Jacob Kunju Kunju and T. Sajeev v State of Kerala and others

_**C.R.**_ IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT: THE HONOURABLE MR. JUSTICE DAMA SESHADRI NAIDU THURSDAY, THE 21ST DAY OF JUNE 2018 / 31ST JYAISHTA, 1940 WP(C).No. 11755 of 2011 ## PETITIONERS - 1 JACOB KUNJU KUNJU, S/O.LATE KUNJUKUNJU, AGED 41 YEARS,, WORKING AS HSA (MALAYALAM), AMMHS,, KARAVALOOR, PUNALUR, RESIDING AT ELLUVILAYIL,, ARACKAL, EDAYAM P.O., VALAKOM, KOLLAM DISTRICT-, 691 532. ## 2 T.SAJEEV, S/O.THOMSON, AGED 40 YEARS, WORKING AS P.D.TEACHER,, GOVT. L.P.G.SCHOOL, VALIYATHURA,, THIRUVANANTHAPURAM, RESIDING AT "SAJINI",, LOURDEPURAM, KANJIRAMKULAM P.O.,, THIRUVANANTHAPURAM. BY ADV.SRI.V.PHILIP MATHEW RESPONDENTS: 1. STATE OF KERALA REPRESENTED - BY ITS SECRETARY, GENERAL EDUCATION, DEPARTMENT, KERALA GOVERNMENT SECRETARIAT,, THIRUVANANTHAPURAM, PIN-695 001. 2. THE DEPUTY DIRECTOR OF EDUCATION, THIRUVANANTHAPURAM, PIN-695 001. 3. THE DISTRICT EDUCATIONAL OFFICER, KOTTARAKKARA, KOLLAM DISTRICT,, PIN-691 506. 4. THE ASSISTANT EDUCATIONAL OFFICER, THIRUVANANTHAPURAM (SOUTH),, PIN-695 001. 5. THE HEADMASTER, MAR THOMA HIGH SCHOOL,, VALAKOM, KOLLAM DISTRICT,, PIN-691 532. 6. THE HEADMASTER, GOVT. L.P.G.SCHOOL, VALIYATHURA,, THIRUVANANTHAPURAM, PIN-695 001. 7. THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY, THIRUVANANTHAPURAM,, PIN-695 001. R1-R4 & 6-R7 BY SR.GOVERNMENT PLEADER SRI SUNIL KURIAKOSE THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 21-06-2018, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: WPC No.11755/2018 ## APPENDIX EXT.P1 COPY OF THE SERVICE CERTIFICATE OF THE PETITIONER. EXT.P2 COPY OF G.O.(RT) NO.5123/07/ EDN.DTD.9.11.2007. EXT.P3 COPY OF G.O.(RT) NO.1932/08 G.EDN. DTD.23.4.2008. EXT.P4 COPY OF THE COURSE CERTIFICATE ISSUED BY THE VICE CHANCELLOR OF CALICUT UNIVERSITY IN FAVOUR OF IST PETITIONER. EXT.P5 COPY OF THE COURSE CERTIFICATE ISSUED BY THE VICE CHANCELLOR OF CALICUT UNIVERSITY IN FAVOUR OF 2ND PETITIONER. EXT.P6 COPY OF REPN.DTD.6.5.2008. EXT.P7 COPY OF LETTER NO.34911 DTD.13.2.2009. EXT.P8 COPY OF SELECTION LETTER DTD.6.9.2008 ISSUED BY SCERT, THIRUVANANTHAPURAM. EXT.P9 COPY OF THE DUTY CERTIFICATE. EXT.P10 COPY OF THE GO.(RT) NO.3132/06/GE. CSS/ C.R. ## Dama Seshadri Naidu, J. -------------------------------------------------------WPC No.11755 of 2011 --------------------------------------------------------Dated this the 21[st] day of June 2018 ## JUDGMENT Introduction: The petitioner teachers applied for leave to pursue higher studies— M.Ed. They were granted leave without allowance. Later, one of them applied to the Government requesting it to reconsider the decision and to let him have the leave with allowance. It was rejected. Then both the teachers approached this Court, though the second teacher never requested the Government to reconsider its decision. 2. Statutorily speaking leave without allowance is granted under Rule 88 of the KSR whereas leave with allowance, subject to certain conditions, is granted under Rule 91A or Rule 91. The question is which provision governs the teachers. And can the Government's decision be sustained? WPC No.11755/2011 2 Facts in Brief: 3. Jacob Kunju Kunju is a teacher working as Higher Secondary Assistant (HSA) (Malayalam) in an aided school. In September 2007, he applied for leave to pursue his M.Ed. He wanted the leave from 16.8.2007 to 14.8.2008. T. Sajeev, the second petitioner, then a primary school teacher working in a Government School, also applied for leave to pursue his M.Ed. And the leave was from 17.9.2007 to 17.8.2008. Through Exts.P2 and P3 orders, the Government granted the leave without allowance. Later, through Ext.P6, Jacob applied to the authorities to treat the leave under Rule 91A, instead of Rule 88, so he could have the benefit of all allowance for the leave period. 4. Through Ext.P7, the Government rejected Jacob's request. Aggrieved, Jacob approached this Court, joined by Sajeev, his never asking the Government notwithstanding. WPC No.11755/2011 3 ## Submissions: 5. In the above factual background, Sri V. Philip Mathews, the learned counsel for the teachers, has contended that when the teachers applied for leave, they mentioned no provision. It is for the Government, according to him, to determine under which beneficial provision the teachers could have their leave. In elaboration, Sri Mathews has drawn my attention to Rule 88, 86A, 91 and 91A of the Kerala Service Rules (KSR). 6. Sri Mathews has strenuously contended that the teachers squarely fall under Rule 91, if not Rule 91A. So the Government granting leave to them under Rule 88 is wholly unsustainable. Sri Mathews has, at the outset, candidly submitted that this case faces a precedential problem: Earlier, a learned Single Judge dismissed an identical case in Krishnan v State of Kerala.[1] But he has drawn my attention to a Division Bench judgment in State of Kerala v 12014 (3) KLT S.N. 60 WPC No.11755/2011 4 Mahesh[2] to contend that Krishnan does not confirm with this judgment. 7. Sri Mathews has submitted that the learned Division Bench has examined Rule 91A and has liberally interpreted the rule. The Division Bench, he continued, has held that a teacher acquiring a postgraduate qualification would positively contribute to the service because the superior knowledge he gained benefits the students. The learned counsel has drawn my attention to an unreported judgment of this Court in Anish P. v. State of Kerala[3] , to underline that the Court’s view in Mahesh has been consistently followed. 8. Relying on Secretary, Higher Education Department v Rajalakshmi,[4] Sri Mathews has submitted that a teacher's prospects in acquiring higher qualification also must weigh with the Government before it grants leave, more particularly if the teacher - 2 2012 (3) KLT 675 - 3 Judgment, dated 29th May 2012 - 4 2012 (3) KLT 498 WPC No.11755/2011 5 has much service left. Referring to Section 13 of Kerala Interpretation and General Clauses Act, 1125, he asserted that once the authority has the power to grant a particular benefit or to follow a specific method in administration, it hardly matters whether the beneficiary—in this case, the teachers—has specifically drawn his attention to the provision beneficial to him. 9. Eventually, Sri Mathews has referred to Jayant Verma v Union of India[5] and Fr.Sebastian Vadakkumpadan v Shine Varghese[6] to elaborate on the binding nature of precedent. According to him, what binds is what has actually been decided, rather than what may logically follow from a conclusion. He has also referred to the principle of sub silentio and contended that in Krishna's case, the facts are different, and the points now urged were never present. 5(2018) 4 SCC 743 6I.L.R. 2018 (2) Ker. 869 WPC No.11755/2011 6 10. The learned Single Judge in Krishna, according to Sri Mathews, has not considered the impact of Note-2 to Rule 91 and the expansive interpretation Rule 91A received from the hands of the Division Bench in Mahesh too. 11. To conclude, Sri Mathews has urged this Court to set aside Ext.P7 and direct the authorities to extend the benefit to both the teachers under either 91 or 91A, as is beneficial to the teachers. Respondents’: 12. Sri Sunil Kuriakose, the learned Government Pleader, has submitted that Rule 91, especially, Note-2 appended to it, has no application because it never speaks of personal prospects of the teacher. He has also submitted that a promotion, at best, could be a prospect in the service to which the teacher is a member. But acquiring M.Ed qualification does not help the teacher get the promotion. According to him, M.Ed is a qualification required to train teachers, not students. Since the schools these teachers working WPC No.11755/2011 7 in contain no course training teachers, the qualification, by no means, improves the teachers’ prospects. So he asserts that the teachers’ acquiring M.Ed., neither helps the school nor advances the teachers’ prospects. 13. Referring to the decisions relied on by the petitioner's counsel, Sri Kuriakose has also submitted that in Mahesh, the petitioner acquired M.Sc. According to him, this qualification improves the knowledge of a teacher. Therefore, the learned Division Bench in Mahesh has held that the superior qualification in the subject the teacher has been teaching is bound to contribute to the service. Further referring to Krishnan's case, Sri Kuriakose has submitted that the facts in this case and those in Krishnan's are identical. In both the cases, the teachers wanted to pursue M.Ed., but applied for leave without allowance. Then, in that context, the learned Single Judge, after considering Mahesh, has definitively concluded: The petitioner in Krishnan could not resile from his WPC No.11755/2011 8 earlier request and ask the Government to treat the leave under a different provision which, in the first place, he has never asked for. Therefore, Sri Kuriakose concludes that Krishnan squarely applies to the facts of this case and the writ petition, then, must fail. 14. Heard Sri Philip Mathews, the learned counsel for the petitioners and Sri Sunil Kuriakose, the learned Government Pleader appearing for the respondents 1 to 4, 6 and 7 besides perusing the record. Discussion: 15. The question concerns the leave the teachers have obtained —the type of leave they were entitled to, at that. Under a specific provision, they could have the leave with all allowances; under another, they would have no allowances: leave without allowance. The teachers were granted leave without allowance. They wanted it to be otherwise. 16. One teacher here works in an aided school; the other in a WPC No.11755/2011 9 government school. Rule 56 of Chapter XIVA of Kerala Education Rules mandates that the Kerala State Service Rules (KSR) will apply to the employees in the aided schools, too. So I may focus on the provisions of KSR. 17. Indeed, Sri Philip Mathews has made earnest efforts to impress upon the Court that the teachers ought to have been given benefit under Rule 91 or 91A, instead of Rule 88. First, he contends that no employee needs to mention the statutory provision to get a particular benefit. 18. I do accept the learned counsel's plea. Once an authority has the power to act or to decide in a specific manner, it hardly matters whether the beneficiary, be it a layperson or a teacher as here, is not constrained to quote the provision ‘chapter and verse’ to get that benefit. In other words, quoting a wrong provision deprives no person of a benefit, which he is otherwise entitled to. 19. But, regrettably, here, the position is different. Had it WPC No.11755/2011 10 been a case of the teachers’ not quoting any provision while asking for leave simplicitor; perhaps, Sri Mathew's plea may have persuaded me. Here, Rule 88 of KSR is otherwise. To make things clear, I may refer to Rule 88, which reads as follows: (I) Leave without allowances may be granted to any officer in regular employment in special circumstances — [Provided that the leave of person appointed under rule 9(a)(i) of the Kerala State and Subordinate Services rules, 1958 shall be regulated by rules under Appendix VIII of these rules, unless he is already an officer on regular employment] (a) when no other leave is by rule admissible, or (b) when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances. (ii) Except in the case of an officer in permanently employ, the duration of leave without allowances shall not exceed 3 months on any one occasion. . . . (italics supplied) 20. Indeed, as has been rightly pointed out by the learned Government Pleader, under Rule 88(i)(b), even when other leave is available, if the officer concerned applies in writing for the grant of WPC No.11755/2011 11 leave without allowances, that alone could be granted. The legislative purpose, perhaps, is this: The employee may have been saving up a beneficial leave option for future use; he may not want to exhaust it right away. 21. Here I may note one thing. The teachers did not file before the Court the applications they initially submitted to the Government, asking for leave. The learned Government Pleader, however, took pains to produce them. When perused, those applications reveal that the teachers did ask the Government to grant “leave without allowance.” And Rule 88 alone deals with the leave without allowance. It is, in a manner, a residuary provision providing for leave when an employee is not entitled to leave with allowances or when he does not want to exhaust the leave with allowance. After all, everyone will have a rainy day. 22. Now, we will examine other provisions, especially Rules 91 and 91A. They deal with leave with allowance, but subject to WPC No.11755/2011 12 certain conditions. Rule 91 reads thus: 91. Officers with a continuous officiating or temporary service of two years or more, will be granted in addition to any leave which they are eligible for, leave under this rule for obtaining superior qualifications (eg.B.A. and B.L.] provided, however, that the two years' minimum service will not be insisted on in the case of temporary or officiating officers belonging to the Scheduled Castes and Scheduled Tribes. Such leave will not, however, be given for broken periods but will cover the entire period of the course concerned. In cases of failure, extension of leave will be granted to cover the further period required for the completion of the course of study. Note 1. - *** **** *** **** Note 2.- The term 'superior qualifications' occurring in the above rule denotes only such of the qualifications as on acquisition are intended to enhance the usefulness of the Government servant concerned as a member of the service or will improve his prospects in the service of which he is a member. . . . (italics supplied) 23. Here, Note-2, on which Sri Mathews has laid much emphasis, refers to 'superior qualification' and notes that it is only such qualification as intended to enhance the usefulness of WPC No.11755/2011 13 Government servant concerned as a member of the service. Or it must improve his prospects in the service. Sri Mathews has taken lexical aid to define 'prospects'. According to him, it is not only the question of the teacher’s contributing to the service, but also his getting benefited in his career. Such personal advancement alone can be called “prospects in service.” 24. On the other hand, Sri Kuriakose has contended that 'prospects' cannot be personal and cannot be read in isolation. According to him, the word “prospects” is followed by “in the service of which he is a member.” So he contends that the prospects of the teachers in this case do not improve in any manner the teachers' service because their M.Ed., qualification would not entail them to any benefits, such as promotion. Nor does that qualification enhance their teaching skills, for the students’ benefit. He points out that all the decisions Sri Mathews has relied on interpreted only Rule 91A. The Rule reads as follows: WPC No.11755/2011 14 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 the higher studies to the public service. . . . (italics spplied) 25. First, both Rule 91 and 91A are similar in content, but apply under different circumstances. To me it appears that Rule 91 caters to the needs of employees at the entry level, trying to firm up their career prospects by improving their basic qualification, such as under-graduation. On the other hand, Rule 91A seems to apply to employees with considerable service, five years or more. The leave is available for pursuing only postgraduation in the sphere of their duties. And their acquiring the qualification must be beneficial to the State. The Rule also exemplifies the likely beneficiaries: teachers, engineers, and doctors could avail themselves of the benefit under WPC No.11755/2011 15 Rule 91A. 26. Indeed, had the teachers not mentioned that they wanted the leave “without allowance”, perhaps, that would have constrained the authorities to examine the issue and, possibly, apply Rule 91A, as held in Krishnan. But the statutory mandate of Rule 88 forecloses such an option or obviates such necessity. 27. Of the decisions cited, in Mahesh, the petitioner pursued M.Sc. It was held to be beneficial to the service. Krishnan, I reckon, is identical and squarely binds. His Lordship, in that case, analyzed the statutory scheme and also distinguished, rightly, Mahesh. Even in Anish, which followed Mahesh, the petitioner pursued M.Sc., a course that would enhance the teacher’s subject knowledge and thus be of benefit to the state. To conclude, I reckon that Rule 88(i)(b) is inescapable, and the teachers cannot show an accusing finger at the Government that it had deprived them of a benefit. For the teachers themselves have WPC No.11755/2011 16 opted to have leave without allowance. I, therefore, hold that the writ petition is devoid of any merit and deserves to be dismissed. It is, accordingly, dismissed. No order on costs. Sd/-Dama Seshadri Naidu, Judge css/