WP(C) NO. 28041 OF 2024 1 2025:KER:28393 IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE D. K. SINGH WEDNESDAY, THE 2ND DAY OF APRIL 2025 / 12TH CHAITHRA, 1947 WP(C) NO. 28041 OF 2024 PETITIONER/S: R.SHERIEF KUTTY, AGED 69 YEARS S/O K.E. ABOOBACKER, RETIRED CONDUCTOR, KSRTC, RESIDING AT BUNGLOWIL, KARUVATTA P.O., ALAPPUZHA DISTRICT., PIN - 690517 BY ADVS. NAVEEN.T; CHITHRA CHANDRASEKHARAN V.S.ABHISHEK; BIJI A MANIKOTH; SHIBU JOSEPH KOTTAYIL RESPONDENT/S: 1 STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, TRANSPORT DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM., PIN - 695001 2 KERALA STATE ROAD TRANSPORT CORPORATION TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHAIRMAN AND MANAGING DIRECTOR., PIN - 695023 3 THE DEPUTY CHIEF ACCOUNTS OFFICER (PENSION & AUDIT) KERALA STATE ROAD TRANSPORT CORPORATION, TRANSPORT BHAVAN, FORT, THIRUVANANTHAPURAM., PIN - 695023 BY ADV AKHIL SURESH, MS PARVATHY KOTOL GP THIS WRIT PETITION (CIVIL) HAVING FINALLY HEARD ON 02.04.2025, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 28041 OF 2024 2 2025:KER:28393 JUDGMENT The petitioner, who retired from service as a Conductor on 30.11.2008 on attaining the age of superannuation, has filed the present writ petition claiming the leave period availed by him from 08.06.2004 to 30.11.2008 as qualifying service for the purposes of pension and other benefits and also for payment of the pension after adding the said period towards pensionary benefits. 2. The petitioner applied for leave from 08.06.2004 to 30.11.2008 to go abroad to take employment. The said leave was sanctioned vide order dated 05.06.2004 in Ext.P1. Clause (2) of the Order specifically provided that the period of leave from 08.06.2004 to 30.11.2008 would not count for any service benefits, including commuted leave benefits, half-pay leave benefits, increments, pension etc. In other words, the period spent by the petitioner on leave without allowance to take up/seek employment elsewhere shall be treated as ‘DIES NON’ for all kinds of service benefits and he shall lose seniority also in the grade with WP(C) NO. 28041 OF 2024 3 2025:KER:28393 reference to those who might have got promoted before he rejoins duty. 3. On the retirement of the petitioner on 30.11.2008, the petitioner was sanctioned the pension after deducting the leave period from the total service, and the petitioner’s pension was sanctioned for seventeen years. 4. The learned Counsel for the petitioner submits that as per the unamended Rule 26 of Part III Kerala Service Rules it is provided that the time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified. The unamended Rule 26 of the Part III Kerala Service Rules is extracted hereunder: “26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified.” 4.1 The learned Counsel for the petitioner has also relied on this Court's judgment dated 01.07.2013 in W.P.(C) No.3663/2013 and connected writ petitions to submit that before the amendment was brought in Rule 26, whereby the time passed on leave of all kinds without WP(C) NO. 28041 OF 2024 4 2025:KER:28393 allowances would not count as qualifying service, the time passed on leave of all kinds with or without allowances were to be counted as qualifying services unless otherwise specified. This Court, in the said judgment, held that the relevant provisions prevailing as on the date of availing such leave should be considered for the purposes of counting the qualifying service. 5. On the other hand, the learned Counsel representing the respondent Corporation has submitted that even the unamended Rule permitted the employer to not count the leave period if the orders sanctioning the leave specifically provided that the leave period shall not be counted for any purpose, including pension. The said clause is covered by un-amended Rule 26 as well, inasmuch as it specifically provided that the leave period availed by the petitioner for seeking employment elsewhere would not be counted for any service benefit including pension. She further submits that the judgment relied on by the petitioner is in respect of the medical relief as it is sanctioned under WP(C) NO. 28041 OF 2024 5 2025:KER:28393 Rule 88, and it is not in respect of the leave covered by Rule 26. 6. I have considered the submissions advanced on behalf of the parties and perused the records 7. Even if it is considered that Rule 26 provided for counting the leave period with or without allowances for the service benefits unless otherwise specified, would not come to the rescue of the petitioner as the leave sanctioning Order specifically provided that the leave period shall not be counted for any service benefits including pension. Further, the said leave was granted way back in 2004, and the petitioner never challenged the terms and conditions of the leave for the last twenty years and filed this writ petition only in the year 2024. 8. In view thereof, this Court is of the considered view that the writ petition suffers from gross delay in action. Even otherwise, the petitioner is not entitled to the benefit of the leave period in view of the specific clause contained in the order sanctioning leave, which excluded any service benefits for the leave period, including pension. WP(C) NO. 28041 OF 2024 6 2025:KER:28393 I find no substance in the writ petition which is hereby dismissed. Sd/- D. K. SINGH JUDGE jjj WP(C) NO. 28041 OF 2024 7 2025:KER:28393 APPENDIX OF WP(C) 28041/2024 PETITIONER EXHIBITS Exhibit P1 TRUE COPY OF THE PROCEEDINGS NO. PL11-00446/04 DATED 5-6-2004 ISSUED BY THE EXECUTIVE DIRECTOR (OPERATION) OF KSRTC. Exhibit P2 TRUE COPY OF THE PENSION PAYMENT ORDER NO. PA11/044367/08 DATED 11-10-2010 ISSUED BY THE 3RD RESPONDENT. Exhibit P3 TRUE COPY OF THE COMMUNICATION NO. PA.6(PA11)/044367/2008 DATED 15-12-2023 ISSUED BY THE 3RD RESPONDENT. Exhibit P4 TRUE COPY OF THE JUDGMENT DATED 1-7-2013 IN WPC NO. 3663/2013 AND CONNECTED CASES OF THIS HONOURABLE COURT. Exhibit P5 TRUE COPY OF THE MEMORANDUM NO. PL7/000175/10 DATED 27-12- 2014 ISSUED BY THE 1ST RESPONDENT-CORPORATION.