IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR WEDNESDAY, THE 18TH NOVEMBER 2009 / 27TH KARTHIKA 1931 WP(C).No. 32368 of 2009(M) -------------------------- PETITIONER(S): --------------- P.C. THANKACHAN, AGED 50 YEARS, S/O. CHARLY, HEADMASTER, ST. LOURDE MARY U.P SCHOOL, VADAKKAL, ALAPPUZHA DISTRICT. BY ADV. SRI.V.A.MUHAMMED SRI.K.E.HAMZA RESPONDENT(S): --------------- 1. THE STATE OF KEREALA, REPRESENTED BY ITS SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT, TRIVANDRUM. 2. THE DIRECTOR OF PUBLIC INSTRUCTION, JAGATHY, TRIVANDRUM-14. 3. THE ACCOUNTANT GENERAL (A&E), KERALA, THIRUVANANTHAPURAM. 4. THE ASSISTANT EDUCATIONAL OFFICER, ALAPPUZHA DISTRICT. BY GOVT. PLEADER SRI. T.T MUHAMOOD THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 18/11/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: T.R RAMACHANDRAN NAIR,J. ------------------------- W.P ( C) No.32368 of 2009 -------------------------- Dated this the 18th November,2009 J U D G M E N T Petitioner is working as Headmaster in St.Lourde Mary U.P School, Vadakkal in Alapppuzha district. The petitioner was granted, as per Ext.P1, half pay leave for 228 days from 2.8.2004 to 17.3.2005 and leave without allowances for 34 days from 18.3.2005 to 20.4.2005 for study purpose. Accordingly, petitioner joined the B .Ed Course and successfully completed the same. 2. On implementing the pay revision order in the year 2004, the pay of the petitioner was fixed at Rs.10,310/- with effect from 18.7.2004 in the scale of pay of Rs.8390-13270/-. The fixation was objected by the Accountant General stating that the period covered by the leave without allowances cannot be counted for any service benefits (Ext.P2). Petitioner filed a representation before the Assistant Educational Officer in the matter, which was rejected by Ext.P3. 3. Against Ext.P3, he filed a further representation before the Deputy Director of Education. Thereafter he W.P ( C) No.32368 of 2009 2 received Ext.P4 letter stating that leave without allowances period could not be counted for any service benefits as per G.O (Rt) No.3911/05/G.Edn dated 8.8.2005. 4. Petitioner is relying upon the decision of this Court in Deepika Vs. State of Kerala [2007 (1) KLT 71] (Ext.P5) which was followed in W.P(C) Nos.9147/08 and 1687/07 etc. Petitioner is also relying upon Ext.P6 judgment of the Division Bench as well as Ext.P7 judgment in W.P (C) No..32278/07. 5. Heard the learned Government Pleader also. 6. In Ext.P5 judgment i.e Deepika's case (supra) after considering various aspects, it has held thus: "Firstly, R.91A 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 taken away the statutory right conferred on the petitioner under the second proviso of sub-r 2 of R.33, it is oppose to the W.P ( C) No.32368 of 2009 3 statutory provisions and liable to set aside. " 7. In Ext.P7 judgment, this Court held after following the judgment of the Division Bench in W.A No.2734 of 2007, and connected cases that the leave without allowances availed by the teachers prior to 11.5.2005 for the purpose of undergoing the B.Ed Degree course will count for the purpose of grant of increments and pension. The same dictum will apply to the facts of this case also. Going by Ext.P1, leave without allowances granted is prior to the said period. Therefore, the writ petition is allowed. Exts. P2 P3 and P4 are quashed as far as it denies the period of leave without allowances. The benefit of reckoning the period of leave without allowances for undergoing B.Ed Degree course for service benefits will be granted to him. It is declared that the increments granted to the petitioner counting leave without allowances for study purpose is valid and legal. T.R RAMACHANDRAN NAIR, JUDGE ma W.P ( C) No.32368 of 2009 4 W.P ( C) No.32368 of 2009 5