IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 10TH DECEMBER 2009 / 19TH AGRAHAYANA 1931 WP(C).No. 13865 of 2009(C) ------------------------------------- PETITIONER(S): ------------------------ S.OMANA,LGHT,M.V.H.S.S., PUDUNAGARAM,PALAKKAD. BY ADVS.MR.MATHEW JOHN (K) MR.AJEESH K.SASI RESPONDENT(S): ------------------------- * STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT (GENERAL EDUCATION DEPARTMENT), DIRECTORATE OF VOCATIONAL HIGHER SECONDARY EDUCATION,TRIVANDRUM. * THE ADDRESS OF RESPONDENT IN THE CAUSE TITLE IS CORRECTED AS ''STATE OF KERALA, REP.BY THE SECRETARY TO GOVERNMENT (GENERAL EDUCATION DEPARTMENT), SECRETARIAT, THIRUVANANTHAPURAM''. VIDE ORDER DTD. 17.9.09 IN IA. NO.11178/09. BY GOVT. PLEADER SMT.M.R.SREELATHA THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/12/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.13865/2009 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE ORDER DTD. 12.12.06 SANCTIONING LEAVE TO THE PETITIONER. P2:- COPY OF THE CERTIFICATE DTD. 10.8.04. P3:- COPY OF THE GOVERNMENT ORER DTD. 15.3.05. P5:- COPY OF THE JUDGMENT DTD. 22.2.06 IN WPC. 26782/06. P5:- COPY OF THE ORDER DTD. 20.7.06. TRUE COPY P.A. TO JUDGE tss T.R RAMACHANDRAN NAIR,J. ------------------------- W.P (C) No.13865 of 2009 -------------------------- Dated this the 10th December,2009 J U D G M E N T The petitioner herein is working as L.G Hindi Teacher in M.V.H.S.S, Pudunagaram in Palakkad district. While continuing in service, she was selected for undergoing the Hindi Teachers Training Course. Leave without allowance was granted for the period from 17.11.2003 to 30.3.2004. It is pointed out that the leave was sanctioned prior to 11.5.2005 the date on which the proviso to Rule 33 (b) (2) of Part I K.S.R was deleted. 2. The petitioner is aggrieved by the condition stipulated in Ext.P1 that the leave without allowance period will not count for any service benefits including pension and the fact so will be recorded in the Service Book. It is pointed out that the legal issue in the matter is covered in favour of the petitioner in the light of the decision of the learned Single Judge in Deepika Vs. State of Kerala [2007 (1) KLT 71]. After examining the relevant rules namely Rules 33 (b)(2), 88 and 91 of Part I W.P (C) No.13865 of 2009 2 K.S.R, it was held in paragraph 4 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.91A 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 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." 3. Petitioner is also relying upon Ext.P4 judgment of this Court. Ext.P5 is the consequential order passed by the Government in respect of the various claimants applying the principles stated by this Court in Ext.P4 W.P (C) No.13865 of 2009 3 judgment. By Ext.P5, the Government ordered that the period of leave without allowance for study purpose granted to the petitioners as per various Government Orders will count for increment, if they are not otherwise ineligible. 4. Therefore, the writ petition is allowed. The conditions in Ext.P1 that the period of leave without allowance will not count for any service benefits including pension cannot therefore survive especially since it was availed to prior to the deletion of proviso to Rule 33 (b) (2) of Part I K.S.R. There will be a declaration that the period will count for all service benefits. Appropriate orders will be passed for granting the admissible benefits to the petitioner within a period of two months from the date of receipt of a copy of this judgment. Writ petition is disposed of as above. T.R RAMACHANDRAN NAIR, JUDGE ma W.P (C) No.13865 of 2009 4 W.P (C) No.13865 of 2009 5