The petitioner, who was appointed as LPSA with effect from 4.8.1970 in Dr.Palpu Memmorial U.P.School, Kanichar, retired from service on 31.3.2003. In the year 1974, pursuant to a division fall that arose consequent to a staff fixation by the 2nd respondent, petitioner was out of service during the period from 15.7.1974 to 31.7.1974 and thereafter from 20.10.1974 to 7.11.1974; she was later adjusted to a maternity leave vacancy for the period 1.8.1974 to 19.10.1974. Still later, she was posted as a protected teacher in G.U.P. School, Chettiyamparamba from 20.10.1974 onwards treating the period of break as duty. Thus the period of break in service was regularised and it was recorded as such in the service records also. The break in service was treated as leave without allowance. It is pointed out that thereafter on 4.8.1983, 4.8.1990 and 4.8.1995 the services of the petitioner, for the purposes of reckoning the completion of 13, 20 and 25 years of service for grant of time bound grade promotions, was reckoned by including the periods of break in service that were treated as leave without allowance. The Selection Grade promotion which fell due on 4.8.1995 was availed by the petitioner with effect from 1.8.1996 so as to avail the benefit of a further increment that fell due on that date. The Selection Grade benefit itself was granted only on 26.10.1996. 2. It would appear that the period of break in service, that was regularised by treating it as leave without allowance, was reckoned by the Government for the purposes of grant of increment to the petitioner at various points in time during her service as a LPSA. The said period was also taken into account for the purposes of grant of first higher grade on completion of 13 years since that was expressly provided for by Ext.P6 Circular dated 6.11.1992 of the Government. Although the second higher grade and selection grade benefits were also granted to the petitioner by reckoning the aforesaid period of break in service as leave without allowance, the 2nd respondent raised an objection to the grant of second higher grade and selection grade benefits to the petitioner citing the absence of legal provisions to regularise the breaks in service, occasioned in 1974, for the purposes of grant of second higher grade and selection grade benefits. The 2nd respondent vide Ext.P5 order passed in 2002 found that the petitioner was not entitled to the said benefits of second higher grade and selection grade and consequently directed recovery of the excess drawn amount of Rs.26,796/- from the DCRG that was payable to her consequent to her retirement from service on 31.3.2003. It is pointed out that the DCRG has since been received by the petitioner but after deduction of the said sum.
3. Although against Ext.P5 order of the 2nd respondent, petitioner preferred Ext.P8 appeal to the Government, the appeal was rejected vide Ext.P11 order. The petitioner therefore approached this Court challenging Ext.P5 order of the 2nd respondent, Ext.P7 proceedings of the 3rd respondent as also Ext.P11 order of the 1st respondent.
4. The legal contentions urged on behalf of the petitioner are premised on Ext.P6 Circular, in particular, paragraph (xv) thereof, wherein the Government, while clarifying that all kinds of leave without allowances, except those specifically referred to in that paragraph, would be reckoned as qualifying service for the 13 years time bound grade, but not for the purposes of granting the revised 10, 20 and 25 years time bound higher grades, also clarified that service reckoned for increments will be reckoned for computing the qualifying service for the 10, 20 and 25 years time bound higher grades ordered as per the various Government Orders issued from time to time. It is contended that insofar as the respondents had not taken any objection to the grant of increments to the petitioner, by reckoning the period of break in service as leave without allowance for that purpose, it was not now open to them to take a contrary stand when it came to the grant of 20 and 25 years time bound higher grades to the petitioner.
5. Learned Government Pleader appearing on behalf of the respondents relies on the counter affidavit filed on behalf of the respondents to contend that there is no provision which enables the petitioner to claim the benefit of the second higher grade and selection grade benefits at the end of 20th and 25th years of service by reckoning the period of break in service in 1974 as leave without allowance for the purposes of those benefits. As regards the absence of any objection by the respondents to the grant of increments given to the petitioner at various points in time during her service, by treating a period of break in service in 1974 as leave without allowance for the purpose of the Kerala Service Rules, it is submitted that that may have been an oversight on the part of the authorities and at any rate the petitioner cannot claim any right based purely on the oversight of the respondents.
After hearing counsel on both sides, I note that as per the provisions of the Kerala Service Rules and in particular Rule 33 of Chapter IV in Part I of the Kerala Service Rules, leave without allowances cannot, except in those circumstances provided under the Rule, be taken for the purposes of computing the period of service for the purpose of grant of increments. In the instant case, no provision has been brought to my notice which would enable the petitioner to reckon the period covered by the leave without allowance sanctioned to her for the purposes of grant of increments. The mere fact that the respondents have, albeit, erroneously or inadvertently, granted increment to the petitioner cannot be the basis for a contention that she is automatically entitled to the benefit of Ext.P6 Circular, in particular paragraph (xv) thereof. In the absence of any specific provision enabling the petitioner to claim the benefit of the second higher grade and selection grade by reckoning the period of break in service in 1974 as a regular period of service for the grant of those benefits, the claim of the petitioner for those benefits must necessarily fail. Accordingly, the writ petition is dismissed but with no order as to costs.
A.K.JAYASANKARAN NAMBIAR JUDGE prp