IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC WEDNESDAY, THE 15TH OCTOBER 2008 / 23RD ASWINA 1930 WP(C).No. 8793 of 2008(V) ----------------------------------- PETITIONER: ------------------ BINDU M.N., H S A (ENGLISH), GOVERNMENT HIGHER SECONDARY SCHOOL, KALLAR, NEDUMKANDAM, IDUKKI. BY ADV. SRI.SOORAJ T.ELENJICKAL RESPONDENTS: ----------------------- 1. THE DIRECTOR OF PUBLIC INSTRUCTION DIRECTORATE OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 2. THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION (E) DEPT. GOVT.SECRETARIAT, THIRUVANANTHAPURAM. BY GOVERNMENT PLEADER SRI.T.T.MOHAMMED THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/10/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.8793/2008 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER NO.M2/39/2004/DPI DT. 28.5.04 ISSUED FROM THE OFFICE OF THE IST RESPONDENT TO THE PETITIONER. P2:- COPY OF THE APPLICATION FOR LEAVE DT. 22.6.04 SUBMITTED BY THE PETITIONER BEFORE THE GOVERNMENT UNDER RULE 91 PART I KSR. P3:- COPY OF THE RELIEVING ORDER DT. 22.6.04 ISSUED FROM THE GOVT. HIGH SCHOOL PANICKANKUDY TO THE PETITIONER. P4:- COPY OF THE RELIEVING ORDER DT. 31.3.05 ISSUED TO THE PETITIONER FROM IASE THRISSUR. P5:- COPY OF THE G.O.(RT) NO.1918/05/G.EDN. DT. 12.5.05. P6:- COPY OF THE PETITION DT. 9.9.05 SUBMITTED BY the PETITIONER TO THE IST RESPONDENT ALONG WITH THE FORWARDING LETTER AND RECOMMENDATION OF THE HEADMASTER. P7:- COPY OF THE REPRESENTATION DT. 1.8.06 SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT. P8:- COPY OF THE REPRESENTATION DT. 29.1.07 SUBMITTED BY THE PETITIONER BEFORE THE HONOURABLE MINISTER FOR EDUCATION, GOVERNMENT OF KERALA. P9:- COPY OF THE ORDER NO.59819/E2/07/G.EDN. DT. 28.11.2007 ISSUED FROM THE OFFICER OF THE 2ND RESPONDENT. P10:- COPY OF THE FORWARDING LETTER DT. 12.2.07 ISSUED TO THE PETITIONER ALONG WITH EXT.P8 ORDER FROM THE OFICE OF THE IST RESPONDENT. P11:- COPIES OF THE ORDERS PASSED IN FAVOUR OF THREE SIMILARLY PLACED TEACHERS IN THE DEPARTMENT. /TRUE COPY/ P.S. TO JUDGE tss ANTONY DOMINIC, J. = = = = = = = = = = = = = = = W.P.(C) No. 8793 OF 2008 V = = = = = = = = = = = = = = = Dated this the 15th day of October 2008 J U D G M E N T Petitioner was a P.D. Teacher. She had applied for leave for acquiring B.Ed. and leave was granted for the period from 23.6.2004 to 31.3.2005. However, in Ext. P5, a condition was imposed that the leave without allowance portion granted under Rule 88, Part I, K.S.R. will not count for any service benefits including pension and that the same will be recorded in the service book of the petitioner. 2. Aggrieved by this condition in Ext. P5, she filed Exts. P6 to P8 representations resulting in Ext. P9 rejecting the same. It is stated that the third proviso to Rule 33(b)(2), Part I, K.S.R. was deleted only on 11.5.2005 and that the leave in question was granted to the petitioner with the specific condition that it will not be counted for service benefits including pension. It is this order that is under challenge in the writ petition. W.P.(C) No.8793 OF 2008 -2- 3. Learned counsel for the petitioner invites my attention to Ext. P11 order, passed in favour of another person, wherein it is specifically ordered that the period will be reckoned for service benefits. Counsel also invites my attention to the judgment of this Court in Deepika v. State of Kerala {2007(1) KLT 71} to contend that in identical circumstances, this Court has held that the petitioner therein will be entitled to have the period counted for service benefits. 4. However, the learned Govt. Pleader tells me that Ext. P5 order sanctioning the leave was issued on 12.5.2005 whereas the proviso was deleted on 11.5.2005. According to him, therefore in so far as the petitioner is concerned, the position has to be appreciated without the proviso in the statute. 5. However, I am not in a position to accept the plea of the learned Govt. Pleader for the reason that the leave in question granted to the petitioner was for the period from 22.8.2004 to 31.3.2005, based on Ext. P2 application made by her as early as on 22.6.2004. Therefore, at the time when the application was made and during the whole period when she enjoyed the leave, the W.P.(C) No.8793 OF 2008 -3- proviso remained in the Statute Book. That apart the eligibility of the petitioner, is also covered by the judgment referred to above. For these reasons, I am inclined to hold that the petitioner is entitled to the relief sought for. 6. Ext. P5 to the extent it is ordered that leave without allowance granted under Rule 88, Part I, K.S.R. will not count for any service benefits including pension and Ext. P9 order will stand quashed. It is declared that the petitioner is entitled to claim all benefits to the aforesaid period as well. Writ petition is disposed of as above. ANTONY DOMINIC JUDGE jan/-