IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON SATURDAY, THE 3RD DECEMBER 2011 / 12TH AGRAHAYANA 1933 O. P.No. 5474 of 2003(B) ---------------------- PETITIONER(S): --------------- P.B. SULEKHA, SENIOR GRADE LECTURER DEPARTMENT OF CHEMISTRY, S.N.M. COLLEGE, MALIANKARA. BY ADV. SRI.BABU CHERUKARA RESPONDENT(S): --------------- 1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO HIGHER EDUCATION DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, KERALA STATE, TRIVANDRUM. 3. THE DEPUTY DIRCTOR OF HIGHER EDUCATION, ERNAKULAM. BY SR. GOVERNMENT PLEADER ADV. S. ABDUL SALAM THIS ORIGINAL PETITION HAVING BEEN FINALLY HEARD ON 03/12/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: O. P.No. 5474 of 2003(B) APPENDIX PETITIONER'S EXHIBITS: EXT.P1 : TRUE PHOTOCOPY OF THE JUDGMENT OP.2567/93 e DATED 31.08.1999 OF THE HON'BLE HIGH COURT OF KERALA. EXT.P2 : TRUE PHOTOCOPY OF THE REPRESENTATION DATED 15.10.2001 SENT BY THE PETITIONER BEFORE THE 2ND RESPONDENT. EXT.P3 : TRUE PHOTOCOPY OF THE JUDGMENT IN OP.16163/2002 DATED 18.06.2002 OF THE HON'BLE HIGH COURT OF KERALA EXT.P4 : TRUE PHOTOCOPY OF THE ORDER NO. ESTT.DEPT.3-49616/02.CO.V.V. THIRUVANANTHAPURAM, DATED 6.9.2002. EXT.P5 : TRUE TYPED COPY OF THE RELEVANT PAPRT OF THE G.O(P) 444/72/FIN DATED 14.09.1972. EXT.P6 : TRUE PHOTOCOPY OF THE G.O.(P) 444/72 FIN. TVM. DATED 14TH SEPTEMBER, 1972. /TRUE COPY/ P.S. TO JUDGE. P.R. RAMACHANDRA MENON, J. .............................................................................. O.P. No. 5474 of 2003 ......................................................................... Dated this the 3rd December, 2011 J U D G M E N T Whether an employee of the Government, who was granted 'study leave' is eligible to have Dearness Allowance over and above the salary equivalent payable as provided under Rule 93 of Part I, K.S.R. read with Clause 17 of Appendix VI of Part I K.S.R. is the issue involved in this case. 2. This is the third round of litigation at the instance of the petitioner before this Court . The petitioner, who was a Senior Grade Lecturer in Chemistry, working in S.N.M. College, Maliankara, had availed study leave for the period from 03.03.1992 to 03.03.1993 to undergo M.Phil course in the Cochin University of Science and Technology. The leave was granted to the petitioner on condition that she would not get any monetary benefit for the said period. The leave originally granted under Rule 88(ii) of the Rules was subsequently converted as Leave under Rule 99 of the Part I, K.S.R. , subject to the condition that no salary would be paid during the period, thus in modification of the earlier order. The modified O.P. No. 5474 of 2003 2 order was subjected to challenge by one of the two similarly situated persons by name George V ., in O.P.5146 of 1993. Accepting the contentions raised by the petitioner therein, the impugned order was set aside and the petitioner was granted the benefit holding that, once the Government decided to grant study leave, then it was subject to all the conditions in Appendix VI. A reference was also made to Clause 17 of Appendix VI of Part I K.S.R., to the effect that during 'study leave', a Government servant shall draw leave salary equal to the amount admissible during Half Pay Leave as given under Rule 93 of Part I K.S.R. 3. The petitioner in the instant case had sought for similar benefit by filing O.P.No.2567 of 1993. Placing reliance on the above observation made by this Court in 0.P.5164 of 1993, the aforesaid O.P. was allowed setting aside Ext.P4 order therein, to the extent the petitioner was aggrieved and the respondent was directed to pay salary equivalent to the petitioner for the aforesaid period within three months. Pursuant to the above verdict, the salary equivalent to an extent of Rs.10939/- was O.P. No. 5474 of 2003 3 admittedly disbursed to the petitioner. But the petitioner projected a further grievance that the said amount only constituted the 'basic salary' and no Dearness Allowance was disbursed, which made her to file Ext. P2 representation before the second respondent for appropriate reliefs. Since no action was forthcoming, the petitioner approached this Court by filing OP.No.16163 of 2002, which culminated in Ext.P3 judgment, whereby the above representation was ordered to be considered and disposed of, in accordance with law, within the time, as specified therein. In tune with the above direction, the matter was considered by the second respondent, who passed Ext.P4 order on 06.09.2002 holding that the petitioner was not entitled to have any Dearness Allowance, in view of the relevant rule position and the contents of G.O.(P)444/72/Fin dated 14.09.1972, a copy of which has been produced as Ext. P5. The petitioner is challenging the correctness and sustainability of Exts. P4 and P5 in this original petition. 4. Heard the learned Counsel for the petitioner as well as the learned Senior Government Pleader appearing on behalf of O.P. No. 5474 of 2003 4 the respondents. 5. The learned Counsel for the petitioner submits that the stand taken by the respondents is not at all correct or proper, the same being contrary to rule position envisaged under Rule 93, which is extracted below: “93. An officer on half pay leave or leave not due is entitled to leave salary equal to :- (i) half of duty pay, i.e.,half of the pay admissible had be been on duty during the period of leave; (ii) dearness allowance applicable to the amount admissible under clause (i) above. Provided that where an officer is promoted during the period he is on half pay leave the monetary benefit of promotion shall be given only from the date on which the officer assumes charge of the post, if there is change of duties. xx xx xx xx ” The rule very much takes in granting of Dearness Allowance as O.P. No. 5474 of 2003 5 well, by virtue of the stipulation in this regard and as such, there is absolutely no justification on the part of the respondents for having denied the same as per Ext.P4; is the gist of the submissions made on behalf of the petitioner. The learned Counsel submits that Ext.P5, being contrary to Rule 93, is liable to be struck down by this Court and hence this Original Petition. 6. The learned Sr. Government Pleader appearing on behalf of the respondents submits that the idea and understanding of the petitioner is quite wrong and misconceived. It is stated that the stipulation as contained in Clause 17 of Appendix VI very much takes in the circumstance covered by 'study leave', which is applicable to the case in hand, whereby it has been categorically stipulated that an officer on study leave is not eligible for any Dearness Allowance. This being the position, Ext.P4 order passed by the second respondent is very much in conformity with the statutory prescriptions and is not assailable under any circumstances, submits the learned Sr. Government Pleader. 7. It is relevant to note that, the extent of benefit payable to the petitioner, was discussed in detail by this Court in the O.P. No. 5474 of 2003 6 earlier round of litigation, particularly when the matter was finalised as per Ext.P1 judgment. This Court, placing reliance on the earlier verdict on similar matter, observed that when the Government decided to grant study leave, it was subject to all the conditions in Appendix VI. Specific reference was also made to Clause 17 of Appendix VI and the eligibility of the petitioner was declared in crystal-clear terms as per Ext.P1. Clause 17 of Appendix VI says in the following terms: “17. Leave Salary during study leave: During study leave a Government servant shall draw leave salary equal to the amount admissible during half pay leave under Rule 93, Part I, Kerala Service Rules. RULING An officer on study leave is not eligible for dearness allowance. [G.O.(P) 444/72/Fin dated 14th September, 1972]” 8. Since the eligibility of the petitioner to have the benefit to the extent as provided in Clause 17 of Appendix VI of Part I O.P. No. 5474 of 2003 7 K.S.R. stands declared by this Court as per Ext. P1 judgment, the petitioner cannot aspire anything more than the said extent. The petitioner has not challenged the 'Ruling' given under Clause 17 of Appendix VI of Part I, K.S.R. and the challenge with regard to the contents of G.O.(P)No.444/72/Fin dated 14.09.1972 (Ext.P5) is not supported by any tenable grounds. Further, the petitioner did not have any such challenge earlier, with regard to the contents of Ext. P5 Government Order and the rights and liberties of the petitioner stand crystallized as per Ext.P1 judgment, which has become final. As such, the petitioner cannot aspire anything more than the extent covered by Ext.P1 judgment. There is absolutely no merit in the Original Petition and it is dismissed accordingly. P.R. RAMACHANDRA MENON, JUDGE. lk O.P. No. 5474 of 2003 8 P.R. RAMACHANDRA MENON, J. ................................................... O.P. No 5474 OF 2003 ................................................... Dated this the 3rd December, 2011 J U D G M E N T