IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 28TH NOVEMBER 2008 / 7TH AGRAHAYANA 1930 WP(C).No. 24170 of 2007(B) --------------------------------------- PETITIONER: ------------------- SREEJA.R.S., D/O.SISUPALAN, AGED 30 YEARS, WORKING AS P.D.TEACHER, G.L.P.S., INCHAKKADU, KOLLAM, RESIDING AT SREE MANDIRAM, CHANAKKARA, SASTHAMCOTTAH, KOLLAM. BY ADV. SRI.P.B.SURESH KUMAR, ADV. SRI.LEO GEORGE. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY THE CHIEF SECRETARY TO GOVERNMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF PUBLIC INSTRUCTION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. 3. DEPUTY DIRECTOR OF EDUCATION, KOLLAM. *ADDL.R4 & R5 IMPLEADED: *4. THE DIRECTOR, HIGHER SECONDARY EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM. *5. THE HEADMASTER, S.B.V.S. GOVERNMENT H.S.S, PANMANA MANAYIL, PANMANA.P.O., KOLLAM. *ADDITIONAL RESPONDENTS 4 AND 5 ARE IMPLEADED AS PER ORDER DATED 31/10/2008 IN I.A. 13682/2008. R1 TO R4 BY GOVERNMENT PLEADER SRI. T.T. MOHAMOOD. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28/11/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.24170/2007-B: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE ORDER ISSUED BY THE R.2. DTD. 11/07/2005. EXT.P.2: COPY OF THE CLARIFICATION LETTER ISSUED BY THE R.2. DTD. 20/04/2004. EXT.P.3: COPY OF THE COURSE CERTIFICATE ISSUED TO THE PETITIONER BY THE PRINCIPAL, GOVERNMENT COLLEGE OF TEACHER EDUCATION, THIRUVANANTHAPURAM DTD. 22/08/2006. EXT.P.4: COPY OF THE ORDER ISSUED BY THE R.3. DTD. 05/05/2007. EXT.P.5: COPY OF THE G.O. (P).NO.217/2005 DTD. 11/05/2005. EXT.P.6: COPY OF THE GOVERNMENT LETTER DTD. 27/04/2006. EXT.P.7: COPY OF THE NOTIFICATION PUBLISHED BY THE DIRECTOR OF HIGHER SECONDARY EDUCATION, GOVERNMENT OF KERALA, THIRUVANANTHAPURAM DTD. 30/09/2008. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.24170/2007 ----------------------------------------------------------- Dated this the 28th day of November, 2008 JUDGMENT Petitioner was appointed as P.D Teacher in the Government L.P School, Inchakkadu in Kollam District on 4.2.2004. After she joined duty, the 2nd respondent invited applications from the departmental candidates for B. Ed course in Government Training Colleges. Petitioner applied for the same and was eventually selected. At this stage, Ext.P2 circular was issued by the DPI, requiring that those selected for B. Ed be relieved so as to enable them to join the course on 3.8.2005. 2. Petitioner submits that, on the strength of her selection for B.Ed course and also on the basis of Ext.P1, without availing of leave of any kind, she was relieved on 2.8.2005. It is stated that she completed the course on 2 31.3.2006 and rejoined duty on 1.4.2006 and is continuing in that post. 3. The petitioner contends that, the period that she underwent B. Ed course from2.8.2005 to 31.3.2006 has not been regularised and that the monthly stipend of Rs.250/- provided for in Ext.P1 has not been paid. According to the petitioner, she took up the matter before the 3rd respondent, who negatived her claim by Ext.P4. The reason stated in Ext.P4 is the deletion of 3rd proviso to Note-2 to Rule 33(b) of Part-I KSR with effect from 11.5.2005. It is challenging Ext.P4 and praying for a direction to the respondents to regularize the period during which the petitioner underwent B. Ed training pursuant to Ext.P1 as duty and disburse all consequential monetary benefits including the subsistence allowance, as provided in Ext.P1, this writ petition has been filed. 4. Counsel for the petitioner raised two submissions. One is relying on Note-5 to Rule 12(7) of Part-I KSR and the 3 other is relying on the 3rd proviso to Note-2 to Rule 33(b) of the Part-I KSR. In so far as the contentions relying on Note- 5 to Rule 12(7) of Part-I KSR is concerned, this Note provides that, the period spent for training by the teachers (both stipendiary and non-stipendiary) deputed for training from Departmental Schools to Training Colleges/ Training Schools may be treated as duty. It is contended that the petitioner was deputed for training during the period in question and therefore the said period has to be treated as duty. 5. However, learned Government Pleader submits that the benefit of this Note is available only to unqualified teachers in Departmental Schools. In order to support this proposition, Learned Government Pleader also relies on Ext.P6. On appreciating the rival contentions of the parties, I am inclined to agree with the Learned Government Pleader that the benefit of the Note is available only to the unqualified Departmental Teachers. This view is discernible 4 from Ext.P6 also. 6. In this case the petitioner was a qualified teacher, though in a Departmental School. The training that she underwent was for acquiring superior qualification and not an essential qualification. If that be so, she being a qualified teacher, who went for training for acquiring superior qualification, does not come within the purview of Note-5 of Rule 12(7) of Part-I KSR. 7. The 2nd contention raised by the counsel for the petitioner is regarding the reference in Ext.P4 about the deletion of the 3rd proviso to Note-2 of Rule 33(b) of Part I KSR. This Note was deleted with effect from 11.5.2005. The proviso provided that, leave without allowance availed of by teachers for completion of training courses such as B.Ed shall count for increments. The petitioner contends that this Note is inapplicable in so far as she is concerned for the reason that she had not availed the leave for achieving the B.Ed course. Petitioner has made positive averments in this 5 regard in the writ petition. 8. From the averments in paragraph 4 of the counter affidavit filed by the 3rd respondent also, it can be seen that the averment of the petitioner that before she was relieved for joining B.Ed course she did not apply or avail of leave on any count, is seen admitted. However, according to the 3rd respondent, the petitioner has to apply for leave. Thus, the fact that the petitioner has joined the course without availing of leave is admitted. Then the question is whether the petitioner should apply for leave. In my view, there cannot be such a requirement in the light of Ext.P2. Ext.P2 is a letter issued by the DPI himself on 20.4.2004, which states that those who get selected for B. Ed in the departmental quota do not have to avail of leave to join the course. It also states that such candidates will get stipend (subsistence allowance) of Rs.250/- per month. In the light of Ext.P2, it cannot be contended that the petitioner has to avail of leave. Thus, the 3rd proviso to Note-2 of Rule 33(b) 6 of Part I KSR and its deletion has no relevance, in so far as the petitioner is concerned. Therefore, the view taken in Ext.P4 is erroneous and cannot be upheld. In view of this, quashing Ext.P4, this writ petition is disposed of directing that the period during which the petitioner underwent B. Ed course shall be regularized as duty and the subsistence allowance of Rs.250/- as provided in Ext.P1 shall be released to the petitioner, without any further delay and as expeditiously as possible, at any rate, within 8 weeks from the date of production of a copy of the judgment. ANTONY DOMINIC JUDGE vi. 7