Dr. Susan Joseph v. Director of Collegiate Education, Thiruvananthapuram and State of Kerala

**IN THE HIGH COURT OF KERALA AT ERNAKULAM** **PRESENT:** **THE HONOURABLE MR.JUSTICE S.SIRI JAGAN** **FRIDAY, THE 8TH DAY OF JUNE 2012/18TH JYAISHTA 1934** **WP(C).No. 19279 of 2009 (D)** **---------------------------** **PETITIONER:** - **-----------** **DR.SUSAN JOSEPH, READER AND HEAD, DEPARTMENT OF CHEMISTRY, ST. STEPHEN'S COLLEGE PATHANAPURAM, KOLLAM DIST.** **BY ADV. SRI.S.MUHAMMED HANEEFF** **RESPONDENTS:** **------------** **1. DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **2. STATE OF KERALA, REP. BY ITS SECRETARY HIGHER EDUCATION DEPARTMENT, SECRETARIAT TRIVANDRUM.** **R1-R2 BY GOVERNMENT PLEADER SRI. V. VIJULAL.** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 08-06-2012, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING:** ## **WP(C).No. 19279 of 2009 (D)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS:** - **P1: TRUE COPY OF THE GO(RT) NO. 1052/06/H.EDN DATED 13-7-2006.** - **P2: TRUE COPY OF THE CERTIFICATE ISSUED TO THE PETITIONER BY THE UNIVERSITY OF PRETORIA DATED 14-7-2007** - **P3: TRUE COPY OF THE ORDER NO. 2108/AC. AVI/2008/ACAD DATED 19-5-2008 ISSUED BY THE MG UNIVERSITY.** - **P4: TRUE COPY OF THE GO(RT) NO. 1766/93/H.EDN. DT. 22.11.93.** - **P5: TRUE COPY OF THE GO(RT) NO. 885/96/H.EDN. DT. 20-7-96** - **P6: TRUE COPY OF THE REPRESENTATION SUBMITTED BY THE PETITIONER BEFORE THE 2ND RESPONDENT DT. 12-5-2008** - **P7: TRUE COPY OF THE ORDER NO. 2702/D1/0/H.EDN. DT. 12-11-2008 ISSUED BY THE 2ND RESPONDENT.** **RESPONDENTS' EXHIBITS: NIL** // **TRUE COPY//** **PA TO JUDGE** **Scl.** ## **S. SIRI JAGAN, J.** ------------------------------------------- ## W.P.(C) No.19279 of 2009 ---------------------------------------------Dated this the 8[th] day of June, 2012 ## **JUDGMENT** The petitioner is presently working as Reader and Head of the Chemistry Department of St. Stephens College, Pathanapuram. She applied for leave without allowances for undergoing fellowship as per the scheme of post doctoral research and study in the University of Pretoria in South Africa for the period from 31.10.2006 to 19.7.2007. The leave was granted, which, according to the petitioner, was under Rule 91A of Part I of KSR. The University of Cambridge awarded Ph.D to the petitioner on 14.7.2007. After the period of leave, the petitioner rejoined duty. According to the petitioner, based on the petitioner’s Ph.D degree, experience and expertise, the Mahatma Gandhi University has recognized the petitioner as a Research Guide in Chemistry. The petitioner, thereafter, applied for salary and allowances for the period of leave availed of her on the ground that the same is study leave for gaining knowledge W.P.(C)No.19279/09 2 and experience, which is useful to the students. But, by Ext.P7 order, the claim of the petitioner has been rejected. The petitioner seeks the following reliefs: “a. Call for the entire records leading upto Ext.P7 and quash the same by issuing a writ of certiorari, or any other appropriate writ, order or direction. b. Issue a writ of mandamus, or any other appropriate writ, order or direction directing the respondents to grant salary and other benefits to the petitioner for the period from 31-10-2006 to 19-07-2007 treating the above period as on deputation or on duty for all service benefits.” The contention of the petitioner is that although by Ext.P1 order, the petitioner has been granted leave without allowances, the same was subject to the terms and conditions stipulated under Rule 91A of Part I of KSR. The petitioner submits that by virtue of Rule 12(7) (iii) of Part I of KSR, a course of instructions or training which an officer has undergone as specially ordered by the Government is to be treated as duty. The petitioner submits that the petitioner is eligible for getting the period of the leave treated as duty as per Rule 91A read with Rule 12(7) of Part I of KSR. The petitioner also submits that in identical cases, similarly situated persons have been granted such benefits by Exts.P4 and P5 orders. The petitioner also relies on a decision of this 3 W.P.(C)No.19279/09 ## Court in _**Mahesh**_ v. _**State of Kerala**_ [2011(2) KLT 930]. 2. A counter affidavit has been filed on behalf of the 2[nd] respondent denying the claim of the petitioner. 3. I have considered the rival contentions in detail. Ext.P1 is the order by which leave was sanctioned to the petitioner. It specifically states that the leave granted is leave without allowances. The petitioner has not chosen to challenge Ext.P1 order. After having obtained leave without allowances by Ext.P1 order, without challenging Ext.P1 order, the petitioner cannot now turn around and contend that the petitioner is entitled to pay and allowances for the period of leave. 4. Apart from that, I am of opinion that Rule 91A read with Rule 12(7) does not enable the petitioner to claim salary and allowances for the period of leave as of right. Rule 91A of Part I of KSR reads thus: “91A. 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 PostGraduate Courses in the sphere of their duties which are primarily of benefit to the State, such as Post-Graduate Courses for Teachers, Engineers and Doctors. The leave shall be granted only with due regard to the usefulness of higher studies to the public service.” W.P.(C)No.19279/09 4 ## Rule 12(7) of Part I of KSR reads thus: “12. Unless there be something repugnant in the subject or context, the terms defined in this Chapter are used in the rules in the sense here explained:- xxx xxx xxx xxx xxx xxx xxx xxx 7. Duty.- Duty includes(i) Service as a probationer or apprentice, provided that such service is followed by confirmation. (ii) Joining time. (iii) A course of instruction or training which an Officer undergoes specially ordered by Government to be treated as duty.” Rule 91A does not stipulate anything about grant of pay and allowances. Rule 12(7) gives a power to the Government to treat as duty a course of instruction or training which an officer undergoes specially ordered by the Government. The petitioner has no case that the petitioner has undergone this particular course as specially ordered by the Government. As such, the petitioner is not eligible for the benefit of Rule 12(7) as claimed by the petitioner. As far as Exts.P4 and P5 are concerned, they do not indicate that the situation contemplated by Exts.P4 and P5 are the same as that of the petitioner. In Ext.P4, the person concerned was sanctioned deputation under the USSR Government Scholarship Programme. The petitioner was not given any such deputation. In Ext.P5, it is stated that the period of French W.P.(C)No.19279/09 5 Teachers Training Course in France attended by the person involved in that order will be treated as duty under Rule 12(7). There is nothing to indicate that the petitioner’s case is similar to the case of that person. So is the case with the decision in _**Mahesh's case**_ (supra). There also the facts are different. In this connection I also note that during the leave period the petitioner obtained a Ph.D. Degree in 9 months, which is not possible in our country. In the above circumstances, I do not think that the petitioner is entitled to the reliefs prayed for. Accordingly, the writ petition is dismissed. ## **S. SIRI JAGAN, JUDGE** acd W.P.(C)No.19279/09 6 W.P.(C)No.19279/09 7