Krishnan K.K. v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR.JUSTICE P.R.RAMACHANDRA MENON** **TUESDAY, THE 22ND DAY OF JULY 2014/31ST ASHADHA, 1936** ## **WP(C).No. 28763 of 2011 (U)** ## **----------------------------** ## **PETITIONER :** - **------------------** **KRISHNAN K.K., ASSISTANT TEACHER, THIRUVATTOOR A.L.P.SCHOOL, P.O.THIRUVATTOOR, KANNUR-670 001.** ## **BY ADV. SRI.KALEESWARAM RAJ** ## **RESPONDENTS :** **-----------------------** **1. STATE OF KERALA, REPRESENTED BY SECRETARY TO GOVERNMENT, DEPARTMENT OF GENERAL EDUCATION, SECRETARIAT, THIRUVANANTHAPURAM-695 001.** **2. DEPUTY DIRECTOR OF EDUCATION, KANNUR-670 001.** ## **3. ASSISTANT EDUCATIONAL OFFICER, TALIPARAMBA NORTH, KANNUR-670 141.** **4. THE MANAGER,THIRUVATTOOR A.L.P.SCHOOL, P.O.THIRUVATTOOR, KANNUR-670 001.** **BY GOVERNMENT PLEADER SRI. SHYSON P. MANGUZHA** **THIS WRIT PETITION (CIVIL) HAVING BEEN FINALLY HEARD ON 10/06/2014, THE COURT ON 22-07-2014 DELIVERED THE FOLLOWING:** **BP** ## **WP(C).No. 28763 of 2011 (U)** ## **APPENDIX** ## **PETITIONER'S EXHIBITS :** - **P1: COPY OF THE APPLICATION FOR LEAVE DT 25/10/2010 SUBMITTED BY PETITIONER.** - **P2: COPY OF G.O.(RT) NO. 114/2011 DT 7/1/2011.** - **P3: COPY OF THE COURSE CERTIFICATE DT 26/10/2010 ISSUED BY KANNUR UNIVERSITY.** - **P4: COPY OF THE REPRESENTATION FILED BEFORE THE R1.** - **P5: COPY OF THE CIRCULAR DT 17/1/2001 TOGETHER WITH CLARIFICATORY CIRCULAR DT 18/4/2001.** ## **RESPONDENT'S EXHIBITS :** **EXT.R1: COPY OF THE LEAVE APPLICATION SUBMITTED BY THE PETITIONER.** ## **//TRUE COPY//** ## **P.A. TO JUDGE** ## **BP** ## **P.R. RAMACHANDRA MENON, J.** .............................................................................. ## **W.P.(C)No.28763 OF 2011** ......................................................................... **Dated this the .....** ## **J U D G M E N T** Whether acquisition of M.Ed qualification by a primary school teacher could be treated/regarded as a Post Graduate Course/qualification in the sphere of duties which are primarily of benefit to the State as envisaged under Rule 91A of Part I KSR , to be reckoned for the purpose of granting increments and such other service benefits under Rule 33 of the Part I KSR, is the question to be considered in this case. 2. The petitioner seeks to substitute Rule 91A in Ext.P2 Leave sanction order, passed by the first respondent/Secretary to Government, specifically under 'Rule 88' of Part I KSR, enabling the petitioner to undergo Post Graduate Course of M.Ed. for the period from 26.10.2010 to 30.09.2011, which was sought for as per Ext.P1 application dated 25.10.2010. Ext. P2 order, sanctioning the leave sought for vide Ext.P1, issued under Rule 88 of Part I KSR, stipulating that the same will not be reckoned for the purpose of granting Increment, Pension, Higher grade, accumulation of Earned Leave etc., is under challenge. 3. The petitioner was working as an 'Assistant Teacher' in **2** ## **W.P.(C)No.28763 OF 2011** the 4[th] respondent's L.P.School from 22.07.1992. While so, she submitted Ext.P1 application for leave in Form 13, as envisaged under Rule 113 Part I KSR for Leave Without Allowance (LWA) to pursue studies from 26.10.2010 to 30.09.2011. The application recommended by the Controlling Officer was considered and the same was sanctioned by the competent authority as borne by Ext.P2 order dated 07.01.2011. As per Ext.P2 order, it was specifically mentioned that the Leave Without Allowance sought for by the petitioner was granted with effect from 26.10.2010 to 30.09.2011, under Rule 88 of Part I KSR for study purpose (for completing the M.Ed course), subject to the condition that the period of 'LWA' will not count for Pension, Higher Grade, Increment, accumulation of Earned Leave and that the said fact will be recorded in the Service Book of the petitioner. It is stated that the petitioner completed the course and has obtained Post Graduate degree. After re-joining the service the petitioner submitted Ext.P4 representation dated 13.10.2011 before the first respondent/Government, requesting that the leave granted as per Ext.P2 order dated 07.01.2011, to be ordered as under Rule 91A, Part I KSR, instead of Rule 88 **3** ## **W.P.(C)No.28763 OF 2011** of Part I KSR and to have the same reckoned for service benefits including for grant of increments. Two weeks after filing the said representation, the petitioner chose to approach this Court by filing this writ petition seeking to set aside Ext.P2 and to direct the respondent to count the period of leave granted to the petitioner, to be treated as under Rule 91A and to reckon the same for the purpose of granting increments and such other service benefits. 4. A counter affidavit has been filed on behalf of the first respondent vehemently opposing the reliefs sought for, pointing out that the petitioner proceeded on leave on the very next day of submission of Ext.P1 application without getting the same sanctioned. After considering the application, the leave was sanctioned as per Ext.P2 under Rule 88 of Part I KSR and by virtue of the statutory prescriptions, the same is not liable to be reckoned for the purpose of granting increments or for such other service benefits. It is asserted that the petitioner is only a lower primary teacher, who is taking classes from standard 1 to V alone, which requires only 'Plus Two' with 'TTC' or equivalent qualification. The higher Post Graduate qualification of M.Ed **4** ## **W.P.(C)No.28763 OF 2011** obtained by the petitioner during the leave period is required only for teaching B.Ed Training students and may be beneficial to the petitioner to get appointment in the Collegiate Education Department , which has no relevancy in the field of his work, i.e. as an L.P. School Teacher and hence it does not benefit the students/public at large or the Government. It is pointed out by the first respondent that Ext.P5 Circular dated 18.04.2001 has been issued as guidelines for sanctioning Leave Without Allowance to the teachers for 'Study purpose' and usual area of higher studies mentioned under the Rules is TTI., B.Ed, Language Teachers' Training etc., which are required for their promotion; whereas in the instant case, the petitioner had undergone M.Ed course which does not come within area of his duties/profession as an L.P. School Teacher. It is also asserted that Ext.P5 Circular does not specify that service benefits will be protected during the leave period. 5. In paragraph '7' of the counter affidavit filed by the first respondent, it is pointed out that the Department has not selected the petitioner under the 'Departmental quota' and that there is no dearth of M.Ed qualified candidates in the State. In **5** ## **W.P.(C)No.28763 OF 2011** so far as the petitioner has been working as an L.P. School Teacher in an Aided School, M.Ed qualification acquired by him has no importance to the little children for pursuing their studies from Standard 1 to V and further that, even the B.Ed teachers cannot be appointed in the L.P. Section as per the existing rules and binding precedents, where the relevant qualification is 'TTC' or equivalent. Further, the petitioner has crossed 43 years and there is no scope for getting fresh appointment. Taking into consideration his M.Ed degree, there cannot be any claim for special consideration under Rules being an L.P School Teacher. In response to the case moulded by the petitioner with reference to Rule 33(b)(2) Part I, KSR, it has been stated that, as per G.O. (P)217/05/Fin dated 11.05.2005 published as SRO. No.526/2005, the Government has amended the Rule 33(b)(2) of Part I KSR deleting the 'third proviso' to the said Rule, by virtue of which, the claim put up by the petitioner for granting increment in response to the leave period is not liable to be entertained. 6. Heard the learned Counsel for the petitioner as well as the learned Government Pleader, at length. ## **W.P.(C)No.28763 OF 2011** ## **6** 7. During the course of hearing, the learned Counsel appearing for the petitioner sought to place reliance on the decision rendered by this Court reported in _**Mahesh M.D. vs. State of Kerala and others**_ ( **2011 (2) KLT 930),** judgment dated 29.05.2012 in W.P(C) 21483 of 2010 and also on the Division Bench decision in _**State of Kerala vs. Mahesh**_ **(2012 (3) KLT 675 )** (arising from _**Mahesh M.D. vs. State of Kerala and others**_ [ **2011(2) KLT 930** ]). Reference has been made in the writ petition to the decision rendered by another learned Judge, ie. the decision in _**Deepika vs. State of Kerala**_ **(2007 (1) KLT 71** ) holding that the period of leave sanctioned for completing B.Ed Course shall be counted for service benefits including increments and pension. 8. There is no dispute to the fact that Ext.P2 sanction was accorded by the first respondent/Government, granting leave under Rule 88 of Part I KSR. Rule 88 reads as follows: _“88. Leave without allowances:- (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_ **7** ## **W.P.(C)No.28763 OF 2011** _State and Subordinate Services Rules, 1958 shall be regulate 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 permanent employ, the duration of leave without allowances shall not exceed 3 months on any one occasion._ _(iii) When the period of absence of any officer is without proper application for leave, Government may retrospectively convert the period of absence into leave without allowance even when any other kind of leave was admissible at the time of absence._ _[Exception 1. When a period of suspension is retrospectively treated as leave without allowances by the revising or appellate authority the limitation of admissible leave without allowances to three months to officers not in permanent employ will not apply]._ _[Exception 2.- The limitation in sub-rule (ii) shall not apply to the grant of leave without allowances regulated by the rules in_ **8** ## **W.P.(C)No.28763 OF 2011** ## _Appendices XIIA , XIIB and XIIC]_ 9. The primary question to be considered is whether the course pursued by the first respondent granting leave sought for as per Ext.P1 application was bad or defective in any manner. On going through the contents of Ext.P1 application, it is seen that the petitioner has not mentioned that the leave sought for by him was under Rule 91A of Part I, KSR. Rule 91A of Part I KSR is exclusively for the purpose of acquisition of P.G. Degree and there is no mention in Ext.P1 application that the petitioner was intending to pursue studies in P.G. Course. Against Column No.11, regarding the nature and period of leave applied for, the petitioner has mentioned that it was 'Leave Without Allowance' for _**Study Purpose**_ from 26.10.2010 to 30.09.2011. Again, against Column No.13 as to the ground on which the leave was applied for, it was stated as _**“Leave for study purpose**_ ”. That apart, proviso to Rule 88 (i) of Part I, KSR (which specifies the special circumstances under which LWA can be granted) stipulates that it could be given: (a) when no other leave is, by rule, **W.P.(C)No.28763 OF 2011** **9** admissible; or (b) when other leave is admissible, but the officer concerned applies in writing for the grant of leave without allowances. As mentioned already, Ext.P1 application for leave does not even refer to the particular course of study, that it was for a PG Course or that it was sought for under Rule 91A of Part I KSR. On the other hand, the petitioner had clearly mentioned against Col.No. 11 that he was applying for LWA ( _**for study purpose)**_ . Since the petitioner specifically requested for “LWA”, by virtue of Rule 88(i)(b), there was nothing wrong on the part of the first respondent/Government in having considered the same and sanctioned under Rule 88 of Part I KSR. The fact that the said leave will not be counted for the purpose of increment or such other service benefits, is only a natural consequence, by virtue of the relevant rule position. 10. Coming to the claim with reference to Rule 91A of the Rules, it reads as follows: _[_ _**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_ **10** ## **W.P.(C)No.28763 OF 2011** _undergoing Post-Graduate 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.]_ 12. The basic question to be considered, for granting leave under Rule 91A for undergoing Post Graduate Course, is whether it is in the sphere of duties of the applicant, which are **primarily of benefit to the State** . It has been specifically mentioned in the Rule itself, that leave under Rule 91A shall be granted only with due regard to the usefulness of the higher studies to the public service. As it stands so, the point is whether the M.Ed course undergone by the petitioner (who is only an L.P.School teacher) is in the sphere of his duties, which are primarily of benefit to the State and as to the usefulness of such higher studies to the public service. 11. The petitioner, admittedly has crossed the age of 43 and is working as an LP School teacher. The training qualification prescribed for appointment as an LP School teacher is only TTC and not even B.Ed. By virtue of the relevant provisions of law, as **11** ## **W.P.(C)No.28763 OF 2011** explained by this Court as per the decision reported in **1999 (1) KLT 504 (Geetha vs. State of Kerala)** , no person having B.Ed degree could be appointed as a Lower Primary School Teacher and as such, P.G. Training qualification of M.Ed is far beyond the zone of consideration. It is true that acquisition of superior qualification is contemplated under Rule 91 of Part I KSR and scope of obtaining such qualification like B.Ed has been held as beneficial to the person concerned to claim the benefit with reference to the chance for promotion as Head Master or such other levels as contemplated under Chapter XXXI Rule 2 KER. In the decision reported in **2007(1) KLT 71 (** _**Deepika vs. State of Kerala )**_ the learned Judge of this Court observed that a training course like B.Ed is not a Post Graduate course and hence Rule 91A stands on a different footing with reference to the case of the petitioner therein, whose leave period was for acquiring qualification of B.Ed. It was also observed that as per the second proviso to Rule 33 (b)(2) LWA 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 . It was accordingly **12** ## **W.P.(C)No.28763 OF 2011** that relief was granted to the petitioner allowing the writ petition, which however does not come to the rescue of the petitioner herein, whose leave period was for acquisition of PG degree in the training qualification, i.e. M.Ed and further when that the proviso to Rule 33 (b)(2) stands deleted by Government as per Government Order, G.O(P)217/2005/Fin dated 11.05.2005, published as SRO.526/2005, as specifically pleaded in the counter affidavit. 14. The next question to be considered is whether Rule 91A of Part I KSR would come to the rescue of the petitioner even if the application preferred by the petitioner were under Rule 91A. Rule 91A clearly stipulates that concerned PG course shall be in the sphere of duties of the applicant, which are primarily of benefit to the State and that the same could be considered and granted only with due regard to the usefulness of higher studies to the public service. In **2011(2) KLT 930** (cited supra **)** , the study leave applied for by the petitioner therein, who was an Upper Primary School Assistant, was to undergo M.Sc in Physics . In the application itself, the said petitioner had sought for the leave specifically under Rule 91A of Part I KSR. But the **13** ## **W.P.(C)No.28763 OF 2011** same came to be granted only **under Rule 82 and 88 of Part I, KSR.** The application preferred by the said petitioner to have it converted as one under Rule 91A of Part I KSR was rejected, which in turn was under challenge before this Court. After considering various facts and circumstances and also the relevant rule position, the learned Judge observed that the petitioner was working as an Upper Primary School Assistant, teaching science subjects with degree in Physics and B.Ed in Physical Science. It was held that M.Sc in Physical Science was certainly within the sphere of his duties and by acquisition of that qualification, the Government servant would be in a position to discharge their duties in a better manner and thus to serve the State better imparting better education/teaching to the students on the subject. An Upper Primary School Assistant obtaining M.Sc in Physics would be in a better position to teach students than those teachers who do not possess M.Sc in Physics and thus it was held that acquisition of said qualification would primarily to the benefit of the State as envisaged under Rule 91A. It was also mentioned that the Government themselves had granted leave under Rule 91A vide Ext.P3 therein to another teacher of the very **14** ## **W.P.(C)No.28763 OF 2011** same school for undergoing Postgraduate course and as such, the Government was not correct or justified in having forced the writ petitioner to alter his application to be one under Rule 88 while granting the leave. The said position was followed by another learned Judge, while passing the judgment in W.P.(C)21483 of 2010, wherein also, the application preferred by the concerned teacher was specifically under Rule 91A of Part I KSR for obtaining M.Sc degree in Computer Science, which however came to be granted only under Rule 88 of Part I KSR. The decision reported in **2011 (2) KLT 930** was sought to be challenged by the State by filing W.A. 1639 of 2011. In view of the facts discussed herein before interference was declined and appeal was dismissed. However it was found necessary to direct the Government to issue necessary guidelines for grant of leave under Rule 91A attaching significance for reasonable duration of service, after acquiring higher educational qualification, potentials of applicants for promotion and usefulness of higher education in promoted positions, also insisting for execution of a bond if required for ensuring continued service for a reasonable period. The observations made by the Bench in paragraph 4 are **15** ## **W.P.(C)No.28763 OF 2011** ## relevant, which is extracted below: _1."xxxxxxx Even though study for PostGraduate Courses only is stated as the ground for applying for leave for teachers and Doctors, the only condition in the Rule for eligibility for leave is that the higher studies should be useful to be public service. So much so, what is required to be considered is the nature of service rendered by the applicants not only in the post he was holding at the time of applying for leave but the eligibility for promotion on acquiring higher educational qualification and the potential in him to serve the community in higher positions to which he is likely to be promoted. Even though Post-Graduate studies in Physics for the respondent would not have benefited the students he was teaching in the elementary classes in the Upper Primary School, considering his eligibility for promotion by transfer as High School Teacher and later as Higher Secondary School Teacher which he really got, we feel the Post -Graduate degree in Science acquired by him will make him a better teacher. Further, as already stated, we feel while considering leave under R.91A what the Government has to consider is the age of the applicant, the period of service he is_ **16** ## **W.P.(C)No.28763 OF 2011** _likely to get and unless there is likelihood of his continuing in service after acquiring the higher educational qualification and there is a sufficient duration of service and usefulness of the education in the nature of employment, there will be no justification to grant leave under R.91A.”_ **15.** From the above, it is clear that for granting leave under Rule 91A, the fundamental requirement to be satisfied is that it shall be primarily of benefit to the State and usefulness of such higher studies to the public service. It is to be considered whether the test to meet the requirement as above stands satisfied in the present case. Admittedly, the petitioner is only a Lower Primary School Teacher and acquisition of M.Ed degree though a Post Graduate degree, is of no use to the State/Department/students/general public in so far as imparting of teaching by the petitioner in Classes 1 to Class V is concerned. Acquisition of such higher qualification in the PG Training course may be required only for imparting training to the B.Ed students (?). In what way the petitioner's M.Ed comes to help the State or students to whom the petitioner is imparting teaching is **17** ## **W.P.(C)No.28763 OF 2011** nowhere brought about in the writ petition nor was it explained during the course of hearing . In view of admitted facts as to the nature of engagement of the petitioner and the PG qualification in M.Ed obtained by the petitioner is concerned, the position stands different from the one considered by this Court as per the decision cited supra and the benefit flowing there from is not liable to be extended to the petitioner. In the above circumstance, this Court finds that there is absolutely no merit or bonafide in the writ petition and the same is dismissed accordingly. ## **P.R.RAMACHANDRA MENON JUDGE** _lk_