IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR TUESDAY, THE 10TH NOVEMBER 2009 / 19TH KARTHIKA 1931 WP(C).No. 27373 of 2009(N) ------------------------------------ PETITIONER(S): ----------------------- P.B.LALITHA, H.S.A (MALAYALAM), PGM BOYS HIGH SCHOOL, PARAKODE P.O., PATHANAMTHITTA DISTRICT. BY ADV.MR.M.RAMESH CHANDER RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT.GENERAL EDUCATION, DEPARTMENT, TRIVANDRUM. 2. DISTRICT EDUCATIONAL OFFICER, PATHANAMTHITTA. BY GOVT. PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.27373/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE SAID COMMUNICATION OF THE 2ND RESPONDENT DT. 7.11.08 P2:- COPY OF THE ORDER NO.G.O.(RT) 5337/06/GE DTD. 6.12.06. P3:- COPY OF THE REPRESENTATION SENT BY THE PETITIONER TO THE GOVT. DTD. 21.11.08. P4:- COPY OF THE COMMUNICATION OF THE GOVT. DTD. 1.6.09. P5:- COPY OF THE JUDGMENT IN WA. NO.2226/08 DTD. 14.1.09. P6:- COPY OF THE COMMUNICATION OF DIRECTOR OF PUBLIC INSTRUCTION DTD. 14.8.07. TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No.27373 of 2009-N - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 10th day of November, 2009. JUDGMENT The petitioner herein is aggrieved by the conditions imposed as per Exts.P2 to P4 by which it was directed that the leave without allowance availed of by the petitioner for study purpose under Rule 91 of Part I K.S.R. will not be counted for service benefits. 2. The petitioner was appointed in a permanent vacancy of U.P.S.A. from 1.6.1997 and the appointment was approved as per rules. The petitioner submitted an application for leave without allowance to undergo B.Ed. course from 8.7.1998 to 31.3.1999. When the application for leave was forwarded to the District Educational Officer, the District Educational Officer, as per Ext.P1, returned the same stating that the Headmaster is competent to sanction the leave for study purpose. Accordingly, leave was sanctioned and the petitioner completed the course and joined service on 31.3.1999. 3. An audit objection was raised regarding the sanction of leave by the Headmaster, to the effect that the leave can be sanctioned only by the Government. Therefore, the leave application was again forwarded to the wpc 27373/2009 2 Government on which the Government passed Ext.P2 order. But it was made conditional that the leave without allowance period will not count for increment, grade, promotion, accumulation of earned leave and pension. Seeking for a reconsideration of the matter, the petitioner has filed Ext.P3 representation before the Government which stands rejected by Ext.P4. 4. Learned counsel for the petitioner submitted that in the light of the decision of the Division Bench in Ext.P5, the petitioner is entitled for the benefit, viz. to count the service for all purposes. A reading of Ext.P5 shows that the Division Bench was of the view that in cases where the leave is sanctioned prior to the deletion of the third proviso to Rule 33(b)(2) of Part I K.S.R., then the teachers who have availed leave prior to that, will be entitled for the benefit. The relevant findings are contained in para 2 and it was held as follows: “………. Thus, it is unambiguously clear that in terms of the proviso the teachers who avail leave for acquisition of the qualifications referred to above were entitled to count the period for increment and necessarily for pension in view of Rule 26 Part III KSR. The 3rd proviso was deleted as per the amendment introduced as per SRO No.526/2005 dated 11.5.2005 published in the Kerala Gazette dated 24.5.2005. It is stated in the SRO that the amendment would come into force at once. The amendment is to the effect that the 3rd proviso referred to above shall be omitted. In the explanatory wpc 27373/2009 3 note it is explained that “the retention of the 3rd proviso to Rule 33 (b)(2) of Part I KSR provides for grant of increments for the period of leave taken for undergoing training courses, such as B.Ed., Hindi Teachers’ Training, Language Teachers’ Training and Teachers’ Training Certificate Curses”. Thus it is fairly clear that the Government itself was aware of the factual and legal position that so long as the third proviso remained in the statute book, the State was bound to count such periods for service benefits. It is vehemently contended by the learned Senior Government Pleader appearing for the State that B.Ed. being an essential qualification, the exemption from possessing the essential qualification itself was the relaxation and hence the time granted for acquisition of the essential qualification cannot count for the service benefits. Certainly there is force in the contention and the contentions are well founded also in terms of the purpose as intended by the Government. But the intention was given effect to only from the date of the amendment in 2005. The explanatory note unambiguously states that the retention of the third proviso saddled the Government with the liability to count such leave for the purpose of service benefits.” 5. One more aspect that is relevant here is that Ext.P2 order was passed after amendment of Rule 33. Even then, it cannot be sustained in the light of the view taken by the Division Bench in para 4 of Ext.P5. It was held by the Division Bench that even though the leave was sanctioned after wpc 27373/2009 4 the amendment, in cases where the parties have availed of leave prior to the introduction of the amendment, then if the persons have completed the course, they will be entitled for the benefits. It was held thus in para 4: “We are afraid that contention also cannot be appreciated. In the case of those writ petitioners also, they had availed leave prior to the introduction of the amendment. The incidence is prior to the amendment. It is submitted that they completed the course prior to the amendment, they joined duty prior to the amendment and their applications for leave are prior to the amendment. In such circumstances, in view of the Bench decision of this Court in State of Kerala v. Gopalan Chettiar - 1993 (2) KLT 160 the position at the time of the application for availing the leave is the crucial factor that has to be considered. Therefore, while rendering a decision by the Government, the factual position will have to be adverted to as to whether there was an application prior to the amendment, whether the training is prior to the amendment etc. In that view of the matter we do not think that any interference is called for on the view already taken by the learned single Judge though not expressly adverting to some of the observations made by us in this judgment.” 6. It is clear from Ext.P1 that the leave application is dated 8.7.1998 and the period of leave applied for is from 8.7.1998 to 31.3.1999. It also clear from Exts.P2 and P4 that the petitioner had availed of the leave from 8.7.1998 to 31.3.1999. Therefore, it is prior to the deletion of the third wpc 27373/2009 5 proviso to Rule 33(b)(2) of Part I K.S.R. There is no dispute that the petitioner had undergone the course based on the said leave sanctioned as per Ext.P1. 6. In that view of the matter, the petitioner is entitled to succeed in the writ petition. The writ petition is therefore allowed. Ext.P4 is quashed. There will be a declaration that the leave without allowance availed of by the petitioner from 8.7.1998 to 31.3.1999 could be reckoned for service benefits including increment, grade promotion, accumulation of earned leave and pension. No costs. (T.R. Ramachandran Nair, Judge.) kav/