IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE S.SIRI JAGAN FRIDAY, THE 28TH AUGUST 2009 / 6TH BHADRA 1931 WP(C).No. 23246 of 2007(P) -------------------------- PETITIONER(S): --------------- PREMA S.NAIR, SELECTION GRADE ASSISTANT, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM, RESIDING AT AISWARYA VHRA 97, VISHNU NAGAR, POWDIKONAM, THIRUVANANTHAPURAM. BY ADV. SRI.D.KISHORE SMT.MEERA GOPINATH RESPONDENT(S): --------------- 1. STATE OF KERALA REPRESENTED BY ITS SECRETARY, HIGHER EDUCATION (B) DEPARTMENT, THIRUVANANTHAPURAM. 2. THE SECRETARY, FINANCE (RULES) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 3. UNIVERSITY OF KERALA REPRESENTED BY ITS VICE CHANCELLOR, UNIVERSITY BUILDINGS, THIRUVANANTHAPURAM. 4. THE REGISTRAR, UNIVERSITY OF KERALA, UNIVERSITY BUILDINGS, THIRUVANANTHAPURAM. 5. JOHN BOSCO, SECTION OFFICER, UNIVERSITY OF KERALA, PALAYAM, THIRUVANANTHAPURAM. 6. JACOB PHILIP, SECTION GRADE ASSISTANT, UNIVERSITY OF KERALA, THIRUVANANTHAPURAM. 7. THE KERALA UNIVERSITY, APPELLATE TRIBUNAL, THIRUVANANTHAPURAM . ADV. SRI.M.RAJAGOPALAN NAIR, SC, KERALA UTY. FOR R3,4&7 SRI.N.NANDAKUMARA MENON, SENIOR ADVOCATE FOR R5,6 SRI.P.K.MANOJKUMAR FOR R5,6 SMT.SUSHYA RAJAN FOR R5,6 SPECIAL GOVERNMENT PLEADER SHRI.N.MANOJ KUMAR FOR R1 & 2 THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 28.8.2009 THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: W.P.(C).No. 23246/07. APPENDIX PETITIONER(S)' EXHIBITS P1. COPY OF THE ORDER DTD.30.1.1992. P2. COPY OF THE ORDER DTD.17.8.93. P3. COPY OF THE ORDER DTD.24.3.94 OF R4. P4. COPY OF THE CIRCULAR DTD.30.12.05. P5. COPY OF THE RELEVANT PAGES OF FINAL GRADATION LIST DTD.1.12.92. P6. COPY OF THE ORDER DTD.30.10.95 OF R4. P7. COPY OF THE RELEVANT PAGES OF CIRCULAR DTD.7.10.05. P8. COPY OF THE OBJECTION DTD.30.10.05. P9. COPY OF THE ORDER ORDER DTD.22.2.06 OF R4. P10. COPY OF THE ORDER DTD.28.2.06 OF R1. P11. COPY OF THE ORDER DTD.12.5.06 OF R1. P12. COPY OF THE COUNTER AFFIDAVIT OF R3 & R4 IN W.P.(C).No. 27025/06. P13. COPY OF THE JUDGMENT IN W.P.(C).No. 27025/06 OF THIS COURT. P14. COPY OF THE RELEVANT PAGES OF APPEAL MEMORANDUM. P15. COPY OF THE STATEMENT FILED BY THE REGISTRAR IN APPEAL 5/2007 DTD.16.3.07. P16. COPY OF THE STATEMENT FILED BY R5 AND R6 BEFORE THE TRIBUNAL. P17. COPY OF THE JUDGMENT DTD.7.6.2000 IN APPEAL NO.5/07 OF THE KERALA UNIVERSITY APPELLATE TRIBUNAL. sdk+ ///True copy/// P.A. to Judge S.SIRI JAGAN, J. ================== W.P(C).No.23246 of 2007 ================== Dated this the 28th day of August, 2009 J U D G M E N T The petitioner entered the service of the 3rd respondent University as Assistant Grade II on 1.8.1988. By Ext.P1 order dated 30.1.1992, the University granted the petitioner leave without allowances for higher studies with effect from 1.1.1992 for two years. In Ext.P1, it was stated that the leave is granted as per Rule 91 of Part I of Kerala Service Rules. By Ext.P3 dated 24.3.1994, the leave granted to the petitioner was extended for one year with effect from 1.2.1994. Therein also it was mentioned that leave was granted as per Rule 91 of Part 1 of KSR. It appears that the leave was further extended and altogether the petitioner was on leave for higher studies for a period of four years and seven months. Subsequently, by Ext.P6 order dated 30.10.1995, the University ordered that the petitioner's leave without allowances would be subject to the following conditions: “1. She will lose all service benefits including commutation of leave, half pay leave etc., and the period of leave will be treated as 'dies- non' for all kinds of service benefits. 2. She will lose seniority in the grade with reference to those who might get promoted before she rejoins duty.” While on leave, the petitioner was given promotion as Assistant Grade I on 17.8.1993. By Ext.P6 that was cancelled. The petitioner challenged Ext.P6 before this Court by filing W.P.(C).No.27025/2006, W.P.C.23246/07 2 in which, the petitioner was relegated to the remedy by way of appeal before the Kerala University Appellate Tribunal under Section 73(3) of the Kerala University Act. Accordingly, the petitioner filed Ext.P14 appeal before the Tribunal. The Tribunal, by Ext.P17 order, dismissed the appeal. The petitioner is challenging Exts.P6 and P17 orders in this writ petition. 2. The petitioner's contention is that service benefits have been denied to the petitioner on the ground that the leave granted to the petitioner is under Appendix XII B of Part I of KSR. The petitioner admits that the stipulation, in Exts.P1 and P3 and other orders granting leave, that the leave was as per Rule 91 of Part 1 of KSR is wrong. But the petitioner's contention is that the petitioner is entitled to leave under Rule 88 of Part 1 of KSR and, therefore, Appendix XII B of Part 1 of KSR is not applicable, since it is expressly made clear in Appendix XII B of Part 1 of KSR that Appendix XII B shall regulate the grant of leave for study purpose in the case of officers who are not eligible for leave for more than three months under Rule 88 due to the pre- condition of three years of continuous service for becoming eligible for leave without allowances of more than 3 months. It is pointed out by the petitioner that the limitation of three months in Rule 88 is applicable only to those officers who are not in the permanent employ of the Government. As far as the petitioner is in permanent employ, W.P.C.23246/07 3 that condition is not applicable to the petitioner. As such, the petitioner is eligible for leave under Rule 88. Resultantly Appendix XII B of Part I of KSR is clearly excluded for the purpose of granting leave to the petitioner is the contention raised by the petitioner. 3. The contention of the University is that they are entitled to correct a mistake committed by them while granting the leave. Leave was granted under Rule 91 of Part I of KSR. In so far as the higher studies undergone by the petitioner are not for a superior qualification mentioned in Note 2 of Rule 91, clearly the petitioner is not entitled for leave under Rule 91 for the purpose of the particular higher studies undergone by her. Since for persons who are not coming under Note 2 to Rule 91, Appendix XII B has been made applicable, the petitioner is entitled to leave without allowances only as per Appendix XII B, in which case, the petitioner would lose service benefits for the period of leave is their contention. 4. I have considered the rival contentions in detail. 5. At the outset I must note that the Government has in Ext.P11 clarified the matter thus: “Please refer to the communication cited. I am to inform that Smt.Prema.S.Nair is eligible for L.W.A. for study purpose under Rule 88, Part I, KSRs and therefore she may be granted L.W.A. under Rule 88 Part I KSRs on condition that the leave period will not count for increment, grade promotion, accumulation of Earned Leave or pension. However it will not affect the seniority/promotion and accumulation of Half Pay Leave. The clarification issued in Government letter dtd.28.2.2006 stands withdrawn.” W.P.C.23246/07 4 The Government has also filed a counter affidavit in support of that stand. In their counter affidavit the Government supports the petitioner in the petitioner's contention that the petitioner is entitled to leave without allowances under Rule 88 of Part 1 of KSR, in which event, that leave period will not count for increment, grade promotion, accumulation of earned leave or pension, but it will not affect seniority/promotion and accumulation of half pay leave. 6. The petitioner herself admits that Rule 91 is clearly excluded for the purpose of grant of leave for higher studies to the petitioner. The petitioner solely relies on Rule 88 of part 1 of KSR, which reads thus: “88. Leave without allowances.- (i) Leave without allowances may be granted to any officer in regular employment in special circumstances- [a] when no other leave is by rule admissible, or [b] when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances. Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Services Rules, 1958 shall be regulated by rules under Appendix VII of these rules, unless he is already an officer on regular employment. [ii] Except in the case of an officer in permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion. [iii] When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence. Exception 1.- When a period of suspension is retrospectively treated as W.P.C.23246/07 5 leave without allowances by the revising or appellate authority the limitation of admissible leave without allowances to three months to officers not in permanent employ will not apply. Exception 2.- The limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in Appendices XIIA, XIIB and XIIC.” The petitioner's service is admittedly in the permanent employ of the University. That being so, the limitation of 3 months for granting leave without allowances is clearly inapplicable to the petitioner. In such circumstance, the petitioner is one who is eligible for leave without allowances under Rule 88(i)(a). 1st Paragraph of Appendix XIIB reads thus: “The following rules shall regulate the grant of leave for study purpose in the case of officers who are not eligible for leave for more than three months under Rule 88 due to the condition of three years of continuous service or under Rule 91 due to the condition in Note 2 thereunder. In such cases Leave Without Allowances will be granted for the purpose of study to cover the entire period of the course concerned subject to the following conditions:-” 7. Going by the same, Appendix XII B would be applicable only in respect of those offices who are not eligible for leave for more than 3 months under Rule 88 due to the condition of three years of continuous service. The University does not have a case that the petitioner comes under that category. If the petitioner does not come under that category, Appendix XIIB is clearly excluded. Therefore, Rule 88 (i)(a) is clearly attracted for the purpose of granting leave without allowances to the petitioner. It is not disputed before me that in cases W.P.C.23246/07 6 of leave under Rule 88 of Part I of KSR, period of leave will not count for increment, grade promotion, accumulation of earned leave or pension. But the seniority or right for promotion of the petitioner as well as accumulation of half pay leave would not be affected. That being so, cancellation of promotion granted as Assistant Grade I by the University by order dated 17.8.1993 is clearly unsustainable. In the above circumstances, I am satisfied that Exts.P6 and P17 orders are unsustainable. Accordingly, they are quashed. The petitioner would be eligible for all consequential benefits of promotion, restoration of seniority etc. Orders in that regard shall be passed by the University within one month from the date of receipt of a certified copy of this judgment. The writ petition is allowed as above. Sd/- sdk+ S.SIRI JAGAN, JUDGE ///True copy/// P.A. to Judge