IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN MONDAY, THE 7TH JULY 2008 / 16TH ASHADHA 1930 WP(C).No. 15287 of 2008(T) -------------------------- PETITIONERS: ------------ 1. MUHAMMED ABDUL MUNEER NOW H.S.A HINDI, M.J.H.S.S.ELETTIL POST, KOZHIKODE. 2. K.T.ABDUL SALIM, HINDI TEACHER, F.M.H.S., KOOMPARA, KOZHIKODE. 3. P.ABDUL LATHEEF, L.G.HINDI, P.M.S.A.P.T.H.S.S. KAKOOR, VAZHAYOOR POST, MALAPPURAM. 4. DEVAN.T., JUNIOR HINDI TEACHER, S.A.U.P.S.CHELODE, MANNATHIPOIL P.O., MALAPPURAM. 5. ABDUL SALIM.V., HINDI TEACHER, GOVERNMENT HIGH SCHOOL, POONOOR, MANGAD POST, UNNIKULAM, KOZHIKODE. BY ADV. SRI.MATHEW JOHN (K) SRI.AJEESH K.SASI RESPONDENT: ------------- STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT (GENERAL EDUCATION DEPARTMENT), DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION, TRIVANDRUM. BY G.P. SHRI K.C.SANTHOSHKUMAR THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONERS' EXHIBITS: EXT.P1 TRUE COPY OF THE ORDER SANCTIONING LEAVE TO THE FIRST PETITIONER DATED 13.1.2004 EXT.P2 -DO- TO THE SECOND PETITIONER DATED 25.7.2005 EXT.P3 -DO- TP THE THIRD PETITIONER DATED 5.1.2006 EXT.P4 -DO- TO THE FOURTH PETITIONER DATED 26.7.2005 EXT.P5 -DO- TO THE FIFTH PETITIONER DATED 5.3.2004 EXT.P6 A TRUE COPY OF THE ORDER DATED 15.3.2003 EXT.P7 A TRUE COPY OF THE JUDGMENT IN WP(C) NO.26782/2005 DATED 22.2.2006 EXT.P8 A TRUE COPY OF THE ORDER DATED 20.7.2006 EXT.P9 A TRUE COPY OF THE ORDER DATED 15.9.2007 REJECTING THE REQUEST OF THE FIRST PETITIONER EXT.P10 -DO- DATED 6.12.2007 -DO- OF THE SECOND PETITIONER EXT.P11 -DO- DATED 19.11.2005 -DO- OF THE THIRD PETITIONER EXT.P12 -DO- DATED 6.9.2007 -DO- OF THE FOURTH PETITIONER EXT.P13 -DO- DATED 23.2.2008 -DO- OF THE FIFTH PETITIONER EXT.P14 A TRUE COPY OF THE ORDER DATED 3.11.2006 //TRUE COPY// K.T. SANKARAN,J. -------------------------------------- W.P.(C) No.15287 of 2008 T -------------------------------------- Dated this the 7th day of July, 2008. J U D G M E N T Except the first petitioner, all other petitioners were working as teachers when they availed leave without allowance for undergoing Hindi Teacher's Training Course. Leave was granted to the petitioners as per Exts.P1 to P5 orders. In Exts.P2 to P5 orders it is recorded that leave without allowance period will not count for any service benefits including pension and that the said fact will be recorded in the Service Book. 2. The petitioners took up the matter before the Director of Public Instructions who passed Exts.P9 to P13 orders holding that leave without allowance was sanctioned on the specific condition that it will not count for service benefits including pension and that after having accepted the condition and availed the leave, the petitioners are not entitled to request for counting the period of leave without allowance for service benefits. In Ext.P11 order dated 19.11.2005, it is also stated that by the deletion of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules, the petitioners are not entitled to claim the benefit of reckoning the period of leave without allowance for service benefits. WP(C) No.15287/2008 2 3. The first petitioner was not a teacher at the relevant time of taking leave without allowance and, therefore, he cannot claim the benefit of reckoning the period of leave without allowance for service benefits, as it is evidently clear that it would not come within the meaning of Rule 33(b)(2) of Part I of the Kerala Service Rules. 4. As regards petitioners 2 to 5, the position is different. A learned Single Judge of this Court has considered the question whether the deletion of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules is retrospective or prospective. It was held that the deletion of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules would be only prospective, as per Ext.P7 judgment dated 22.2.2006 in W.P.(C) No.26782/2005. 5. At the time when the leave without allowance was granted to petitioners 2 to 5, the third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules was in force. The said third proviso provides that leave without allowance taken by the teachers for completion of training courses, such as B.Ed., Hindi Teacher's Training, Language Teacher's Training and Teachers Training Certificate Course shall count for increment. The amendment to Rule 33(b)(2) of Part I of the Kerala Service Rules came into force on 11.5.2005. Since the leave granted was for the period before the date of amendment, it cannot be said that the petitioners 2 to 5 are not entitled to the benefit of third proviso of Rule 33(b)(2). Exts.P10 to P13 taking a contrary view, to my mind, are illegal and are liable to be quashed. Exts.P10 to P13 are accordingly WP(C) No.15287/2008 3 quashed. It is declared that the petitioners 2 to 5 are entitled to the benefit of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules. The respondent shall pass fresh orders granting the benefit of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules to petitioners 2 to 5 within a period of one month from the date of receipt of a copy of this judgment. The claim put forward by the first petitioner does not require any consideration as he is not entitled to the benefit of the third proviso to Rule 33(b)(2) of Part I of the Kerala Service Rules. The Writ Petition is disposed of as above. K.T. SANKARAN, JUDGE. cks