IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 22ND SEPTEMBER 2011 / 31ST BHADRA 1933 WP(C).No. 9427 of 2009(W) ------------------------- PETITIONER(S): --------------- SINDHU B.P., D/O. V.PREMARAJAN, AGED 33 YEARS, WORKING AS P.D.TEACHER, G.L.P.S., SREENIVASAPURAM, VARKALA, THIRUVANANTHAPURAM, RESIDING AT MAVILA, PALACHIRA P.O., VARKALA. BY ADV. SRI.P.B.SURESH KUMAR (SR.) SMT.SANDHYA RADHAKRISHNAN RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, VARKALA. GOVERNMENT PLEADER SMT. NISHA BOSE FOR R1 TO 4 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 22/09/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 9427 of 2009 APPENDIX PETITIONER'S EXTS: EXT.P1 TRUE COPY OF THE ORDER ISSUED BY THE SECOND RESPONDENT DT.11/07/2005 EXT.P2 TRUE COPY OF THE CLARIFICATION LETTER ISSUED BY THE SECOND RESPONDENT DT.20/04/2004. EXT.P3 TRUE COPY OF THE RELIEVING ORDER ISSUED TO THE PETITIONER BY THE HEADMISTRESS, SNV GOVERNMENT HIGH SCHOOL, KADAKKAVOOR DT.1/8/2005. EXT.P4 TRUE COPY OF THE RELIEVING ORDER ISSUED TO THE PETITIONER BY THE PRINCIPAL, GOVERNMENT COLLEGE OF TEACHER TRAINING DT.31/03/2006 EXT.P5 TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE HEADMASTER, SNV GHSS, KADAKKAVOOR DT.8/1/2008 EXT.P6 TRUE COPY OF THE JUDGMENT OF THIS COURT IN W.P.(C)No. NO.24170/2007 DT.28/11/2008 EXT.P7 TRUE COPY OF THE GO (RT).NO.4074/2008 DT.6/09/2008. RESPONDENTS' EXTS: NIL \\TRUE COPY// P.A TO JUDGE T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.9427/2009-W ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 22nd day of September, 2011 J U D G M E N T The petitioner's grievance is regarding the condition in Ext.P7 order that the leave period will not count for any service benefits including pension and the fact will be so recorded in the Service Book of the incumbent. This part of the order is under challenge herein. 2. It is a case where the petitioner was deputed for undergoing B.Ed course for the period from 01/08/2005 to 31/03/2006 while working as P.D Teacher in a Government School. Ext.P1 is the order passed by the second respondent selecting various persons for the course. Thereafter, the petitioner underwent the course and was paid Rs.250/- per month during the training period. Ext.P2 is the communication issued by the Director of Public Instruction stating that the persons like the petitioner who gets selection to B.Ed. training course are entitled to undergo the course W.P.(C). No.9427/2009 -:2:- without availing leave. After completing the course, the petitioner rejoined the school on 01/04/2006. When the petitioner sought for regularising the period, it was informed that she will have to apply for leave for the period during which she underwent training. Therefore, the petitioner points out that the petitioner was compelled to file an application for leave without allowance for the said period and, thereafter, Ext.P7 order was passed 3. The petitioner relies upon Ext.P6 Judgment of this Court wherein in identical circumstances this Court held that the petitioner therein need not avail leave. 4. The second respondent has filed a counter affidavit. 5. Heard learned Senior Counsel appearing for the petitioner and the learned Government Pleader. 6. Going by the facts of the case disposed of by Ext.P6 Judgment, they are identical. The period W.P.(C). No.9427/2009 -:3:- covered is also same. Therein, this Court took the view that Note-5 of Rule 12(7) of Part I Kerala Service Rules cannot apply to the parties concerned since the petitioner therein was a qualified teacher. The second contention concerned was regarding the applicability of 3rd Proviso to Note-2 of Rule 33(b) of Part-I K.S.R. The said note was deleted with effect from 11/05/2005. This Court found that the deletion of the note is immaterial in a case like this. For easy reference, I am extracting paragraph (8) of the Judgment. “8. From the averments in paragraph 4 of the counter affidavit filed by the 3rd respondent also, it can be seen that the averment of the petitioner that before she was relieved for joining B.Ed course she did not apply or avail of leave on any count, is seen admitted. However, according to the 3rd respondent, the petitioner has to apply for leave. Thus, the fact that the petitioner has W.P.(C). No.9427/2009 -:4:- joined the course without availing of leave is admitted. Then the question is whether the petitioner should apply for leave. In my view, there cannot be such a requirement in the light of Ext.P2. Ext.P2 is a letter issued by the DPI himself on 20/04/2004, which states that those who get selected for B.Ed in the departmental quota do not have to avail of leave to join the course. It also states that such candidates will get stipend (subsistence allowance) of Rs.250/- per month. In the light of Ext.P2, it cannot be contended that the petitioner has to avail of leave. Thus, the 3rd proviso to Note-2 of Rule 33(b) of Part I K.S.R and its deletion has no relevance, in so far as the petitioner is concerned.” Evidently, this Court took the view that in the light of Ext.P2 produced therein, it was unnecessary to apply for leave as the petitioner was selected from the W.P.(C). No.9427/2009 -:5:- Department for training. I respectfully agree with the view. 7. Learned Government Pleader submitted that the condition provided in Ext.P7 is justified and in support of the plea reference was made to the pleadings in the counter affidavit also. But in the light of the fact that identical question was considered by this Court in Ext.P6, the said contentions cannot be accepted. Apart from that Note-5 of Rule 12(7) of Part I Kerala Service Rules has been deleted with effect from 28/02/2007. 8. Therefore, the condition provided in Ext.P7 that the leave period will not count for any service benefits including pension is quashed. The writ petition is allowed to that extent. The period will be treated as duty except for pay and allowances. No costs. Sd/- (T.R. Ramachandran Nair, Judge.) ms