Anish P. v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.N.RAVINDRAN** ## **TUESDAY, THE 29TH DAY OF MAY 2012/8TH JYAISHTA 1934** ## **WP(C).No. 21483 of 2010 (I)** **---------------------------** **PETITIONER(S):** - **--------------------------** **ANISH P., U.P.S.A., S.N.D.P. HIGHER SECONDARY SCHOOL, ALUVA, ERNAKULAM DISTRICT.** **BY ADVS.SRI.MVS.NAMBOOTHIRY SRI.POOVAMULLE PARAMBIL ABDULKAREEM** ## **RESPONDENT(S):** - **----------------------------** **1. STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, SECRETARIAT,THIRUVANANTHAPURAM-695 001.** **2. THE DEPUTY DIRECTOR OF EDUCATION, ERNAKULAM, KOCHI-682 011.** ## **3. THE MANAGER,** - **S.N.D.P. HIGHER SECONDARY SCHOOL, ALUVA-683 101.** **R1 & R2 BY GOVERNMENT PLEADER SRI.A.J.JOSE (AEDEIODI) R3 BY ADV. SRI.A.N.RAJAN BABU SRI.P.GOPALAKRISHNAN (MVA)** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 29-05-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** **sts** ## **WP(C)NO.21483/2010** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1 COPY OF THE APPLICATION FOR LEAVE (FORM NO.13) SUBMITTED BY THE PETITIONER.** - **P2 COPY OF THE CERTIFICATE DATED 10/7/2009 ISSUED BY THE MAJLIS ARTS & SCIENCE COLLEGE.** - **P3 COPY OF THE G.O.(RT)NO.5793/07/G.EDN DATED 19/12/2007.** - **P4 COPY OF THE G.O.(RT)NO.3698/09/G.EDN DATED 20/8/2009** - **P5 COPY OF THE REPRESENTATION DATED 26/11/2009 SUBMITTED BY THE PETITIONER BEFORE THE 1ST RESPONDENT.** - **P6 COPY OF THE JUDGMENT DATED 17/2/2010 IN WP(C)NO.5057/10 OF THIS HON'BLE COURT.** - **P7 COPY OF THE G.O.(RT)NO.2405/10/G.EDN DATED 4/6/2010.** ## **RESPONDENT'S EXHIBITS: NIL** ## **/TRUE COPY/** ## **P.A.TO.JUDGE** **sts** ## **P.N.RAVINDRAN** , **J.** ## **--------------------------W.P.(C) No.21483 OF 2010 -------------------------Dated this the 29[th] day of May, 2012** ## **J U D G M E N T** The petitioner entered service as Upper Primary School Assistant in S.N.D.P. Higher Secondary School, Aluva on 8.1.2001. Though he was thrown out of service when the school closed for the summer vacation, he was reappointed when the school re-opened on 6.6.2001. He has continuous service thereafter and his appointment was also approved by the competent authority. Long after his appointment was approved and he completed six years of service, the petitioner submitted Ext.P1 application dated 4.9.2007 to the Government under rule 91A of Part I of the Kerala Service Rules for study leave to undergo the M.Sc degree course in Computer Science during the period from 5.9.2007 to 3.9.2009. By Ext.P3 order passed on 19.12.2007 the Government granted leave without allowances under rule 88 of Part I of the Kerala Service Rules, subject to the condition that the period of leave will not count for increment, grade promotion, accumulation of earned leave or pension. It was also stated that these facts should be recorded in the Service Book. 2. The petitioner availed the leave, underwent the course and thereafter rejoined duty on 10.7.2009 with the permission of the WPC No.21483/2010 2 Deputy Director of Education, Aluva even before the expiry of the leave. By Ext.P4 order passed on 28.8.2009 the Government ratified the action of the Deputy Director of Education in allowing the petitioner to rejoin duty on 10.7.2009. Shortly thereafter, the petitioner submitted Ext.P5 representation dated 26.11.2009 before the Secretary to Government, General Education Department, Thiruvananthapuram, requesting the Government to modify Ext.P3 order dated 19.12.2007 and to convert the leave as leave without allowances under rule 91A of Part I, KSR. By Ext.P7 order passed on 4.6.2010, the Government rejected the request. In paragraphs 5 and 6 thereof the Government held as follows: “ _5. As per notification No.G.O.(P)217/05/Fin dated 11.5.2005 Government have deleted the third proviso of clause (b) in sub clause (2) of Kerala Service Rules 33. The applicant has applied for Leave Without Allowance for P.G.Course in Computer Science 4.9.2007. Hence the applicant is not eligible for Leave Without Allowance under Rule 91(a) Part I, Kerala Service Rules. The petitioner availed Leave Without Allowance for undergoing M.Sc (Computer Science) course which is only beneficial for him and hence it cannot be considered as Leave Without Allowance taken for any course beyond his control as provided in the 2[nd] proviso to Rule 33(b)(2)Part I, Kerala Service Rules. Also as per Rule 91A Part I, Kerala Service Rules officers with a continuous officiating or temporary service of 5 years or more may be granted in addition to any leave to which they are eligible for, leave for undergoing PG course in the sphere of this duties, which are primarily of benefit to the State. In the present case leave requested is for PG Computer Science course which is not mandatory for the duties of UPSA. The incumbent_ WPC No.21483/2010 3 _has undergone the course for his own interest and aiming better prospects. The petitioner has undergone P.G. course during the course of leave and not for any training such as B.Ed as specified in third proviso to Rule 33(b)(2) Part I, Kerala Service Rules. Hence the proviso is not applicable to the incumbent._ _6. In the above circumstances the revision petition deserves no merits and hence rejected. The direction contained in the judgment of the Hon'ble High Court read as above is thus complied with.”_ ## 3. Ext.P7 is under challenge in this writ petition wherein the petitioner seeks the following reliefs: _“(i) To declare that the condition imposed in Ext.P3 and P7 is illegal, arbitrary and against the provisions in K.S.R._ _(ii) To issue a writ of mandamus or any other appropriate writ, order or direction directing the 1[st] respondent to count the Leave Without Allowance_ from 5.9.2007 to 9.7.2009 for increments, promotion and pension.” 4. A similar issue was considered by a learned single Judge of this Court in **Mahesh v. State of Kerala** (2011 (2) KLT 930). The petitioner therein, who was an Upper Primary School Assistant in a Government school, applied for leave under rule 91A of Part I of the Kerala Service Rules to undergo the M.Sc degree course in Physics. Leave was granted under rules 82 and 88 of Part I of the Kerala Service Rules. The teacher underwent the course and rejoined duty and thereafter moved the Government to convert the leave as one under rule 91A of Part I of the Kerala Service Rules. The Government WPC No.21483/2010 4 rejected that request holding that the acquisition of a post graduate degree will benefit only the incumbent and will not in any way be beneficial to the State and therefore rule 91A is not attracted. Allowing the writ petition filed by the teacher, a learned single Judge of this Court held that as the petitioner’s duty is to teach students, the benefit to the State contemplated by rule 91A is that the teacher would be able to teach the students better with the post graduate degree acquired by him. It was held that the acquisition of a post graduate degree in Physics would not only be of benefit to the petitioner but would certainly be primarily of benefit to the State as well in the sense that by teaching students better, the State would be benefited because it is the responsibility of the State to see that students are imparted education in a better way. The issue raised in the instant case is identical except for the fact that the petitioner in the instant case is a teacher working in an aided school. I am therefore of the considered opinion that the stand taken by the Government in Ext.P7 cannot be sustained. I accordingly allow the writ petition, quash Ext.P7 and direct the State Government to convert the leave sanctioned to the petitioner as per Ext.P3 order dated 19.12.2007 as one under rule 91A of Part I of the Kerala Service Rules as applied for by him. Necessary orders in WPC No.21483/2010 5 that regard shall be issued expeditiously and in any event within one month from the date on which the petitioner produces a certified copy of this judgment before the Secretary to Government, General Education Department. The monetary benefits payable to the petitioner consequent thereon shall be disbursed to him expeditiously thereafter and in any event within three months form the date on which orders are issued pursuant to this judgment. ## **P.N.RAVINDRAN,** ## **(JUDGE)** vps WPC No.21483/2010 6 WPC No.21483/2010 7