IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON MONDAY, THE 23RD MARCH 2009 / 2ND CHAITHRA 1931 WP(C).No. 34612 of 2006(U) ------------------------------------- PETITIONER(S): ----------------------- C.G.VASUDEVAN PILLAI, LECTURER, SELECTION GRADE, DEPARTMENT OF COMMERCE, DEVASWOM BOARD PARUMALA COLLEGE, PARUMALA. BY ADVS. MR.P.N.SUMODU MR.SUJITH MATHEW JOSE RESPONDENT(S): ------------------------ 1. THE PRINCIPAL, DEVASWOM BOARD PARUMALA COLLEGE, PARUMALA. 2. DEPUTY DIRECTOR OF EDUCATION, KOTTAYAM. 3. SECRETARY TO GOVERNMENT, HIGHER EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM. 4. STATE OF KERALA, REP. BY THE PRINCIPAL SECRETARY TO GOVERNMENT, DEPARTMENT OF FINANCE, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 5. SECRETARY, TRAVANCORE DEVASWOM BOARD, THIRUVANANTHAPURAM. ADV. MR.P.VINODKUMAR FOR R1 GOVERNMENT PLEADER MR.P.K.RAVIKRISHNAN FOR R2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 23/03/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.34612/2006 APPENDIX PETITIONERS EXHIBITS P1:- COPY OF THE LETTER DT. 20.12.06 OF THE IST RESPONDENT. P2:- COPY OF THE LETTER DT. 20.12.06 ISSUED BY THE IST RESPONDENT. P3:- COPY OF THE LETTER ISSUED BY THE MANAGER OF DEVASWOM BOARD PARUMALA COLLEGE, PARUMALA TO THE SECRETARY, TRAVANCORE DEVASWOM BOARD. P4:- COPY OF THE MEMO ISSUED BY RESPONDENT NO.5 GRANTING COMMUTED LEAVE TO THE PETITIONER. P5:- COPY OF THE GO(P) 331/06/FIN. DT. 10.8.06 REFERRED TO IN EXTS. P1 TO P3. P6:- COPY OF THE CIRCULAR DT. 9.11.06 ISSUED BY RESPONDENT NO.4. P7:- COPY OF THE THE REPRESENTATION SUBMITTED BY THE GENERAL SECRETARY, AKPCTA TO THE HONOURABLE MINISTER FOR FINANCE. TRUE COPY P.S. TO JUDGE TSS P.R. RAMACHANDRA MENON, J. ........................................................................ W.P.(C) No. 34612 OF 2006 ......................................................................... Dated this the 23rd March, 2009 J U D G M E N T The petitioner challenges Exts.P1 to P3, whereby he was made to retire w.e.f. 30.09.2006 despite the fact that his application for commuted leave for the period from 15.09.2006 to 03.11.2006 was sanctioned by the competent authority; that the salary for the month of October, 2006 was sanctioned- though not paid; that the petitioner was permitted to rejoin duty on expiry of the sanctioned leave on 07.11.2006 and that he was made to work, attending examinations conducted by the University till 10.01.2007. 2. The petitioner was working as a Sln. Grade Lecturer in the Department of Commerce, in the college owned by the 5th respondent. He crossed the age of superannuation on attaining the age of 55 years on 16.09.2006. Much prior to that the petitioner had submitted an application for commuted leave for the period from 15.09.2006 to 03.11.2006, which was sanctioned W.P.(C) No. 34612 OF 2006 2 by the fifth respondent as borne by Ext.P4 order dated 15.09.2006 making it clear that the petitioner had to re-join duty on 06.11.2006, on expiry of leave, with permission to prefix/suffix the holidays as mentioned therein. According to the petitioner, the petitioner availed the leave and he re-joined the service on 07.11.2006 and was drawing the salary as stated herein before. 3. In the meanwhile, the Government had passed Ext.P5 G.O. (G.O.(P)No.331/2006/FIN dated 10.08.2006) amending Rule 60(c) of Part I K.S.R. whereby substantial changes were brought out in the case of teachers who continue in service after crossing the age of superannuation by virtue of Rule 60(c) of Part I K.S.R.. As per the said amended provisions, if a teacher does not turn up for duty on the next working day after crossing the age of superannuation, he/she shall be deemed to have retired from the service w.e.f. the date of superannuation. As per Ext.P6 circular, it was clarified that in the case where leave was sanctioned and availed prior to the date of Ext. P5 Government Order, it need not be cancelled or re-considered . The petitioner W.P.(C) No. 34612 OF 2006 3 submits that the leave applied for by him was much prior to the date of Ext.P5 Government Order; that when the leave was sanctioned by the authorities, even they were not actually aware of Ext.P5 Government Order and further that the petitioner would not have availed the leave had he been aware of such adverse consequences to be resulted, as contemplated in Ext.P5. The petitioner further submits that the reason stated for brining out the amendment as given in Ext.P5 Government Order is conspicuously absent in the case of the petitioner as the leave applied for by him was only for a period of 50 days from 15.09.2006 to 03.11. 2006 and was not a case where a teacher had availed the leave after crossing the age of superannuation with an intent to rejoin duty on the eve of the closure of the academic year. 4. The second respondent has filed a counter affidavit without disputing the facts and figures submitted by the petitioner, but for asserting that as per the stipulations contained in Ext.P5 Government Order, the petitioner is not entitled to get the benefit and that the impugned orders are not assailable in W.P.(C) No. 34612 OF 2006 4 any circumstances. It is further seen that the petitioner, by filing a reply affidavit dated 12.05.2007 has confined the reliefs prayed for to have a direction for releasing the salary for the period he had actually worked and nothing more. 5. Considering the particular facts and circumstances of the above case, this court find it necessary to have the case of the petitioner considered in a wider magnitude, adopting a pragmatic approach rather than following the law by its letters, particularly when there is no case for the respondents that there was any fault, mistake, failure or lapse on the part of the petitioner. More so, when the leave applied for by the petitioner was only for a short period, that too, much prior to the closure of the academic year; that the leave was sanctioned by the competent authority, permitting him to rejoin duty on 06.11.2006 and that he was performing his duties in compliance with the instructions/directions given by the authorities concerned . This being the position, there is no justification for denying the wages to the petitioner in respect of the work extracted from him, admittedly when no fault is there on his W.P.(C) No. 34612 OF 2006 5 side. In the above facts and circumstances, the petitioner is permitted to file a detailed representation before the third respondent for redressal of his grievances and the third respondent is directed to consider the same in the light of the observations made herein before and pass appropriate orders taking a lenient view, as expeditiously as possible and at any rate within a period of three months from the date of receipt of such representation along with a copy of this judgment. The Writ Petition is disposed of as above. P.R. RAMACHANDRA MENON, JUDGE. lk