IMPORTANT POINT
The period of Leave Without Allowance cannot be counted towards qualifying service for pension if explicitly stated in the leave sanction order.

JUDGMENT :

Sushrut Arvind Dharmadhikari, J

The present intra court appeal under Section 5 of the Kerala High Court Act , 1958, assails the judgment dated 22.11.2013 passed in W.P(C)No.6492 of 2009, whereby the learned Single Judge has allowed the writ petition and directed the appellants herein to re-compute the pension and other retirement benefits reckoning the period of leave along with consequential benefits. The appellants were the respondents in the writ petition and the respondent was the petitioner.

2. The brief facts of the case are that the respondent joined the services of Kerala State Road Transport Corporation (KSRTC) as conductor in the year 1977. He availed Leave Without Allowance (LWA) for the period from 21.08.1981 to 20.08.1986 and rejoined duty on 21.08.1986. Thereafter he was promoted as Station Master and then as Inspector. He retired from service while officiating as Inspector on 31.12.2008.

3. The issue involved in the writ petition was whether the period of LWA can be reckoned as qualifying service for the purpose of computing pension and other retirement benefits. Vide the impugned order, the appellant authorities had reduced the above mentioned period while reckoning the qualifying service. Being aggrieved, the respondent had filed the writ petition seeking a declaration that he is entitled to count his past services including the period of leave for computing the pension and other benefits. He also prayed for consequential benefits with regard to disbursement of pension.

4. The learned Single Judge relying on the unamended provisions of Rule 26 of Part III of Kerala Service Rules came to the conclusion that leave of all kinds with or without allowance will count for qualifying service, unless or otherwise specified. The amendment in this regard was adopted by the appellant Corporation with effect from 10.06.2010, with the rider that the amended provision would apply with respect to all employees who retired after 10.06.2010. The learned Single Judge came to the conclusion that since LWA was availed by the respondent in the year 1981, neither the amended provision of Rule 26 nor Rules contained in Appendix XIIA would have any effect and therefore, the same cannot be deducted from the qualifying service.

5. The learned counsel for the appellants submitted that the learned Single Judge did not take into account Ext.P1 which is the leave sanction order dated 23.07.1981 whereby Clause 2 specifically mentions “the leave without allowance granted will not be counted for pension, granting leave, increment or any other service benefits”. Clause 6 provides for “the period of Leave Without Allowance granted, the date of availing leave, etc. should be recorded in the Service Book of the employee in red ink with Chief Office reference with specific indication that the period will not count for pension, granting leave, increment or any other service benefits and a duly attested copy of this order should be pasted in the Service Book”.

6. The learned counsel submits that in view of Clauses 2 and 6 above, the respondent cannot challenge the order so belatedly in the year 2009 without there being any explanation for inordinate delay and laches. He further submitted that as per the leave sanction order, certain conditions have been imposed therein and after having taken advantage of the same, the respondent cannot now turn round and challenge the conditions which were imposed to deny the service benefits during the period of his absence.

7. The learned counsel for the appellants contended that the doctrine, viz “Approbate and Reprobate/Qui Approbat/Non Reprobat” would apply to the facts and circumstances of the present case. The learned counsel for the appellants has placed reliance on the judgment of the Apex Court in the case of Union of India and Others v. N.Murugesan and Others [(2022) 2 SC