IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 29618 of 2006(A)
1. A.G.SATHI, AGED 45 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. THE DIRECTOR,
3. THE REGIONAL DEPUTY DIRECTOR,
4. THE PRINCIPAL,
For Petitioner :SRI.M.SASINDRAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :30/07/2009
O R D E R
T.R. RAMACHANDRAN NAIR, J.
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W.P.(C). No.29618/2006-A
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Dated this the 30th day of July, 2009
J U D G M E N T
The petitioner is working as Higher Secondary School Teacher
(Commerce) in St.Joseph Higher Secondary School, Vayattuparamba. She
was appointed as H.S.S.T (Commerce) as per order dated 17/06/2002
(Ext.P1). She is a Post Graduate in Commerce and she was working as
High School Assistant and on acquiring SET qualification, she was
appointed as H.S.S.T by getting exemption from acquiring B.Ed Degree
with the condition that the petitioner has to acquire B.Ed within 7 years.
2. She was selected for the B.Ed Course during the year 2004-05
and she joined the course on 22/06/2004 and the same ended on 28/03/2005.
This is evidenced by Ext.P2. Even though the application for leave without
allowance was forwarded, it was returned by the District Educational
Officer stating that the application may be forwarded to the second
respondent. After completing various formalities, the leave application was
forwarded to D.E.O for counter signature and again it was directed to be
submitted to the third respondent. At this stage, Ext.P6 communication was
issued to the effect that as per Rules, summer vacation cannot be suffixed or
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prefixed to the leave without allowance for study purpose and that no
academic purpose is served by rejoining on 28/03/2005. Therefore, the
petitioner was directed to re-submit leave application covering the summer
vacation also. As per Ext.P8 the Principal informed the third respondent
that the petitioner has a right to rejoin duty as the leave period ended on
28/03/2005. The petitioner submitted Ext.P9 representation in the matter.
Then by Ext.P10, she was informed that the salary bill from 7/06 cannot be
honoured unless the teacher had submitted revised leave application. This
was based on Ext.P11 Circular. According to the petitioner, Ext.P11 is
illegal.
3. The respondents have filed a counter affidavit in the matter
opposing the prayers of the petitioner. The stand taken in the counter
affidavit in paragraph (6) is that as the petitioner has not completed her
probation for want of a basic qualification i.e., B.Ed., leave without
allowance for study purpose will be granted to the teacher/petitioner under
Rule 110 of Chapter IX, Part I K.S.R Appendix XII-B (ii).
4. The petitioner has filed a reply affidavit pointing out that the
probation has been declared with effect from 31/07/2003 A.N on
completion of 2 years and the entry to this effect is made in her Service
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Book. It is also pointed out that going by Ext.P13, it can be found that the
petitioner has undergone the B.Ed course as permitted in the Government
Order dated 25/09/1998.
5. The dispute is regarding the view taken by the Government in
Ext.P6. The Government was of the view that as per Rule, summer vacation
cannot be suffixed or prefixed to the L.W.A for study purpose. The learned
Government Pleader relied upon Government Decision No.3 to Rule 74 of
Part I K.S.R in support of the above stand taken by the Government.
6. The Government decision No.3 is to the effect that the
prefixing or suffixing of vacation to leave without allowances granted under
Appendix XII A Part I K.S.R for employment abroad or within the country
is not permissible. Obviously, the petitioner’s application for leave is under
Rule 91 of Part I K.S.R. It is not under Appendix XII A. Therefore, the
Government Decision No.3 will not apply here.
7. The provisions of Appendix XII-B mainly relates to the grant
of leave without allowances for those ineligible for leave for study purpose
under Rule 88 or Rule 91, Part I, K.S.R. Sub Para (v) provides that “leave
will not be allowed to be combined with any other kind of leave or
vacation”. It can be thus seen that the petitioner cannot be compelled to
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combine the vacation if the leave applied for is under these provisions.
Going by Rule 74 of Part I K.S.R., vacation may be taken in combination
with or in continuation of any kind of leave, (proviso omitted). The
Government Decision No.1 therein states that it is permissible to allow a
vacation to intervene between two periods of leave. Similarly vacation may
be prefixed or suffixed to leave or both prefixed or suffixed. Therefore, the
learned counsel for the petitioner submitted that even in such cases, the
payment of salary for the period cannot be denied.
8. Herein, admittedly, Government Decision No.3 to Rule 74 will
not apply. What remains is Ext.P11 Circular, that is dated 28/04/2006. The
same came into force after the period of leave was over. Therefore, the
stipulation therein will not apply to the petitioner.
9. In that view of the matter, the petitioner is entitled to succeed in
the writ petition. Exts.P6 and P12 are therefore, quashed. There will be a
direction to respondent Nos.1 to 3 to pass orders sanctioning leave without
allowance to the petitioner for the period from 22/06/2004 to 28/03/2005 for
undergoing B.Ed course and the period will be regularised accordingly. The
fourth respondent will forward the application to the second respondent
through the third respondent on production of a copy of this judgment.
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Appropriate orders will be passed within two months from the date of
receipt of a copy of the judgment. The petitioner will be entitled for the
eligible monetary benefits also. No costs.
(T.R. Ramachandran Nair, Judge.)
ms