V.S. Malimath C.J.
1. The appellant with a view to take up employment abroad for his own personal benefit made an application to the Government to grant him leave to enable him to take up employment abroad when he was serving as Radiologist. Leave prayed for was granted and he was permitted to go abroad to take up employment by order dated 18-7-1980 as per Ext. P1 subject to the following express stipulations:
That the leave without allowance sanctioned will not count for increment, pension or any other service benefits and will be '' recorded as such in the service records of the incumbent.
The appellant came back after serving abroad for his own benefit'' on 5-5-1985. He staked his claim after his coming back to the post of Unit Chief Radiologist. The right to claim consideration for that post depended upon the number of points he would acquire under the points system under which the length of service rendered was one of the factors to be taken in awarding units. The appellant on the basis of rule 8 of the Kerala State and Subordinate Service Rules claimed that the period of his absence of leave from 18-7-19M to 5-5-1985 should be counted as service for awarding units. The State Government not having acceded to his request the appellant preferred O.P. No. 8279 of 1987. The learned single Judge dismissed the original petition holding that the appellant having gone abroad for taking up employment after taking leave without allowances, he would not be entitled to the benefit of rule 8 of the Kerala State & Subordinate Services Rules. Consequently the original petition was dismissed. It is the dismissal of the Original Petition by the learned single Judge that is challenged by the appellant in this appeal. Having regard to the express conditions imposed at the time of granting leave as incorporated in Ext. P1 which we have extracted above, it is clear that the period during which the appellant was on leave for taking up employment abroad cannot count for ''increment, pension or any other service benefits''. The expression ''any other service benefits'' includes the benefit of service rendered during the period of absence. Hence on the language of Ext. P1 it is obvious that the appellant having secured leave subject to certain conditions after having taken advantage of the said order Ext. P1 cannot now turn round and try to wriggle out of the conditions that were imposed by Ext. P1 of denying him the service benefits during the period of his absence.
2. But the stand taken by the appellant is that the condition imposed in Ext. P-1 has to yield so that the statutory provision of rule 8 of the Kerala State & Subordinate Service rules should enure. It is in this background that the learned single Judge examined rule 8. Rule 8 provides that:
8. Members absent from duty - The absence of a member of a service from duty in such service, whether on leave, other than leave without '' allowances for taking up other employment on foreign service or on deputation or for any other reason and whether his lien in a post borne on the cadre of such service is suspended or not, shall not, if he is otherwise fit, render him ineligible in his turn-
(a) for re-appointment to a substantive or officiating vacancy in the class, category, grade or post in which he may be a probationer or an approved probationer;
(b) for promotion from a lower to a higher category in such service; and
(c) for appointment to any substantive or officiating vacancy in another service for which he may be an approved candidate;
as the case may be, in the same manner as if he has not been absent. He shall be entitled to all the privileges in respect of appointment, seniority, probation and appointment as full member which he would have enjoyed but for his absence.
The expression "other than leave without allowances for taking up other employment", clearly applies to the case of the appellant as he is a person who had gone on leave without allowances for taking up other employment. Such a person is clearly ineligible for the privileges conferred by rule 8. But the contention of the appellant is that the said clause was introduced by an amendment in the year 1986 which has been given retrospective effect with effect from 16-12-1983. The learned single Judge has held that the appellant was on leave on 16-12-1983 and the amended rule applies to him and that therefore the appellant stands deprived of the rights and privileges which he could have otherwise claimed under rule 8.
3. But it appears to us unnecessary to examine this part of the case in great detail for the reasons to be stated presently. The fourth proviso to rule 8 reads as follows:
Provided also that this rule shall not apply in the case of a member of a service whose absence from duty in such service is by reason of his appointment to another service not being Military service, solely on his own application, unless such appointment is made in the exigencies of public service.
As it is not claimed that the appellant satisfies the conditions specified in the ''Notes'', the same are not extracted. Admittedly the appellant was absent from duty from his service in the State Government as Radiologist by reason of the fact that he had secured appointment abroad. It is also not disputed that appointment which he secured was not military service. It is also admitted that the appointment was secured by him soley on his application. Those facts of the case make it clear that the appointment he secured was not in the exigencies of public service but for the personal benefit of the appellant. Thus it is clear that all the conditions specified in the fourth proviso to rule 8 are satisfied. Once the proviso is attracted, it becomes clear, that the entire rule 8 becomes inapplicable to a person who satisfies the conditions prescribed by the fourth proviso. Hence it is obvious that the appellant cannot claim rights or privileges conferred by rule 8.
But it was contended by the learned counsel for the appellant that we should not regard the appellant as a person who was absent from duty in the service of the State Government by reason of his appointment in another service on account of the fact that he had secured leave. Obtaining of leave was one of the conditions for the appellant to be absent from the State service. Absence of the appellant is not because of the leave that was granted to him but because the appellant wanted to take up employment abroad. It is to enable the appellant to take up employment abroad that leave is granted, though incidentally it became necessary to grant leave. Hence though leave is granted to him absence from duty of the appellant from service was for securing appointment in another service, not being military service, solely on his application and the appointment not having been made in the exigencies of public service. We have therefore no hesitation in taking the view that the fact that the appellant had obtained leave does not make any difference so far as the application of the fourth proviso to rule 8 is concerned. As all the conditions of the fourth proviso to rule 8 are fully satisfied we have to hold that the appellant is not entitled to the benefit of rule 8. We have already adverted to the fact that the order subject to which leave was granted has also imposed a condition that the appellant shall not be entitled to any service benefits during the period he was on leave for taking up employment abroad for his own personal benefit. As we are inclined to dismiss this appeal for the aforesaid reasons, we consider it unnecessary to examine ether contentions which were considered by the teamed single Judge. This appeal therefore fails and is dismissed.
