. Secondly, when the
punishment was imposed on the culmination of the
disciplinary proceedings, the Government decided to
reduce Rs.250/- from his pension, which presupposes
that the petitioner is entitled to get the pension.
Thirdly, as per Annexure A6, the Government
regularized his unauthorised absence from 1997 to
2004, but with a rider that the said period would
be considered as "non-duty", which is unlawful in
the light of the law settled by the Court in State
of Kerala v. Dr.V.M.Khurshid (ILR 2000 (1)
Ker.535). If the rider is removed, the period
between 1997 to 2004 can also be added for
reckoning the qualifying service, it is contended.
4. Heard the learned counsel appearing for
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the petitioner and the learned Senior Government
Pleader.
5. We find no merit in any of the contentions
raised in this original petition. As per clause 5
of Appendix XIIA of Part I KSR, if an employee
availed leave without allowance for joining foreign
employment during the probation period he will be
deemed to be a new entrant to the service when he
rejoins duty after the leave. Clause 5 further
provides that his probation will also commence
afresh from the date of rejoining. The term "new
entrant" has only one meaning; the past service has
lost all its significance, but the incumbent will
have the right to rejoin the service. It may be
true that the above provision was inserted in
Appendix XII A at a later point of time or Appendix
XII A itself was not in force on the date of
granting leave (but not during the currency of the
entire leave). However, when the petitioner did not
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dispute that he commenced his probation afresh on
rejoining duty and that he was treated as a new
entrant to the service presumably on the strength
of the conditions imposed by the Government while
granting such a long-term leave during the
probation period, it is not possible to count the
past truncated service or even the period during
which he was serving his masters abroad, while
counting the qualifying service for pension. The
petitioner did not challenge the order treating him
as a new entrant and he did not care to produce the
order granting him leave during the probation
period. At this stage, he has no justification for
agitating such issues that have attained finality
by the passage of time.
6. The second limb of the argument is also
equally untenable. While imposing punishment after
disciplinary proceedings, if the competent
authority decides to reduce some amount from the
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pension of the delinquent as he has already
attained superannuation, what it implies is only
that the said amount would be reduced from the
pension, if at all the delinquent is found eligible
for pension. It is not possible to interpret the
said order in the manner proposed by the
petitioner. The process of granting pension is
entirely different from the process contemplated
for imposing a penalty. Fixation of pension is not
an automatic process. It is also not the law that
every employee who attained superannuation is
entitled to get a full pension. Pension can be
determined only after considering various aspects.
The pension can be granted only if the incumbent
submits necessary requests for the same. Therefore,
if the Government imposes a penalty of withholding
a part of the pension at a time when the
eligibility for pension of the employee was not yet
determined, the employee cannot be heard to contend
that his entitlement to pension was also thereby
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decided.
7. We also find no merit in the third
contention which is raised on the basis of the
ratio in Dr.V.M.Khurshid's case (supra). The
question under consideration of the Division Bench
in the said case was different from the present
case. In that case, an Assistant Professor working
in a Medical College proceeded to join her husband
abroad. When her absence was regularised, the
Government imposed a condition that the period of
leave would not be counted for any service
benefits, including pension. The Government
attempted to justify its act by contending that
such a condition was imposed to control the
employees from availing of the advantages and
benefits during the period of leave, following the
provisions contained in Appendix XII A of Part I
KSR. Then the Division Bench found that the
provisions of Appendix XII A have no application to
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the facts of that case (as the leave granted was
not for employment abroad) and thus held that in
the absence of any enabling provisions, the
Government should not have imposed such a
condition. In the present case, the said condition
was imposed by the Government while regularising
the unauthorised absence of the petitioner from
1997 to 2004, and the petitioner had already
availed leave without allowance from 1992 to 1997
for employment abroad, which was indeed governed by
Appendix XII A.
8. Pertinently, this court has held in State of
Kerala and Another v. M.P.Gopalan (2007 (4) KHC
431) that the period of leave without allowance
granted as per Appendix XII A of Part I KSR cannot
be treated for any service benefits including
pension, gratuity etc. and that a person who was
unauthorisedly absent would also be on the same
disadvantage of a person who is governed by
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Appendix XII A and thus the period of unauthorised
absence can at the best be regularised as leave
without allowance, but it cannot be reckoned for
the purpose of pension. The Government order dated
23/09/2003 which contains a condition that though
the period of unauthorised absence was regularised
as leave without allowance that period could not be
reckoned for the purpose of pension, was under
challenge in the said case. However, the Division
Bench upheld the said Government Order after making
the abovesaid observations.
9. In view of the above discussion, we find no
merit at all in this original petition. That apart,
the petitioner has approached this court only on
11.12.2023 against the order passed by the Tribunal
on 12.12.2017. The excuse of the petitioner is that
he had been employed in the United Kingdom during
the relevant period and thus he was unable to
obtain a copy of the impugned order and that the
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difficulties caused by the COVID-19 pandemic also
prevented him from approaching this court in time.
Though we are not satisfied with such a vague and
evasive explanation, the case is considered on its
merit, and accordingly, the above findings are
made.
In the result, the original petition is
dismissed.
Sd/-
A.MUHAMED MUSTAQUE
JUDGE
Sd/-
P.KRISHNA KUMAR
JUDGE
sv
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APPENDIX OF OP(KAT) 564/2023
PETITIONER'S ANNEXURES
Annexure A1 TRUE COPY OF THE LETTER NO
E1/2153/1997/MCC DATED 30-1-1997
RECEIVED BY THE PETITIONER.
Annexure A2 THE TRUE COPY OF G.O.(RT)NO 227/07/H&FWD
DATED 19-1-2007
Annexure A 3 THE TRUE COPY OF THE REQUEST DATED 28-
11-2003 MADE BY THE PETITIONER
EXPRESSING HIS WILLINGNESS TO REJOIN AND
FOR A POSTING ORDER
Annexure A 4 THE TRUE COPY OF SUCH POSTING ORDER FOR
A SIMILAR REQUEST BY DR. M.V. VENKITA
SUBBA REDDIAR, ASSISTANT PROFESSOR OF
ENT, AT THE MEDICAL COLLEGE HOSPITAL,
TRIVANDRUM.
Annexure A 5 THE TRUE COPY OF THE POSTING ORDER DATED
15-11-2004 OF THE PETITIONER
Annexure A 6 THE TRUE COPY OF THE G.O. NO.3645/07/H &
FW ISSUED BY THE 1ST RESPONDENT HOLDING
THAT THE PERIOD OF ABSENCE FROM 25-04-
1997 TO 30-11-2004, REGULARIZED AS "
NON-DUTY WITHOUT FORFEITURE OF PAST
SERVICE"
Annexure A 7 THE TRUE COPY OF THE APPLICATION DATED
25-07-2008 FILED BY THE PETITIONER
CLAIMING PENSION.
Annexure A 8 THE TRUE COPY OF THE NON-LIABILITY
CERTIFICATE FORWARDED BY THE 2ND
RESPONDENT TO PETITIONER DATED 14-10-
2009.
Annexure A 9 THE TRUE COPY OF THE INFORMATION
RECEIVED UNDER THE RIGHT TO INFORMATION
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ACT DATED 6-01-2010.
Annexure A 10 THE TRUE OF THE LETTER DATED 16-09-2003
ISSUED BY THE ACCOUNTANT GENERAL.
Annexure A11 TRUE COPY OF THE REPRESENTATION DATED
29-03-2012 SEEKING RECONSIDERATION AND
REVIEW OF THE DECISION TO DENY PENSION
TO PETITIONER.
Annexure A 12 COPY OF ORIGINAL COMMUNICATION GIVEN BY
THE 1ST RESPONDENT VIDE LETTER DATED 20-
06-2022 THAT ANNEXURE A11 REPRESENTATION
HAS BEEN REJECTED
Exhibit P 1 THE TRUE COPY OF THE OA AND ALL THE
ANNEXURES.
Exhibit P 2 THE COPY OF THE ORDER IN OA 1806/2012
DATED 12-12-2017
