IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC FRIDAY, THE 24TH OCTOBER 2008 / 2ND KARTHIKA 1930 WP(C).No. 30233 of 2007(Y) -------------------------------------- PETITIONER: ------------------- N.MANOJKUMAR, U.P.S.A., AMAYANNOOR HIGH SCHOOL, AMAYANNOOR P.O., KOTTAYAM DISTRICT. BY ADV. SRI.M.RAMESH CHANDER, ADV. SRI.SIJI ANTONY. RESPONDENTS: ----------------------- 1. STATE OF KERALA, REPRESENTED BY PRINCIPAL SECRETARY TO GOVERNMENT, CENTRAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. DISTRICT EDUCATIONAL OFFICER, PALA, KOTTAYAM. R1 & R2 BY GOVERNMENT PLEADER SRI. A.J. VARGHESE. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 24/10/2008,THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C). NO.30233/2007-Y: APPENDIX PETITIONERS' EXHIBITS: EXT.P.1: COPY OF THE COURSE CERTIFICATE DTD. 13/01/1999. EXT.P.2: COPY OF THE PAGE NO. 19 OF PETITIONER'S SERVICE BOOK. EXT.P.3: COPY OF THE REPRESENTATION DTD 19/02/2007. EXT.P.4: COPY OF THE ORDER NO. B3-3705/07 DTD. 15/06/2007. EXT.P.5: COPY OF THE JUDGMENT IN 2007 (1) KLT 71. EXT.P.6: COPY OF THE ORDER NO. B3/4240/2006 DTD. 05/08/06. RESPONDENTS' EXHIBITS: NIL. //TRUE COPY// P.A. TO JUDGE. prv. ANTONY DOMINIC, J ----------------------------------------------------------- W.P.(C).No.30233/2007 ----------------------------------------------------------- Dated this the 24th day of October, 2008 JUDGMENT Petitioner commenced service as UPSA with effect from 6.6.1994. He availed of leave without allowance for 307 days from 29.12.1998 to 31.10.1999. As is seen from Ext.P2, the same was sanctioned by the Government Order, G.O(Rt)2504/99/G.Edn dated 1.6.1999 under Rule 91 part-I KSR. The petitioner completed the B. Ed course and rejoined duty in November, 1999. 2. It is stated that he is eligible for the first higher grade on completion of 10 years in 2005. Following the pay revision effected in 2006, petitioner claimed the benefit of pay revision and higher grade, reckoning the period of leave without allowance as well. According to the petitioner, by Ext.P6 it was returned stating that the period of leave WP(c).No.30233/2007 2 without allowance is liable to be excluded. 3. Petitioner submits that when he came to know that the period has been excluded for all purposes, he filed Ext.P3 dated 19.2.2007 before the 2nd respondent, for reckoning the aforesaid period as qualifying service and to pay the benefits on that basis. Petitioner relied on Ext.P5 judgment rendered by this court in Deepika V. State of Kerala (2007(1) KLT 71) in support of his claim as above. However, Ext.P3 was returned by the office of the 2nd respondent for resubmission along with the judgment in support of the petitioner's claim. It is there upon that this writ petition was filed praying to quash Ext.P4 and directing the 2nd respondent to refix his pay reckoning the period of leave without allowance mentioned above as qualifying service for granting increments. 4. The respondents in their counter affidavit admit that leave without allowance was granted under Rule 91 Part I KSR by the Government order dated 1.6.1999. According to WP(c).No.30233/2007 3 them, while sanctioning the leave without allowance it was already stated that leave period will not be counted for service. They also contend that the claim made by the petitioner at this distance of time for reckoning the period during 1998-99 is highly belated and is staled. 5. I heard the learned counsel for the petitioner and the learned Government Pleader. Admittedly, leave without allowance was granted to the petitioner for the period from 29.12.1998 to 31.10.199 invoking the power under Rule 91 Part I KSR. The judgment relied on by the petitioner is Ext.P5 and Ext.P5 shows that the leave availed of by the teacher for acquisition of B.Ed is a period liable to be reckoned for increment purpose in view of the provision contained in Rule 91 Part I KSR. Therefore, in my view the period availed of by the petitioner is liable to be counted for increments. 6. Then what remains is the contention of the Government Pleader that the claim raised by the petitioner WP(c).No.30233/2007 4 is belated and is stale. True the representation admittedly received is Ext.P3 dated 19.12.2007 and the period that is sought to be reckoned is from 29.12.1998 to 21.10.1999. Ordinarily, the claim raised has to be rejected as belated, but however it has to be borne in mind that the consequences of the rejection of the petitioner's request is that it will have an effect every month when the pay is released to the petitioner. Therefore, the question is whether in a case where the wrong committed has a recurring effect, a grievance can be declined to be entertained as delayed and stale. In my view, it cannot be. This position is upheld by the apex court in the decision reported in Union of India & Ors. V. Tarsem Singh (2008 (8) SCC 649). At best, what is permissible is to restrict the benefit for the period that has not got time barred by lapse of time. Therefore the claim, if it is otherwise admissible, has to be admitted but however the restriction can be imposed only in so far as the arrears are WP(c).No.30233/2007 5 concerned. Having regard to the fact that for the first time it was claimed by Ext.P3 representation dated 19.12.2007, I am of the view that the monetary benefits if any payable need be paid for the period subsequent to 19.12.2007. Therefore, the writ petition is disposed of with the following directions. Ext.P4 will stand quashed and the period of leave without allowance availed of by the petitioner for the period from 29.12.1998 to 31.10.1999 shall be reckoned for all purpose on that basis the petitioner's pay has to be re-fixed. The arrears if any become payable shall be payable with interest for the period from 19.12.2007, the date of Ext.P3 representation. ANTONY DOMINIC JUDGE vi. WP(c).No.30233/2007 6