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. 30196 of 2007(T) PETITIONER: ------------ P.SUNANDAKUMARI, LPSA, ST.VINCENT'S COLONY, TTI MODEL LPS, CALICUT. BY ADV. SRI.R.K.MURALEEDHARAN RESPONDENTS: ------------- 1. STATE OF KERALA REP.BY SECRETARY TO GENERAL EDUCATIONAL DEPARTMENT. 2. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. BY GOVERNMENT PLEADER SMT.T.B.REMANY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/07/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS: EXT.P1 TRUE COPY OF THE APPLICATION FOR LEAVE DATED 5.6.2003 SUBMITTED BY THE PETITIONER. EXT.P2 TRUE COPY OF THE G.O.(Rt)NO.649/05/G DATED 14.2.2005. EXT.P3 TRUE COPY OF THE CIRCULAR NO.16/98/FIN DATED 16.3.1998 EXT.P4 TRUE COPY OF THE CIRCULAR NO.15/R4/99/FIN DATED 6.3.1999 EXT.P5 TRUE COPY OF THE CIRCULAR DATED 8.6.2002 EXT.P6 TRUE COPY OF THE CIRCULAR NO.45129/13/03/G.Edn. DATED 4.11.2003. EXT.P7 TRUE COPY OF THE JUDGMENT IN WP(C) NO.3014/06 EXT.P8 TRUE COPY OF THE STATEMENT OF FIXATION OF PAY IN THE REVISED SCALE SANCTIONED AS PER GO(P)145/06/FIN DATED 25.3.2006. EXT.P9 TRUE COPY OF THE REPRESENTATION DATED 20.9.2007 ADDRESSED TO THE FIRST RESPONDENT. RESPONDENTS' EXHIBITS: NIL //TRUE COPY// AHZ/ K.T.SANKARAN, J. -------------------------------------------- W.P.(C) NO. 30196 OF 2007 T -------------------------------------------- Dated this the 7th July, 2008 JUDGMENT The petitioner while working as Assistant Teacher in St.Vincent's Colony Model L.P.School, Calicut, availed leave without allowance for undergoing B.Ed. Training Course. Leave was granted to the petitioner as per Government Order, G.O.(Rt) No.649/05/GE dated 14.2.2005 (Ext.P2). In Ext.P2 order it is recorded that the 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 petitioner approached the first respondent for deleting the condition that leave without allowance period will not count for any service benefits including pension. The first respondent issued Exts.P3 circular dated 16.3.1998 clarifying that leave without allowance granted under Rules 88 and 91 will not count for any service benefits including pension, but leave without allowance granted under Rule 88 on Medical Certificate and leave without allowance granted for study purpose under Rule 91A will count for increment, promotion and other service benefits. The grievance of the petitioner is that the condition that leave without allowance availed by the petitioner will not count for service benefits including pension is illegal and is against Ext.P7 judgment in W.P.(C) No.3014 of 2006 dated 14.8.2006. W.P.(C) NO.30196 of 2007 :: 2 :: 3. At the time when the leave without allowance was granted to the petitioner, 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 petitioner is not entitled to the benefit of third proviso of Rule 33(b)(2). 4. The question whether deletion of the third proviso referred to above would apply retrospectively, was considered by a learned single Judge of this court in the judgment dated 22.02.2006 in W.P.(C) No. 26782 of 2005. It was held that when leave was granted before deletion of the third proviso, the person concerned would be entitled to reckon the period of leave for the purpose of increment. In Deepika V. State of Kerala (2007 (1) KLT. 71) , it was held thus: “On the other hand, it is contended by the learned Government Pleader appearing on behalf of the State that only if the leave is sanctioned under R.91A that both the proviso thereunder be attracted and in this particular case leave without allowance was sanctioned under R. 88 and so the second proviso will not enable the petitioner to claim the benefit of that proviso. I am unable to accept this contention for two reasons. Firstly, R.91 A is a separate rule entitling a person for claiming leave for taking Post Graduate Degree. A training course like B.Ed is not a Post Graduate Degree Course and secondly, when the second proviso specifically refers to B.Ed course and the W.P.(C) NO.30196 of 2007 :: 3 :: leave availed was for completing the said course must be understood as an independent provision and will entitle the person to claim the benefit of the said proviso, provided the leave is sanctioned for completing the B.Ed course. As against the statutory rule, the Government cannot take away the benefit by virtue of any circular or executive order. In so far as Ext. P4 has taken away the statutory right conferred on the petitioner under the second proviso of sub-r.2 of R.33 , it is oppose to the statutory provisions and liable to be set aside. ” 5. In view of the decision in Deepika's case (supra) and also various other decisions in which this Court has taken the consistent view that deletion of the third proviso of Rule 33(b)(2) Part 1 of the Kerala Service Rules is only prospective, the condition imposed in Ext.P2, to my mind, is illegal and is liable to be quashed. Therefore, the condition imposed in Ext.P2 that leave without allowance period will not count for any service benefits including pension is quashed. It is declared that the petitioner is entitled to the benefit of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules. The respondents shall pass fresh orders granting the benefit of third proviso of Rule 33(b)(2) of Part I of the Kerala Service Rules to the petitioner within a period of one month from the date of receipt of a copy of this judgment. The Writ Petition is disposed of as above. (K.T.SANKARAN) Judge ahz/