The main legal point established in the judgment is that the period of leave without allowances should be considered as qualifying service for pensionary benefits, and the Government did not have the power to impose a condition that the leave without allowances will not count for any service benefits including pension.

1. Heard Mr. M. R. Rajendran Nair for the appellant and Mr. P. K. Ravikrishnan, Government Pleader, for the respondents. By consent of both sides, the Writ Appeal itself is taken up for final disposal.

2. The appellant filed the Original Petition seeking to quash Exts. P-4 and P-6 to the extent it imposes a condition that the leave without allowance sanctioned to the petitioner from 16th February 1991 to 28th June 1,992 will not count for any (service benefits including pension, and for a further declaration that the period of leave without allowance availed by the petitioner will be reckoned for her pensionary benefits. A mandamus is also sought for directing the respondents to refix the petitioner's pension by reckoning the period of leave without allowance and disburse the arrears from 30th June 1992 till the date of disbursement. The learned Single Judge dismissed the Original Petition stating that the appellant cannot contend that the Government has no power to impose condition while granting leave without allowance to the petitioner. Aggrieved by the said Judgment, the above appeal has been filed.

3. The short facts relevant for the disposal of the appeal are as follows. The petitioner retired from service voluntarily with effect from 30th June 1992. She had been posted to Idukki as Deputy District Medical Officer on 15th February 1991. She applied for leave without allowances on medical grounds on 16th February 1991; as per Ext. P-L. The Government sanctioned the leave without allowances only on 16th July 1993 as per Ext. P-4, after 2 1/2 years from the date of application, that too after her retirement on 30th June 1992. While sanctioning the leave without allowances from 16th February 1991, to 28th June 1992, the Government imposed a condition that the above period will not count for any service benefits including pension. The revision petition filed before the Government was also rejected as per Ext. P-6. The Original Petition filed by the petitioner challenging Exts. P-4 and P-6 orders was also dismissed by the learned Single Judge. Hence this appeal.

4. In the Original Petition the petitioner contended that the power to grant leave without allowances for a period exceeding four months at a time rest with the Government under R.64 Part I of the Kerala Service Rules and R.65 thereof gives the authority empowered to grant leave the discretion to refuse or revoke leave of any description. According to the appellant, Government, in this case, has not refused or revoked the leave which the appellant had applied for. As per the note to R.65, the nature of the leave applied for cannot be altered at the option of the sanctioning authority and while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. As per Appendix XII-A, the period of leave without allowances availed of for taking up other employment will not count for any service benefits including pension. In this case, the appellant has not taken leave for employment elsewhere and the Government has no such case also. So, it is submitted that the condition imposed by the Government is, in effect, alteration of the nature of the leave applied for and hence the condition imposed by the Government while granting the leave without allowances applied for by the appellant, and that too without notice to the appellant, is illegal and liable to be quashed.

5. On behalf of the Government, a counter affidavit was filed by the first respondent Director of Health Services. It is stated therein that as the appellant proceeded on leave without allowance without prior sanction, she deserved punishment for the lapse and that the Government, after examining the whole issue, sympathetically sanctioned leave without allowances and, therefore, the action of the respondent in imposing the condition as contained in Ext. P-4 is justified, as just and reasonable and in accordance with the rules.