IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE ANTONY DOMINIC MONDAY, THE 15TH DECEMBER 2008 / 24TH AGRAHAYANA 1930 WP(C).No. 37780 of 2007(V) -------------------------- PETITIONER(S): --------------- GEGY GEORGE P., LPSA, ST.MARY'S U.P.SCHOOL, KUMBALAM, ERNAKULAM. BY ADV. SRI.TOJAN J. VATHIKULAM RESPONDENT(S): --------------- 1. STATE OF KERALA - REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. ASSISTANT EDUCATIONAL OFFICER, ERNAKULAM. SMT.T.B.REMANI, GOVERNMENT PLEADER FOR R1 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 15/12/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC NO.37780/2007 APPENDIX PETITIONER'S EXHIBITS P1 : COPY OF THE PROCEEDINGS NO.A2/804/2003/DPI DATED 20/06/2003 ISSUED BY the 2ND RESPONDENT. P1(a) : COPY OF the CERTIFICATE ISSUED BY THE PRINCIPAL, GOVT. INSTITUTE OF ADVANCED STUDY IN EDUCATION DATED 23/07/2003. P2 : COPY OF THE G.O.(Rt) NO.3742/04/G.EDN. DATED 23/08/2004 ISSUED BY THE 1ST RESPONDENT. P3 : COPY OF THE REPRESENTATION DATED 09/03/2005 SUBMITTED BY THE PETITIONER. P4 : COPY OF THE CIRCULAR ISSUED BY THE GOVERNMENT AS NO.38/2002/FIN. DATED 08/06/2002. P5 : COPY OF THE REPRESENTATION DATED 18/06/2007 SUBMITTED BY THE PETITIONER. P6 : COPY OF THE ORDER G.O.(Rt.) 43696/L3/2007/G.EDN. DATED 20/11/2007. //TRUE COPY// PA TO JUDGE. jg ANTONY DOMINIC, J. -------------------------- W.P.(C) No.37780 of 2007 ------------------------------------- Dated this the 15th day of December, 2008 J U D G M E N T The challenge in this writ petition is against the condition imposed in Ext.P2 that the Leave Without Allowance period will not count for any service benefits including pension, as confirmed in Ext.P6. 2. The petitioner is an LPSA. She joined B.Ed and for completing the course, had applied for leave for the period from 07/07/2003 to 31/03/2004. By Ext.P2 order dated 23/08/2004, Half Pay Leave was sanctioned for the period from 07/07/2003 to 14/10/2003 and Leave Without Allowance was sanctioned from 15/10/2003 to 31/03/2004 with the condition that Leave Without Allowance period will not count for any service benefits including pension. 3. Objecting to the aforesaid condition in Ext.P2, the petitioner submitted Exts.P3 and P5 revisions, which are rejected by Ext.P6. Two reasons are stated in Ext.P6. One is that after having accepted the conditions as aforesaid, it is not open to the petitioner to claim the benefits for the Leave Without Allowance period . It is also stated that for the post of LPSA, B.Ed is not required and as she had undergone the course only for enhancing her future prospectus, she cannot claim deletion of the conditions. W.P.(C) No. 37780/2007 -2- 4. The learned counsel for the petitioner relies on the proviso to Rule 33(b)(2), Part-I, K.S.R., which provided that Leave Without Allowance availed by teachers for completion of training courses such as B.Ed, shall count for increment. It is contended that the said proviso was deleted only with effect from 11/05/2005, and therefore, the condition imposed in Ext.P2 is legally bad. As already stated, the leave period and the issuance of Ext.P2 were at a time when the proviso was in the statute. That apart, the proviso only stated that “teachers availing LWA for completion of training course” and it did not make a distinction between LPSA, UPSA or HSA. If that be so, the fact that the petitioner was an LPSA also does not disentitle her from the benefit of the proviso. Further statement in Ext.P6 that the petitioner had accepted the condition and therefore she cannot claim the deletion of condition in Ext.P2, is also without any substance, as there cannot be any estoppel against statute. 5. For these reasons, I am satisfied that the condition that Leave Without Allowance period will not count for any service benefits including pension, is illegal and Ext.P6 also deserves to be set aside and I do so. It is clarified that the Leave Without Allowance period will be count for increments. This writ petition is disposed of as above. (ANTONY DOMINIC, JUDGE) jg