IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 23RD FEBRUARY 2011 / 4TH PHALGUNA 1932 WP(C).No. 11474 of 2009(D) ---------------------------------------- PETITIONER(S): ------------------------ A.A. KHADIJABI, LECTURER, GOVERNMENT LAW COLLEGE, VELLIMADUKUNNU, KOZHIKODE. BY SRI.KRB.KAIMAL, SENIOR ADVOCATE BY ADV. SRI.ANIL K.NAIR SRI.B.UNNIKRISHNA KAIMAL SRI.V.MADHUSUDHANAN RESPONDENT(S): ------------------------- 1. STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE ACCOUNTANT GENERAL (A&E), KERALA, KOTTAYAM BRANCH, KOTTAYAM. 3. THE DISTRICT TREASURY OFFICER, KOZHIKODE. 4. PRICIPAL, GOVERNMENT LAW COLLEGE, VELLIMADUKUNNU, KOZHIKODE. BY GOVERNMENT PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/02/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.11474/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER NO.152/A1/2007/CADA DIVISION DTD. .8.2008 ISSUED BY THE EXE.ENGINEER, CADA DIVISION, PALAKKAD. P2:- COPY OF THE ORDER NO.152/A1/2007/CADA DIVISION DTD. 28.8.2008 ISSUED BY THE EXE. ENGINEER, CADA DIVISION, PALAKKAD. P3:- COPY OF THE ORDER G.O.(RT) NO.865/2008/LAW DTD. 29.8.08 ISSUED BY THE LAW SECRETARY. P4:- COPY OF THE ORDER NO.A.8/08 DT. 13.10.2008 ISSUED BY THE 4TH RESPONDENT. P5:- COPY OF THE LETTER NO.GE.10/F/LC. 115/2109 DTD. 22.12.2008 OF THE 2ND RESPONDENT TO THE IST RESPONDENT. P6:- COPY OF THE MEDICAL CERTIFICATE DTD. 28.8.08. P7:- COPY OF THE REPRESENTATION DTD. 16.1.2009 SUBMITTED BY THE PETTIONER TO THE IST RESPONDENT. P8:- COPY OF THE LETTER NO.13/C1/2009/H.EDN. DTD. 20.3.2009 OF THE IST RESPONDENT TO THE 2ND RESPONDENT. P9:- COPY OF THE ORDER G.O.(P) NO.580/09/FIN. DT. 30.12.2009 ISSUED BY THE IST RESPONDENT. P10:- COPY OF THE LETTER NO.GE.10/F/LC.115/55 DTD. 14.5.2010 OF THE 2ND RESPONDENT TO THE APPLICANT RESPONDENT'S EXHIBITS NIL TRUE COPY P.S. TO JUDGE tss T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 11474 of 2009-D - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of February, 2011. JUDGMENT The petitioner's grievance is mainly with respect to the modification of maternity leave granted to her in the light of the objections raised by the Accountant General. The circumstances leading to the dispute are the following: 2. The petitioner is presently employed in Govt. Law College, Kozhikode. Prior to that, she was employed as Legal Assistant in the Law Department of the Government of Kerala, from where she was deputed to the command Area Development Authority Division, Palakkad as Clerk with effect from 5.2.2007. While continuing there, she applied for the admissible period of maternity leave for 135 days with effect from 4.8.2008 and that was sanctioned as per Ext.P1 order by the Executive Engineer. She delivered a child on 8.8.2008 at Aswin Hospital, Thrissur. 3. During this period, pursuant to the advice by the Public Service Commission, the petitioner was appointed as Lecturer in Government Law College, Kozhikode by the first respondent as per G.O.(MS) No.105/08 dated 22.8.2008. The joining time allowed as 15 days. Since she had to wpc 11474/2009 2 join the parent department, she requested for such permission and the Executive Engineer, after cancelling the unavailed portion of leave, reverted her to the parent department as per Ext.P2 order. She rejoined the Law Department on 29.8.2008 and was relieved on the same day as per Ext.P3 order, to join the Govt. Law College, Kozhikode. Accordingly, she joined there on 1.9.2008. She submitted an application before the fourth respondent Principal for sanctioning the balance spell of maternity leave for 111 days which was sanctioned as per Ext.P4 order. 4. After the expiry of the leave period, she rejoined duty as Lecturer in Govt. Law College on 17.12.2008 and salary slip was issued for the period from 2.9.2008 to 30.11.2008. The salary for 30th and 31st August was not disbursed. 5. It is thereafter that the Accountant General sought for clarification with regard to the maternity leave availed by her from the first respondent as per Ext.P5. The petitioner also submitted a representation as per Ext.P7. Finally, by Ext.P8 the first respondent clarified that the maternity leave sanctioned from 2.9.2008 is not admissible, as it is a second spell of maternity leave. It is also informed that Note 5 below Rule 100 Part I K.S.R. is meant for only fresh recruits through Public Service Commission. In the light of the above, the third respondent has not disbursed salary to wpc 11474/2009 3 the petitioner for the period from 1.12.2008 to 16.12.2008. It is at that stage this writ petition was filed. 6. Learned Senior Counsel for the petitioner Shri K.R.B. Kaimal submitted that she had to cancel the unavailed portion of leave initially, to join the Law College, Kozhikode. Fresh leave application was submitted before the Principal of the College, which was sanctioned. It is pointed out that there is no irregularity in the matter. It is further pointed out that the Government itself has passed fresh orders as per Ext.P9 with regard to the grant of maternity leave in cases where a female officer on maternity leave, gets appointment in another department or in the same department by transfer, etc. 7. The maternity leave sanctioned as per Ext.P1 is for 135 days from 4.8.2008. After 24 days of leave, the unavailed portion was cancelled as per Ext.P2 by the Executive Engineer and she was permitted to rejoin duty in CADA Division, Palakkad on the forenoon of 28.8.2008 and was relieved in the afternoon of the same day, to report for duty before the Secretary, Law Department. Ext.P3 is the order relieving her from duties in the Law Department with effect from 29.8.2008. Accordingly, she joined as Lecturer in the Govt. Law College, Kozhikode on 1.9.2008. 8. A reading of Ext.P4 shows that after joining the Law College, she wpc 11474/2009 4 submitted a fresh application for maternity leave by application dated 2.9.2008 for 111 days. The question is whether it is a case where the maternity leave has been granted in two different spells. 9. Rule 100 of Part I K.S.R. provides for grant of maternity leave. Under the main part of the rule, the competent authority can grant maternity leave for 135 days. Note 1 shows that maternity leave is also admissible to temporary female officers under the said rule. Notes 4 and 5 provides as follows: “Note 4.- Maternity leave under this rule and Rule 101 shall be admissible to provisional female recruits continuing in service in a single department beyond one year provided they would continue in service but for proceeding on such leave. Note 5.- Female recruits through Public Service Commission who join duty within 135 days from their date of delivery (otherwise than on account of miscarriage) shall, on joining, be granted from the next day the balance portion of maternity leave admissible as on the date of joining duty, subject to the following conditions: (a) Holidays/Vacation falling immediately after the date of joining service cannot be prefixed to the leave. (b) A certificate from the medical officer who attended the delivery showing the date of delivery along with the medical certificate of h3ealth as prescribed in Rule 13, Part I of Kerala Service Rules should be produced.” wpc 11474/2009 5 Note 5 makes the female recruits who join duty within 135 days of their date of delivery, eligibility to be granted from the next day the balance portion of maternity leave admissible as on the date of joining duty. The view taken is that the said rule will not apply to the petitioner since it applies only to fresh recruits through the Public Service Commission. At that time the said note was introduced as per G.O.(P) No.59/06/Fin. dated 6.2.2006. 10. The main objection taken is that the leave granted from 2.9.2008 has to be treated as the second spell. True that the petitioner applied for and obtained leave as per Ext.P1, for 135 days . But the same was cancelled when Ext.P2 order is passed and fresh leave was sanctioned for 111 days, as per Ext.P4 under a separate application, by a different department. Even though the two periods sanctioned will be within the total number of 135 days allowable, technically it cannot be held that these can be characterised as first spell and second spell under one department. Evidently, the grant of fresh leave as per Ext.P4 is from a different department. Therefore, it is not as if these two spells can be characterised as the first spell or second spell which is objectionable as per the Govt. Letter dated 17.10.1987. The said Govt. Letter specified that maternity leave cannot be availed in different spells. Obviously, the same will indicate that the availing of wpc 11474/2009 6 different spells should be by a composite order. 11. Since the petitioner has obtained leave afresh as per Ext.P4, the objection based on the Govt. Letter dated 17.10.1987 may not survive. It is true that Note 5 concerns fresh recruits through the Public Service Commission. 12. The Government has already clarified the position as per Ext.P9 produced along with I.A. No. 7515/2010. In Ext.P9, the Government has intervened to remedy the difficulties faced by persons who join another department. After referring to Note 5 to Rule 100 of Part I K.S.R., it is ordered as follows: “Government after having examined the matter in detail are pleased to order that a female officer on Maternity Leave who get appointment in another Department/same department by direct recruitment/transfer/promotion will be allowed the balance portion of Maternity Leave from the next day of her joining duty in the new post/department subject to the following conditions: (i) The maximum leave admissible under this will be 180 days only in both the Departments together including intervening holidays and vacation. (ii) The proceedings/order of the previous Department from which the Maternity Leave was availed should be produced in the new Department to avail the second spell of Maternity Leave. (iii) A certificate to the effect that such premature cancellation of wpc 11474/2009 7 Maternity Leave and rejoining is for satisfying the administrative/technical requirement, in order to join duty in another department shall be insisted and recorded in the service register.” Therefore, obviously the same allows the balance portion of maternity leave to be availed of from the next day of joining duty in the new post/department subject to the conditions provided therein. 13. Learned Govt. Pleader pointed out that the rules have not been amended based on Ext.P9. But the objection that maternity leave cannot be availed of in different spells, was one brought out by the Government in their letter No.39189/J2/87/H&FWD dated 17.10.1987 which is referred to as item 3 in Ext.P5. The Accountant General has relied upon the said Govt. letter to raise objection in the case of the petitioner. Therefore, even if the statutory rules have not been amended in terms of Ext.P9, the same modifies the Govt. Letter dated 17.10.1987 on this issue. In that view of the matter also, the petitioner will be entitled to rely upon the principle that is adopted by the Government in Ext.P9 and the same can be applied here. 14. The counter affidavit proceeds on the basis that what is availed of by the petitioner is the balance portion of maternity leave. Since the leave has been sanctioned by separate departments, it cannot be termed strictly as wpc 11474/2009 8 a balance portion of maternity leave as it is a grant of eligible maternity leave by a new department. For all these reasons, the writ petition is allowed. Exts.P5 and P8 are quashed. The maternity leave sanctioned to the petitioner will be treated as regular, especially in the light of Ext.P9 Govt. Order. The eligible benefits due to the petitioner, will be disbursed along with the withheld salary, if any, within a period of two months from the date of receipt of a copy of this judgment. No costs. (T.R. Ramachandran Nair, Judge.) kav/