JUDGMENT 1. Heard Mr. M. R. Rajendran Nair for the appellant and Mr. P. K. Ravikrishnan, Government Pleader, for the respondents. By consent of both sides, the Writ Appeal itself is taken up for final disposal. 2. The appellant filed the Original Petition seeking to quash Exts. P-4 and P-6 to the extent it imposes a condition that the leave without allowance sanctioned to the petitioner from 16th February 1991 to 28th June 1,992 will not count for any (service benefits including pension, and for a further declaration that the period of leave without allowance availed by the petitioner will be reckoned for her pensionary benefits. A mandamus is also sought for directing the respondents to refix the petitioner's pension by reckoning the period of leave without allowance and disburse the arrears from 30th June 1992 till the date of disbursement. The learned Single Judge dismissed the Original Petition stating that the appellant cannot contend that the Government has no power to impose condition while granting leave without allowance to the petitioner. Aggrieved by the said Judgment, the above appeal has been filed. 3. The short facts relevant for the disposal of the appeal are as follows. The petitioner retired from service voluntarily with effect from 30th June 1992. She had been posted to Idukki as Deputy District Medical Officer on 15th February 1991. She applied for leave without allowances on medical grounds on 16th February 1991; as per Ext. P-L. The Government sanctioned the leave without allowances only on 16th July 1993 as per Ext. P-4, after 2 1/2 years from the date of application, that too after her retirement on 30th June 1992. While sanctioning the leave without allowances from 16th February 1991, to 28th June 1992, the Government imposed a condition that the above period will not count for any service benefits including pension. The revision petition filed before the Government was also rejected as per Ext. P-6. The Original Petition filed by the petitioner challenging Exts. P-4 and P-6 orders was also dismissed by the learned Single Judge. Hence this appeal. 4. The revision petition filed before the Government was also rejected as per Ext. P-6. The Original Petition filed by the petitioner challenging Exts. P-4 and P-6 orders was also dismissed by the learned Single Judge. Hence this appeal. 4. In the Original Petition the petitioner contended that the power to grant leave without allowances for a period exceeding four months at a time rest with the Government under R.64 Part I of the Kerala Service Rules and R.65 thereof gives the authority empowered to grant leave the discretion to refuse or revoke leave of any description. According to the appellant, Government, in this case, has not refused or revoked the leave which the appellant had applied for. As per the note to R.65, the nature of the leave applied for cannot be altered at the option of the sanctioning authority and while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. As per Appendix XII-A, the period of leave without allowances availed of for taking up other employment will not count for any service benefits including pension. In this case, the appellant has not taken leave for employment elsewhere and the Government has no such case also. So, it is submitted that the condition imposed by the Government is, in effect, alteration of the nature of the leave applied for and hence the condition imposed by the Government while granting the leave without allowances applied for by the appellant, and that too without notice to the appellant, is illegal and liable to be quashed. 5. On behalf of the Government, a counter affidavit was filed by the first respondent Director of Health Services. It is stated therein that as the appellant proceeded on leave without allowance without prior sanction, she deserved punishment for the lapse and that the Government, after examining the whole issue, sympathetically sanctioned leave without allowances and, therefore, the action of the respondent in imposing the condition as contained in Ext. P-4 is justified, as just and reasonable and in accordance with the rules. Referring to R.65 Part I of the Kerala Service Rules it is submitted that the leave cannot be claimed as a matter of right and the power to sanction leave without allowances rest with the Government. P-4 is justified, as just and reasonable and in accordance with the rules. Referring to R.65 Part I of the Kerala Service Rules it is submitted that the leave cannot be claimed as a matter of right and the power to sanction leave without allowances rest with the Government. It is submitted that the Government, invoking that power, by Ext. P-4 order, granted leave on condition that the period of leave will not count for any service benefits including pension, which was done to regularise the absence of the appellant from service. It is further . contended that since Ext. P-4 order was issued in accordance with the rules the request of the petitioner does not merit consideration and that the contention of the appellant on the basis of the note to R.65 or note to role 77 are also unsustainable and that the leave is granted by the Government in valid exercise of its power. 6. The learned Single Judge, accepting the contentions raised by the Government, held that R.26 Part III of the Kerala Service Rules empowers the Government to pass orders as they did in the present case. 7. In this case, the leave application was made under Ext. P-l on 16th February 1991 wherein the appellant requested the Director of Health Services to permit her to proceed on leave without allowances from 16th February 1991. She made a further representation to the Commissioner and Secretary to Government, Health Department through the District Medical Officer, Idukki which is a notice under R.56 Part III of the Kerala Service Rules requesting sanction for her retirement with effect from 30th June 1992. By Ext. P-3 the Government permitted the appellant to retire voluntarily with effect from 30th June 1992 pending settlement of liabilities, if any outstanding against her. It is after that the Government by Ext. P-4 order dated 16th July 1993 sanctioned the leave without allowances applied for by the appellant subject to the condition that the period of leave will not count for any service benefits including pension. We have carefully considered the submissions made by the respective parties. R.64, 65, 77(ix) and 88 of Part I and R.26 of Part III of the Kerala Service Rules are the provisions relevant for the purpose of deciding the question involved in this case. Those provisions are extracted hereunder: "64. We have carefully considered the submissions made by the respective parties. R.64, 65, 77(ix) and 88 of Part I and R.26 of Part III of the Kerala Service Rules are the provisions relevant for the purpose of deciding the question involved in this case. Those provisions are extracted hereunder: "64. The Government may issue orders specifying the authority by whom leave, other than study leave and leave without allowances exceeding a period of four months at a time, may be granted. The power to sanction leave without allowances exceeding a period of four months at a time will rest with Government. 65. Leave cannot be claimed as a matter of right. When the exigencies of the public service so require, discretion to refuse or revoke leave of any description is reserved to the authority empowered to grant it. Note. The nature of the leave due and applied for by an officer cannot be altered at the option of the sanctioning authority and while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. * * * * * * 77. In these rules: * * * * * * (ix) 'Completed years of service' and 'one year's continuous service' mean continuous service of the specified duration under the Government of Kerala and include periods spent on duty as well as on leave including leave without allowances. * * * * * * 88. Leave without allowances. (i) Leave without allowances may be granted to any officer in special circumstances (a) when no other leave is by rule admissible, (b) when other leave is admissible by the concerned applies in writing for the grant of leave without allowances. (ii) Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion." * * * * * * Part III 26. Time passed on leave of all kinds with or without allowances will count as qualifying service unless otherwise specified. The authority competent to declare a spell of leave as nonqualifying for pension will be the Government and the grounds on which the periods of leave will be treated as non-qualifying, will be laid down by general or special orders issued from time to time. The authority competent to declare a spell of leave as nonqualifying for pension will be the Government and the grounds on which the periods of leave will be treated as non-qualifying, will be laid down by general or special orders issued from time to time. This decision takes effect from 27th June 1974. [G. O. (P) 32/77/Fin., dated 22nd January 1977.]" We are unable to share the views of the learned Single Judge on R.26 Part III of the Kerala Service Rules. R.26 stipulates for counting the time passed on leave of all kinds with or without allowances as qualifying service unless otherwise specified, and it does not empower the Government to impose a condition while granting the leave without allowances that the period of such leave will not count for any service benefits including pension. Even assuming that R.26 empowers the Government to do so, the grounds on which the period will be treated as nonqualifying will have to be laid down by general or special order issued from time to time. In this case no such order has been issued by the Government. As per the note to R.65 while it is open to the sanctioning authority to refuse or revoke the leave due and applied for, it is not open to him to alter the nature of such leave. In this case the Government has not refused or revoked the leave without allowances applied for by the Government, but, in effect, has altered the nature of the leave applied for by the appellant as one under Appendix XII-A of the Kerala Service Rules, viz. leave without allowances for employment elsewhere, which will not count for any service benefits including pension. It is not the case of the Government that the appellant has taken up any employment elsewhere. The appellant had applied for leave without allowances on medical grounds. 8. The appellant will be eligible for full pension only if the period of leave without allowances availed of by her from 16th February 1991 to 28th June 1992 is counted as qualifying service. By the imposition of the condition mentioned above, the appellant was denied her full pension. If the Government refused or revoked the leave applied for by the petitioner in time, she could have retired voluntarily on an earlier date and thereby she could have drawn her pension from 16th February 1991. By the imposition of the condition mentioned above, the appellant was denied her full pension. If the Government refused or revoked the leave applied for by the petitioner in time, she could have retired voluntarily on an earlier date and thereby she could have drawn her pension from 16th February 1991. But the Government has passed Ext. P-4 order only after 2 1/2 years from the date of application and that too, after the retirement of the appellant on 30th June 1992, which, in effect amounts to denial of pensionary benefits due to the petitioner for a period of one year and four months. Because of the action of. the Government in this case, the service of the petitioner was reduced to 28 years instead of 30 years due to the condition imposed by Ext. P-4 order. The Government has taken the decision without notice to the appellant. It is also to be noted that the petitioner has served the Government honestly for the last 30 years without any adverse remarks. 9. For the foregoing reasons, we are of the opinion that the order of the learned Single Judge is liable to be set aside. We do so. Accordingly, the Original Petition and the Writ Appeal stand allowed and Exts. P-4 and P-6 are quashed to the extent they impose a condition that the leave without allowances sanctioned to the appellant will not count for any service benefits including pension. We hereby declare that that the period of leave without allowances availed of by the appellant will be reckoned as qualifying service for pensionary benefits and issue a mandamus to the respondents to refix the appellant's retirement benefits reckoning the period of leave without allowances and disburse the arrears from 30th June 1992 till the date of disbursement. The Writ Appeal is allowed as above. There will be no order as to costs.