Amod Mathew v. The Secretary to the Government, General Education (T) Department, Secretariat, Thiruvananthapuram; The Director of General Education (Higher Secondary); The Regional Deputy Director of Higher Secondary Education, Kottayam; The Manager, Corporate Educational Agency, Diocese of Palai, Palai

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR. JUSTICE RAJA VIJAYARAGHAVAN V THURSDAY, THE 2[ND] DAY OF DECEMBER 2021 / 11TH AGRAHAYANA, 1943 WP(C) NO. 21689 OF 2021`** ## **`PETITIONER/S:`** ``` AMOD MATHEW AGED 44 YEARS S/O. MATHEW, TEACHER, (HSS TEACHER) ST. PAUL'S HIGHER SECONDARY SCHOOL, VALIYAKUMARAMANGALAM, MOONILAVU P.O, KOTTAYAM DISTRICT 686 586 BY ADVS. SHAJI THOMAS JEN JAISON ``` ## **`RESPONDENT/S:`** ``` 1THE SECRETARY TO THE GOVERNMENT GENERAL EDUCATION (T) DEPARTMENT, SECRETARIAT, THIRUVANANTHAPURAM 695 001 2THE DIRECTOR OF GENERAL EDUCATION, (HIGHER SECONDARY) HOUSING BOARD BUILDING, THIRUVANANTHAPURAM 695 011 3THE REGIONAL DEPUTY DIRECTOR OF HIGHER SECONDARY EDUCATION KOTTAYAM 686 001 4THE MANAGER CORPORATE EDUCATIONAL AGENCY, DIOCESE OF PALAI, PALA P.O, KOTTAYAM DISTRICT 686 575 SRI BIJOY CHANDRAN SR GOVERNMENT PLEADER ``` ``` THISWRITPETITION(CIVIL)HAVINGCOMEUPFORADMISSION ON02.12.2021,THECOURTONTHESAMEDAYDELIVEREDTHE FOLLOWING: ``` ``` WP(C) NO. 21689 OF 2021 ``` ``` 2 ``` ## **JUDGMENT** The petitioner states that he was appointed as a Teacher in the St. Sebastian's Higher secondary School, Kadanad on 18.09.2002. The said appointment was approved by order dated 08.08.2003. Since the petitioner did not have B.Ed Degree at the time of appointment, the order of appointment was subject to acquiring B.Ed. Degree qualification within 5 years from the date of appointment. Another condition was that the probation would be declared only after acquiring the B.Ed. Degree. 2. The petitioner contends that he applied for Leave Without Allowance (LWA) for undergoing B.Ed. course. By order dated 16.10.2004, LWA was sanctioned for the period from 10.12.2003 to 30.10.2004. It is contended that he successfully completed the course and acquired the Degree. Later, by Ext.P1 order, the 2nd respondent approved the service of the petitioner with effect from 18.9.2002. It is stated that though the LWA was sanctioned till 30.10.2014 by Ext.P2 order, the Government granted permission for cancellation of the portion of the leave, which was not availed from 16.10.2004 and ratified the action of the 4th respondent by Exhibit P3 order. 3. The specific contention of the petitioner is that he is entitled to get ``` WP(C) NO. 21689 OF 2021 ``` ``` 3 ``` all service benefits for the leave period to be reckoned as per the 3[rd] proviso to Rule 33 (b) (2) of Part I KSR. However, by SRO. No. 566/2005 which is dated 11/05/2005, the 3rd proviso was deleted from the rule book. The petitioner contends that this Court in **Deepika v. State of Kerala** [2007 (1) KLT 71] had occasion to hold that SRO 526/2005 as per which, the 3rd proviso to Rule 33 (b) (2) of Part I KSR was deleted would have only prospective effect. This Court had further directed the Government to grant all service benefits to those teachers who had availed leave for study purposes prior to the introduction of the amendment. 4. The petitioner contends that in similar circumstances, another teacher had approached this Court and by Exhibit P6 judgment dated 25.06.2008, this Court had allowed the writ petition and directed the Government to count his leave without allowance for all service benefits. The judgment was challenged before the Division Bench and the same was dismissed. The Apex Court by Exhibit P7 order, dismissed the Special Leave Petition filed by the Government. 5. In the said circumstances, the petitioner contends that he along with two others submitted a representation before the Government contending that LWA availed for undergoing B.Ed. Course, be reckoned for all ``` WP(C) NO. 21689 OF 2021 ``` ``` 4 ``` service benefits. However, by Exhibit P9 order which is dated 26.10.2013, the representation was rejected by the Government. The petitioner points out that one of the parties whose representation was rejected and a party to Exhibit P9, had approached this Court and had preferred W.P.(C) No. 5619/2014 and by Exhibit P10 judgment dated 25.09.2020, this Court, after considering all relevant aspects of the matter and following Deepika (supra), taking note of the fact that the 2[nd] Proviso to Rule 33 (b) (2) of Part I KSR was available in the rule book as on the date when the petitioner therein had availed leave, the teacher would be entitled to the benefit of the proviso. This Court had further held that the order which specifies that the rule is not applicable in case of leave without allowance sanctioned under Appendix XII B, Part I, KSR is also not sustainable. It is the case of the petitioner that the benefits of Exhibit P6 and P10 judgments of this Court and Exhibit P7 order of the Supreme Court, to be extended to the petitioner as well. 4. I have heard the learned Government Pleader who points out that Exhibit P9 order rendered by the 1[st] respondent on 26.10.2013 and the petitioner had cared to challenge the same only by preferring a writ petition on 07.10.2021. It is submitted that this writ petition is liable to be rejected on the ground of delay and laches. ``` WP(C) NO. 21689 OF 2021 ``` ``` 5 ``` 5. I have considered the submissions advanced. The petitioner has approached this Court challenging Exhibit P9 order contending that the order cannot be legally sustained in the light of the law laid down by this Court. A teacher similarly placed as the petitioner and who was a party to Exhibit P9 had approached this Court and a learned Single Judge of this Court relying on the principles laid down in Deepika and reiterated in exhibit P6 had occasion to hold as follows: “6. I have considered the contentions advanced. The 2nd proviso to Rule 33 (b) (2) of Part I KSR read as follows: “Provided also that leave without allowances taken by teachers for completion of training courses such as B.Ed., Hindi Teachers' Training, Language Teachers' Training and Teachers' Training Certificate Course shall count for increment.” This is the provision which stood deleted by SRO 526 of 2005 dated 11.05.2005 which was notified on 24.05.2005. This Court, in a judgment reported in Deepika v. State of Kerala 2007(1) KLT 71, held that when the 2nd proviso to Rule 33 (b) (2) of Part I KSR specifically refers to B.Ed course and the leave availed for completing the said course. It was held that the said provision has been understood as an independent provision and will entitle the person to claim the benefit of the said proviso provided the leave is sanctioned for completing the B.Ed course. It was held that the Government cannot take away the benefit by virtue of any circular or executive order. The Division Bench of this Court in WA No.1935 of 2008 also considered the contention that the deletion of the proviso would have retrospective effect as well. It was held by the Division Bench 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 of 2005 dated 11.05.2005 published in the Kerala Gazette ``` WP(C) NO. 21689 OF 2021 ``` ``` 6 ``` dated 24.05.2005. 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. It was further stated that the amendment would only be prospective in effect and that the persons who availed the leave before the deletion of the 2nd proviso would be entitled to all benefits which were available under the said proviso.” 7. The Division Bench also referred to the contention raised by the Government Pleader that the orders granting leave were subject to the specific condition that the leave would not count for any benefits. This contention was negated and it was held that even if the leave was granted with such condition, since it was an admitted fact that leave was availed for undergoing the B.Ed course before the deletion of the proviso, the benefits would be available to the petitioners in spite of the conditional grant of leave. Ext.P5 judgment relied on by the petitioner would also show that it was a case where leave was granted under Rule 91, Part I KSR but with specific condition that it would not count for any service benefits. However, this Court held that the said condition in the order granting leave could not be relied upon to deny the benefits to the eligible persons in view of the 2nd proviso to Rule 33 (b) (2) which was available in the Rule book at the relevant time. 8. The further contention urged by the learned Government Pleader is that the benefit would be available only if the period of leave availed is before 24.05.2005 but extended beyond 24.05.2005. Ext.R2(a) Government Order is relied on in support of this contention. 9. In view of the unambiguous findings of this Court in the judgments referred to above, I am of the opinion that the said contention could be accepted since the 2nd proviso to Rule 33 (b) (2) Part I KSR was available in the Rule book as on the date when the petitioner availed of the leave and since the said proviso specifically referred to leave availed for acquiring the qualification of B.Ed, I am of the opinion that the leave had to extend beyond 24.05.2005 is completely unsustainable. Since the leave was availed by the petitioner at the time when the proviso was available, the petitioner would be entitled to the benefit of the proviso. Further contention that Ext.R2(a) order specifies that the Rule is not applicable in the ``` WP(C) NO. 21689 OF 2021 ``` ``` 7 ``` case of leave without allowance sanctioned under Appendix XII B, Part I, KSR is also not sustainable.” 6. The principles laid down above would apply on all fours to the petitioner as well. I found no reason to deny the benefits of the judgement to the petitioner as this Court had interfered with the very same order which is under challenge in this writ petition. In that view of the matter, the petitioner is entitled to succeed, Exhibit P9 insofar it concerns the petitioner will stand set aside. There will be a direction to the respondents to reckon the period of leave availed by the petitioner for acquiring B.Ed qualification as service for all purposes including the grant of increments. Consequential benefits shall be calculated and disbursed to the petitioner, within a period of three months from the date of receipt of a copy of this judgment. This writ petition is allowed. Sd/- ## **RAJA VIJAYARAGHAVAN V JUDGE** avs ``` WP(C) NO. 21689 OF 2021 ``` ``` 8 ``` ## **`APPENDIX OF WP(C) 21689/2021`** ``` PETITIONER EXHIBITS ``` ``` Exhibit P1TRUE PHOTOCOPY OF THE ORDER ACD.B4/1-045/HSE/2002 DATED 08-08-2003 ISSUED BY THE 2ND RESPONDENT. ``` - `Exhibit P2 TRUE PHOTOCOPY OF THE G.O(RT) NO 4509/2004/G.EDN DATED 16-10-2004 ISSUED BY THE 1ST RESPONDENT` - `Exhibit P3 TRUE PHOTOCOPY OF THE ORDER G.O(RT) NO. 129/2006/G.EDN DATED 07-01-2006` - `Exhibit P4 TRUE PHOTOCOPY OF THE CIRCULAR NO. 38/2002/FIN DATED 08-06-2002` - `Exhibit P5 TRUE PHOTOCOPY OF THE G.O (RT) NO. 3728/G EDN DATED 10-08-2007` - `Exhibit P6 TRUE PHOTOCOPY OF THE JUDGMENT DATED 25-06-2008 IN W.P(C) NO. 21992/2006 OF THIS HON'BLE COURT` - `Exhibit P7 TRUE PHOTOCOPY OF THE ORDER DATED 08-07-2013 IN SLP (C0 NO. 31012/2009 AND CONNECTED CASES OF THE HON'BLE SUPREME COURT OF INDIA.` - `Exhibit P8 TRUE PHOTOCOPY OF THE ORDER G.O(MS) NO. 69/10/EDN DATED 28-04-2010` ``` Exhibit P9TRUE PHOTOCOPY OF THE ORDER NO. 62889/T3/2011/GEDN DATED 26-10-2013 ISSUED BY THE 1ST RESPONDENT ``` ``` Exhibit P10TRUE PHOTOCOPY OF THE JUDGMENT DATED 25-09-2020 IN W.P(C) NO 5619/2014 OF THIS HON'BLE COURT ```