IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE K.T.SANKARAN WEDNESDAY, THE 25TH JUNE 2008 / 4TH ASHADHA 1930 WP(C).No. 32618 of 2007(G) -------------------------- PETITIONER: NESY ANTONY K., P.D.TEACHER, GOVERNMENT L.P.SCHOOL, CHENDAMANGALAM, NORTH PARAVOOR, ERNAKULAM DIST. BY ADV. SRI.SAIBY JOSE KIDANGOOR SRI.GEORGE BRISTON SRI.BENNY ANTONY PAREL SRI.JOJO PAPPACHAN RESPONDENTS: 1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, THIRUVANANTHAPURAM. 2. THE HEADMISTRESS, CHENDAMANGALAM L.P.SCHOOL, CHENDAMANGALAM. BY SMT. T.B. REMANY, GOVERNMENT PLEADER. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: APPENDIX PETITIONER'S EXHIBITS:- EXHIBIT P1:- TRUE COPY OF THE APPOINTMENT ORDER NO.A4/4469/98 DATED 6/5/1998. EXHIBIT P2:- TRUE COPY OF THE ORDER G.O.(Rt) No.2092/2001/CC dated 9/08/2001. EXHIBIT P3:- TRUE COPY OF THE ORDER OF THE HEADMISTRESS, CHENDAMANGALAM L. P. SCHOOL NO.A8/06 DATED 12/9/2006. EXHIBIT P4:- TRUE COPY OF THE PETITION SUBMITTED BY THE PETITIONER DATED 3/10/2006. EXHIBIT P5:- TRUE COPY OF the ORDER NO.4580/L3/G EDN. DATED 1/10/2007. /TRUE COPY/ P.A TO JUDGE scm K.T.SANKARAN, J. ------------------------------ WP(C). No. 32618 of 2007 ------------------------------ Dated this the 25th day of June, 2008 JUDGMENT The petitioner while working as a PD Teacher in Government LP School, Chendamangalam, North Paravoor availed leave without allowance from 14/06/2001 to 31/03/2002 to undergo B.Ed Course. Leave was granted as per Exhibit P2 order. The petitioner was being granted increments reckoning the period of leave as qualified service. Later as per Exhibit P3 proceedings of the headmaster, it was held that the petitioner is liable to refund a sum of RS. 5676/-. The reasons stated in Exhibit P3 is that for granting increment, the period of leave without allowance is also reckoned. The petitioner submitted Exhibit P4 representation to the Government praying for necessary orders. The Government disposed of Exhibit P4 representation as per Exhibit P5 order dated 1/10/2007 declining the request for counting leave without allowance leave period for increment. WP(C). No. 32618/ 2007 Page numbers 2. The 3rd Proviso to Rule 33(b)(2)of part 1 of K.S.R provided that leave without allowance taken by teachers for completion of training courses such as B.Ed, Hindi teacher's training course, Language teacher's training course and any teacher's training course shall be counted for increment. The 3rd provisio was deleted with effect from 11/5/2005. A question arose as to whether the deletion of 3rd provision is prospective or retrospective. That question was considered in WP(c) No. 26782/2005 by this court and a learned single judge has taken the view that the rule operates only as prospective. In Deepika Vs. State of Kerala [2007(1) K.L.T. 71] another learned single Judge has held thus; “ On the other hand, it is contented by the learned Government Pleader appearing on behalf of the State that only if the leave is sanctioned under Rule 91 A that both the proviso thereunder be attracted and in this particular case leave without allowance was sanctioned under Rule 88 and so the second proviso will not enable the petitioner to claim the benefit of that proviso. I am unable to accept this contention for two reasons. Firstly, R.91 WP(C). No. 32618/ 2007 Page numbers A 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 secondly, when the second proviso specifically refers to B.Ed course and the leave availed was for completing the said course 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 rule, the Government cannot take away the benefit by virtue of any circular or executive order. In so far as Ext.P4 has been taken away the statutory right conferred on the petitioner under the second proviso of Sub-r 2 of R33, it is oppose to the statutory provisions and liable to be set aside.” For the aforesaid reasons, Exhibits P3 and P5 are quashed. It is declared that the petitioner is entitled to get a period of leave without allowance reckoned for the purpose of granting increments. Appropriate orders shall be passed by the first respondent in the light of law laid down by this court in the judgments referred to above and WP(C). No. 32618/ 2007 Page numbers also the findings rendered above. K.T.SANKARAN, JUDGE scm