Only regular full-time service qualifies for pension; leave vacancy service does not count under the amended rules effective at the time of retirement.

JUDGMENT :

Muralee Krishna S., J.

The petitioner in W.P.(C)No.25564 of 2021 filed this writ appeal under Section 5(i) of the KERALA HIGH COURT ACT , 1958, challenging the judgment dated 07.06.2024 passed by the learned Single Judge in that writ petition.

2. The appellant joined as a Junior Arabic Teacher in Adinadu South Muslim Lower Primary School situated in Karunagappally Educational Sub District, Kollam, on 13.06.1984, in the leave vacancy of one Sri.Abdul Lathif. The said Abdul Lathif availed leave without allowance (LWA) for a period of five years with effect from 13.06.1984. He continued on leave till 03.06.2004 by extending it on every five years, and finally he resigned from the post on 03.06.2004. The appellant continued in the leave vacancy post till 03.06.2004, and finally she was absorbed into the post permanently with effect from 04.06.2004. The appellant superannuated on 30.04.2020. While fixing the terminal benefits, the Accountant General had refused to include the service period from 13.06.1984 to 04.06.2004, during the period of which the appellant worked in the leave vacancy of Abdul Lathif. The appellant then submitted a request dated 15.10.2020 to grant her the terminal benefits, including the period of leave service, as it is a continuous service before the 2^nd respondent. But the Accountant General by Ext.P9 order dated 16.12.2020 rejected the request of the appellant, which was informed to the appellant by Ext.P10 communication dated 10.08.2021 by the Assistant Educational Officer. The appellant then submitted a detailed representation dated 15.10.2020 before the Government, praying for terminal benefits, including her leave period service. She also filed Ext.P13 revision petition before the Government on 09.11.2021. Thereafter, the appellant approached this Court with the writ petition filed under Article 226 of the Constitution of India, seeking the following reliefs;

"(i) To issue appropriate writ, order or a direction and to call for records leading to Exhibit P8 and to quash Exhibit P8, Exhibit P9 and Exhibit P10 as illegal and issued in violation of the fact and the Rules.

(ii) To declare the following;-

(a) That the petitioner is entitled to get terminal benefits counting her service from the date of her joining the service on 13.06.1984 till her superannuation on 30.04.2020.

(b) That the service of the petitioner with effect from 13.06.1984 till 03.06.2004 under leave vacancy is continuous and entitled to count for all purposes including terminal benefits.

(c) That Exhibit P11 Government order is not applicable to the petitioner.

(iii) To issue following directions to the respondents:-

(a) To recalculate and authorize the Pension, Death cum Retirement Gratuity and Communication of pension to the petitioner taking in to her service from 13.06.1984 till 30.04.2020.

(b) To release the consequential arrears without further delay.

(c) To grant penal interest at the rate of 12% per annum to the delayed payment."

3. In the writ petition, the 1^st respondent filed a counter affidavit dated 03.10.2023 opposing the reliefs sought therein. In the counter affidavit, it is inter alia contended that the Rule applicable to the person with respect to the grant of pensionary benefits is the one existing at the time of retirement. Rule 14E of KERALA SERVICE RULES (‘KSR’ in short) Part III was amended with effect from 10.08.2018, specifying that provisional service cannot be reckoned for pensionary benefits. As per Ext.P11 G.O.(P)No.401/2019/Fin dated 28.10.2019, the broken spells of provisional service/leave vacancy service rendered by regular aided school staff/Government employees, in aided