IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 30TH JULY 2009 / 8TH SRAVANA 1931 WP(C).No. 29618 of 2006(A) -------------------------------------- PETITIONER(S): ---------------------- A.G. SATHI, AGED 45 YEARS, HSST (COMMERCE), ST.JOSEPH HSS, VAYATTUPARAMBA, KANNUR DISTRICT. BY ADV. MR.M.SASINDRAN MR.TOJAN J. VATHIKULAM RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR, HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. THE REGIONAL DEPUTY DIRECTOR, DIRECTORATE OF HIGHER SECONDARY EDUCATION, KOZHIKODE. 4. THE PRINCIPAL, ST.JOSEPH HIGHER SECONDARY EDUCATION, VAYATTUPARAMBA, KANNUR. R1 TO R3 BY GOVERNMENT PLEADER MR.K. RAMESH THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 30/07/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 29618/2006-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 17/06/2002. EXT.P2: COPY OF THE CERTIFICATE ISSUED FROM THE KANNUR UNIVERSITY TO THE EFFECT THAT THE PETITIONER HAD JOINED FOR B.ED COURSE FOR THE YEAR 2004-05 AND THAT THE COURSE IS EXPECTED TO END ON 28/03/2005. EXT.P3: COPY OF THE COMMUNICATION DATED 31/08/2004. EXT.P4: COPY OF THE COMMUNICATION DATED 08/09/2005 ISSUED BY THE 2ND RESPONDENT. EXT.P5: COPY OF THE ENDORSEMENT MADE BY THE DEO. EXT.P6: COPY OF THE COMMUNICATION DATED 28/12/2005. EXT.P7: COPY OF THE COMMUNICATION DATED 18/01/2006. EXT.P8: COPY OF THE COMMUNICTION DATED 28/02/2006 ISSUED BY THE 3RD RESPONDENT. EXT.P9: COPY OF THE REPRESENTATION DATED 13/06/2006. EXT.P10: COPO COMMUNICATION DATED 17/07/2006. EXT.P11: COPY OF THE CIRCULAR DATED 28/4/2006. EXT.P12: COPY OF THE COMMUNICATION DATED 18-10-2006. EXT.P13: COPY OF THE GOVERNMENT ORDER DATED 25/09/1998. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.29618/2006-A ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 30th day of July, 2009 J U D G M E N T The petitioner is working as Higher Secondary School Teacher (Commerce) in St.Joseph Higher Secondary School, Vayattuparamba. She was appointed as H.S.S.T (Commerce) as per order dated 17/06/2002 (Ext.P1). She is a Post Graduate in Commerce and she was working as High School Assistant and on acquiring SET qualification, she was appointed as H.S.S.T by getting exemption from acquiring B.Ed Degree with the condition that the petitioner has to acquire B.Ed within 7 years. 2. She was selected for the B.Ed Course during the year 2004-05 and she joined the course on 22/06/2004 and the same ended on 28/03/2005. This is evidenced by Ext.P2. Even though the application for leave without allowance was forwarded, it was returned by the District Educational Officer stating that the application may be forwarded to the second respondent. After completing various formalities, the leave application was forwarded to D.E.O for counter signature and again it was directed to be submitted to the third respondent. At this stage, Ext.P6 communication was issued to the effect that as per Rules, summer vacation cannot be suffixed or W.P.(C). No.29618/2006 -:2:- prefixed to the leave without allowance for study purpose and that no academic purpose is served by rejoining on 28/03/2005. Therefore, the petitioner was directed to re-submit leave application covering the summer vacation also. As per Ext.P8 the Principal informed the third respondent that the petitioner has a right to rejoin duty as the leave period ended on 28/03/2005. The petitioner submitted Ext.P9 representation in the matter. Then by Ext.P10, she was informed that the salary bill from 7/06 cannot be honoured unless the teacher had submitted revised leave application. This was based on Ext.P11 Circular. According to the petitioner, Ext.P11 is illegal. 3. The respondents have filed a counter affidavit in the matter opposing the prayers of the petitioner. The stand taken in the counter affidavit in paragraph (6) is that as the petitioner has not completed her probation for want of a basic qualification i.e., B.Ed., leave without allowance for study purpose will be granted to the teacher/petitioner under Rule 110 of Chapter IX, Part I K.S.R Appendix XII-B (ii). 4. The petitioner has filed a reply affidavit pointing out that the probation has been declared with effect from 31/07/2003 A.N on completion of 2 years and the entry to this effect is made in her Service W.P.(C). No.29618/2006 -:3:- Book. It is also pointed out that going by Ext.P13, it can be found that the petitioner has undergone the B.Ed course as permitted in the Government Order dated 25/09/1998. 5. The dispute is regarding the view taken by the Government in Ext.P6. The Government was of the view that as per Rule, summer vacation cannot be suffixed or prefixed to the L.W.A for study purpose. The learned Government Pleader relied upon Government Decision No.3 to Rule 74 of Part I K.S.R in support of the above stand taken by the Government. 6. The Government decision No.3 is to the effect that the prefixing or suffixing of vacation to leave without allowances granted under Appendix XII A Part I K.S.R for employment abroad or within the country is not permissible. Obviously, the petitioner's application for leave is under Rule 91 of Part I K.S.R. It is not under Appendix XII A. Therefore, the Government Decision No.3 will not apply here. 7. The provisions of Appendix XII-B mainly relates to the grant of leave without allowances for those ineligible for leave for study purpose under Rule 88 or Rule 91, Part I, K.S.R. Sub Para (v) provides that “leave will not be allowed to be combined with any other kind of leave or vacation”. It can be thus seen that the petitioner cannot be compelled to W.P.(C). No.29618/2006 -:4:- combine the vacation if the leave applied for is under these provisions. Going by Rule 74 of Part I K.S.R., vacation may be taken in combination with or in continuation of any kind of leave, (proviso omitted). The Government Decision No.1 therein states that it is permissible to allow a vacation to intervene between two periods of leave. Similarly vacation may be prefixed or suffixed to leave or both prefixed or suffixed. Therefore, the learned counsel for the petitioner submitted that even in such cases, the payment of salary for the period cannot be denied. 8. Herein, admittedly, Government Decision No.3 to Rule 74 will not apply. What remains is Ext.P11 Circular, that is dated 28/04/2006. The same came into force after the period of leave was over. Therefore, the stipulation therein will not apply to the petitioner. 9. In that view of the matter, the petitioner is entitled to succeed in the writ petition. Exts.P6 and P12 are therefore, quashed. There will be a direction to respondent Nos.1 to 3 to pass orders sanctioning leave without allowance to the petitioner for the period from 22/06/2004 to 28/03/2005 for undergoing B.Ed course and the period will be regularised accordingly. The fourth respondent will forward the application to the second respondent through the third respondent on production of a copy of this judgment. W.P.(C). No.29618/2006 -:5:- Appropriate orders will be passed within two months from the date of receipt of a copy of the judgment. The petitioner will be entitled for the eligible monetary benefits also. No costs. (T.R. Ramachandran Nair, Judge.) ms