IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 20TH MARCH 2009 / 29TH PHALGUNA 1930 WP(C).No. 12982 of 2007(U) ----------------------------------------- PETITIONER(S): ------------------------- 1. JOMON T.C., H.S.S.T. JR.(COMMERCE), ST.BERCHUMAN'S HSS, CHANGANASSERY. 2. ANTONY.P.J.PULICKAL, H.S.S.T.JR.(COMMERCE), ST. JOHN'S THE BAPTIST HSS, NEDUMKUNNAM, KOTTAYAM. 3. REJIMON V.M., NOW WORKING AS HSA MALAYALAM, S.B.HSS CHANGANASSERY. BY ADVS. MR.BENOY THOMAS, MR.PAULSON THOMAS. RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, DIRECTORATE OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. 3. DISTRICT EDUCATIONAL OFFICER, ALAPPUZHA. R1 TO R3 BY SR. GOVERNMENT PLEADER SMT.T.B.REMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/03/2009 ALONG WITH WPC NO. 22784 OF 2007 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Kss WPC.NO.12982/2007 U APPENDIX PETITIONER'S EXHIBITS: P1: COPY OF THE G.O.(RT) NO.4658/06/G.EDN. DTD. 27/10/2006 TO THE 1ST PETITIONER. P2: COPY OF THE G.O.(RT) NO.5124/2006/G.EDN. DTD. 27/11/2006 TO THE 2ND PETITIONER. P3: COPY OF THE G.O.(RT) NO.2241/97/G.EDN. DTD. 3/07/1997 to the 3RD PETITIONER. P4: COPY OF THE G.O.(P) NO.217/2005 DTD. 11/05/2005. P5: COPY OF THE GOVERNMENT CIRCULAR NO.38/2002 DTD. 3/06/2002. P6: COPY OF THE G.O.(MS) NO.217/99/G.EDN. DTD. 6/09/1999. P7: COPY OF THE REPRESENTATION DTD. 15/03/2007 OF THE 1ST PETITIONER BEFORE THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT. P8: COPY OF THE REPRESENTATION DTD. 15/03/2007 BY THE 2ND PETITIONER BEFORE THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT. P9: COPY OF THE REPRESENTATION SUBMITTED BY THE 3RD PETITIONER DTD. 15/03/2007 BEFORE THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT. P10: COPY OF THE JUDGMENT IN WPC.NO.26782/2005 DTD.22/02/2006 OF THIS HON'BLE COURT. P11: COPY OF THE JUDGMENT IN WPC.NO.10469/2006 DTD. 8/12/2006 OF THIS HONOURABLE COURT. P12: COPY OF THE APPROVAL ORDER OF THE 1ST PETITIONER DTD. 23/06/2006 ISSUED BY THE 2ND RESPONDENT. P13: COPY OF THE APPROVAL ORDER OF THE 2ND PETITIONER DTD. 6/11/2003 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: N I L /TRUE COPY/ P.A.TO JUDGE Kss P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).Nos.12982, 22784, 22862 of 2007 and 2803 of 2008 -------------------------------------- Dated 20th March, 2009 JUDGMENT Heard Sri.Benoy Thomas, the learned counsel appearing for the petitioners and Smt.T.B.Remani, the learned Government Pleader appearing for the respondents. Common questions arise in these writ petitions. They were therefore heard together and are being disposed of by this common judgment. 2. Except the third petitioner in W.P.(C)No.12982 of 2007 who is working as High School Assistant, all the other petitioners in these writ petitions are working as Higher Secondary School Teachers. All of them have availed leave without allowances for the purpose of undergoing the B.Ed. Degree course. The grievance voiced by the petitioners is that the leave without allowances availed by them for the purpose of undergoing the B.Ed. Degree course has not been reckoned for the purpose of grant of increments. The petitioners submit that under the third proviso to Rule 33(b)(2) of Part I of the Kerala Service Rules as it stood prior to 11.5.2005, leave without allowances availed by teachers for undergoing the B.Ed. Degree course could be reckoned for the grant of increments. WP(C).No.12982/2007 & connected cases 2 3. It is not in dispute that the third proviso to Rule 33(b) (2) of Part I of the Kerala Service Rules was deleted with effect from 11.5.2005. A Division Bench of this Court has in W.A.No.1935 of 2008 and connected cases, held that leave without allowances availed by teachers for undergoing the B.Ed. Degree course up to 11.5.2005 will count for grant of increments and pension and that the deletion of the third proviso to Rule 33(b)(2) of Part I of the KSR with effect from 11.5.2005 cannot affect the leave without allowances granted till that date. In view of the binding decision of this Court in W.A.No.1935 of 2008 and connected cases to which the State of Kerala is a party, it cannot be disputed that those among the petitioners who have availed leave without allowances to undergo the B.Ed. Degree course prior to 11.5.2005 will be entitled to reckon the leave without allowances up to 11.5.2005 for the purpose of grant of increments and other service benefits. They cannot however claim that the leave without allowances granted for the period thereafter should be reckoned for the purpose of grant of increments and other service benefits. The existing second proviso to Rule 33(b)(2) to Part I of the KSR however empowers the Government to direct that leave without allowances shall be counted for increments if the leave without allowances was taken for any cause beyond the officer's control. The learned counsel for the petitioners submits that these writ petitions may be disposed of reserving liberty with the petitioners who have availed leave without WP(C).No.12982/2007 & connected cases 3 allowances after 11.5.2005 and also those petitioners who have availed leave without allowances earlier than 11.5.2005 but whose leave period goes beyond 11.5.2005, to move the Government under the second proviso to Rule 33(b)(2) of Part I of the KSR. 4. Smt.T.B.Remani, the learned Government Pleader appearing for the respondents vehemently opposes the said request and submits that in view of the judgment of the Division Bench of this Court in W.A.No.1935 of 2008 and connected cases, leave without allowances availed up to 11.5.2005 alone can be reckoned for the purpose of grant of increments and that the petitioners who have availed leave without allowances after that date or whose leave falls beyond 11.5.2005 cannot claim the said benefit. 5. In my opinion, the question whether those among the petitioners who had availed leave without allowances after 11.5.2005 or whose leave falls beyond 11.5.2005 will be entitled to count the leave without allowances availed by them for the purpose of grant of increments is essentially a matter for the Government to decide at least in the first instance. If the Government finds that their case falls within the second proviso to Rule 33(b)(2) of Part I of the KSR, it will be open to the Government to invoke that power and pass orders accordingly. I accordingly dispose of these writ petitions with the following directions: WP(C).No.12982/2007 & connected cases 4 The petitioners shall within one month from the date of receipt of a certified copy of this judgment file individual representations before the Government along with copies of the orders sanctioning leave without allowances. The Government shall on receipt of the same consider whether the leave availed by them was before 11.5.2005 and if it is found that the leave without allowances availed by them expired before 11.5.2005 direct that the leave without allowances be counted for the grant of increments and pension. In the case of those petitioners who have either availed leave after 11.5.2005 or whose leave falls beyond 11.5.2005, the Government shall consider whether they are entitled to the benefit of the second proviso to Rule 33(b)(2) of Part I of the KSR. Final orders in the matter shall be passed within three months from the date on which the petitioners move the Government as aforesaid. The Government shall while passing orders in the matter, have due regard to the judgment of this Court in W.A.No.1935 of 2008 and connected cases. The writ petitions are disposed of as above. The contentions of the petitioners on the merits are kept open. P.N.RAVINDRAN Judge TKS