Kerala High Court
Sainubabeevi. M vs State Of Kerala on 8 October, 2025
Author: Anil K. Narendran
Bench: Anil K. Narendran
WA NO. 1517 OF 2024 1 2025:KER:73727
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MR. JUSTICE ANIL K. NARENDRAN
&
THE HONOURABLE MR. JUSTICE MURALEE KRISHNA S.
WEDNESDAY, THE 8TH DAY OF OCTOBER 2025 / 16TH ASWINA, 1947
WA NO. 1517 OF 2024
AGAINST THE JUDGMENT DATED 07.06.2024 IN W.P.(C)
NO.25564 OF 2021 OF HIGH COURT OF KERALA
APPELLANT/PETITIONER:
SAINUBABEEVI. M
AGED 60 YEARS
RETIRED L.G ARABIC TEACHER,
ADINADU SOUTH MUSLIM LOWER PRIMARY SCHOOL,
KARUNAGAPPALLY SUB DISTRICT, KOLLAM R/O XX/473
KUNNEL VADAKKATHIL, ADINADU SOUTH,
KATTILKADAV P.O., KOLLAM-690542.
BY ADVS.
SHRI.P.RAVEENDRAN
SRI.B.BIPIN
RESPONDENTS/RESPONDENTS:
1 STATE OF KERALA
REPRESENTED BY THE SECRETARY,
GENERAL EDUCATION DEPARTMENT, SECRETARIATE,
THIRUVANANTHAPURAM-695001.
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2 THE ACCOUNTANT GENERAL
INDIAN AUDIT AND ACCOUNTS DEPARTMENT,
ACCOUNTANT GENERAL OFFICE,
THIRUVANANTHAPURAM-695039.
3 THE ASSISTANT EDUCATIONAL OFFICER
OFFICE OF THE ASSISTANT EDUCATION OFFICER,
KARUNAGAPPALLY, KOLLAM-690518.
4 THE SUB TREASURY OFFICER
KARUNAGAPPALLI, KOLLAM., PIN - 690518
OTHER PRESENT:
SMT. NISHA BOSE, SR. GP
THIS WRIT APPEAL HAVING COME BEEN FINALLY HEARD ON
24.09.2025, THE COURT ON 08.10.2025 DELIVERED THE FOLLOWING:
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JUDGMENT
Muralee Krishna S., J.
The petitioner in W.P.(C)No.25564 of 2021 filed this writ
appeal under Section 5(i) of the Kerala High Court Act, 1958,
challenging the judgment dated 07.06.2024 passed by the learned
Single Judge in that writ petition.
2. The appellant joined as a Junior Arabic Teacher in
Adinadu South Muslim Lower Primary School situated in
Karunagappally Educational Sub District, Kollam, on 13.06.1984,
in the leave vacancy of one Sri.Abdul Lathif. The said Abdul Lathif
availed leave without allowance (LWA) for a period of five years
with effect from 13.06.1984. He continued on leave till 03.06.2004
by extending it on every five years, and finally he resigned from
the post on 03.06.2004. The appellant continued in the leave
vacancy post till 03.06.2004, and finally she was absorbed into
the post permanently with effect from 04.06.2004. The appellant
superannuated on 30.04.2020. While fixing the terminal benefits,
the Accountant General had refused to include the service period
from 13.06.1984 to 04.06.2004, during the period of which the
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appellant worked in the leave vacancy of Abdul Lathif. The
appellant then submitted a request dated 15.10.2020 to grant her
the terminal benefits, including the period of leave service, as it is
a continuous service before the 2nd respondent. But the
Accountant General by Ext.P9 order dated 16.12.2020 rejected
the request of the appellant, which was informed to the appellant
by Ext.P10 communication dated 10.08.2021 by the Assistant
Educational Officer. The appellant then submitted a detailed
representation dated 15.10.2020 before the Government, praying
for terminal benefits, including her leave period service. She also
filed Ext.P13 revision petition before the Government on
09.11.2021. Thereafter, the appellant approached this Court with
the writ petition filed under Article 226 of the Constitution of India,
seeking the following reliefs;
"(i) To issue appropriate writ, order or a direction and to call
for records leading to Exhibit P8 and to quash Exhibit P8,
Exhibit P9 and Exhibit P10 as illegal and issued in violation
of the fact and the Rules.
(ii) To declare the following;-
(a) That the petitioner is entitled to get terminal benefits
counting her service from the date of her joining the
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service on 13.06.1984 till her superannuation on
30.04.2020.
(b) That the service of the petitioner with effect from
13.06.1984 till 03.06.2004 under leave vacancy is
continuous and entitled to count for all purposes
including terminal benefits.
(c) That Exhibit P11 Government order is not applicable
to the petitioner.
(iii) To issue following directions to the respondents:-
(a) To recalculate and authorize the Pension, Death cum
Retirement Gratuity and Communication of pension to
the petitioner taking in to her service from 13.06.1984
till 30.04.2020.
(b) To release the consequential arrears without further
delay.
(c) To grant penal interest at the rate of 12% per annum
to the delayed payment."
3. In the writ petition, the 1st respondent filed a counter
affidavit dated 03.10.2023 opposing the reliefs sought therein. In
the counter affidavit, it is inter alia contended that the Rule
applicable to the person with respect to the grant of pensionary
benefits is the one existing at the time of retirement. Rule 14E of
Kerala Service Rules ('KSR' in short) Part III was amended with
effect from 10.08.2018, specifying that provisional service cannot
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be reckoned for pensionary benefits. As per Ext.P11
G.O.(P)No.401/2019/Fin dated 28.10.2019, the broken spells of
provisional service/leave vacancy service rendered by regular
aided school staff/Government employees, in aided schools prior
to their entry in regular service, shall not be reckoned as qualifying
service with effect from 10.08.2018. Since the service period of
the appellant from 13.06.1984 to 03.06.2004 was in the leave
vacancy, on the basis of the rules applicable at the time of her
retirement on 30.04.2020, she is not entitled to reckon the
aforesaid period for granting the service benefits.
4. After hearing both sides and on appreciation of the
materials on record, the learned Single Judge dismissed the writ
petition by the impugned judgment dated 07.06.2024. Paragraphs
5 to 7 and the last paragraph of that judgment read thus;
"5. Chapter XXVII.B Rule 3 provides that, the provisions of
Part III KSR, as amended from time to time, shall mutatis
mutandis apply in matters of retirement benefits including
family pension and death-cum-retirement benefits. The
provision reads thus :-
"3. The rules on retirement benefits including family pension
and death cum-retirement benefits and all the conditions for
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the grant of these benefits applicable to Government Servants
as laid down in Part III, Kerala Service Rules as amended from
time to time shall mutatis mutandis apply to the teachers
governed by the rules in this Chapter."
In the light thereof, with regard to pensionary benefits
payable to the petitioner, the provisions of Part III KSR are
applicable. The decision of the Division Bench relied on by
the learned counsel for the petitioner dealt with an issue of
seniority in service. It was not a matter of pensionary
benefits falling within Rule 3 of Chapter XXVII.B and Part III
KSR.
6. Rule 14E of Part III KSR provides for reckoning of only
the period of "regular full time service" for fixing pensionary
benefits. The Rule 14E, was substituted with effect from
13.08.2018. The earlier provision did not provide for
"regular full time" service. Referring to the earlier provision
this Court had in Sabu Mathew and Others v. State of Kerala
and Others 2017 (5) KHC 120 held that, irrespective of the
nature of appointment and the services rendered, the prior
service of teachers in aided schools are liable to be
reckoned. At paragraph 29 of the judgment it was held that
matters regarding pension and pensionary benefits would
be governed by the rules/orders in force at the time of
retirement of the teacher. The said judgment was upheld by
a Division Bench. It is thereafter that the Rule was
substituted with effect from 10.08.2018, specifying that,
only "regular full time service" shall be reckoned for
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pension.
7. As was noticed, the petitioner retired on 30.04.2020
when the substituted Rule 14E of Part III KSR was in force.
In the light of Rule 14E of Part III KSR, the prior service of
the petitioner in the leave vacancy is not liable to be
reckoned for the purpose of pension. Ext.P11 Government
Order can only be understood to be in conformity with Rule
14E KSR as it stands. A similar view was taken by a Division
Bench of this Court in State of Kerala v. Raveendran Pillai
S. [2023 (1) KHC 235].
In the light of the above, the claim of the petitioner for
reckoning his prior services in the leave vacancy, for the
purpose of pension, is bound to fail.
Writ petition fails and is dismissed."
5. Heard the learned counsel for the appellant and the
learned Senior Government Pleader.
6. The appellant was admittedly working in the leave
vacancy of Mr.Abdul Lathif from 13.06.1984 to 03.06.2004. She
was permanently absorbed into the post with effect from
04.06.2004 and was superannuated on 30.04.2020. As per Rule 3
of Chapter XXVII B of Kerala Education Rules, 1959 ('KER' in
short), the rules on retirement benefits including Family Pension
and Death cum Retirement Benefits and all the conditions for the
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grant of these benefits applicable to Government Servants as laid
down in Part III KSR as amended from time to time shall mutatis
mutandis apply to the teachers governed by the rules in the said
chapter. As discussed by the learned Single Judge in the impugned
judgment in the light of Rule 3 of Chapter XXVII B of KER, the
provisions of Part III KSR are applicable for calculating the
pensionary benefits of a retired teacher. Rule 14E of Part III KSR
provides for reckoning only the period of regular full-time service
for fixing pensionary benefits. Sub Rule (a) of Rule 14E of Part III
KSR reads thus;
"(a) Aided school service put in by Government employees
prior to entry in Government service qualifies, subject to the
following conditions, namely:
(i) Only regular full time aided school service rendered after
the introduction of Direct Payment System in aided school
shall be reckoned for pension;
(ii) In cases of resignation of the appointment in aided
school for the purpose of taking up appointment in
Government, break, if any, between the aided school
service and Government service shall not exceed the joining
time admissible under the service rules, plus public holidays.
Service prior to resignation for other purposes shall not be
counted."
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7. This sub rule was substituted with effect from
13.08.2018. It was relying on the amended sub rule (a) of Rule
14E of Part III KSR, the Government issued Ext.P11 order dated
28.10.2019 making it clear that the broken spells of provisional
service/leave vacancy service rendered by regular aided school
staff/Government employees, in aided schools prior to their entry
in regular service shall not be reckoned as qualifying service with
effect from 10.08.2018. The appellant herein was not a regular
employee till she was absorbed into regular vacancy, after the
resignation of Abdul Lathif on 03.06.2004. She can be treated as
a regular employee as stipulated in sub rule (a) of Rule 14E of Part
III KSR only with effect from 04.06.2004.
8. At this juncture, it is apposite to refer the judgment of
this Court in State of Kerala and Others v. Raveendran Pillai
S. and Another [2023 (1) KLJ 295], wherein a Division Bench
of this Court held thus;
"10. Ruling to Rule 11 of Part I KSR as applicable to the
petitioner provides that an officer's claim to pension is
regulated by the rules in force at the time when the officer
is discharged from the service of the a State. Rule 3 of
Chapter XXVII B of the Kerala Education Rules provides that
the rules on retirement benefits and all the conditions for
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grant of the same as applicable to Government servants,
laid down in Part III KSR as amended from time to time,
shall mutatis mutandis apply to the teachers of aided
schools as well. Rule 4 of Part III KSR provides that no claim
to pension is admitted when an employee is appointed for a
limited time only, on the completion of which he is to be
discharged. The relevant portion of the said Rule reads thus:
"4. In the following cases, no claim to pension is admitted:-
(a) When an employee is appointed for limited time only,
or for specific duty, on the completion of which he is to be
discharged
(b) xxxxxx
Rule 14E(a) of Part III KSR, as it stood at the time of
retirement of the petitioner, reads thus:
"14E(a) Aided school service put in by Government
employees prior to entry in Government service qualifies,
subject to the following conditions, namely:-
(i) Only regular full time aided school service rendered after
the introduction of Direct Payment System in aided school
shall be reckoned for pension:
(ii) In cases of resignation of the appointment in aided
school for the purpose of taking up appointment in
Government, break, if any, between the aided school
service and Government service shall not exceed the joining
time admissible under the service rules, plus public
holidays. Service prior to resignation for other purposes
shall not be counted."
A combined reading of Rule 4 and Rule 14E(a) would
indicate beyond doubt that no claim to pension is admissible
when an employee is appointed for a limited period and that
the period of regular full time service of a pensioner in an
aided school alone shall qualify for pension. The petitioner
does not dispute the fact that he was liable to be discharged
and he was in fact discharged after completion of service in
the leave vacancies. The appointments of the petitioner in
the leave vacancies can be regarded only as appointments
for a limited time and in light of Rule 4 of Part III KSR, no
claim to pension is admissible for the services rendered by
the petitioner in the said vacancies, especially in light of the
clarification made in Rule 14E(a) that only regular full time
aided school a service shall be reckoned for pension. This
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aspect has, in fact, been clarified by the Government in
Ext.P10 order. In the light of Rule 11 of Part III KSR, the
power of the Government to issue an order in the nature of
Ext.P10 cannot be questioned. If that be so, the same binds
the petitioner, unless he is able to succeed in a challenge
against the same Ext.P10 order was not under challenge in
the writ petition. Needless to say, the petitioner is not
entitled to reckon the services rendered by him in leave
vacancies as qualifying service for pension
12. Now let us come back to the impugned judgment and
the arguments advanced by the learned counsel for the
petitioner to support the same. The view taken by the
learned Single Judge that the services rendered by the
petitioner in leave vacancies are liable to be reckoned as
qualifying service since the same were rendered after his
initial regular appointment is unsustainable in law as it does
not have the backing of any statutory provision. Similarly,
the argument advanced by the learned counsel for the
petitioner that inasmuch as the petitioner has been granted
increments and time bound higher grades reckoning the
services rendered by him in leave vacancies, he is entitled
to reckon the same as qualifying service for pension, is also
not of any substance. Increments and placements in higher
grades are governed by different set of rules, and merely
for the reason that the service rendered in leave vacancies
are reckoned for the purpose of grant of increments or for
placements in higher grades, it cannot be said that the same
shall be reckoned for the purpose of grant of pensionary
benefits as well. A similar argument advanced in the context
of the service rendered in leave vacancies in aided colleges
was repelled by the Division Bench of this Court in Shameer
Ali (supra). There is also no merit in the argument advanced
by the learned counsel for the petitioner based on Ext.P6
statement. Ext.P6 is only a statement forwarded from the
School in terms of the provisions contained in Part III KSR
so as to enable the petitioner to claim pension. True, the
leave services of the petitioner are shown therein as
qualifying service. Merely for the reason that a statement
contrary to Rule has been made in such a statement, the
petitioner cannot take advantage of the same."
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9. When analysing the facts of this case in the light of the
provisions governing the field and the judgment referred to supra,
it is only to be held that the learned Single Judge has correctly
analysed the materials on record and arrived at a right finding that
the appellant is not entitled to reckon her service rendered during
leave vacancy for pensionary benefits. Therefore, we find no
ground to interfere with the impugned judgment of the learned
Single Judge.
In the result, the writ appeal stands dismissed.
Sd/-
ANIL K. NARENDRAN, JUDGE
Sd/-
MURALEE KRISHNA S., JUDGE
MSA
