Antony Dominic, J. 1. Petitioner in W.P(C).35589/08 is the appellant.
The writ petition was filed by her challenging Ext.P15 Government Order dated 26.4.2008. That G.O. was issued considering the request of the appellant, who was then a High School Assistant in the Government High School, Ayapparambu and under transfer to the school of the 8th respondent, for regularising her period of absence for four spells, for the period from 3.12.1998 to 2.6.1999, 15.2.2000 to 31.3.2000, 17.12.2002 to 16.9.2003 and from 1.6.2004 to 31.3.2007. Considering this request, the Government ordered thus:
“Government have examined the matter in detail. The period from 3.12.98 to 2.6.99 and 15.2.00 to 31.3.00 will be regularized as non duty without forfeiture of past service, since the incumbent is not willing to submit the leave application. The period from 17.12.02 to 16.9.03 will be regularized as LWA invoking Rule 88(iii) Part I KSR incorporated as per G.O(P) 99/02/Fin dated 31/1/02 on the condition that the leave period will not count for increment, higher grade, pension or accumulation of earned leave. Regarding the second spell from 1.6.04 to 31.3.07, her date of birth being 7.1.52, her normal date of retirement was 31.1.07 under Rule 60(a) Part I KSRs. But she is eligible for continuance up to 31.3.07 under Rule 60(C). But as she did not rejoin duty prior to the close of the academic year, she would retire from service on 31.01.07.
In the circumstances stated above, Government are pleased to regularise the period of absence from 1.6.04 to 31.01.07 as LWA under Rule 88(iii) Part I KSRs on the condition that the leave period will not count for increment, higher grade, pension or earned leave and the leave be sanctioned only up to 31.1.07 instead of up to 31.3.07. The DDE, Alappuzha is directed to issue consequential orders in this regard forthwith.”
2. In so far as the first two spells, from 3.12.1998 to 2.6.1999 and 15.2.2000 to 31.3.2000, are concerned, according to the respondents, after she was transferred from the Government High School, Ayapparamba to the school of the 8th respondent by order dated 6.6.1998 issued by the Deputy Director of Education, Alappuzha, she remained absent and therefore, those periods were regularized as non duty without forfeiture of past service. However, according to her, she was on medical leave till 30.11.1998 and O.P.22167/98 filed by her was disposed of by judgment dated 11.11.1998 directing that status quo shall be maintained. Her contention is that on the strength of the status quo order, she had actually worked in the Government High School, Ayapparambu during the aforesaid two spells of time. It was contended that it was without taking notice of this fact, the correctness of which can be ascertained from the records of the school itself, that the Government have issued Ext.P15 order dated 26.4.2008 directing that the said period would be regularised as non duty.
3. Though the learned single Judge has accepted the case of the Government and negatived the claim of the appellant in the impugned judgment, we feel that if, as a matter of fact, taking advantage of the status quo order passed by this Court on 11.11.1998 in OP.22167/98, the appellant had actually worked in the Government High School, Ayapparambu during the two spells of time mentioned above, there is no justification for treating the said period as non duty.
4. However, there is dearth of materials before this Court on the factual position as to whether the appellant had actually worked in the school during the aforesaid period as claimed by her, although she has pleaded so in Ext.P20 representation made by her to the Deputy Director of Education, Alappuzha. In such circumstances, we feel that the factual correctness of the assertion made by the appellant shall be ascertained by the Deputy Director of Education, Alappuzha and if such claim is found to be factually correct, Ext.P15 Government Order dated 26.4.2008 will have to be appropriately modified and the benefit of the service rendered by the appellant will have to be given to her in all respects.
5. The second issue is with reference to the period of absence during 17.12.2002 to 16.9.2003. Though similar claims have been raised in respect of this period also, neither in the pleadings nor in the documents is there anything indicating that the appellant is entitled to credit her service during the said period. Therefore, we do not see any reason to interfere with the conclusion of the Government in so far as this point is concerned.
6. The third claim is in relation to the period of absence from 1.6.2004 to 31.3.2007. According to the appellant, on 1.1.2004, she had submitted the original of Ext.P10 to the Accountant General through the Manager of the school requesting for voluntary retirement from service with effect from 31.5.2004. It is stated that since there was no progress in the matter, she again forwarded Ext.P10 under certificate of posting to the Accountant General. Learned counsel placed reliance on Ext.P26 postal receipt to substantiate the said contention. Counsel also referred to Ext.P30, 31 and 34 and contended that the receipt of the application for voluntary retirement has been confirmed by the Government in these documents.
7. It is stated that she having made a valid application under Rule 56 of Part III KSR and as no order rejecting the same has been received, it was deemed to have been allowed in view of the proviso to Rule 56 (IV). He, therefore, contends that it was because of this reason that the appellant absented from the school from 1.6.2004 and that in the peculiar facts, there is no justification to deny the benefit of service during that period also.
8. We are unable to accept this contention of the counsel. Rule 56 entitles a Government servant to seek voluntary retirement after 20 years of qualifying service. However, the benefit of the rule can be claimed subject to the condition that the Government servant shall give notice in writing to the appointing authority or the pension sanctioning authority regarding her intention to retire at least three months before the date on which she desires to retire. At the relevant time when she has allegedly applied for voluntary retirement, she was working in the school of which the 8th respondent is the Manager. There is nothing on record to show that any application for voluntary retirement was received by the Manager, he being the appointing authority. The affidavit filed by the Manager shows that no such application was received either by himself or by the Headmaster of the school in 2004. Therefore, there is no proof whatsoever that any application was received by the appointing authority. Thus the claim of the appellant that she had submitted her application for voluntary retirement to the pension sanctioning authority through the Manager is not proved.
9. As far as the claim of the appellant that she had submitted Ext.P10 to the Accountant General is concerned, first of all, the Accountant General is not a party to this proceedings to confirm or deny the said claim. Secondly, apart from Ext.P26 which is the receipt of certificate of posting, there is nothing to indicate that Ext.P10 or any further application made by the appellant for voluntary retirement was delivered to the Accountant General. The words 'VRS' occurs in Exts.P30, 31 and 34. These are communications which originated from the Government.
10. Even in the pleadings, the appellant has no case that any application made by her for VRS had reached the Government at that time. In other words, there is nothing before this Court to accept the case of the appellant that she had given proper notice as contemplated in Rule 56(1) of Part III KSR for voluntary retirement from 31.5.2004. If that be so, her absence during the period from 1.6.2004 to 31.3.2007, the day on which she attained the age of superannuation, was unauthorised and she cannot claim any benefit for that period. As a result, Ext.P15 order concerning the said period and the conclusion of the learned single Judge confirming the same do not merit any interference.
11. The appellant has a case that her Provident Fund, pay fixation, higher grade, festival allowance, vacation salary etc. are still remaining unsettled. There is an indication to that effect in paragraphs 3 to 7 of the statement dated 24.9.2009 filed by Sri.V.S.Suseelan, District Educational Officer, Cherthala. However, counsel for the second respondent submitted that in 2009, `2,60,571/- was paid to the appellant towards leave salary and that `23,248/- and `2,31,289/- were paid towards Provident Fund on 30.4.2009 and 15.9.2009 respectively. Since this claim made by the 8th respondent has been disputed by the counsel for the appellant and as it is a fact that she is entitled to amounts as mentioned in paragraphs 3 to 7 of the statement of the District Educational Officer mentioned above, we direct that if payments have not been made or any part of the amounts due to the appellant remains unpaid, she will be entitled to the same and the arrears will be disbursed as expeditiously as possible, at any rate, within three months from the date of receipt of a copy of this judgment.
Subject to the modification as above, the judgment of the learned single Judge stands confirmed. Appeal ordered accordingly.
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ANTONY DOMINIC, Judge.
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ANIL K.NARENDRAN, Judge.
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