IN THE HIGH COURT OF KERALA AT ERNAKULAM
WP(C).No. 26502 of 2007(E)
1. SHEEJA S.R.,
... Petitioner
2. JITHESH.S.,
Vs
1. STATE OF KERALA,
... Respondent
2. DIRECTOR OF PUBLIC INSTRUCTION,
3. DEPUTY DIRECTOR OF EDUCATION,
For Petitioner :SRI.B.RAGUNATHAN
For Respondent :GOVERNMENT PLEADER
The Hon'ble MR. Justice P.N.RAVINDRAN
Dated :24/03/2009
O R D E R
P.N.RAVINDRAN, J.
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W.P.(C).No.26502 of 2007
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Dated 24th March, 2009
JUDGMENT
The petitioners are presently working as P.D. Teachers in
Government schools. The second petitioner had availed leave without
allowances during the period from 4.9.2004 to 31.3.2005 for the purpose of
undergoing the B.Ed. Degree course. The Headmaster of the school granted
half pay leave from 22.6.2004 to 3.9.2004 and leave without allowances for
the period from 4.9.2004 to 31.3.2005 and the second petitioner proceeded
on leave. Later, after the course was completed, it was contended that the
authority competent to grant leave is the Government. The second
petitioner, therefore, submitted an application dated 20.7.2006 requesting for
grant of leave for the period of leave already availed by him. By Ext.P3 order
passed on 16.11.2006, the Government sanctioned the leave, subject to the
condition that the leave without allowances for the period from 4.9.2004 to
31.3.2005 will not count for any service benefit including pension. Ext.P3 is
under challenge in this writ petition.
2. As regards the first petitioner, the learned counsel appearing
for the petitioners submits that the first petitioner was joined as a petitioner
on the erroneous belief that she had also availed leave without allowances
for the purpose of undergoing the B.Ed. Degree course after entry in service.
WP(C).No.26502/2007 2
The learned counsel appearing for the petitioners submits that the first
petitioner has not availed leave without allowances for the purpose of
undergoing the B.Ed. Degree course and that her name may be struck off
from the array of parties.
3. The learned Government Pleader appearing for the
respondents, relying on the decision of this court in State of Kerala v.
Gopalan Chettiar (1993 (2) KLT 169) contends that it is the law as on the
date of application that governs the grant of leave and as the second
petitioner was granted leave without allowances, after 11.5.2005, the
Government was right in passing Ext.P3 order.
4. I have considered the submissions made at the Bar by the
learned counsel appearing on either side. The pleadings disclose that the
second petitioner had availed half pay leave for the period from 22.6.2004
to 3.9.2004 and leave without allowances for the period from 4.9.2004 to
31.3.2005. The said leave was granted by the Headmaster of the school
where he was then working. The petitioner underwent the B.Ed. Degree
course during the said period of leave and after he has successfully
completed the course, it was noticed that the Headmaster was not
competent to grant leave. He, therefore, submitted an application dated
20.7.2006 to the Government for grant of leave for the purpose of
undergoing the B.Ed. Degree course. As a matter of fact, he had
WP(C).No.26502/2007 3
undergone the B.Ed. Degree course more than one year before moving the
Government. The Government by Ext.P3 order passed on 16.11.2006
granted the leave subject to the condition that the leave without allowances
during the period from 4.9.2004 to 31.3.2004 will not count for any service
benefit including pension. The contention of the learned counsel appearing
for the petitioners is that as the leave was availed prior to 11.05.2005 with
effect from which date the third proviso to Rule 33(b)(2) of Part I of the
Kerala Service Rules was deleted, the second petitioner is entitled to have
the leave period reckoned for the purpose of increments and pension.
5. In my opinion, the stand taken by the Government in Ext.P3
is misconceived. It is true that if the Government had granted leave in
relation to a period after 11.5.2005, what the Government Pleader states is
the correct position. However, in the instant case, the second petitioner
had availed leave for undergoing the B.Ed. Degree course before
11.5.2005. Therefore, the grant of leave as per Ext.P3 was in respect of
period prior to 11.5.2005. The mere fact that the Government passed the
order belatedly cannot therefore deprive the second petitioner of the
benefits flowing from the third proviso to Rule 33(b)(2) of Part I KSR which
was deleted only on 11.5.2005. I am, therefore, of the considered opinion
that the stipulation in Ext.P3 that the leave without allowances availed by
the petitioner during the period from 4.9.2004 to 31.3.2005 to undergo the
WP(C).No.26502/2007 4
B.Ed. Degree course will not count for increments and pension, cannot be
sustained.
6. In the result, this writ petition is allowed and Ext.P3 to the
extent it denies the second petitioner the service benefits during the period
from 4.9.2004 to 31.3.2005 is quashed and the respondents are directed
to count the period of leave availed by the second petitioner for undergoing
the B.Ed. Degree course for the purposes of grant of increments and
pension. Necessary orders regarding sanctioning of increments shall be
issued within three moths from the date of receipt of a copy of this
judgment. Consequential re-fixation of pay shall be made and arrears
disbursed within another period of three months thereafter. The name of
the first petitioner shall stand struck off for the reason that she was
erroneously joined as a party in this writ petition and is not claiming reliefs
in relation to grant of leave without allowances for the purpose of
undergoing the B.Ed. Degree course.
The writ petition is allowed as above. No costs.
P.N.RAVINDRAN
Judge
TKS