IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR THURSDAY, THE 8TH OCTOBER 2009 / 16TH ASWINA 1931 WP(C).No. 25602 of 2006(W) --------------------------------------- PETITIONER(S): ------------------------ ABDUSSATHAR P., HIGH SCHOOL ASSISTANT (HINDI), UMBICHY HAJEE HIGHER SECONDARY SCHOOL, CHALIYAM, KOZHIKODE. BY ADV. MR.K.PRAVEEN KUMAR RESPONDENT(S): ---------------------------- 1. STATE OF KERALA, REP. BY THE SECRETARY,GENERAL EDUCATION DEPARTMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. THE DIRECTOR OF PUBLIC INSTRUCTIONS, THIRUVANANTHAPURAM. 3. THE DEPUTY DIRECTOR OF EDUCATION, KOZHIKODE. 4. THE DISTRICT EDUCATIONAL OFFICER, KOZHIKODE. 5. THE HEADMASTER, UMBICHY HAJEE HIGHER SECONDARY SCHOOL, CHALIYAM, KOZHIKODE. SR. GOVT. PLEADER SMT.T.B.RAMANI THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08/10/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C) NO.25602/2006 APPENDIX PETITIONER'S EXHIBITS P1:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT DTD. 30.8.97. P2:- COPY OF THE APPOINTMENT ORDER ISSUED BY THE 4TH RESPONDENT DTD. 1.6.99. P3:- COPY OF THE RELEVANT PORTION THE SERVICE BOOK. P4:- COPY OF THE OBJECTION MADE BY THE 3RD RESPONDENT. P5:- COPY OF THE PROCEEDINGS OF THE 2ND RESPONDENT DTD. 28.2.06. TRUE COPY P.A. TO JUDGE tss T.R. RAMACHANDRAN NAIR, J. --------------------------------------- W.P.(C) No.25602 OF 2006 --------------------------------------- Dated this the 8th day of October, 2009. J U D G M E N T The petitioner has approached this Court seeking for a declaration that he is entitled to Leave Without Allowance during the period covered by Exhibit P1 in the light of Rule 88 of Part I Kerala Service Rules. The petitioner herein is presently working as H.S.A (Hindi) in the Umbichy Hajee Higher Secondary School, Chaliyam in Kozhikode District, an aided school. The petitioner was originally working as H.S.A (Urdu) in the said school and thereafter was qualified to be appointed as H.S.A (Hindi), he was appointed in the leave vacancies for various spells. The provisional appointments have been approved also. 2. The petitioner was appointed as H.S.A (Hindi) in the leave vacancy of Sri.K.Mohammed for the period from 30.08.1997 to 31.08.2002. The same was approved as evident from Exhibit P1. When a permanent post of H.S.A (Hindi) arose in the school, the petitioner was appointed on permanent basis as W.P.(C) No.25602/2006 2 per Exhibit P2, which was also approved. 3. During the period of appointment covered by Exhibit P1, the petitioner took Leave Without Allowance for the period from 08.06.1998 to 31.08.1998 for a period of 85 days. This was sanctioned by the respondents 4 and 5. 4. An audit objection was raised later in regard to the Leave Without Allowance sanctioned to the petitioner from 08.06.1998 to 31.08.1998. There was a direction to recover the benefits also received by him. Even though the Headmaster submitted a reply, the same was not favourably considered. The petitioner thereafter filed an appeal, which was also rejected by Exhibit P5. It is contended that in the light of Rule 88 of Part I K.S.R, the leave sanctioned is perfectly in order. 5. The issue raised by the petitioner is covered in his favour by the decision of this Court in Maya vs. State of Kerala (2000(3) KLT 623). In paragraph 8 of the said judgment, this Court held that the persons who are appointed temporarily under R.9(a)(i) are entitled to leave without allowances not exceeding three months. The relevant provisions of Rule 88 of Part I K.S.R W.P.(C) No.25602/2006 3 were examined therein. It was held thus in paragraph 8: “.......Of course, Note I excludes the rules which have not been specifically made applicable in the case of temporary employees under R.9(a)(i) of K.S.&S.S.R. R.88(i) says that leave without allowances may be granted to any officer in special circumstances. Sub-r.(ii) of R.88 says that except in the case of an officer in permanent employment, the duration of leave without allowances shall not exceed 3 months on any one occasion. Therefore, according to me, persons who are appointed temporarily under R.9(a)(i) are entitled to leave without allowances not exceeding three months. When R.88(ii) mentions that persons other than in permanent employment are not entitled to leave without allowances exceeding three months, it will take in persons appointed under R.9(a)(i) of the K.S.& S.S.R.....” The said dictum applies to the facts of this case also. Therefore, the audit objection cannot survive. Exhibits P4 and P5 are hence quashed. This writ petition is allowed as above. T.R. RAMACHANDRAN NAIR JUDGE smp