IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 13TH SEPTEMBER 2010 / 22ND BHADRA 1932 WP(C).No. 26360 of 2009(L) PETITIONER: K.A. REJEENA, H.S.S.T. JUNIOR (COMMERCE) TARBIYATH TRUST HSS, KAVAMKARA, MARKET P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT-686673. BY ADV. SRI.T.R.RAJESH RESPONDENTS: 1. STATE OF KERALA, REP. BY THE SECRETARY TO GOVERNMENT, GENERAL (T) EDUCATION DEPARTMENT(HSE), GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOSUING BOARD BUILDING, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, EDAPPALLY .P.O., ERNAKULAM. 4. THE MANAGER, TARBIYATH TRUST HSS, KUVAMKARA, MARKET P.O., MUVATTUPUZHA, ERNAKULAM DISTRICT - 686673. R1 TO R3 BY GOVERNMENT PLEADER MS.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 13/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------------------------------ W.P.(C). NO. 26360 OF 2009 L ------------------------------------------------------ Dated this the 13th day of September, 2010 JUDGMENT The petitioner was working as HSST (Junior) in Commerce in Tarbiyath Trust Higher Secondary School, Kuvamkara, Muvattupuzha. It is stated that the petitioner was initially appointed as HSST in the School on 1.2.2001 and she continued there till 29.12.2002. The petitioner was not having SET qualification at the time of appointment. After acquiring SET qualification, the petitioner was re-appointed as HSST (Junior) on 30.12.2002. The appointment was approved by the Director of Higher Secondary Education for the period from 30.12.2002 to 29.12.2007, as per Ext.P1 order dated 29.4.2003. Ext.P1 order was passed subject to the following: “Subject to passing B.Ed. within 5 years from the date of appointment. Probation shall be declared only after passing B.Ed.” W.P.(C) NO.26360 OF 2009 :: 2 :: 2. It is stated that B.Ed. in Commerce was not offered by any university in Kerala till 2004. In compliance with the stipulation in Ext.P1, the petitioner applied for Leave Without Allowance from 3.6.2004 to 31.5.2005 for undergoing B.Ed. Course. Leave was granted by Ext.P2 order dated 26.9.2005. Ext.P2 stipulates that the leave period will not count for any service benefits including pension. The petitioner had completed B.Ed. and she continued in service as HSST. Her probation was declared with effect from 28.12.2005. 3. While so, Ext.P3 communication was received by the Manager from the Regional Deputy Director stating that the declaration of probation was irregular and increments granted were also irregular. On those grounds, the Manager was directed to realise all excess amounts paid to the petitioner due to erroneous granting of increments. 4. Ext.P4 audit enquiry report dated 29.2.2008 also shows the following: “As per the (Govt. Circular No.72/2005/Fin. dated 30/12/05) provisions of KSR LWA under Appendix XIIA/ W.P.(C) NO.26360 OF 2009 :: 3 :: XIIB/XIIC before declaration of probation in the cadre from which the officer proceeds on leave will forfeits all service benefits that had accrued in the post prior to proceeding on leave and treated as a new entrant in that post. He/She will not be eligible for increment, higher grade, pension or accumulating EL/HPL for that period.” 5. The reliefs prayed for in the Writ Petition are the following: “(a) call for the records leading to Ext.P2 and quash the same to the extend they stipulate that the period of leave without allowance will not count for service benefits including pension, by issuing a writ of certiorari; (b) issue a writ of mandamus directing the 1st respondent to count the period of leave without allowance sanctioned to the petitioner as per Ext.P2 for all service benefits including increments, grade promotion and pension; (c) issue a writ of certiorari or other appropriate writ order or direction to quash Exhibits P3 and P4 since the same were issued on total non application of mind; W.P.(C) NO.26360 OF 2009 :: 4 :: (d) issue a writ of mandamus directing the respondents to continue to disburse the salary and other allowances attached to the post of HSST (Junior) counting her period of leave without allowance sanctioned as per Ext.P2; (e) issue a writ of mandamus or other appropriate writ order or direction commanding the 1st respondent to consider and pass orders on Exhibit P6 representation filed by the petitioner as expeditiously as possible; (f) issue any other writ order or direction as this Hon'ble Court may deem fit in the facts and circumstances of the case.” 6. The petitioner submits that Exts.P3 and P4 are unsustainable. She submitted Ext.P6 representation to the first respondent. 7. According to the petitioner, leave was granted under Appendix XIIB of Part I of the Kerala Service Rules on a mistaken notion that B.Ed. qualification is not a superior qualification as contemplated under Note I to Rule 91 of Part I of the Kerala Service W.P.(C) NO.26360 OF 2009 :: 5 :: Rules. It is submitted that the issue involved in this case is covered by the judgment in W.A.No.1917 of 2008 (Ext.P9). In Ext.P9 judgment, the Division Bench 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 atonce. The amendment is to the effect that the 3rd proviso referred to above 'shall be omitted'. In the explanatory note it is explained that “the retention of the 3 rd 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 Courses”. 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 W.P.(C) NO.26360 OF 2009 :: 6 :: 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. 3. Yet another contention taken by the learned Government Pleader is that the writ petitions are highly belated and that the leave having been sanctioned subject to the condition attached to the leave, there is no justification in turning round later and attacking the condition. We are afraid that the contention also cannot be appreciated in view of the decision of this court in Deepika v. State of Kerala, 2007 (1) KLT 71. That judgment was accepted by the Government and it has been implemented also. It has been held that the Government is not justified in attaching any condition which is not permissible under the Rules.” The contention of the petitioner that deletion of the third proviso to W.P.(C) NO.26360 OF 2009 :: 7 :: Rule 33(b)(2) of Part I KSR is only prospective in operation. The Division Bench had taken that view in Ext.P9 judgment. 8. The learned Government Pleader submitted that against Ext.P9 judgment the State has filed a Special Leave Petition before the Honourable Supreme Court and the same is pending. 9. In the light of the settled legal position in W.A.No.1917 of 2008, in Deepika v. State of Kerala (2007 (1) KLT 71) and also in State of Kerala v. Gopalan Chettiar (1993 (2) KLT 169, I am of the view that the petitioner is entitled to the reliefs except relief (e) made in the Writ Petition. Accordingly, the Writ Petition is allowed in respect of reliefs (a), (b), (c) and (d). The first respondent shall issue consequential orders within a period of two months from the date of receipt of a copy of the judgment and the benefit of the same shall be disbursed to the petitioner without delay. (K.T.SANKARAN) Judge ahz/