IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 27373 of 2009(N)
1. P.B.LALITHA, H.S.A (MALAYALAM),
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY
... Respondent
2. DISTRICT EDUCATIONAL OFFICER,
For Petitioner :SRI.M.RAMESH CHANDER
For Respondent : No Appearance
The Hon'ble MR. Justice T.R.RAMACHANDRAN NAIR
Dated :10/11/2009
O R D E R
T.R. Ramachandran Nair, J.
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W.P.(C) No.27373 of 2009-N
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Dated this the 10th day of November, 2009.
JUDGMENT
The petitioner herein is aggrieved by the conditions imposed as per
Exts.P2 to P4 by which it was directed that the leave without allowance
availed of by the petitioner for study purpose under Rule 91 of Part I K.S.R.
will not be counted for service benefits.
2. The petitioner was appointed in a permanent vacancy of U.P.S.A.
from 1.6.1997 and the appointment was approved as per rules. The
petitioner submitted an application for leave without allowance to undergo
B.Ed. course from 8.7.1998 to 31.3.1999. When the application for leave
was forwarded to the District Educational Officer, the District Educational
Officer, as per Ext.P1, returned the same stating that the Headmaster is
competent to sanction the leave for study purpose. Accordingly, leave was
sanctioned and the petitioner completed the course and joined service on
31.3.1999.
3. An audit objection was raised regarding the sanction of leave by
the Headmaster, to the effect that the leave can be sanctioned only by the
Government. Therefore, the leave application was again forwarded to the
wpc 27373/2009 2
Government on which the Government passed Ext.P2 order. But it was
made conditional that the leave without allowance period will not count for
increment, grade, promotion, accumulation of earned leave and pension.
Seeking for a reconsideration of the matter, the petitioner has filed Ext.P3
representation before the Government which stands rejected by Ext.P4.
4. Learned counsel for the petitioner submitted that in the light of the
decision of the Division Bench in Ext.P5, the petitioner is entitled for the
benefit, viz. to count the service for all purposes. A reading of Ext.P5
shows that the Division Bench was of the view that in cases where the leave
is sanctioned prior to the deletion of the third proviso to Rule 33(b)(2) of
Part I K.S.R., then the teachers who have availed leave prior to that, will be
entitled for the benefit. The relevant findings are contained in para 2 and it
was held as follows:
“………. Thus, it is unambiguously clear that in terms of the
proviso the 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
KSR. The 3rd proviso was deleted as per the amendment introduced
as per SRO No.526/2005 dated 11.5.2005 published in the Kerala
Gazette dated 24.5.2005. It is stated in the SRO that the amendment
would come into force at once. The amendment is to the effect that
the 3rd proviso referred to above shall be omitted. In the explanatory
wpc 27373/2009 3
note it is explained that “the retention of the 3rd proviso to Rule 33
(b)(2) of Part I KSR provides for grant of increments for the period
of leave taken for undergoing training courses, such as B.Ed., Hindi
Teachers’ Training, Language Teachers’ Training and Teachers’
Training Certificate Curses”. Thus it is fairly clear that the
Government itself was aware of the factual and legal position that
so long as the third proviso remained in the statute book, the State
was bound to count such periods for service benefits. It is
vehemently contended by the learned Senior Government Pleader
appearing for the State that B.Ed. being an essential qualification,
the exemption from possessing the essential qualification itself was
the relaxation and hence the time granted for acquisition of the
essential qualification cannot count for the service benefits.
Certainly there is force in the contention and the contentions are
well founded also in terms of the purpose as intended by the
Government. But the intention was given effect to only from the
date of the amendment in 2005. The explanatory note
unambiguously states that the retention of the third proviso saddled
the Government with the liability to count such leave for the
purpose of service benefits.”
5. One more aspect that is relevant here is that Ext.P2 order was
passed after amendment of Rule 33. Even then, it cannot be sustained in
the light of the view taken by the Division Bench in para 4 of Ext.P5. It was
held by the Division Bench that even though the leave was sanctioned after
wpc 27373/2009 4
the amendment, in cases where the parties have availed of leave prior to the
introduction of the amendment, then if the persons have completed the
course, they will be entitled for the benefits. It was held thus in para 4:
“We are afraid that contention also cannot be appreciated. In the
case of those writ petitioners also, they had availed leave prior to
the introduction of the amendment. The incidence is prior to the
amendment. It is submitted that they completed the course prior to
the amendment, they joined duty prior to the amendment and their
applications for leave are prior to the amendment. In such
circumstances, in view of the Bench decision of this Court in State
of Kerala v. Gopalan Chettiar – 1993 (2) KLT 160 the position at
the time of the application for availing the leave is the crucial factor
that has to be considered. Therefore, while rendering a decision by
the Government, the factual position will have to be adverted to as
to whether there was an application prior to the amendment,
whether the training is prior to the amendment etc. In that view of
the matter we do not think that any interference is called for on the
view already taken by the learned single Judge though not expressly
adverting to some of the observations made by us in this judgment.”
6. It is clear from Ext.P1 that the leave application is dated 8.7.1998
and the period of leave applied for is from 8.7.1998 to 31.3.1999. It also
clear from Exts.P2 and P4 that the petitioner had availed of the leave from
8.7.1998 to 31.3.1999. Therefore, it is prior to the deletion of the third
wpc 27373/2009 5
proviso to Rule 33(b)(2) of Part I K.S.R. There is no dispute that the
petitioner had undergone the course based on the said leave sanctioned as
per Ext.P1.
6. In that view of the matter, the petitioner is entitled to succeed in
the writ petition. The writ petition is therefore allowed. Ext.P4 is quashed.
There will be a declaration that the leave without allowance availed of by
the petitioner from 8.7.1998 to 31.3.1999 could be reckoned for service
benefits including increment, grade promotion, accumulation of earned
leave and pension. No costs.
(T.R. Ramachandran Nair, Judge.)
kav/