Kurian Joseph, J.

Whether a non-permanent officer in regular service, who has not completed probation in the entry grade, availing leave without allowance is entitled to count his service prior to the leave for the purpose of pension is the question to be considered in this appeal.

2. Leave is not a matter of right. But once leave is granted, the incumbent shall be bound by the conditions attached to the leave. Appendix XII-A prescribes the rules for the grant of leave without allowances for taking up employment abroad or within India. Rule 88 Part I KSR deals with leave without allowances. Sub-rule (ii) of Rule 88 provides that "except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion". However Exception 2 provides that the limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC. Rule 110B deals with leave for taking up employment abroad or within India. The Rule provides that "rules for grant of leave without allowances for taking up employment abroad or within India are given in Appendix XIIA." Appendix XIIA of Part I opens with the following introduction:-

"The following rules shall regulate the grant of leave without allowances to officers for taking up employment abroad or within India."

Therefore, the purpose of Appendix XIIA is to provide for rules to regulate the grant of leave without allowances for taking up employment. Rule 4 regulates the leave of permanent officers and nonpermanent officers who have completed probation in their entry grade in the regular service of the Government and Rule 5 deals with non-permanent Officers in regular service who have not completed probation in the entry grade. Rules 4 and 5 are extracted below:-

"4. Permanent Officers and non-permanent Officers who have completed probation in their entry cadre in the regular service of Government may be granted leave without allowances under these rules. In such cases, for, and during the currency of, the period of leave, the officers shall lose all service benefits such as the earning of leave including half pay leave, pension, gratuity, increment, etc., and also promotion chances as may arise with reference to their seniority in the posts from which they proceeded on leave. They shall also lose seniority in the higher grade/grades with reference to their juniors who might get promoted to such grade/grades before they rejoin duty.

5. In the case of non-permanent Officers in regular service who have not completed probation in the entry grade, leave without allowances may be granted subject to the condition that they will have to start afresh and complete their probation on return from the leave without allowances. In other words, the Officers will forfeit the service benefits that had accrued to them prior to their proceeding on leave and they will be deemed as new entrants to Government service on return from leave. What is protected is only their right to rejoin Government service in the same entry grade as if they were new entrants."

It is clearly provided under Rule 4 of Appendix XIIA that the leave period shall not be reckoned for service benefits such as earned leave, pension, gratuity, increment etc. and also for promotion during the leave period. It is also provided that such incumbents will lose seniority in the higher grade with reference to juniors who might got promoted to such grades before the expiry of the leave.

3. As far as non-permanent Officers in regular service, who have not completed probation in the entry grade, are concerned, they are also liable to be granted leave without allowance subject to the condition that on the expiry of the leave period they will have to start afresh and complete their probation on return from the leave. That part of Rule 5 of Appendix XIIA has been clarified and explained with the expression "in other words", providi