IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 18TH JUNE 2008 / 28TH JYAISHTA 1930 WP(C).No. 17387 of 2008(T) -------------------------- PETITIONER: ----------------------- P.E.MICHALE, H.S.A, G.V.H.S.S., KALPAKANCHERRY, MALAPPURAM. BY ADV. SRI.MATHEW JOHN (K) ADV. SRI.AJEESH K.SASI RESPONDENT: ----------------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, TRIVANDRUM. BY GOVERNMENT PLEADER ADV. SHRI A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T. SANKARAN, J. ............................................................................ W.P.(C)No. 17387 OF 2008 ............................................................................ Dated this the 18th June, 2008 J U D G M E N T The petitioner is working as HSA in G.V.H.S.S., Kalapakancherry, Malappuram district. While continuing in service, she availed leave for the period from 03.07.1998 to 29.07.1998 and leave without allowance from 30.07.1998 to 31.03.1999. The leave was granted as per Ext.P1 order dated 15.06.1999. In Ext. P1 it is stated that the leave was granted “ for the study purpose as per Rule 91 Part I Kerala Service Rules”. It is stated that the petitioner had undergone B.Ed course in a recognised institution. 2. The contention of the petitioner is that as per the third proviso to Rule 33 (b) (2) of Part I of the Kerala Service Rules, the leave without allowance taken by the teachers for completion of training courses such as B.Ed, Hindi Teacher's training etc. shall count for increment. The third proviso was subsequently deleted with effect from 11.05.2005. The question whether deletion of the third proviso referred to above would apply retrospectively, was considered by a learned single Judge of this court in the judgment dated 22.02.2006 in W.P.(C) No. 26782 of 2006. It was held that when leave was granted before deletion of the third proviso, the person concerned would be entitled to reckon the period of leave for the purpose of increment. In Deepika vs. State of Kerala (2007 (1) KLT. 71) , it was held thus: “On the other hand, it is contended by the learned Government Pleader appearing on behalf of the State that only if the leave is sanctioned under R.91A that both the proviso thereunder be attracted and in this particular case leave without allowance was sanctioned under R. 88 and so the second proviso will not enable the petitioner to claim the benefit of that proviso. I am unable to accept this contention for two reasons. Firstly, R.91 A is a separate rule entitling a person for claiming leave for taking Post Graduate Degree. A training course like B.Ed is not a Post W.P.(C)No. 17387 OF 2008 2 Graduate Degree Course and secondly, when the second proviso specifically refers to B.Ed course and the leave availed was for completing the said course must be understood as an independent provision and will entitle the person to claim the benefit of the said proviso, provided the leave is sanctioned for completing the B.Ed course. As against the statutory rule, the Government cannot take away the benefit by virtue of any circular or executive order. In so far as Ext. P4 has taken away the statutory right conferred on the petitioner under the second proviso of sub-r.2 of R.33 , it is oppose to the statutory provisions and liable to be set aside. ” 3. The representation made by the petitioner was considered by the respondent and Ext. P5 order dated 26.03.2008 was passed. The relief prayed for by the petitioner was not granted. But at the same time , Rule 91 mentioned in Ext.P1 order was substituted with Rule 88. Even if Rule 88 is mentioned, in view of the decision in Deepika's case (supra), the relief claimed by the petitioner cannot be refused to him. For the aforesaid reasons, the Writ Petition is allowed and Ext. P5 order is quashed. The petitioner would be entitled to have the leave availed by him as per Ext.P1 order counted for the purpose of increment. Appropriate orders shall be passed by the respondent within a period of one month from the date of receipt of a copy of this judgment. K.T. SANKARAN, JUDGE. lk