IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE T.R.RAMACHANDRAN NAIR FRIDAY, THE 7TH AUGUST 2009 / 16TH SRAVANA 1931 WP(C).No. 11386 of 2009(P) ---------------------------------- PETITIONER(S): ---------------------- DR.HARILAL.K., S/O.K.KUTTAPPAN, LAL BHAVAN, EDAMALI, PARAKKARA P.O., THATTAYIL, PATHANAMTHITTA (HIGHER SECONDARY SCHOOL TEACHER (MALAYALAM) IN SNDP HIGHER SECONDARY SCHOOL, CHENNEERKKARA). BY ADV. SRI.S.SUBHASH CHAND SMT.M.P.MARY RESPONDENT(S): -------------------- 1. STATE OF KERALA REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION/ HIGHER SECONDARY EDUCATION (T) DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM. 2. DIRECTOR OF HIGHER SECONDARY EDUCATION, OFFICE OF THE DIRECTOR OF HIGHER SECONDARY EDUCATION, HOUSING BOARD BUILDING, THIRUVANANTHAPURAM. 3. REGIONAL DEPUTY DIRECTOR, OFFICE OF THE DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION, CORPORATION BUILDING, 4TH FLOOR, PALAYAM, THIRUVANANTHAPURAM. 4. MANAGER, SNDP HIGHER SECONDARY SCHOOL, CHENNEERKKARA. SR. GOVT. PLEADER SRI. MUHAMOOD T.T THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 07/08/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WP(C) NO. 11386/2009 APPENDIX PETITIONER'S EXHIBITS : EXT.P1. COPY OF THE APPOINTMENT ORDER DT. 3/10/98 BY THE R4. EXT.P2. COPY OF THE ORDER OF APPROVAL DT. 6/08/99 THUS PASSED BY THE R2. EXT.P3. COPY OF THE MA DEGREE CERTIFICATE BY THE MG UTY. EXT.P4. COPY OF THE M.PHIL DEGREE CERTIFICTE BY THE SREE SANKARACHARYA UTY. OF SANSKRIT, KALADY. EXT.P5. COPY OF THE ORDER BEARING NO. ACD. C1/3019/HSE/99 DT. 1/6/02 BY THE R2. EXT.P6. COPY OF THE PROVISIONAL CERTIFICATE DT. 1/10/03 FROM SREE SANKARACHARYA UTY. OF SANSKRIT, KALADY. EXT.P7. COPY OF THE B.ED DEGREE CERTIFICATE DT. 24/08/04 FROM MG UTY. EXT.P7A. COPY OF THE MARK LIST DT. 6/2/2004 INDICATING THE MARKS OBTAINED BY THE PETITIONER FOR B.ED DEGREE EXAMINATION FROM MG UTY. EXT.P8. COPY OF THE JUDGMENT DT. 22/2/2006 THUS PASSED BY THIS COURT IN WPC 26782/2005. EXT.P9. COPY OF THE ORDER DT. 20/07/06 BY THE R1. EXT.P10. COPY OF THE GO DT. 10/08/07 BY THE R1. EXT.P11. COPY OF THE JUDGMENT DT. 3/6/08 BY THIS COURT IN WPC 327/08. EXT.P12. COPY OF THE ORDER DT. 20/1/2005 BY THE R1. EXT.P13. COPY OF THE JUDGMENT DT. 14/1/2009 IN WA 1935/2008. EXT.P14. COPY OF THE GO RT NO. 102/04/G1.EDN DT. 7/1/2004 INCLUDING ANNEXURES. EXT.P15. COPY OF THE ORDER DT. 14/10/2008 BY R2. EXT.P16. COPY OF THE ORDER DT. 10/2/09 BY R2. RESPONDENTS' EXHIBITS : NIL. / TRUE COPY / tga T.R. Ramachandran Nair, J. - - - - - - - - - - - - - - - - - - - - - - - - W.P.(C) No. 11386 of 2009-P - - - - -- - - - - - - - - - - - - - - - - - - - - Dated this the 7th day of August, 2009. JUDGMENT The petitioner is aggrieved by the order Ext.P12 by which it is specified that the period of leave for undergoing B.Ed. course will not be counted for any service benefits including pension and the leave particulars will be recorded in the Service Book of the teacher. It is submitted that the said issue is covered in favour of the petitioner in the light of Ext.P13 judgment of a Division Bench of this court in W.A. No.1935/2008. 2. The bare facts for the disposal of the writ petition are the following: The petitioner is presently working as Higher Secondary School Teacher (Malayalam) in SNDP Higher Secondary School, Chenneerkkara which is an aided school. He is having the qualifications in M.A. (Malayalam), M.Phil. (Malayalam), Ph.D. (Malayalam) and B.Ed. (Malayalam). He was appointed as per Ext.P1 order dated 3.10.1998. The petitioner was not having B.Ed. in Malayalam at that point of time. While granting approval, a period of three years was granted from the date of appointment for acquiring B.Ed. qualification. This is evidenced by Ext.P2. The petitioner was later got appointment in a full time post with effect wpc 11386/2009 2 from 15.7.1999. 3. The period granted for obtaining B.Ed. degree was extended from 3.10.2001 to 2.10.2003 by another order dated 1.6.2002. The petitioner applied for grant of leave from 9.12.2002 to 22.10.2003. Ext.P7 is the B.Ed. degree certificate dated 24.8.2004 and Ext.P7(a) is the mark list. 4. At the time when the petitioner availed of leave, the third proviso to Rule 33(b)(2) of Part I K.S.R. was in force. The said provision specifically stipulated that the leave without allowance taken by teachers for completing training course such as B.Ed., Hindi Teachers' Training. Language Teachers Training and Teachers Training Certificate course shall be counted for increment. 5. Heard both sides. The petitioner is relying upon Ext.P8 judgment of this court in W.P.(C) No.26782/2005 wherein a similar issue was considered. It was held that the period of leave has to be counted for the purpose of increment, going by the dictum laid down therein. 6. The petitioner is also relying upon Ext.P11 judgment of this court in W.P.(C) No.327/2008. Now the legal position has been settled by the Division Bench as per Ext.P13 judgment, wherein the relevant rules have been considered in para 2. It is observed in para 2 after referring to the third proviso that “thus it is unambiguously clear that in terms of the proviso the wpc 11386/2009 3 teachers who avail leave for acquisition of the qualifications referred to above were entitled to count the period for increment and necessarily for pension in view of Rule 26 Part III K.S.R.” It was finally held in para 3, after referring to the decision of this court in Deepika v. State of Kerala (2007 (1) KLT 71), that “the Government is not justified in attaching any condition which is not permissible under the Rules.” 7. In the light of the above, the petitioner is entitled to succeed in the writ petition. Therefore, the condition provided in Ext.P12 that the period of leave will not count for service benefits including pension, cannot be sustained. It is declared so. Hence, the said period will be reckoned for granting increments and it will be also reckoned for the purpose of pension. Appropriate orders will be passed within a period of three months from the date of receipt of a copy of this judgment. The writ petition is allowed as above. No costs. (T.R. Ramachandran Nair, Judge.) kav/