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. 21992 of 2006(R) ------------------------------------ PETITIONER: ------------------- SUMA MATHEW, HIGHER SECONDARY SCHOOL TEACHER (COMMERCE), SMV HIGHER SECONDARY SCHOOL, POONJAR. BY ADV. SRI.SHAJI THOMAS PORKKATTIL RESPONDENTS: ---------------------- 1. STATE OF KERALA, REP. BY SECRETARY, GENERAL EDUCATION (T) DEPARTMENT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDINGS, THIRUVANANTHAPURAM-1. 3. THE MANAGER, SMV HSS, POONJAR. BY GOVERNMENT PLEADER SMT. T.B.REMANY THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 25/06/2008, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C).No. 21992 of 2006(R) -2- APPENDIX PETITIONER'S EXHIBITS: EXT.P1- TRUE COPY OF G.O(MS) NO. 377/98/G/Edn DATED 25.9.1998 OF THE 1ST RESPONDENT. EXT.P2 - TRUE COPY OF THE ORDER NO. ACD/B4/2955/98/HSE DATED 21.12.2001 OF THE 2ND RESPONDENT. EXT.P3 - TRUE COPY OF THE CIRCULAR NO. 38/2002/FIN DATED 8.6.2002 OF THE 1ST RESPONDENT. EXT.P4 - TRUE COPY OF THE ORDER NO. G.O.(RT) NO. 5266/2003/G/Edn. DATED 20.12.2003 OF THE 1ST RESPONDENT. EXT.P5 - TRUE COPY OF THE ORDER NO. ACD/B4/1049/HSC/2002 DATED 19.3.2004 OF THE 2ND RESPONDENT. EXT.P6 - TRUE COPY OF THE REPRESENTATION DATED 20.12.2004 SUBMITTED TO THE 1ST RESPONDENT. EXT.P7 - TRUE COPY OF LETTER NO. 188/T2/2005/G/Edn DATED 16.6.2005 OF THE 1ST RESPONDENT. EXT.P8 - TRUE PHOTOCOPY OF G.O.(RT) NO. 3729/07/G.EDN DATED 10.08.2007. /TRUE COPY/ PA TO JUDGE rhs K.T.SANKARAN, J. ------------------------------ WP(C). No. 21992 of 2006 ------------------------------ Dated this the 25th day of June, 2008 JUDGMENT As per Exhibit P4 order dated 20/12/2003 leave without allowance was granted to the petitioner for the period from 11/07/2002 to 1/06/2003 for the purpose of undergoing B. Ed training Course. The petitioner was working as Higher Secondary School teacher (Commerce) in SMV Higher Secondary School, Poonjar. The leave was granted as per Exhibit P4 under Rule 91, part 1 of Kerala Service Rules. It is recorded in Exhibit P4 that the period of leave without allowances will not be counted for any service benefit including pension and that it will be so recorded in the service book of the petitioner. The petitioner submitted Exhibit P6 representation dated 20/12/2004 to the Government pointing out her grievances against the conditions imposed while granting leave as mentioned above. The Exhibit P6 representation was disposed of as per Exhibit P7 order dated 16/06/2005 declining the prayer for reckoning the leave without allowance period for service benefits. The 3rd Proviso to Rule 33(b)(2) WP(C). No. 21992 / 2006 Page numbers 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 proviso was deleted with effect from 11/5/2005. A question arose as whether the deletion of 3rd provision is prospective or retrospective. That question was considered in WP(c) No. 26782/2005 by this court and 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 A is a separate rule entitling a person for claiming leave for taking WP(C). No. 21992 / 2006 Page numbers 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.” In view of the decisions in Deepika Vs. State of Kerala and also various other decisions in which, this court has taken the consistent view that deletion of 3rd proviso of Rule 33(b)(2) Part 1 of K.S.R is only prospective, I am of the view that Exhibit P7 order passed by the Government is unsustainable. Accordingly, Exhibit P7 order is quashed. For the same reasons, this statement in Exhibit P4 that leave without allowance period will not count for any service benefit shall WP(C). No. 21992 / 2006 Page numbers not be construed as taking away the benefit of 3rd proviso to Rule 33 part 1 of KSR. The Writ Petition is accordingly allowed. The first respondent shall pass appropriate orders in the light of law laid down by this court in the decisions of Deepika Vs. State of Kerala and other cases and also in the light of findings rendered above, within a period of one month from the date of receipt of copy of this judgment. K.T.SANKARAN, JUDGE scm WP(C). No. 21992 / 2006 Page numbers