Judgment :- N.K. Sodhi, J. The respondent joined the Collegiate Education Department of the State Government on 8.3.1972 as a Demonstrator in Physics. While he was working as Lecturer he availed leave without allowances for a period of five years in order to take up employment abroad. Leave was sanctioned to him as per Government Order dated 28.8.1981 (copy Ext P1 with the Writ Petition) subject to the conditions and the restrictions stipulated in Government orders dated 29.4.1970 and 25.2.1976 and the guidelines issued in circulars dated 19.5.1977 and 10.7.1978. The grant of leave was subject to the further condition that “the period of leave will not count for pension or any other service benefits and this fact will be recorded in his service book”. 2. Appointment to the post of Principal is governed by the Special Rules for the Kerala Collegiate Education Service, 1994 (for short the Rules) which have been framed under Section 2 of the Kerala Public Services Act, 1968. According to Section B of the Table referred to in Rule 5 of the Rules, a person who could be appointed as Principal should have completed a minimum period of 25 years of service in the Collegiate Education Department. The Departmental Promotion Committee (Higher) in its meeting held on 15.11.2000 prepared a select list of Lecturers (Selection Grade) who were suitable for promotion to the post of Principal and this list was approved by the State Government on 7.3.2001. This list did not contain the name of the respondent. He then made a representation to the State Government that since he had completed 25 years of service in March 1997 He was eligible for being promoted as Principal. This representation was rejected by order dated 9.12.2002 a copy of which is Ext.P6 on the record. The respondent was informed that 25 years of service in the Collegiate Education Department was necessary for promoting a Selection Grade Lecturer to the post of Principal if he/she was otherwise qualified. He was also informed that since he availed leave without allowances for the period from 12.10.1981 to 11.10.1986 for employment abroad, he completed 25 years of service in the Collegiate Education Department only on 17.3.2002 and was not eligible for promotion as Principal with effect from 1.6.2001 the date from which he sought promotion. Feeling aggrieved by this order, the respondent filed O.P. No. 3186 of 2003 in this Court. Feeling aggrieved by this order, the respondent filed O.P. No. 3186 of 2003 in this Court. The learned single Judge observed that since the leave had been sanctioned before the introduction of Appendix 12A to the Rules, the respondent was entitled to count the said period for promotion. The petition was allowed and the order dated 9.12.2002 quashed. It is against this order that the State Government has come up in appeal under Section 5 of the Kerala High Court Act. 3. We have heard the learned counsel for the parties. Mr. Abdul Rahim, the learned State counsel fairly conceded before us that since leave had been sanctioned to the respondent prior to the introduction of Appendix 12A to the Rules, the said Appendix would not apply in the case of the respondent and to that extent he cannot find any fault with the judgment of the learned single Judge. He, however, contends that in view of the condition imposed in the Government Order dated 28.8.1981 sanctioning leave to the respondent, the period of leave was not to count for pension or any other service benefit and, therefore, the period of five years could not be counted towards the qualifying service of 25 years which would make the respondent eligible for promotion to the post of Principal with effect from 1.6.2001. The learned counsel for the respondent, on the other hand, urged that the respondent was in the service of the State Government even during the period when he was on leave and, therefore, the said period ought to have been counted. The argument is that if the said period is counted the respondent completed 25 years of service in March 1997, and was, therefore, eligible for promotion to the post of Principal with effect from 1.6.2001 and that his name ought to have been considered at the time when the select list was prepared by the Departmental Promotion Committee on 15.11.2000. 4. From the rival contentions advanced by the learned counsel for both sides, the short question that arises for consideration is whether the period of five years during which the respondent was on leave without allowances is to be counted towards the qualifying service of 25 years. The answer to this question, in our opinion, has to be in the negative. From the rival contentions advanced by the learned counsel for both sides, the short question that arises for consideration is whether the period of five years during which the respondent was on leave without allowances is to be counted towards the qualifying service of 25 years. The answer to this question, in our opinion, has to be in the negative. As already observed earlier, leave without allowances was granted to the respondent for five years subject to the condition that the period of leave will not count for pension or any other service benefit. In view of this express condition imposed at the time of granting leave, as incorporated in Ext.P1, we have no doubt in our mind that the period during which the respondent was on leave for taking up employment abroad cannot count for “pension or any other service benefits”. On the language of Ext.P1, it is obvious that the respondent having obtained the leave subject to certain conditions cannot be allowed to wriggle out of those conditions after he has availed the leave. As per that condition, the leave period is not to count for any purpose whatsoever. In other words, for all practical purposes it will be presumed that his total service was less by five years during which he remained on leave without allowances. The period spent on leave without allowances shall be treated as ‘dies non’ for all kinds of service benefits including pension. When the leave period is excluded, it is clear that the respondent completed 25 years of service only in March 2002. In this view of the matter, he was not eligible at the time when the select list was prepared by the Departmental Promotion Committee in November 2000. No fault can, thus be found with the action of the appellants in not including the name of the respondent in the select list. The learned counsel for the respondent is right when he contends that the respondent was in service during the leave period but that does not mean that the service has to be counted for any service benefit. The learned counsel for the respondent is right when he contends that the respondent was in service during the leave period but that does not mean that the service has to be counted for any service benefit. The view that we have taken finds support from a Division Bench judgment of this court in Krishna Pillai v. State of Kerala (1988 (2) KLT 106) wherein a similar condition imposed in the order granting leave without allowances came up for consideration and it was held that the leave period could not be counted towards any service benefits. 5. Learned counsel for the respondent placed reliance on the judgments of this Court in P.P. Mathew v. The Director of Collegiate Education, Thiruvananthapuram and others (W.A.No. 121 of 2001 decided on 20.1.2001), M. Abdul Jabbar and others v. State of Kerala and others (O.P.No. 16143 of 1998 decided on 6.9.2002). O.C. Manomohanan v. State of Kerala and others (O.P. No. 7378 of 1993 decided on 20.6.1995) and N. Mukundan v. State of Kerala and others (O.P. No. 14224 of 1996 decided on 20.9.2001). We have carefully gone through these judgments and find that those are on different facts and do not advance the case of the respondent. In none of these cases there was a condition that the period of leave without allowances shall not count for any service benefits. In the result, the appeal is allowed, the impugned order of the learned single Judge set aside and O.P. No. 3186 of 2003 dismissed with no order as to costs.