IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN TUESDAY, THE 8TH APRIL 2008 / 19TH CHAITHRA 1930 WP(C).No. 34990 of 2004(M) -------------------------- PETITIONER: ------------ DR.DENSELY JOSE, LECTURER, CHEMISTRY DEPARTMENT, MAR ATHANASIUS COLLEGE, KOTHAMANGALAM. BY ADV. SMT.V.P.SEEMANDINI (SR.) SMT.LEKSHMY RAMANATHAN RESPONDENTS: ------------- 1. THE STATE OF KERALA, REP. BY PRINCIPAL SECRETARY TO GOVERNMENT, HIGHER EDUCATIONAL (D) DEPARTMENT, TRIVANDRUM. 2. THE DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, DIRECTORATE, THIRUVANANTHAPURAM. 4. THE PRINCIPAL, MAR ATHANASIUS COLLEGE, KOTHAMANGALAM. BY ADV. SRI.GEORGE JACOB (JOSE) GOVERNMENT PLEADER SMT. M.R. SREELATHA. THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/04/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: PETITIONER'S EXHIBITS: W.P.C.NO. 34990/2004. --------------------------------------------------------------------- EXT.P1 TRUE COPY OF LETTER DT. 13-8-1999. EXT.P2 LETTER DT. 26-10-1999. EXT.P3 LETTER DT. 3-1-2000. EXT.P4 LETTER DT. 24-2-2000. EXT.P5 LETTER DT. 8-3-2000. EXT.P6 LETTER DT. 7-3-2001. EXT.P7 PROVISIONAL CERTIFICATE DT. 23-11-2002. EXT.P8 REPRESENTATION DT. 31-12-2002. EXT.P9 DO. DT. 12-2-2004. EXT.P10 LETTER DT. 18-6-2004. EXT.P11 JUDGMENT IN O.P.NO. 5146/1993. EXT.P12 JUDGMENT IN O.P.NO. 26232/2001. [TRUE COPY] P.S TO JUDGE. S. Siri Jagan, J. =-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-=-= W. P (C) No. 34990 of 2004 =-=-=-=-=-=-=-=-=--=-=-=-=-=-=-=-=-= Dated this, the 8th April, 2008. J U D G M E N T The petitioner entered service as Lecturer in Chemistry in Mar Athanasius College, Kothamangalm, which is an aided college, on 6-6- 1994 and was confirmed in that post on 6-6-1995. She applied for and was granted leave for study purposes for the period from 1-1- 1998 to 31-12-1999. Subsequently, under the UGC Scheme, the petitioner was selected under the Faculty Improvement Programme to undergo studies for Ph.D. for the period from 31-3-2000 to 30-3-2002. The petitioner is aggrieved by Ext. P10 order, whereby the petitioner's claim for service benefits for the period from 1-1-1998 to 31-12-1999 was rejected by the 3rd respondent. The petitioner's contention is that similar claims have been considered by this Court in Ext. P11 and Ext. P12 judgments upholding the right for service benefits raised by similarly situated college teachers. The petitioner therefore seeks the following reliefs: “a) To issue a writ of certiorari or other appropriate writ, order or direction to quash Ext. P10 letter, since the same is issued against Rule 99 of Part I KSR and Clause 19 of Appendix VI of KSR as also against the declaration made by this Hon'ble Court in Exts. P11 & P12 judgments; b) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to pass orders regularising the study leave period of the petitioner from 1.1.98 to 31.12.99 under Rule 99 of Part I KSR; c) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to count the study leave period of the petitioner from 1.1.98 to 31.12.99 for the purpose of granting increment and the seniority in the Lecturer post, as stipulated in Clause 19 of Appendix VI attached to KSR; d) to issue a writ of mandamus or other appropriate writ, order or direction directing the respondents to sanction and disburse leave salary to the petitioner for the period from 1.1.98 to 31.12.99, as stipulated in Rule 99 of Part I KSR and Clause 17 of Appendix VI of KSR; e) to issue a writ of mandamus or other appropriate writ, order or W.P.C. No. 34990/2004 -: 2 :- direction directing the respondents to sanction 10 year higher grade, counting her continuous seniority in the Lecturer post from 6.6.94 and to disburse the full salary and allowances attached to the post of Lecturer, to the petitioner w.e.f. 1.1.98, including the arrears, forthwith, pending decision in the Writ Petition.” 2. Learned Government Pleader submits that Ext. P1 order granting study leave to the petitioner was issued under Rule 88 of Part I of K.S.R. The petitioner has not challenged Ext. P1. According to the learned Government Pleader, under Rule 88 of Part I K.S.R., for leave sanctioned under that Rule, no service benefits are eligible. Learned Government Pleader points out that in Exts. P11 and P12 judgments, the situation was different inasmuch as this Court has held that the petitioners therein were entitled to leave under Rule 99 of Part I K.S.R read with Appendix VI thereof for which alone service benefits are available. According to learned Government Pleader, under Appendix VI, study leave can be granted to a Government servant, if he has not less than 5 years service under the Government. She points out that in this case, the petitioner joined service only on 6-6-1994 and she was granted leave with effect from 1-1-1998 before completing 5 years of service and therefore the petitioner is not eligible to the benefits under Appendix VI. 3. I have considered the rival contentions in detail. 4. Ext. P1 order is dated 13-8-1999. It specifically states that the petitioner was granted leave for study purpose, subject to the terms and conditions stipulated under Rule 88 of Part I K.S.R, subject to the condition that the leave period will not count for any service benefits including pension. The petitioner challenged the same only by representation dated 21-4-2004, which has been rejected by Ext. P10. Apart from the delay in W.P.C. No. 34990/2004 -: 3 :- challenging Ext. P1, I am satisfied that the petitioner could not have validly challenged Ext. P1 because of the reasons pointed out by the learned Government Pleader. Admittedly, at the time when leave was granted to the petitioner with effect from 1-1- 1998, she had not put in five years of service and therefore the petitioner was not eligible for study leave under Rule 99 of Part I of K.S.R, for which alone Appendix VI would be applicable. Only if Appendix VI is applicable, the petitioner would be eligible for service benefits. Therefore, I do not find any merit in the challenge against Ext. P10 order. 5. However, learned counsel for the petitioner submits that in view of this dispute, the petitioner is being paid only the basic pay and her salary has not been fixed and arrears paid as also higher grade etc.,. In the above circumstances, the writ petition is disposed of with the following directions. 6. The challenge against Ext. P10 order is repelled. However, this shall not stand in the way of regularisation of the petitioner's pay and allowances as also higher grade and all other service benefits in accordance with law. Orders shall be passed and arrears paid to the petitioner as expeditiously as possible at any rate within three months from the date of receipt of a copy of this judgment. Sd/- S. Siri Jagan, Judge. Tds/