IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 29TH OCTOBER 2009 / 7TH KARTHIKA 1931 WP(C).No. 15127 of 2008(A) -------------------------------------- PETITIONER(S): ---------------------- ABDUL KHADER P., HSA (MATHEMATICS) D.H.S. NELLIPUZHA, MANNARKAD, PALAKKAD DISTRICT BY ADV. MR.K.JAJU BABU SMT.M.U.VIJAYALAKSHMI MR.BRIJESH MOHAN MR.T.R.SADEESAN RESPONDENT(S): ------------------------ 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVT. GENERAL EDUCATION DEPARTMENT,.GOVT. SECRETARIAT, TRIVANDRUM 2. THE DISTRICT EDCUCATIONAL OFFICER PALAKKAD. R1 & R2 BY GOVERNMENT PLEADER MR.BIJOY CHANDRAN. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 15127/2008-A APPENDIX PETITIONER'S EXHIBITS: EXT.P1: COPY OF THE G.O.(RT) NO.2349/2005/G.EDN. DATED 06/06/2005 ISSUED BY THE 1ST RESPONDENT. EXT.P2: COPY OF THE APPLICATION SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT ON 08/05/2006. EXT.P3: COPY OF THE LETTER NO.29654/M2/07/G.EDN. DATED 20/09/2007 ISSUED BY THE 2ND RESPONDENT. RESPONDENT'S EXHIBITS: NIL //TRUE COPY// P.A. TO JUDGE rs. T.R. RAMACHANDRAN NAIR, J. ~~~~~~~~~~~~~~~~~~~~~~~~~~~ W.P.(C). No.15127/2008-A ~~~~~~~~~~~~~~~~~~~~~~~~~~~ Dated this the 29th day of October, 2009 J U D G M E N T The petitioner is aggrieved by the refusal to consider the period of leave availed by him for service benefits in the light of the specific clause contained in Ext.P1 order sanctioning the leave. 2. As per Ext.P1, he was sanctioned leave without allowance from 03/01/2005 to 30/11/2005 for study purpose under Rule 88 Part I, K.S.R subject to the terms and conditions that the leave period will not count for any service benefits including pension and the fact will be so recorded in the service book of the incumbent. The said order is dated 06/06/2005. 3. The petitioner thereafter filed Ext.P2 representation seeking to drop the conditions in Ext.P1 that 'the leave period will not count for any service benefits'. It is also mentioned that the deletion of the relevant clause in Rule 33(b)(2) Part I K.S.R has no retrospective effect also. By Ext.P3 he was informed that even leave without allowances prior to 11/05/2005 sanctioned for undergoing M.Ed course will not be counted as duty. This is under challenge in this writ petition. W.P.(C). No.15127/2008 -:2:- 4. It is averred in the counter affidavit that as per 3rd proviso to Rule 33(b)(2) Part I K.S.R leave without allowance taken by teachers for completion of training courses such as B.Ed., Hindi Teachers Training, L.T.T and T.T.C shall count for increment based on the executive orders issued by the General Education Department in 1980 at the time when there was scarcity of trained teacher for appointment in schools. Now trained hands are available in plenty and the above proviso was being utilised by employees for acquiring higher qualification for improving personal prospect by enjoying the benefits of increment. Hence, the third proviso was deleted as per Government Order dated 11/05/2005. It is the further contention that the Government cannot extend the benefit for those who avail of leave for the betterment of their service prospects. As far as H.S.A is concerned, M.Ed is not an essential qualification, but it is only adding higher qualification for improving personal prospect. 5. The learned counsel for the petitioner submitted that the applicability of Rule 91A of Part I K.S.R has not been examined while passing Ext.P3. Rule 91A is extracted below:- “Officers with a continuous officiating or temporary service of 5 years or more may be granted in addition to any leave to which they are eligible for, leave W.P.(C). No.15127/2008 -:3:- for undergoing Post-Graduate Courses in the sphere of their duties which are primarily of benefit to the State, such a Post-Graduate Courses for Teachers, Engineers and Doctors. The leave shall be granted only with due regard to the usefulness of the higher studies to the public service.” 6. The learned counsel for the petitioner further relied upon a decision of this Court in Deepika v. State of Kerala [20007 (1) KLT 71] wherein the provisions of Rules 33(2), 88 & 91 Part I K.S.R were considered and it was held in paragraph (4) thus:- “R.91A is a separate rule entitling a person for claiming leave for taking Post Graduate Degree. A training course like B.Ed is not a Post Graduate Degree Course and, when the second proviso specifically refers to B.Ed. course and the leave availed was for completing the said course it must be understood as an independent provision and will entitle the person to claim the benefit of the said proviso, provided the leave is sanctioned for completing the B.Ed. course. As against the statutory W.P.(C). No.15127/2008 -:4:- rule, the Government cannot take away the benefit by virtue of any circular or executive order.” 7. The learned counsel for the petitioner submits that even though Rule 88 of Part I K.S.R is mentioned in Ext.P1, actually provisions of Rule 91A alone will apply. 8. Since the applicability of Rule 91A Part I K.S.R has not been examined by the Government, it is only proper that the issue is considered afresh. Going by the said provision, leave for undergoing post-graduate Courses in the sphere of their duties which are primarily of benefit to the State, such a post-graduate Courses for Teachers, Engineers and Doctors are recognised for the purpose of leave. Whether the conditions provided in Rule 91A are applicable in the case of the petitioner, is for the Government to decide. Hence Ext.P3 is quashed. There will be a direction to the Government to pass fresh orders on Ext.P2 for considering the applicability of Rule 91A of Part I K.S.R after hearing the petitioner within two months from the date of receipt of a copy of this judgment. The writ petition is disposed of as above. No costs. (T.R. Ramachandran Nair, Judge.) ms