Sheeja K. Oomman v. State of Kerala and Others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE DEVAN RAMACHANDRAN THURSDAY, THE 5[TH] DAY OF AUGUST 2021 / 14TH SRAVANA, 1943** ## **WP(C) NO. 42132 OF 2018** ## **PETITIONER:** SHEEJA K. OOMMAN AGED 42 YEARS W/O ROOSO.P.C, L.P.S.A.S.R.V.U.P.S.CHANGANKULANGARA,OCHIRA,KOLLAM, RESIDING AT MAPPILA VEETTIL PANDAKASALA,KOLLAKA,KARUNAGAPPALLY,KOLLAM. BY ADV B.MOHANLAL ## **RESPONDENTS:** 1 STATE OF KERALA, REPRESENTED BY THE PRINCIPAL SECRETARY TO GOVERNMENT,GENERAL EDUCATION DEPARTMENT,SECRETARIAT,THIRUVANANTHAPURAM-695 001 2 THE DIRECTOR OF PUBLIC INSTRUCTIONS, JAGATHY,THIRUVANANTHAPURAM-695 014 3 THE DISTRICT EDUCATIONAL OFFICER, COLLECTORATE,CIVIL STATION P.O.KOLLAM 691 013 4 THE ASSISTANT EDUCATIONAL OFFICER, KARUNAGAPPALLY,KARUNAGAPPALLY P.O.KOLLAM-695 518 5 THE MANAGER, S.R.V.U.P.S CHANGANKULANGARA,OCHIRA P.O.KOLLAM-690 526 BY ADV GOVERNMENT PLEADER SRI.V.VENUGOPAL-GP THIS WRIT PETITION (CIVIL) HAVING COME UP FOR ADMISSION ON 05.08.2021, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: **WP(C) NO. 42132 OF 2018** **2** ## **JUDGMENT** The petitioner, who is working as a Lower Primary School Teacher (LPST) in “S.R.V. U.P.S”, Ochira, Kollam, impugns Exts.P3, P4, P6, P7, P8 and P9 orders which denies her maternity leave with allowances, for the period between 03.06.2003 and 16.10.2003. 2. The petitioner says that she was appointed as an L.P.S.T on 02.06.2003 and approved through Ext.P6 with effect from that date. She says that since she had delivered a child by then, she applied for leave from 03.06.2003 to 15.10.2003 and that she was entitled to do so under the sanction of Rule 100 of Part I of the Kerala Service Rules (KSR), since she was a 51A claimant – she having approved prior service between 05.10.2000 and 21.12.2000 and between 15.07.2001 and 14.07.2002. 3. The petitioner asserts that, therefore, she cannot be treated as a fresh recruit, as has been now stated in Ext.P7, so as **WP(C) NO. 42132 OF 2018** **3** to deny her the benefit of Rule 100 of Part-I KSR and to bring her under Rule 88 (ii) of Part-I KSR, thus granting her only leave without allowances for the period in question. The petitioner, therefore, prays that the impugned orders be set aside and the Authorities be directed to grant her maternity leave for the period mentioned above, forthwith. 4. The submissions of the petitioner, as argued by her learned counsel – Sri.B.Mohanlal, were countered by the learned Government Pleader – Sri.V.Venugopal, by showing me that the petitioner could have obtained any benefit only under the mandate of Note-5 of Rule 100 of Part - I KSR. He submitted that as per this Note, female recruits through the Public Service Commission, who joined duty within 135 days of the delivery, shall on joining, be granted the balance portion of the maternity leave admissible as of the date of joining duty. He submitted that since the petitioner was approved with effect from 02.06.2003 and since she took leave with effect from 03.06.2003 till 15.10.2003, the **WP(C) NO. 42132 OF 2018** **4** benefit of Note - 5 will not apply to her, because it was brought into the statute only on 06.02.2006. He submitted that, therefore, at the time when the petitioner availed leave, the only provision that would apply to her was Rule 88 (ii) of Part-I KSR and that the Government has, therefore, granted the said benefit correctly through Ext.P7. He, therefore, prayed that this writ petition be dismissed. 5. When I evaluate the afore submissions of the learned Government Pleader on the touchstone of the provisions of Rule 100 of Part-I KSR, it becomes manifest that Note-5 to it only applies in the case of fresh recruits and not to persons who were already in service. 6. In the case at hand, the petitioner certainly was appointed substantively to the post of LPST only on 02.06.2003 and her approval was validly granted with effect from that date, through Ext.P6. However, what is important in this case is that she had, admittedly, approved prior service between 05.10.2000 **WP(C) NO. 42132 OF 2018** **5** and 21.12.2000 and between 15.07.2001 and 14.07.2002; and thus became entitled to claim further appointments, under the purlieus of Rule 51A of Chapter IVA of the Kerala Education Rules (KER). Since this fact is expressly admitted by the respondents, I fail to understand how they have applied Note-5 of Rule 100 of Part 1 KSR to her and not Rule 100 of Part –I KSR, which would have entitled to her to 135 days of leave from the time she availed it. Merely because she had been retrenched subsequent to the year 2002, before she was appointed in the year 2003, it would not change the legal position at all and I am certain that she is entitled to the benefit under Rule 100 of Part-I KSR and not under Rule 88(ii) of Part-I KSR as has been stated in Ext.P7. For the afore reasons and being guided by the judgments of this Court in _**Mini vs. Life Insurance Corporation of India**_ [2018 (1) KHC 307] _**Rakhi.P.V. and Others vs. State of Kerala and Another**_ [2018 (2) KHC 251], I allow this writ petition and set aside Ext.P9, with a consequential direction to the 4[th] respondent **WP(C) NO. 42132 OF 2018** **6** – AEO to grant the benefits of maternity leave to the petitioner between 03.06.2003 and 15.10.2003, with all eligible benefits during the said period to the petitioner within a period of one month from the date of receipt of a copy of this judgment. Sd/- ## **DEVAN RAMACHANDRAN** **JUDGE** SAS05/08/2021 **WP(C) NO. 42132 OF 2018** **7** ## **APPENDIX OF WP(C) 42132/2018** PETITIONER EXHIBITS |EXHIBIT P1|THE TRUE COPY OF THE RELEVANT PAGES OF THE| |---|---| ||SERVICE BOOK OF THE PETITIONER EVIDENCING THE| ||APPROVAL OF APPOINTMENT OF THE PETITIONER| |EXHIBIT P2|THE TRUE COPY OF THE APPOINTMENT ORDER DATED| ||2.6.2003 ISSUED BY THE 5TH RESPONDENT TO THE| ||PETITIONER| |EXHIBIT P3|THE TRUE COPY OF THE ORDER NO B1/8617/05/K.DS| ||DATED 28.10.2005 ISSUE BY THE 3RD RESPONDENT| |EXHIBIT P4|THE TRUE COPY OF THE ORDER NO K.DIS| ||F4/15944/06 DATED 15.6.2006 ISSUED BY THE 2ND| ||RESPONDENT| |EXHIBIT P5|THE TRUE COPY OF THE HEARING NOTE DATED| ||31.7.2009 SUBMITTED BY THE PETITIONER BEFORE| ||THE 1ST RESPONDENT| |EXHIBIT P6|THE TRUE COPY OF THE GO(RT) NO| ||3274/2010/G.EDN DATED 26.7.2010 ISSUED BY THE| ||1ST RESPONDENT| |EXHIBIT P7|THE TRUE COPY OF THE ORDER NO| ||10933/L2/2012/G.,EDN DATED 17.3.2012 ISSUED| ||THE 1ST RESPONDENT| |EXHIBIT P8|THE TRUE COPY OF THE ORDER NO| ||B1/1817/2012/L.DIS DATED 12.9.2012 ISSUED BY| ||THE 3RD RESPONDENT| |EXHIBIT P9|THE TRUE COPY OF THE ORDER GO(RT) NO| ||2506/2014/G.EDN DATED 25.6.2014 ISSUED BY THE| ||1ST RESPONDENT| |EXHIBIT P10|THE TRUE COPY OF THE ORDER NO| ||SSA/CVRA/80/2016-17 DATED 20.2.2017 ISSUED BY| **8** ## **WP(C) NO. 42132 OF 2018** THE 3RD RESPONDENT