IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R. RAMACHANDRAN NAIR THURSDAY, THE 23RD JUNE 2011 / 2ND ASHADHA 1933 WP(C).No. 17857 of 2003(A) ----------------------- PETITIONER : --------------------- FR. M.G. MATHEW, SR. LECTURER IN FRENCH, DEPT OF FRENCH, MAR IVANIOUS COLLEGE, THIRUVANANTHAPURAM. BY ADVS. SRI. J. HARIKUMAR SRI. HARIKUMAR S. RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVT. SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM. 4. PRINCIPAL, MAR IVANIOUS COLLEGE, THIRUVANANTHAPURAM. R1 TO R3 BY GOVT. PLEADER SMT. NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/06/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: Mn ...2/- WP(C).No. 17857 of 2003(A) -2- ORDER ON I.A. NO. 3557/2003 IN W.P.(C). NO. 17857/2003 DISMISSED 23/06/2011 SD/- T.R. RAMACHANDRAN NAIR, JUDGE //TRUE COPY// P.A. TO JUDGE Mn ...3/- WP(C).No. 17857 of 2003(A) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : COPY OF LETTER NO. B2/7976/97 DATED 7.7.1997 FROM THE 3RD RESPONDENT. EXT.P2 : COPY OF LETTER NO. 23591/D1/97 H. EDN DATED EXT.P3 : COPY OF LETTER NO. 5776/D3/2000/H.EDN DATED 28.3.2000 OF THE 1ST RESPONDENT. EXT.P4 : COPY OF THE REPRESENTATION DATED 1.9.2000. EXT.P5 : COPY OF G.O.RT.NO.1130/92/H.EDN DATED 27.7.92 EXT.P6 : COPY OF LETTER DATED 21.11.2000 FROM THE IIND RESPONDENT. EXT.P7 : COPY OF LETTER DATED 12.12.2001 FROM THE 1ST RESPONDENT. EXT.P8 : COPY OF LETTER NO. 6525/D1/2003 H.EDN DATED 3.5.2003. RESPONDENT'S EXHIBITS - NIL //TRUE COPY// P.A. TO JUDGE Mn T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.17857 OF 2003 --------------------------------------- Dated this the 23rd day of June, 2011. J U D G M E N T The petitioner's grievance herein is regarding the non- conversion of leave applied for as one under Rule 91 and 91A of Part I KSR instead of Rule 88 of Part I KSR. It is pointed out that the issue is covered in favour of the petitioner in the light of the decision of this Court in Mahesh vs. State of Kerala (2011 (2) KLT 930). 2. The petitioner, at the time of filing of the writ petition, was Senior Lecturer in the Department of French in Mar Ivanious College, Thiruvananthapuram. It is pointed out that the petitioner has already retired from service as Principal. The petitioner applied for Leave Without Allowance from 28.09.1997 to 28.08.1998 and from 29.08.1998 to 28.02.1999 for higher studies in French in “UNIVERSITIES CATAOLIQUES DE FRANCE' as part of faculty improvement. 3. The application for leave was forwarded to the W.P.(C) No.17857/2003 2 Government as evident from Ext.P1 recommending sanction of leave under Rule 91 and 91A of Part I KSR. But, the leave was sanctioned under Rule 88 with a condition that the leave period will not count for any service benefits and the said order has been produced as Ext.P2. Ext.P3 is the order passed by the 1st respondent for the second spell of leave. 4. It is the case of the petitioner that he went to France and joined the University for completion of DICF, Post Graduate Diploma Courses in French and completed the same successfully and returned to India and joined duty. The petitioner filed a representation thereafter requesting that the period of Leave Without Allowance may be reckoned for service benefits including pension. Therein he had also relied upon an earlier instance of Dr.Ninan Tharakan who went abroad on leave without allowances for a period of 4 years and 8 months for study purpose and the said leave was treated as deputation without payment of salary as evident from Ext.P5 order. 5. The representation submitted by the petitioner was forwarded as per Ext.P6 by the Director of Collegiate Education to W.P.(C) No.17857/2003 3 the Government and the Government by Ext.P7 gave a reply that the case of Dr.Ninan Tharakan was considered as a special case. Even though a representation was submitted again, by Ext.P8 the same was rejected. 6. Learned counsel for the petitioner submitted that the Rule under which leave could have been granted is Rule 91A of Part I KSR. Reliance is also placed on Rule 91. Rule 91A specifically relates to officers with a continuous officiating or temporary service of 5 years or more. The other condition is that the leave should be primarily of benefit to the State such as Post Graduate courses for Teachers, Engineers and Doctors in the sphere of their duties. It is also mentioned that the leave shall be granted only with due regard to the usefulness of the higher studies to the public service. 7. This Court in Mahesh's case (supra) considered a question whether a teacher in the category of UPSA applying for study leave is entitled to study leave under Rule 91A. While considering the legal issue in paragraph 3, after analysing various facts, it was held thus: W.P.(C) No.17857/2003 4 “.....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 impacted 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 R.91A. This is all the more so since the words 'primarily of benefit to the State' occurring in R.91A is qualified further by the words 'such as postgraduate courses for teachers', I am of opinion that what was in contemplation of the Rule maker by R.91A is exactly the situation obtaining in this Writ Petition. As such, denial of leave to the petitioner under R.91A is directly contrary to the Rule itself”. 8. Therefore, the view taken is that the denial of leave under Rule 91A is contrary to the Rule itself. Herein also, the petitioner joined the Postgraduate Diploma course in French and therefore, the issue is specifically covered by the provisions of Rule 91 and Rule 91A. What was undergone by the petitioner is study in Post Graduate Diploma. It will benefit the students and the State, as he was a Lecturer in French itself. Therefore, the conditions prescribed while sanctioning leave that it will not count W.P.(C) No.17857/2003 5 for service benefits and pension cannot be sustained. Hence, the condition prescribed in Exts.P2 and P3 that the leave period will not count for any service benefits is quashed. The leave will be converted as one under Rule 91 and 91A of Part I KSR but without any pay and allowances for the period of leave. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment and the pensionary benefits of the petitioner will also be revised and eligible benefits will be disbursed accordingly. This writ petition is allowed. No costs. T.R. RAMACHANDRAN NAIR JUDGE smp