Point of Law : Rule 88(i) of Part I KSR is a general provision which stipulates that except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion.

JUDGMENT :

ALEXANDER THOMAS, J.

The prayers in the afore captioned Original Petition (KAT) filed under Articles 226 & 227 of the Constitution of India are as follows [See page 9 of the paper book of this OP(KAT)]:

"1. To set aside Exhibit P2 impugned Order dated 17.10.2019 of the Kerala Administrative Tribunal in OA No. (EKM) 80/2016.

2. To issue other reliefs, this Honourable Court may deem fit in the Original Application."

2. Heard Sri.Saigi Jacob Palatty, learned Senior Government Pleader appearing for the petitioners in the O.P./respondents in the O.A. before the Tribunal and Smt. Rekha Vasudevan, learned Counsel appearing for the sole respondent in the O.P./sole applicant in the O.A. before the Tribunal.

3. The prayers in the instant Ext.P-1 O.A. (Ekm) No.80/2016 filed by the sole respondent herein before the Kerala Administrative Tribunal, Ernakulam Bench, are as follows [See pages 21 & 22 of the paper book of this OP(KAT)]:

"(i) Direct the 1st respondent to consider and pass appropriate orders on Annexure A8 within such short time as this Hon'ble Tribunal may deem fit to grant;

(ii) Declare that the leave availed by the applicant from 14.11.2004 to 6.6.2005 was on medical certificate and the above leave period is to be regularised as leave without allowance on medical certificate and that the above leave without allowance will count for increment, higher grade, pension and accumulation of earned leave;

(iii) Direct the 1st respondent to sanction the leave without allowance applied for by the applicant for the period from 14.11.2004 to 6.6.2005 as leave without allowance on medical certificate and to further direct the Government to treat the above leave period as one liable to be reckoned for increment, higher grade, pension etc.

(iv) Issue such other directions as this Hon'ble Tribunal may deem fit & proper.

(v) Grant costs of this application."

4. The Tribunal, after hearing both sides, has rendered Ext.P-2 final order dated 17.10.2019 in O.A. (Ekm) No.80/2016 holding that the impugned conditions imposed by the State Government in Anx.A5 G.O.(Rt) No. 3070/2012/H&FWD dated 22.9.2012 to the limited extent it has stipulated that the Leave Without Allowance (LWA) sanctioned is one otherwise with medical certificate, and which will be further subject to the condition that the same will not count for increment, higher grade, pension, accumulation of earned leave, etc. and has accordingly declared that the original applicant was eligible to secure sanction of the leave sought for, which was one on LWA on medical certificate and that the period of leave will count for service benefits and therefore, R-1 in the O.A. (State Government) was directed to pass necessary orders in the matter within two months. It is this final verdict at Ext.P-2 that is under challenge in this original petition.

5. It may be apposite to make a brief reference to the factual aspects in this case. The original applicant herein, who is a qualified doctor, while holding the post of Assistant Surgeon in the Department of Health Services of the State Government, had submitted two applications as per Anx.A1 seeking for LWA on medical grounds for the period from 14.11.2004 to 6.6.2005, for a total period of 205 days. From a reading of Anx.A6 letter dated 25.7.2007 issued by the Director of Health Services, it can be seen that the matter was also referred to the Accountant General, who has also recommended that the applicant is eligible for the leave. However, a reading of Anx.A6 would indicate that the recommendation made either by the Accountant General or by the Director of Health Services was that the applicant was eligible for leave under Rule 91 of Part I KSR. Further, in para 4 thereof, reference is to recommend leave on medical certificate under Rule 91A of Part I KSR. However, the substance of Anx.A6 recommendation made by the Director of Health Services and that too after getting the opinion of Accountant General is that the applicant was eligible for leave s