STATE OF KERALA Vs. M P GOPALAN

JUDGEMENT

(1.) This appeal has preferred by the State of Kerala and chief Engineer, Irrigation and Administration agreed by the order passed by the learned single judge in C.M.P. No. 15514 of 2003 in O.P. No. 4366 of 1994 clarifying that the leave without allowance granted to the petitioner from 1.5.1986 to 21.2.1991 would be treated as service for the purpose of pension.

(2.) Original Petition was preferred by the respondent herein seeking a writ of certiorari to quash Ext. P12 order passed by Government dated 3.11.1993 rejecting the request of the petitioner for treating the period from 1.11.1983 to21.2.1991 as duty and also for a writ of mandamus directing the respondents to treat the above mentioned period as duty. Learned single judge disposed of the original petition on 20.12.2002 directing the respondents to treat the period from 31.8.1986 to 21-2-1991 as period of leave without allowance and ordered that pensionary benefits would be settled accordingly. Petitioner then filed C.C.C. No 1026 of 2003 since there was delay in implementing the judgement. Later Government passed an order G.O. (Rt) No. 1197/03AVRD dated 23.9,1993 regularising the period of unauthorised absence of the petitioner from 1.9.1986 to 21.2.1991 as period of leave without allowance on condition that the said period would not be reckoned for pension. When the contempt case came up for hearing, counsel for the petitioner submitted before the learned single judge that in view of the stand taken by the Government in the above mentioned order dated 23.9.1993 that the petitioner would be making a petition for clarification of the judgment. Contempt case was closed, but liberty was given to move for a clarification as to whether the above mentioned period would be reckoned as qualifying service for the purpose of pension. Learned single judge allowed the petition for clarification and ordered accordingly, aggrieved by the same State has preferred this appeal.

(3.) Shri Benny Gervassiz, learned Government Pleader submitted that the petition for clarification would not lie after the judgment has been complied with and the Contempt Case has been closed. Learned Government Pleader further submitted that the learned judge was not justified in granting liberty to file a petition for clarification while disposing of the contempt case. Learned judge in the contempt case is expected only to examine whether the direction in the judgment has been complied with or not. Further it was pointed out that there was no arithmetical or clerical error crept in the order to be clarified. Sri K.A. Abraham, learned Counsel for the appellant on the other hand contended that liberty was given by the learned judge while disposing of the contempt case to file a petition for clarification and hence the petition is perfectly maintainable.