IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 4TH AUGUST 2009 / 13TH SRAVANA 1931 WP(C).No. 22289 of 2007(C) -------------------------- PETITIONER(S): --------------- SAHAYARANI S., HSST (SOCIAL WORK), ST. THOMAS HIGHER SECONDARY SCHOOL, POOTHURA, THIRUVANANTHAPURAM. BY ADV. SRI.V.B.UNNIRAJ SMT.R.S.GEETHA RESPONDENT(S): --------------- 1. GOVERNMENT OF KERALA, SECRETARIAT, THIRUVANANTHAPURAM, REPRESENTED BY ITS CHIEF SECRETARY. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 3. JOINT DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. GOVERNMENT PLEADER SRI.DILIP MOHAN THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 04/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 22289/2007. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER PASSED BY R2. P2. COPY OF THE APPLICATION FOR LEAVE. P3. COPY OF THE LETTER DTD.6.5.06 BY R1. P4. COPY OF THE CIRCULAR. P5. COPY OF THE ORDER DTD.19.8.04. P6. COPY OF THE LETTER BY R2. Sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.22289 of 2007 ================== Dated this the 4th day of August, 2009 J U D G M E N T The petitioner is a Higher Secondary School Teacher in St.Thomas Higher Secondary School, Poonthura, which is an aided school. She did not have B.Ed, when she was appointed. The Government had given time for such teachers to obtain B.Ed. For the purpose of joining the B.Ed. course, the petitioner applied for half pay leave for the period from 20.7.2005 to 17.9.2005 and leave without allowances for six months and 14 days from 18.9.2005 to 31.3.2006 allegedly under Rule 91A of the Kerala Service Rules. The petitioner completed the course and rejoined duty. By Ext.P3 dated 6.5.2006, the application for leave was returned on the ground that it is not in accordance with Ext.P4 Government circular dated 28.4.2006. The same was again resubmitted. But, by Ext.P6, it met with the same fate. The petitioner is challenging Exts.P3, P4 and P6 in this writ petition. 2. The petitioner's contentions are two fold. First is that the petitioner's application for leave was submitted on 20.7.2005, whereas Ext.P4 circular was issued only on 28.4.2006, after the leave period was over. Therefore, the petitioner's application for leave cannot be W.P.C.22289/07 2 rejected on the basis of Ext.P4 Government circular. Secondly the petitioner would contend that the eligibility for leave of teachers is regulated by Kerala Service Rules. The petitioner is entitled to the leave applied for as per the Kerala Service Rules. A Government circular cannot prescribe conditions contrary to the statutory rules. Therefore, Ext.P4 is per se unsustainable. The petitioner, therefore, seeks the following reliefs: “1) Issue a Writ of Certiorari or any other appropriate writ direction or order calling for the records leaving to Exts.P3, P4 and P6 and quash the same. 2) Issue a writ of mandamus or other appropriate writ, direction or order compelling the respondents to sanction Ext.P2 leave application forthwith. 3) Issue a writ of mandamus or other appropriate writ, direction or order directing the respondents to fix the salary of the petitioner, award increments due to her and to disburse the salary due to the petitioner during the period of half pay leave and to disburse the regular salary due to the petitioner.” 3. A counter affidavit has been filed on behalf of the 2nd respondent. The same proceeds on the basis that a teacher cannot challenge a Government circular. It is submitted that in view of misuse of the leave provisions for obtaining study leave, it became necessary to stipulate stringent conditions for such leave and it is under the above circumstances, that Ext.P4 has been issued. According to the 2nd respondent, Ext.P4 circular is valid and binding on the petitioner and since the petitioner's application for leave is not in accordance with Ext.P4, the same cannot be considered. 4. I have considered the rival contentions in detail. W.P.C.22289/07 3 5. As the heading of Ext.P4 itself suggests it is only a circular. It is settled law that even an executive order cannot modify statutory rules. Then I am at a loss to understand how by a circular the Government can deny the benefits of the Kerala Service Rules available to the petitioner. I am also at a loss to understand the contention of the 2nd respondent that a teacher cannot challenge a Government circular. A teacher can certainly challenge a Government circular, if that circular is contrary to law. 6. Even otherwise, the petitioner's application for leave cannot be governed by Ext.P4. The petitioner submitted her leave application on 20.7.2005 long before the issue of Ext.P4 circular. The leave period was also over prior to the issue of Ext.P4. That being so, the petitioner's application for leave could not have been rejected relying on Ext.P4. In view of that finding, I am not inclined to go into the question of validity of Ext.P4 in this writ petition, in so far as the petitioner is entitled to the relief prayed for even otherwise. Accordingly, Exts.P3 and P6 are quashed. The respondents are directed to process the petitioner's leave application without reference to Ext.P4 in accordance with the provisions of Part I of the Kerala Service Rules. The principal of the petitioner's school shall resubmit the application for leave submitted by the petitioner, if necessary by making appropriate corrections thereon, if there are any mistakes. The 1st respondent shall consider the same and pass orders thereon in W.P.C.22289/07 4 accordance with law, without reference to Ext.P4, as expeditiously as possible, at any rate, within two months from the date of resubmission of the petitioner's application for leave by the principal. The writ petition is disposed of as above. Sd/- dk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge