STATE OF KERALA Vs. K.K. SUGATHAN

JUDGEMENT

(1.) The State is aggrieved by the impugned judgment, by which Exhibit P 13 order was quashed and it was declared that the respondent/writ petitioner was entitled to the benefit of Exhibit P4 Circular. The brief facts necessary for the disposal of the Writ Appeal is that respondent, who was appointed as a Middle School Assistant a leave vacancy between 9.6.1953 and 30.9.1953 and then appointed on a permanent basis from 7.6.1954, is seeking the reckoning of the period for pensionary benefits, though he resigned on 26.6.1964. It is also seen from the averments in the writ petition that he had availed of leave in year 1961 for the purpose of higher studies and on expiry of the leave on 25.6.1964, he was directed to rejoin duty or to go out, tendering resignation. The respondent, purportedly for the reason of continuing with the higher studies, submitted a resignation on 26.6.1964. He is said to have completed the higher studies and again appointed in the very same school from 3.1.1968. The respondent's claim was with respect to the service he had as Middle School Assistant prior to his resignation, being treated as "service" for pensionary benefits after condoning the break in service. The respondent, to advance his claim, relied on Exhibit P4 Circular dated 15.9.1978, which was held to be permissible by the learned single Judge. The learned single Judge had found that the respondent's case is clearly covered under Exhibit P4 Circular.

(2.) We have given our anxious consideration to the terms of the Circular. We notice that the condonation permissible, as per the Circular, is for the break in service prior to 1.10.1964, which alone, according the Circular, would be entertained. The resignation of the respondent occurred prior to 1.10.1964, i.e., on 26.6.1964. However, the break in service continued till 3.1.1968, for about four years. The break in service permitted to be condoned as per the Circular is only that to 1.10.1964 and the respondent cannot be considered to have had any break in service prior to that, since he was out of service till 1968.

(3.) One other aspect is that the respondent was not kept out of the service for reason of any break in service. He had voluntarily resigned from the service and his appointment in the year 1968 is a fresh appointment. The finding in Exhibit P13 that the resignation of the respondent cannot be treated as a break in service as contemplated in Exhibit P4 Circular and his prior service cannot be taken into account for computing the pensionary benefits, according to us, is perfectly in order. The learned counsel for the respondent would urge that the respondent is entitled to similar treatment as has given to a Music Teacher in Exhibit P8. We notice that Exhibit P8 is passed on 6.11.1969, long prior to Exhibit P4 Circular. By Exhibit P8 a teacher who was on leave and overstayed her leave was allowed to reckon her past service since the Government felt that the illness of her husband, which was the reason for the leave and overstayal, was good ground to condone the break in service. The facts as revealed in Exhibit P8 does not reveal any similarity to that of the respondent's case. In such circumstances, we are unable to sustain the judgment of the learned single Judge and we set aside the same and dismiss the writ petition.