IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN TUESDAY, THE 24TH MARCH 2009 / 3RD CHAITHRA 1931 WP(C).No. 26502 of 2007(E) ----------------------------------- PETITIONER(S): ---------------------- 1. SHEEJA S.R., 'BHASURA', CHILAMBIL LANE, GANDHIPURAM, SREEKARIYAM P.O., THIRUVANANTHAPURAM- 695 017. (PD TEACHER, S.M.V.GOVERNMENT MODEL H.S.S., THIRUVANANTHAPURAM- 695 001). 2. JITHESH.S., 'SREERENGATHU', MYLODE P.O., POOYAPALLY, KOLLAM- 691 537. (PD TEACHER, GOVERNMENT U.P.S.ANCHAL, KALAMACHAL P.O., VAMANAPURAM, THIRUVANANTHAPURAM- 695 606). BY ADV. SRI.B.RAGUNATHAN SRI.V.V.MATHEW SRI.G.S.MOHANDAS RESPONDENT(S): ----------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPRTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM- 695 001. 2. DIRECTOR OF PUBLIC INSTRUCTION, JAGATHI, THIRUVANANTHAPURAM- 695 014. 3. DEPUTY DIRECTOR OF EDUCATION, THIRUVANANANTHAPURAM- 695 036. SR. GOVERNMENT PLEADER SMT. T.B. REMANI FOR R1-3 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 26502/2007 E APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE ORDER DT. 28/5/2004 OF THE R2. EXT.P2. COPY OF THE GO DT. 15/1/2004. EXT.P3. COPY OF THE GO DT. 16/11/2006. EXT.P4. COPY OF THE ORDER DT. 2/8/2005 OF THE R3. EXT.P5. COPY OF THE GO DT. 11/5/2005. EXT.P6. COPY OF THE GO DT. 10/08/2007. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.26502 of 2007 -------------------------------------- Dated 24th March, 2009 JUDGMENT The petitioners are presently working as P.D. Teachers in Government schools. The second petitioner had availed leave without allowances during the period from 4.9.2004 to 31.3.2005 for the purpose of undergoing the B.Ed. Degree course. The Headmaster of the school granted half pay leave from 22.6.2004 to 3.9.2004 and leave without allowances for the period from 4.9.2004 to 31.3.2005 and the second petitioner proceeded on leave. Later, after the course was completed, it was contended that the authority competent to grant leave is the Government. The second petitioner, therefore, submitted an application dated 20.7.2006 requesting for grant of leave for the period of leave already availed by him. By Ext.P3 order passed on 16.11.2006, the Government sanctioned the leave, subject to the condition that the leave without allowances for the period from 4.9.2004 to 31.3.2005 will not count for any service benefit including pension. Ext.P3 is under challenge in this writ petition. 2. As regards the first petitioner, the learned counsel appearing for the petitioners submits that the first petitioner was joined as a petitioner on the erroneous belief that she had also availed leave without allowances for the purpose of undergoing the B.Ed. Degree course after entry in service. WP(C).No.26502/2007 2 The learned counsel appearing for the petitioners submits that the first petitioner has not availed leave without allowances for the purpose of undergoing the B.Ed. Degree course and that her name may be struck off from the array of parties. 3. The learned Government Pleader appearing for the respondents, relying on the decision of this court in State of Kerala v. Gopalan Chettiar (1993 (2) KLT 169) contends that it is the law as on the date of application that governs the grant of leave and as the second petitioner was granted leave without allowances, after 11.5.2005, the Government was right in passing Ext.P3 order. 4. I have considered the submissions made at the Bar by the learned counsel appearing on either side. The pleadings disclose that the second petitioner had availed half pay leave for the period from 22.6.2004 to 3.9.2004 and leave without allowances for the period from 4.9.2004 to 31.3.2005. The said leave was granted by the Headmaster of the school where he was then working. The petitioner underwent the B.Ed. Degree course during the said period of leave and after he has successfully completed the course, it was noticed that the Headmaster was not competent to grant leave. He, therefore, submitted an application dated 20.7.2006 to the Government for grant of leave for the purpose of undergoing the B.Ed. Degree course. As a matter of fact, he had WP(C).No.26502/2007 3 undergone the B.Ed. Degree course more than one year before moving the Government. The Government by Ext.P3 order passed on 16.11.2006 granted the leave subject to the condition that the leave without allowances during the period from 4.9.2004 to 31.3.2004 will not count for any service benefit including pension. The contention of the learned counsel appearing for the petitioners is that as the leave was availed prior to 11.05.2005 with effect from which date the third proviso to Rule 33(b)(2) of Part I of the Kerala Service Rules was deleted, the second petitioner is entitled to have the leave period reckoned for the purpose of increments and pension. 5. In my opinion, the stand taken by the Government in Ext.P3 is misconceived. It is true that if the Government had granted leave in relation to a period after 11.5.2005, what the Government Pleader states is the correct position. However, in the instant case, the second petitioner had availed leave for undergoing the B.Ed. Degree course before 11.5.2005. Therefore, the grant of leave as per Ext.P3 was in respect of period prior to 11.5.2005. The mere fact that the Government passed the order belatedly cannot therefore deprive the second petitioner of the benefits flowing from the third proviso to Rule 33(b)(2) of Part I KSR which was deleted only on 11.5.2005. I am, therefore, of the considered opinion that the stipulation in Ext.P3 that the leave without allowances availed by the petitioner during the period from 4.9.2004 to 31.3.2005 to undergo the WP(C).No.26502/2007 4 B.Ed. Degree course will not count for increments and pension, cannot be sustained. 6. In the result, this writ petition is allowed and Ext.P3 to the extent it denies the second petitioner the service benefits during the period from 4.9.2004 to 31.3.2005 is quashed and the respondents are directed to count the period of leave availed by the second petitioner for undergoing the B.Ed. Degree course for the purposes of grant of increments and pension. Necessary orders regarding sanctioning of increments shall be issued within three moths from the date of receipt of a copy of this judgment. Consequential re-fixation of pay shall be made and arrears disbursed within another period of three months thereafter. The name of the first petitioner shall stand struck off for the reason that she was erroneously joined as a party in this writ petition and is not claiming reliefs in relation to grant of leave without allowances for the purpose of undergoing the B.Ed. Degree course. The writ petition is allowed as above. No costs. P.N.RAVINDRAN Judge TKS