IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 29TH MARCH 2011 / 8TH CHAITHRA 1933 WP(C).No. 12214 of 2007(D) --------------------------------- PETITIONER(S): --------------- M.D.MAHESH, AGED 33 YEARS, S/O. MADHAVAN PILLAI, U.P.S.A., GOVERNMENT VOCATIONAL HIGHER SECONDARY SCHOOL, KALPAKANCHERY. BY ADV. SRI.GEORGE ABRAHAM RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DEPUTY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, MALAPPURAM. ADV. MR. V. MANU - GOVERNMENT PLEADER FOR R1 TO 3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/03/2011,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 12214 of 2007 APPENDIX PETITIONER'S EXBIBITS EXT.P1: COPY OF PETITIONER'S APPLICATION DTD 3.8.2004 FOR EAVE FOR HIGHER STUDIES SUBMITTED UNDRT RULE 91A, PART-I KSR. EXT.P2; COPY OF COURSE CERTIFICATE DTD 27-3-2006 ISSUED TO PETITIONER BY SRI KANDHAN COLLEGE OF ARTS AND SCIENCE ERODE. EXT.P3: COPY OF GOVERNMENT ORDER G.O.(RT)NO.360/2004/G.EDN DATED 21-1-2004 GRANTING LEAVE FOR HIGHER STUDIES UNDER RULE 91A, PART-1, KSR TO SMT. SARITHA B., H.S.A. (PHYSICAL SCIENCE) GOVT. V.H.S.S. KALPAKANCHERY. EXT.P4; COPY OF GOVERNMENT ORDER G.O.(RT)NO.3504/05/G.EDN DTD 16-7-2005 GRANTING LEAVE FOR HIGHER STUDIES TO PETITIONER UNDER RULE 82 AND 88 PART 1 KSR. EXT.P5: COPY OF PETITIONER'S REPRESENTATION TO THE HON'BLE MINISTER FOR EDUCATION. EXT.P6: COPY OF GOVERNMENT LETTER NO.54989/B1/06/G.EDN. DATED 8-12-2006 REJECTING STUDY LEAVE TO PETITIONER UNDER RULE 91A, PART-1 KSR. RESPONDENTS' EXHIBITS EXT.R1(a): COPY OF CIRCULAR NO.17562/J3/01/GE. DTD 18.4.2001. TRUE COPY PA TO JUDGE. S. SIRI JAGAN, J. ----------------------------------- W.P.(C) No.12214 OF 2007 --------------------------------------- Dated this the 29th day of March, 2011 JUDGMENT The petitioner is an Upper Primary School Assistant. He was appointed as such on the basis of the petitioner's qualification as a Physics Graduate with B.Ed. The petitioner is working in Government Schools. By Ext.P1 application, the petitioner applied for leave for study purposes, under Rule 91A of Part I of Kerala Service Rules, for undergoing M.Sc Degree course in Physics. The petitioner was granted leave by Ext.P4 order but, only under Rules 82 and 88 of Part I of Kerala Service Rules. The petitioner has undergone that course and rejoined duty. The petitioner filed a petition Ext.P5, before the Government requesting to convert his leave as one under Rule 91A of Part I of KSR. That was rejected by Ext.P6 order by the Government on the ground that acquisition of postgraduate degree will only benefit the incumbent and will not in any way be primarily beneficial to the State and therefore Rule 91A is not attracted to the leave applied for by the petitioner. The petitioner challenges W.P.(C)No.12214/07 2 Exts.P4 and P6. According to the petitioner, for a teacher teaching Science particularly Physical Science, M.Sc degree in Physics would certainly enable him to teach the students better and in that way, the acquisition of postgraduate degree by the petitioner would primarily be of benefit to the State. Therefore, the conditions in Rule 91A of Part I of KSR is sufficiently satisfied is his contention. He further submits that in Rule 91A itself, it is specifically stated that leave for postgraduate course for teachers would come within the purview of Rule 91A. He further points out that a High School Teacher in Physical Science in the very same school was granted leave under Rule 91A of Part I of KSR for the purpose of obtaining postgraduate degree. Therefore, according to the petitioner, the denial of that benefit to the petitioner is discriminatory as well. The petitioner, therefore, seeks the following reliefs: “i) to issue a Writ of Certiorari or any other appropriate writ, order or direction to quash Exhibits P4 and P6; ii) to declare that the petitioner is entitled to be granted leave under Rule 91A, Part -I KSR for the period from 4-8-2004 to 310302006 iii) to issue a Writ of Mandamus or any other appropriate writ, order or direction directing the respondents to grant leave as per Exhibit P1 application submitted by the petitioner” W.P.(C)No.12214/07 3 2. A counter affidavit has been filed on behalf of the first respondent. The only averment in the counter affidavit is that for the leave applied for by the petitioner, the provisions of Rule 91A is not attracted insofar as the acquisition of postgraduate degree by the petitioner is not primarily of benefit to the State. But, in arguments the learned Government Pleader would raise two other contentions as well. First is that subsequent to Ext.P1 application, the petitioner had filed another application seeking leave under Rule 88, which only has been granted by Ext.P4 order. Therefore, according to the learned Government Pleader, the petitioner is estopped from now contending that the petitioner should be given leave under Rule 91A. Another contention is also raised of delay and laches. According to the learned Government Pleader, Ext.P4 order was passed as early as on 16.7.2005 against which the petitioner filed Ext.P5 only on 19.9.2006 and therefore, the petitioner is guilty of delay and laches in the matter. 3. I have considered the rival contentions in detail. Rule 91A of Part I of KSR reads thus: W.P.(C)No.12214/07 4 “91A. Officers with a continuous officiating or temporary service of 5 years or more may be granted in addition to any leave to which they are eligible for, leave for undergoing Post-Graduate Courses in the sphere of their duties which are primarily of benefit to the State, such as Post-Graduate Courses for Teachers, Engineers and Doctors. The leave shall be granted only with due regard to the usefulness of the higher studies to the public service”. What I have to consider is whether the petitioner's application would fall within the purview of that Rule. For coming within the purview of that Rule, the postgraduate course for undergoing which the applicant seeks leave, the leave should be in the sphere of their duties, which are primarily of benefit to the State such as postgraduate courses for teachers etc. The petitioner is an Upper Primary School Teacher. His qualification is graduation in Physical Science and B.Ed in Physical Science. He is teaching Science subjects. Therefore, M.Sc in Physical Science is certainly within the sphere of his duties by the expression 'Primarily of benefit to the State'. It is not as if the State expects that the applicant for leave should, by acquiring that degree, give direct benefit to the State as such. What can be in contemplation by the Rule is that by acquisition of that qualification, the Government servant would be in a position to discharge their duties better W.P.(C)No.12214/07 5 to serve the State better. Here, the petitioner's duty is to teach students. Therefore, the benefit to the State contemplated by the Rule is that the teacher would be able to teach the students better with the postgraduate qualification acquired by obtaining the leave under that Rule. To my mind, there cannot be any doubt that an Upper Primary School Teacher obtaining M.Sc degree in Physics would be in a better position to teach Physics to students than those teachers who do not possess the M.Sc degree. Therefore, the acquisition of postgraduate degree in Physics would, not only be of benefit to the petitioner but also would certainly be primarily of benefit to the State as well, in the sense that by teaching students better the State would be benefited because it is the responsibility of the State to see that the students are imparted education in a better way. In fact, that is what the Right to Education Act contemplates. Therefore, I am not satisfied that the reasons mentioned in Ext.P6 is sufficient to deny the petitioner the benefit of leave under Rule 91A. This is all the more so since the words 'primarily of benefit to the State' occurring in Rule 91A is qualified further by the words 'such as postgraduate W.P.(C)No.12214/07 6 courses for teachers', I am of opinion that what was in contemplation of the Rule maker by Rule 91A is exactly the situation obtaining in this writ petition. As such, denial of leave to the petitioner under Rule 91A is directly contrary to the Rule itself. 4. The other two contentions raised by the learned Government Pleader have not been pleaded in the counter affidavit. Therefore, I am not liable to consider the same at all because the arguments are not supported by pleadings. Even apart from the same, the petitioner has specifically contended in the writ petition that the petitioner applied for leave under Rule 91A of Part I of KSR by Ext.P1 application for leave. But, she was told that, the leave cannot be granted unless she changes the application for one under Rule 88. Naturally, any teacher, who wants to join M.Sc course, would avail of the leave first before embarking on a litigation. Otherwise, next year, the teacher may not get admission for M.Sc at all. So, having obtained admission, he would naturally abide by any condition which the Government stipulates for getting that leave. But, it is unbecoming for a State to compel teachers to W.P.(C)No.12214/07 7 do so knowing well that the petitioner is entitled to leave under Rule 91A. In fact, the Government themselves granted leave under Rule 91A itself by Ext.P3 order to another teacher of the very same school for undergoing postgraduate course. Therefore, I am of opinion that it does not look good on the Government to take such a contention at all, after having forced the petitioner to alter his application to one under Rule 88. 5. Regarding the contention regarding delay and laches I am of opinion that after having considered Ext.P5 application of the petitioner on merits and passing Ext.P6 order on merits, without stating anything about the delay or laches, the Government cannot now fall back on such technical contentions to the petitioner who desires leave under Rule 91A. The petitioner has filed this writ petition within a reasonable time after Ext.P6. 6. In the above circumstances, I am satisfied that Exts.P4 and P6 are unsustainable. Accordingly, they are quashed. The 1st respondent is directed to convert the leave sanctioned to the petitioner, by Ext.P4, as one under Rule 91A W.P.(C)No.12214/07 8 of Part I of KSR as applied for by Ext.P1. Orders in this regard shall be passed and benefits due to the petitioner arising therefrom shall be disbursed to the petitioner, as expeditiously as possible, at any rate, within two months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. S. SIRI JAGAN, JUDGE acd W.P.(C)No.12214/07 9