IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE KURIAN JOSEPH & THE HONOURABLE MR. JUSTICE P.R.RAMACHANDRA MENON WEDNESDAY, THE 14TH JANUARY 2009 / 24TH POUSHA 1930 WA.No. 1917 of 2008() --------------------- AGAINST THE JUDGEMENT/ORDER IN WPC.18520/2007 Dated 26/06/2008 .................... APPELLANT(S): RESPONDENTS 1 AND 2 --------------------------------- 1. THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, SANTHI NAGAR, THIRUVANANTHAPURAM. 2. THE REGIONAL DEPUTY DIRECTOR, HIGHER SECONDARY EDUCATION, CORPORATION BUILDINGS, IVTH FLOOR, PALAYAM, THIRUVANANTHAPURAM. BY GOVT.PLEADER SRI.BENNY GERVASIS RESPONDENT(S): PETITIONER AND RESPONDENTS 3 AND 4 ------------------------------------------------- 1. PRAMEELA.S.R, HSST (COMMERCE), R.R.V.G.H.S.S, KILIMANOOR. THIRUVANANTHAPURAM. 2. THE MANAGER, R.V.G.H.S.S, KILIMANOOR, THIRUVANANTHAPURAM. 3. THE PRINCIPAL, R.V.G.H.S.S, KILIMANOOR, THIRUVANANTHAPURAM. ADV. SRI.NAGARAJ NARAYANAN FOR R2 SRI.RAJAN VELLOTH FOR R2 SRI.SAIJO HASSAN FOR R2 SRI.A.S.SABU FOR R2 SRI.BENOJ C AUGUSTIN FOR R2 THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 14/01/2009, ALONG WITH WA NO. 2734 OF 2007 & CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. ------------------------------------------------- W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 -------------------------------------------------- Dated this the 14th day of January, 2009 JUDGMENT Kurian Joseph,J. State is the appellant in all these writ appeals. The grievance is on the stand taken by the learned single Judge with regard to the counting of the leave availed by the writ petitioners under Rule 91 of Part I KSR. The writ petitioners are teachers in Commerce/Sociology. It is not in dispute that they did not have B.Ed. in Commerce at the time of their appointment. But the State was aware of the fact that B.Ed. in Commerce was not available in Kerala and hence the appointing authorities were permitted to make appointments relaxing the qualification of acquisition of B.Ed. in Commerce on condition that such qualification should be attained by the incumbents concerned within the stipulated period. The writ petitioners accordingly availed leave, completed the course and acquired the qualification and they rejoined duty. In some of the cases the teachers were granted leave under Rule 91 without W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 -:2:- attaching any condition, in some of the cases it was stipulated that such leave will not be counted for any service benefits and in some of the cases though the applications were made soon after the appointment in 2003 and though they went for the acquisition of the qualification the leave actually was sanctioned only in 2006. Learned counsel appearing for the writ petitioners in W.P(C)No.10522/2007 submits that after the appointment they submitted applications for leave and without waiting for the orders thereon they went for the acquisition of the qualification, they came back and joined duty and thereafter in May 2005 the leave was sanctioned with a condition that the leave period will not count for any service benefits. 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.” Rule 33 Part I KSR prescribes the conditions on which service counts W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 -:3:- 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 Rule 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 24-5-2005. It is stated in the SRO that the amendment would come into force atonce. The amendment is to the effect that the 3rd proviso referred to above 'shall be omitted'. In the explanatory note W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 -:4:- it is explained that “the retention of the 3 rd 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 Teachers' Training, Language Teachers' Training and Teachers' 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 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 the 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. W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 -:5:- 3. Yet another contention taken by the learned Government Pleader is that the writ petitions are highly belated and that the leave having been sanctioned subject to the condition attached to the leave, there is no justification in turning round later and attacking the condition. We are afraid that the contention also cannot be appreciated in view of the decision of this court in Deepika v. State of Kerala, 2007(1) KLT 71. That judgment was accepted by the Government and it has been implemented also. It has been held that the Government is not justified in attaching any condition which is not permissible under the Rules. 4. The third main contention advanced by the Senior Government Pleader is that at any rate in the case of writ petitioners 5 to 7 in W.P(C) No.10522/2007, their leave was sanctioned only after the amendment and hence in their case the service benefits cannot be granted. We are afraid that contention also cannot be appreciated. In the case of those writ petitioners also, they had availed leave prior to the introduction of the amendment. The incidence is prior to the amendment. It is submitted that they completed the course prior to the amendment, they joined duty prior W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 -:6:- to the amendment and their applications for leave are prior to the amendment. In such circumstances in view of the Bench decision of this court in State of Kerala v. Gopalan Chettiar 1993 (2) KLT 169 the position at the time of the application for availing the leave is the crucial factor that has to be considered. Therefore, while rendering a decision by the Government, the factual position will have to be adverted to as to whether there was an application prior to the amendment, whether the training is prior to the amendment etc. In that view of the matter we do not think that any interference is called for on the view already taken by the learned single Judge though not expressly adverting to some of the observations made by us in this judgment. Therefore, the appeals fail and they are accordingly dismissed. (KURIAN JOSEPH, JUDGE) (P.R.RAMACHANDRA MENON JUDGE) ahg. KURIAN JOSEPH & P.R.RAMACHANDRA MENON, JJ. --------------------------- W.A.Nos.2734 of 2007 & 1917, 1935, 2226 of 2008 ---------------------------- JUDGMENT 14th January, 2009