IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 22ND SEPTEMBER 2010 / 31ST BHADRA 1932 WP(C).No. 27723 of 2010(M) -------------------------- PETITIONER(S): --------------- K.T.THOMAS, RETIRED SELECTION GRADE (LECUTURER) KAIPUPRAYIDOM, MAVELIKKARA. BY ADV. SRI.R.KRISHNA RAJ RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY SECRETARY TO GOVERNMENT HIGHER EDUCATION DEPARTMENT, THIRUVANANTHAPURAM PIN-695 001 2. DIRECTORATE OF COLLEGIATE EDUCATION, DIRECTOR OFFICE, THIRUVANANTHAPURAM. PIN-695 001 3. THE MANAGER BISHOP MOOR COLLEGE, MAVELIKKARA. PIN-695 921 BY G.P.SMT.NISHA BOSE THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 22/09/2010, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: K.T.SANKARAN, J. ------------------------------ W.P.(C).No.27723 OF 2010 ------------------------------ Dated this the 22nd day of September, 2010 JUDGMENT The petitioner states that he was appointed as Junior Lecturer in English on 30.6.1969 in Bishop Moore College, Mavelikkara. The petitioner applied for deputation leave for a period of five years from 26.7.1980 to 25.7.1985. It is stated that the leave was applied for taking up employment as Teacher (Master Grade-I) through the Foreign Assignment Section of the Government of India and Kaduna State Teacher Recruitment Team of Nigerian High Commissioner. The Manager granted leave for a period of one year from 26.7.1980 to 25.7.1981, as per Ext.P1. That leave was extended from time to time as per Exts.P2, P3, P4 and P5 proceedings of the Manager for the period up to 25.1.1985. 2. After availing the leave, the petitioner rejoined duty on 26.11.1984. He sought to cancel the remaining portion of the leave. The petitioner W.P.(C).No.27723 OF 2010 2 was permitted to rejoin duty and the remaining portion of the leave was cancelled. No condition was prescribed in Exts.P1 to P5 as to whether the petitioner would forfeit the period of leave for reckoning service benefits. The grievance of the petitioner is that the Government as per GO(P) No.274/70/Fin. dated 29.4.1970 and G.O(Ms.) No.132/76/H.Edn. dated 17.8.1976 had taken the stand that teachers of private colleges would not get the service benefits for the period of leave without allowance and on that ground the petitioner is denied the benefits. The petitioner made a request to the Government for placement in selection grade in the college from 1.1.1986 and for the grant of subsequent salary arrears and for reckoning the period of four years for pensionary benefits and subsequent pension arrears. The request made by the petitioner was rejected as per Ext.P7 order dated 23.11.2007. 3. It is stated that in similar cases, this court had allowed the Writ Petitions as per Ext.P8 judgment dated 19.9.2010 in WP(C) Nos.17769 of 2003 W.P.(C).No.27723 OF 2010 3 and connected cases. It was held in Ext.P8 judgment thus: “5. In the light of the above extracted provisions under the First Statute and also the Government orders governing the subject of granting of LWA to the staff of private aided college management coming under the direct payment scheme, evidently there is provision which would deny persons like the petitioners their entitlement to get reckoned the periods spent on LWA for the purpose of pensionary benefits. It is the specific contention of the petitioners that the entitlement of persons like the petitioners were considered by this court earlier, at the instance of certain similarly situated persons. In O.P.No.7378/1993, this Court considered whether LWA granted to the staff of private aided college management falling under the direct payment system prior to 14.6.1985 without any conditions could be reckoned for the purpose of pensionary benefits. After elaborately considering all the relevant provisions and aspects, this Court found that such persons are governed by the rules and orders in force at the relevant point of time when they were granted LWA. Consequently, it was found that in the light of Exts.P11 and P12 Government orders, the petitioners therein could not be denied the benefit of reckoning the periods spent on LWA for the purpose of pensionary benefits. Ext.P13 is the judgment in O.P.No.7378/1993. Admittedly, the said judgment was affirmed by a division bench of this Court in W.A.No.1311 of 1995. Following Ext.P13 judgment, the claim of certain persons for reckoning the period of LWA granted prior to 14.6.1985 was allowed by this Court in O.P.No.16143/1998 by Ext.P11 judgment produced in W.P.(C) No.37864/2003. Thus the scope of statute 25 chapter II of Kerala University (Conditions of Service of Teachers) First statute, 1979 and the impact of Exts.P11 and P12 G.Orders on the aforesaid relevant provision governing the subject of granting of leave were elaborately considered by this Court in W.P.(C).No.27723 OF 2010 4 Ext.P13 judgment and a division bench of this Court in W.A.No.1311/1995 affirmed the said Ext.P13 judgment. A perusal of the orders impugned by the petitioners herein would reveal that despite the settled position, they were denied the benefit of reckoning the period of LWA granted to them without imposing any condition, prior to 14.6.1985, solely on citing a reason that the aforesaid judgments would be applicable only to the petitioners therein and since, the petitioners were not parties to the said Writ Petitions, they would not be applicable to the petitioners. In short, it was denied to them solely on the ground that they were not parties to Exts.P11 and P13 judgments referred above. However, a scanning of the decisions in Exts.P11 and P13 judgments referred above, would reveal that the respondents cannot support and sustain the orders declining extension of the benefits of judgments in Exts.P11 and P13 to the petitioners in these cases as they are squarely applicable to the cases of the petitioners as well. 6. The said judgments would reveal that after referring to the relevant provisions governing the subject of granting of LWA during the relevant point of time, the impact of Exts.P11 and P12 Government Orders and the question whether they would take away the accrued rights by virtue of the then existing provisions, were considered by this Court. It was after such consideration, it was held that by virtue of the Government order dated 14.6.1985 LWA granted to the staff of private college managements coming under the direct payment scheme are to be determined not in the light of the said government order dated 14.6.1985 whilst it should be determined by taking into account the condition imposed while granting LWA by the respective managements. Application of such a judgment laying down such a dictum cannot be restricted to the petitioners in the said Writ Petitions only, and there is absolutely no reason or justification at all for denying their benefits to the petitioners who are exactly similarly situated to those petitioners in the said Writ Petitions.” W.P.(C).No.27723 OF 2010 5 4. As per Ext.P8 judgment, it was also held that there is nothing under the UGC Scheme which would dis-entitle the petitioners for reckoning the period of leave for placement under the UGC Scheme. This court directed the respondents to consider the claim of the petitioners therein in the light of the dictum laid down therein. 5. The case of the petitioner is that he is also similarly situated as the petitioners in Ext.P8 judgment. The learned Government Pleader submitted that the matter is under consideration of the Government following the direction as per Ext.P8 judgment. Accordingly, this Writ Petition also can be disposed of directing the Government to consider the claim put forward by the petitioner in the light of the dictum laid down in Ext.P8 judgment. Accordingly, the Writ Petition is disposed of as follows: W.P.(C).No.27723 OF 2010 6 a) Ext.P7 order dated 23.11.2007 is quashed for the purpose of enabling the Government to consider the claim of the petitioner in the light of Ext.P8 judgment. b) The Government shall consider the claim put forward by the petitioner in Ext.P6 representation, in the light of the principles laid down in Ext.P8 judgment and the observations made above, as expeditiously as possible, and at any rate, within a period of three months from the date of receipt of a copy of this judgment. c) The petitioner shall produce a copy of the Writ Petition and certified copy of the judgment before the first respondent. K.T.SANKARAN, JUDGE. cms