IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.N.RAVINDRAN FRIDAY, THE 3RD APRIL 2009 / 13TH CHAITHRA 1931 WP(C).No. 30752 of 2007(J) ------------------------------------ PETITIONER(S): ------------------------ P.KRISHNAKUMAR, HSST (GEOLOGY), KARIMPUZHA H.S.SCHOOL, THOTTARA, PALAKKAD. BY ADV. MR.TOJAN J. VATHIKULAM RESPONDENT(S): -------------------------- 1. STATE OF KERALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL (T) EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, ERNAKULAM. 4. THE PRINCIPAL, KARIMPUZHA H.S.SCHOOL, THOTTARA, PALAKKAD. BY GOVERNMENT PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 03/04/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.30752/2007 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE ORDER NO.ACD. A2/17588/HSE/2001 DT. 11.11.02 ISSUED BY 2ND RESPONDENT. P1(a):- COPY OF THE ORDER NO.ACD. A2/17588/HSE /01 DT. 17.12.02 ISSUED BY 2ND RESPONDENT. P2:- COPY OF THE APPLICATION FOR LEAVE DT. 23.6.04. P3:- COPY OF THE COVERING LETTER OF THE PRINCIPAL DT. 5.11.04. P3(a):- COPY OF THE LETTER DT. 29.12.04. ISSUED BY the D.E.O. TO 2ND RESPONDENT. P4:- COPY OF THE CERTIFICATE ISSUED BY THE PRINCIPAL OF N.S.S. TRAINING COLLEGE OTTAPALAM DT. 5.3.05. TO THE PETITIONER. P5:- COPY OF THE COMMUNICATION DT. 28.6.05 ISSUED BY THE IST RESPONDENT TO IST RESPONDENT. P6:- COPY OF THE ORDER DT. 19.6.06 OF THE 2ND RESPONDENT. P7:- COPY OF THE ORDER DT. 23.12.06 ISSUED BY THE IST RESPONDENT. P8:- COPY OF THE REPRESENTATION DT. 22.2.07 TO THE IST RESPONDENT. P9:- COPY OF THE ORDER DT. 13.3.07 ISSUED BY THE IST RESPONDENT. P10:- COPY OF THE CIRCULAR NO.38/2002/FIN. DT. 3.6.06 ISSUED BY THE IST RESPONDENT. P11:- COPY OF THE G.O. DT. 11.5.05 ISSUED BY THE IST RESPONDENT. P12:- COPY OF THE REPRESENTATION DT. 11.6.07 TO THE MINISTER FOR EDUCATION. TRUE COPY P.S. TO JUDGE TSS P.N.RAVINDRAN, J. ------------------------------------- W.P.(C).No.30752 of 2007 -------------------------------------- Dated 3rd April, 2009 JUDGMENT The petitioner is presently working as Higher Secondary School Teacher in Geology. At the time when the petitioner was appointed as Higher Secondary School Teacher, he did not possess the B.Ed Degree in Geology. Therefore, his appointment was approved subject to his acquiring the B.Ed Degree within five years from the date of appointment. The petitioner, thereafter underwent the B.Ed Degree course during the period from 23.6.2004 to 31.3.2005. In order to undergo the B.Ed Degree course, the petitioner had submitted Ext.P2 application dated 23.6.2004 requesting for grant of leave without allowances for 282 days from 23.6.2004 to 31.3.2005. The application was duly forwarded by the Principal of the School to the Director of Higher Secondary Education. It was returned for proper presentation through the District Educational Officer, Ottappalam and to cure some defects. The application was re-submitted by the Principal through the District Educational Officer, Ottappalam along with Ext.P3 covering letter dated 5.11.2004. The District Educational Officer in turn forwarded it to the Director of Higher Secondary Education along with Ext.P3(a) letter dated 29.12.2004. However, formal orders on the leave application WP(C).No.30752/2007 2 were not passed till the petitioner completed the B.Ed Degree course. 2. After completing the B.Ed Degree course, the petitioner rejoined duty on 31.3.2005. Thereafter, the Government in Ext.P5 letter dated 28.6.2005, directed the Director of Higher Secondary Education to advise the petitioner to submit a revised application for leave without allowances covering the vacation period from 1.4.2005 to 31.5.2005 also as leave, on the ground that leave for study purpose cannot be sanctioned combining it with the vacation. The petitioner accordingly submitted a revised application covering the period from 1.4.2005 to 31.5.2005 also. By Ext.P7 order passed on 23.12.2006, the Government granted leave without allowances to the petitioner for the purpose of undergoing the B.Ed Degree course during the period from 23.6.2004 to 31.5.2005 subject to the condition that the leave period will not count for any service benefit including pension. The petitioner thereupon moved the Government in Ext.P8 representation seeking deletion of the condition in Ext.P7 that the leave period will not count for any service benefit including pension. That request was rejected by Ext.P9 letter dated 13.3.2007. Ext.P7 to the extent it stipulates that the period of leave sanctioned therein will not count for any service benefit including pension and Ext.P9 are under challenge in this writ petition. 3. The pleadings disclose that the leave applied for by the petitioner on 23.6.2004 was granted only on 23.12.2006, after the WP(C).No.30752/2007 3 third proviso to Rule 33(b)(2) of Part I of the Kerala Service Rules was deleted on 11.5.2005. It is evidently on account of that reason, that the Government have taken the stand that the rules prevailing at the time of the order sanctioning the leave do not entitle the petitioner to have the leave period reckoned for the purpose of grant of increments and other service benefits including pension. In my opinion, the stand taken by the Government in Exts.P7 and P9 cannot be sustained in view of the decision of a Division Bench of this Court in W.A.No.2734 of 2007 and connected cases wherein the Division Bench had held that leave without allowances availed by teachers prior to 11.5.2005 for the purpose of undergoing the B.Ed Degree course will count for the purpose of grant of increments and pension. The petitioner completed the B.Ed Degree course on 31.3.2005 and he rejoined duty on 1.4.2005. However, on the ground that summer vacation from 1.4.2005 to 31.5.2005 cannot be combined with the study leave applied for, the Government directed the petitioner to apply for leave from 23.6.2004 to 31.5.2005. In my opinion, since the petitioner had already completed the B.Ed Degree course prior to 1.4.2005, the direction issued by the Government, to re-submit the leave application, covering the vacation period from 1.4.2005 to 31.5.2005 was not warranted. The petitioner had availed study leave only up to 31.3.2005. I am therefore of the opinion that the stipulation in Ext.P7 that the period of leave without allowances availed by the petitioner to WP(C).No.30752/2007 4 undergo the B.Ed Degree course during the period from 26.3.2004 to 31.5.2005 will not count for any service benefit including pension, cannot be sustained. Exts.P7 and P9 in so far as they stipulate that the period of leave without allowances sanctioned to the petitioner during the period from 26.3.2004 to 31.5.2005 will not count for any service benefit including pension are accordingly quashed and respondents are directed to count the leave availed by the petitioner for the purpose of undergoing the B.Ed Degree course, for the purpose of grant of increments and other service benefit including pension. Necessary orders regarding sanctioning of increments shall be issued within three moths from the date of receipt of a copy of this judgment and consequential re-fixation of pay shall be made and arrears disbursed within another period of three months thereafter. The writ petition is disposed of as above. P.N.RAVINDRAN Judge TKS