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
