Petitioner, then a PD Teacher, availed three continuous spells of leave without allowances for five years each, totaling to 15 years, the last spell of which expired on 18.9.1992, in terms of Appendix XII A of Part I of the Kerala Service Rules, hereinafter, “KSR”, for short, for taking up employment abroad. He did not re-join duty on expiry of the leave. Action followed under the Kerala Civil Services (Classification, Control and Appeal) Rules, 1960, hereinafter, the “CC&A Rules”. Since the notice sent to the petitioner was returned with the endorsement that he is outside India, notice was published in newspapers. He remained ex parte the disciplinary proceedings. The enquiry concluded against him, resulting in his removal from service, as per order dated 20.10.1994, published in the newspapers on 23.11.1994.

2. Though he seeks to quash Ext.P1 also, the petitioner appears to have accepted that situation, by moving the Assistant Educational Officer, 1996, seeking pensionary benefits. The AEO, as per Ext.P2 order, held that the petitioner is not entitled to pensionary benefits in terms of the rules because he was removed from service with effect from 19.9.1992 due to unauthorized absence and that his past services stand forfeited. The AEO quoted Rule 29 in Part III KSR in support of that decision.

3. This writ petition is filed challenging the vires of Rule 29 in Part III KSR, seeking to quash Exts.P1 and P2 and for a direction that the petitioner be granted all pensionary benefits counting his service.

4. Learned counsel for the petitioner, at the outset, stated that the challenge to the vires of Rule 29 in Part III KSR is not pressed. That apart, Rule 29 of Part III KSR which provides that resignation, dismissal or removal entails forfeiture of past service, is one, by which, any benefit linked with and relatable to past service is automatically denied. It has been so held by the Division Bench of this Court in Chandrasenan v. State of Kerala [1993 (3) KLT 357]. The denial of benefits linked with and relatable to past service to a public servant, whose conduct and service lead to his removal or dismissal from service or if he resigns from service is neither unreasonable nor arbitrary. The said Rule, on the face of it, is not ultra-vires the Constitution of India or the Kerala Public Services Act, 1968.

5. Learned counsel for the petitioner confined his arguments to be in support of the petitioner’s attempt to gain retrial benefits by way of pension. The petitioner’s case is that he had prior aided school service to his credit, which, in terms of the rules, is to be tagged along with the Government service from 8.1.1970, to hold that his total length of service is more than 12 years, beyond the minimum required for grant of pension. Assailing the reference made by the AEO in Ext.P2, to Rule 29 in Part III KSR, it is argued that it is not Rule 29 in Part III, but Rule 96 in Part I KSR, that would apply in the context. It is accordingly argued that by virtue of the Note to Rule 96 in Part I KSR, willful absence from duty after the expiry of leaves is to be treated only as mishbehaviour for the purpose of Rule 21 in Part I and therefore, the liability of the petitioner for absence from duty, could be only that provided in Rule 21 in Part I KSR, viz., that he may be transferred from one post to another and it cannot result in his dismissal or removal from service.

6. Per Contra, learned Government Pleader argued that the Note to Rule 96 in Part I KSR is only one that enables the Government to treat the willful absence from duty after expiry of leave as mishbehaviour and therefore, a ground to make an order transferring the officer from one post to another, invoking Rule 21 in Part I KSR, and that the said provision does not inhibit the treatment of such a situation as a case of indiscipline and to proceed against the erring officer under the CC&A Rules. It is argued by her that the officers taking leave are bound by the con