IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 23RD OCTOBER 2009 / 1ST KARTHIKA 1931 WP(C).No. 5895 of 2009(F) ------------------------------------ PETITIONER(S): ---------------------- LALI. M.S., U.P.S.A., SREE KRISHNA HIGHER SECONDARY SCHOOL, GURUVAYOOR 680 101. BY ADV. MR.M.A.THOMAS KUTTY SMT.ASHA CHERIAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DEPUTY DIRECTOR OF EDUCATION, THRISSUR-680 003. 3. THE DISTRICT EDUCATIONAL OFFICER, CHAVAKKAD-680 506. 4. THE HEADMISTRESS, SREEKRISHNA HIGHER SECONDARY SCHOOL, GURUVAYOOR- 680 101. R1 TO R3 BY GOVERNMENT PLEADER SMT.M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 20/10/2009, THE COURT ON 23/10/2009 DELIVERED THE FOLLOWING: WP(C) NO. 5895/2009-F APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE APPOINTMENT ORDER DATED 15/07/1999 ISSUED BY THE MANAGER. EXT.P1(a): COPY OF THE APPOINTMENT ORDER DATED 04/09/2002 ISSUED BY THE MANAGER. EXT.P2: COPY OF THE ORDER SANCTIONING LEAVE FROM 16/07/1999 T6O 14/09/1999. EXT.P2(a): COPY OF THE ORDER SANCTIONING LEAVE FROM 01/10/1999 TO 12/02/2000. EXT.P3: COPY OF THE PROCEEDINGS DATED 11/08/2005 OF THE MANAGER. EXT.P3(a): COPY OF THE EXT.P3. EXT.P4: COPY OF THE LETTER DATED 27/11/2007 OF THE 3RD RESPONDENT. EXT.P5: COPY OF THE STATEMENT OF EXPLANATION DATED 12/02/2008 FILED BY THE PETITIONER. EXT.P6: COPY OF THE GOVERNMENT LETTER DTED 12/08/2008. EXT.P7: COPY OF THE COMMUNICATION DATED 07/10/2008 ISSUED BY THE 3RD RESPONDENT. EXT.P8: COPY OF THE GOVERNMENT LETTER DATED 30/01/1993. EXT.P9: COPY OF THE REVIEW PETITION DATED 28/01/2009 FILED BY THE PETITIONER. EXT.P10: COPY OF THE APPEAL DATED 28/01/2009 FILED BY THE PETITIONER. EXT.P11: COPY OF THE G.O.(P).6/88/P & ARD DATED 15/02/1988. EXT.P12: COPY OF THE GOVERNMENT LETTER DATED 28/05/1999. EXT.P13: COPY OF THE GOVERNMENT LETTER DATED 01/08/1968. EXT.P14: COPY OF THE GOVERNMENT CIRCULAR NO.6/J2/95.G.EDN. DATED 05/10/1995. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.S. TO JUDGE rs. T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 5895 of 2009-F - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 23rd day of October, 2009. JUDGMENT The petitioner is working as UPSA in Sree Krishna Higher Secondary School, Guruvayur. The challenge is against the cancellation of maternity leave granted to her as well as the refusal to count the leave without allowance granted to her on medical ground for grant of higher grade. The petitioner was initially appointed as UPSA in the school from 15/7/1999 to 21.6.2003 against a vacancy which arose on account of availing of leave without allowance by Smt. P.A. Vasanthy, UPSA for five years from 21.6.1998 to 21.6.2003. Ext.P1 is the order of appointment which was approved also. Yet another vacancy arose and the petitioner was shifted to the same with effect from 4.9.2002. Ext.P1(a) is the said order issued by the manager which was also approved. 2. The petitioner applied for sanction of leave on medical grounds from 16.7.1999 to 14.9.1999 which was sanctioned at that point of time. Again, she applied for maternity leave from 1.10.1999 to 12.2.2000. The child was delivered on 12.1.2000. Exts.P2 and P2(a) are the orders sanctioning the leave for these two periods. By way of Ext.P3, the manager wpc 5895/2009 2 declared her probation in the post of UPSA on 3.10.2000. 3. On completion of 8 years of service, she became eligible for grant of first higher grade with effect from 15.7.2007. Accordingly, the proposal for grant of higher grade was submitted to the third respondent. By Ext.P4 certain clarifications were sought for and Ext.P5 is the explanation submitted by the petitioner. Ext.P7 is the order rejecting the request for sanction of higher grade, relying upon Ext.P6 Government letter. In Ext.P7, the period from 17.7.1999 to 14.9.1999 covered by the leave on medical grounds was also shown as objectionable. 4. Learned counsel for the petitioner submitted that the stand taken in the impugned orders cannot be supported. Reliance is placed on Rule 61(5) of Chapter XIV-A K.E.R. and Rule 100 and Note 4 of Part I K.S.R. 5. The respondents have filed a counter affidavit. 6. The first objection is regarding the period covered by the leave applied for on medical ground from 17.7.1999 to 14.9.1999. The relevant rule applicable is Rule 61(5) of Chapter XIV-A K.E.R. Going by para 15 of the counter affidavit, it is admitted that as per Rule 61(5), the leave without allowance on medical ground will count for increment. so, it will count also for time level higher grades. It is also stated that if the leave without allowance for the period from 17.7.1999 to 15.9.1999 was on the wpc 5895/2009 3 support of the medical certificate, it will count for all the service benefits. The petitioner submits that the above leave was covered by medical certificate. This is clear from Ext.P2 application for leave also which was sanctioned by the competent authority at that point of time. Therefore, at this distance of time, it cannot be disputed also. In that view of the matter, the objection raised regarding the period from 17.7.1999 to 14.9.1999 in Ext.P7 cannot be supported. The said period is liable to be counted for the purpose of increment and higher grade benefits. 7. What remains is the period covering the maternity leave. The relevant provision is Note 4 below Rule 100 of Part I K.S.R. which reads as follows: “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.” The stand taken by the respondents is that since the petitioner had availed of leave prior to the expiry of one year service, she is not entitled for sanction of the leave. The same is evident from para 5 of the counter affidavit. Learned counsel for the petitioner submitted that the view taken by the Government that the petitioner is a provisional female recruitee, cannot be wpc 5895/2009 4 supported. She was actually working as a leave substitute in a leave vacancy consequent on grant of leave without allowance for a period of five years. It is against a sanctioned post. In terms of the relevant rules of Chapter XIV-A K.E.R., the said period was reckoned for the purpose of declaration of probation and for grant of increment. She was never a provisional female recruitee. Reliance is placed on Ext.P8 which is a copy of letter dated 30.1.1993 from the Government to the Director of Public Instruction, especially para 2 therein. It is stated in para 2 as follows: “ As regards the grant of maternity leave to those appointed on leave vacancies if the appointment made against the vacancies the duration of which is beyond one year, maternity leave will be admissible as per KSR vide Note 4 Rule 100 Part I K.S.R.” It is therefore clear that going by the view reflected therein, the contention raised by the petitioner has to be accepted. Herein, the petitioner was appointed initially against a vacancy, the duration of which is beyond one year. The intention behind Note 4 of Rule 100 is clear that it applies in a case where the provisional appointment is for a period beyond one year. This aspect is clear from the contents of of the said Note, viz. “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 wpc 5895/2009 5 provided they would continue in service but for proceeding on such leave.” There is no bar for applying the leave before the expiry of one year. 8. In Dr. Daizy Philip v. The State of Kerala and others (ILR 1999 (1) Ker.619), it was held by a Division Bench of this Court that provisional employees appointed for a period beyond one year only are entitled to maternity leave. The relevant findings contained in para 3, are the following: “We have carefully gone through the above rule ad in our opinion Note 4 is clear enough that a provisional female recruit viz., a temporary employee will not be eligible for maternity leave unless she continues in service beyond one year as provided in the rules. Here, as already noticed the term of appointment of the appellant was from 8th June 1994 to 12th April 1995 and the maternity leave applied for by the appellant was from 21st February 1995 to 12th April 1995. The period of leave and period of appointment terminated on the very same day. Therefore, as rightly pointed out by the learned Government Pleader a temporary recruit will not be eligible for maternity leave, unless the incumbent continues in service beyond one year.” In that view of the matter, the stand taken by the respondents cannot be accepted. 9. The petitioner is also relying upon Ext.P14 Government circular wpc 5895/2009 6 wherein it is specified that “in the case of lave substitute aided school teachers annual increments are given. Hence, there is no rationale in denying the benefit of higher grade to aided school teachers irrespective of the fact whether they are working against leave vacancies or on regular vacancies.” Therefore, the Government clarified that fully qualified aided school teachers appointed as leave substitutes and who are given annual increments can be given service based higher grades. Therefore, the idea conveyed by the said circular is also important. 10. It is the contention of the petitioner by relying upon Ext.P11 that even a provisional employee will be eligible for maternity leave. In fact, in Ext.P11 it is ordered that Maternity Leave under Rules 100 and 101 of Part I K.S.R., be treated as duty for the purpose of probation. The petitioner was granted maternity leave from 1.10.1999 to 12.2.2000, during the period of probation. In that view of the matter, the stand taken in Ext.P6 that the maternity leave sanctioned is irregular, also cannot be supported. Learned counsel for the petitioner invited my attention to Ext.P12 which is a letter addressed to the Government by the Director of Collegiate Education. Therein, the Government clarified that appointments in private colleges against leave vacancies, cannot be considered as provisional or temporary. 11. As far as the words 'provisional female recruitee' is concerned. it wpc 5895/2009 7 cannot be disputed that it relates to a provisional appointment as such in terms of the relevant rules. Under the Kerala Education Rules, normally there cannot be an appointment on provisional basis. Whenever a vacancy arises, the duration of which permits appointment under Chapter XIV-A K.E.R., the manager is entitled to fill up the vacancy. There may be various types of vacancies including leave vacancies. Herein, the petitioner was earlier appointed as a leave substitute and not as a provisional teacher or a temporary teacher at all. Ext.P1 shows that the appointment is approved as U.P.S.A. The word 'provisional' and 'temporary' cannot have any relevance as far as the appointment under Chapter XIV-A is concerned. Therefore, the said words in Rule 100 of Part I K.S.R. will not apply as far as a leave substitute like the petitioner is concerned. As already noticed, the said period has been counted for the purpose of declaring the probation and for grant of increments and other benefits. 12. For all these reasons, Exts.P6 and P7 cannot be supported. It is declared that the petitioner was granted maternity leave validly. No objection can be raised for reckoning the said period for the purpose of higher grade benefits. As already held, the period from 17.7.1999 to 14.9.1999 viz. the leave taken by the petitioner on medical grounds, is liable to be reckoned going by Rule 61(5) of Chapter XIV-A. wpc 5895/2009 8 Therefore, the writ petition is allowed. Exts.P6 and P7 are quashed. There will be a direction to the respondents to sanction the first higher grade to the petitioner with effect from 15.7.2007 after reckoning the periods from 16.7.1999 to 14.9.1999 and from 1.10.1999 to 12.2.2000. Appropriate orders shall be passed and the monetary benefits flowing from the same, will be disbursed 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/