IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 21ST OCTOBER 2011 / 29TH ASWINA 1933 WP(C).No.4086 of 2010(I) ----------------------------- PETITIONERS: ---------------- 1. NAVANEETHA KRISHNAN N.K. HIGHER SECONDARY SCHOOL TEACHER (COMMERCE), D.B.H.S.S., THIRUVALLA. 2. PREETHA.M., HIGHER SECONDARY SCHOOL TEACHER (ECONOMICS), D.B.H.S.S., THIRUVALLA. BY ADV. SRI.MVS.NAMBOOTHIRY RESPONDENTS: ----------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM. 3. THE REGIONAL DEPUTY DIRECTOR OF EDUCATION, OFFICE OF THE REGIONAL DEPUTY DIRECTOR, CORPORATION BUILDING (4TH FLOOR), PALAYAM, THIRUVANANTHAPURAM. 4. THE MANAGER, D.B.H.S.S., DEVASWOM BOARD OFFICE, NANDANCODE, THIRUVANANTHAPURAM. WP(C).No.4086/2010 5. THE PRINCIPAL, D.B.H.S.S., MANIPUZHA, THIRUVALLA. BY SMT. NISHA BOSE, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21/10/2011, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No.4086/2010 A P P E N D I X PETITIONER'S EXHIBITS: EXT. P1 : COPY OF G.O. (MS) 110/99 DTD.13.5.99. EXT. P2 : COPY OF G.O.(MS) 162/98 DTD. 13.5.98. EXT. P3 : COPY OF ORDER ISSUED BY R2 APPROVING APPOINTMENT OF 1ST PETITIONER. EXT. P4 : COPY OF ORDER ISSUED BY R2 APPROVING THE APPOINTMENT OF THE 2ND PETITIONER. EXT. P5 : COPY OF ORDER ISSUED BY R1 GRANTING LWA TO 1ST PETITIONER. EXT. P6 : COPY OF ORDER ISSUED BY R1 GRANTING LWA TO 2ND PETITIONER. EXT. P7 : COPY OF B.ED DEGREE CERTIFICATE OF 1ST PETITIONER. EXT. P8 : COPY OF B.ED DEGREE CERTIFICATE OF 2ND PETITIONER. EXT. P9 : COPY OF ORDER ISSUED BY R2 REGULARIZING APPOINTMENT OF 1ST PETITIONER. EXT. P10 : COPY OF ORDER ISSUED BY R2 REGULARIZING APPOINTMENT OF 1ST PETITIONER. EXT. P11 : COPY OF OPTION SUBMITTED BY 1ST PETITIONER. EXT. P12 : COPY OF OPETION SUBMITTED BY 2ND PETITIONER. EXT. P13 : COPY OF JUDGMENT IN W.A.No.1935/08 OF THIS COURT. EXT. P14 : COPY OF ORDER DTD. 20.7.06 ISSUED BY GOVT. EXT. P15 : COPY OF JUDGMENT IN WP(C) 30667/08 OF THIS COURT. EXT. P16 : COPY OF NOTE ISSUED BY R2 DTD. 16.1.09. EXT. P17 : COPY OF LETTER ISSUED BY R5 TO R3 FORWARDING THE SALARY BILLS OF THE SCHOOL FOR JANUARY 2010. EXT. P18 : COPY OF LETTER DTD. 2.2.10 ISSUED BY R5 TO R3. RESPONDENT'S EXHIBITS: NIL. // True Copy // P.A. to Judge. smp T.R.RAMACHANDRAN NAIR, J. -------------------------------------------------- W.P.(C)No.4086 of 2010-I -------------------------------------------------- DATED THIS THE 21st DAY OF OCTOBER, 2011 J U D G M E N T Both the petitioners are working as Higher Secondary School Teachers in the Devaswom Board Higher Secondary School, Thiruvalla under the Travancore Devaswom Board. The petitioners herein are seeking to quash Exhibits P16 and P17 orders. They are relying upon various judgments of this Court for sanction of increments for the entire period of their service including the period of leave without allowance availed by them for undergoing B.Ed.Degree Course. 2. The leave without allowance was granted to both the petitioners for undergoing B.Ed. as per Exhibits P5 and P6. They have passed B.Ed.degree course as evident from Exhibits P7 and P8 degree certificates. Thereafter the 2nd respondent has issued orders regularising their service and approving the appointment on a permanent basis as evident from Exhibits P9 and P10. 3. Based on 2006 pay revision, the petitioners submitted their option and statement of fixation of pay as per Exhibits P11 W.P.(C)No.4086/10 -2- and P12. But the educational authorities took an objection that teachers who have availed leave without allowance for undergoing training course are not entitled to increment irrespective of the date of availing of the leave and the date of sanctioning of the same, in view of the deletion of third proviso to Rule 33(b)(2) Part I KSR. 4. The matter was considered by this Court in various Writ Petitions and the issue was found in favour of the teachers and the Writ Appeal filed against the same has also been disposed of by Exhibit P13 judgment. In paragraph No.2 of Exhibit P13 judgment, the legal position was declared thus: “2. Rule 91 of Part I KSR, to the extent relevant, reads as follows:- “91. Officers with a continuous officiating or temporary service of two years or more, will be granted in addition to any leave which they are eligible for, leave under this rule for obtaining superior qualifications(e.g. B.A. And B.L.) provided, however, that the two years' minimum service will not be insisted on in the case of temporary or officiating officers belonging to the Scheduled Castes and Scheduled Tribes. Such leave will not, however, be given for broken periods but will cover the entire period of the course concerned. In cases of failure, extension of leave will be granted to cover the further period required for the completion of the course of study.” W.P.(C)No.4086/10 -3- Rule 33 Part I KSR prescribes the conditions on which service counts for increments in a time scale. Rule 33(b) (2) is the rule relevant in these cases, which reads as follows:- “33.(b)(2). All leave except leave without allowances taken otherwise than on Medical Certificate and service on deputation count for increments in the time-scale applicable to a post in which an officer was officiating at the time he proceeded on leave or deputation and would have continued to officiate but for his proceeding on leave or deputation.” The Rules as it originally stood contained a proviso, the third proviso, which reads as follows:- “Provided also that leave without allowances taken by teachers for completion of training courses such as B.Ed. Hindi Teachers' Training, Language Teachers' Training and Teachers' Training Certificate Course shall count for increment.” Thus, it is unambiguously clear that in terms of the proviso the teachers who avail leave for acquisition of the qualifications referred to above were entitled to count the period for increment and necessarily for pension in view of Rule 26 Part III KSR. The 3rd proviso was deleted as per the amendment introduced as per SRO No.526/2005 dated 11.5.2005 published in the Kerala Gazette dated 24.5.05. It is stated in the SRO that the amendment would come into force at once. The amendment is to the effect that the 3rd proviso referred to above 'shall be omitted'. In the explanatory note it is explained that “the retention of the 3rd proviso to Rule 33(b)(2) of Part I KSR provides for grant of increments for the period of leave taken for undergoing training courses,such as, B.Ed. Hindi Teacher's Training, Language Teacher's Training and Teacher's Training Certificate Courses.” Thus it is fairly clear that the Government itself was aware of the factual and legal position that so long as the third proviso remained in the statute book, the State was bound to count such periods for service benefits. It is vehemently contended by the learned Senior Government Pleader appearing for the State that B.Ed. being an essential qualification, the exemption W.P.(C)No.4086/10 -4- from possessing the essential qualification itself was the relaxation and hence the time granted for acquisition of the essential qualification cannot count for the service benefits. Certainly, there is force in the contention and the contentions are well founded also in terms of the purpose as intended by the Government. But the intention was given effect to only from the date of amendment in 2005. The explanatory note unambiguously states that the retention of the third proviso saddled the Government with the liability to count such leave for the purpose of service benefits.” It was thus held that the amendment is not retrospective. Exhibits P5 and P6 herein are prior to the amendment. 5. In implementation of the judgment, the Government issued consequential order as per Exhibit P14 granting the benefits to parties therein. This Court in the later judgment in Exhibit P15 has held that the amendment to KSR introduced by SRO 516/05 dated 11.5.2005 has no retrospective effect. But still the petitioners are asked to explain the position by various communications. 6. The learned counsel for the petitioner produced before me for perusal a copy of G.O.(MS)No.69/2010/G.Edn. dated 28.4.2010 as well as G.O.(MS)No.71/10/G.Edn. Dated 14.5.2010. In the Government Order dated 14.5.2010, the Government has directed that “in the case of those teachers W.P.(C)No.4086/10 -5- appointed prior to 14.11.2000 without B.Ed. qualification, their appointment will be regularised from the date of initial appointment as and when they acquire B.Ed.qualification. In the case of persons appointed after 14.11.2000, they may be regularised only from the date of acquisition of B.Ed.qualification”. In the first order dated 28.4.2010, it is clarified that the leave without allowance period will be reckoned for service benefits for the teachers who have availed leave prior to 24.5.2005 for acquiring B.Ed./TTC Language Teachers' Training Courses. 7. The learned Government Pleader submitted that against Exhibit P13 judgment, State has filed a Special Leave Petition. 8. In the light of the fact that the Government has already implemented the directions in Exhibit P13 judgment in favour of other similarly placed teachers, the petitioners are also entitled to get similar reliefs. 9. In that view of the matter, Exhibits P16 and P17 are quashed. There will be a direction to the respondents to sanction the benefits to the petitioners as sought for by them in Exhibits W.P.(C)No.4086/10 -6- P11 and P12 by reckoning the period covered by Exhibits P5 and P6. It is made clear that the same will be subject to the outcome of the Special Leave Petitions pending against Exhibit P13 judgment and the petitioners will furnish an undertaking to that effect also before the authorities concerned. Appropriate orders will be passed within a period of two months from the date of receipt of a copy of this judgment. The Writ Petition is allowed as above. No costs. Sd/-(T.R.RAMACHANDRAN NAIR, JUDGE) dsn