State of Kerala and Others v. Fr. M.G. Mathew and Principal, Mar Ivanious College, Thiruvananthapuram

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN** ## **&** **THE HONOURABLE MR. JUSTICE P.V.KUNHIKRISHNAN** **FRIDAY, THE 28TH DAY OF FEBRUARY 2020 / 9TH PHALGUNA, 1941** **WA.No.766 OF 2012** **AGAINST THE JUDGMENT IN WPC NO.17857/2003 DATED 23-06-2011 OF THE HIGH COURT OF KERALA** ## **APPELLANTS/RESPONDENTS 1 TO 3:** **1 STATE OF KERALA REPRESENTED BY THE PRINCIPAL SECRETARY, HIGHER EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM.** - **2 THE DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** - **3 DEPUTY DIRECTOR OF COLLEGIATE EDUCATION, THIRUVANANTHAPURAM.** **BY SR. GOVERNMENT PLEADER SRI.P.N. SANTHOSH** ## **RESPONDENTS/PETITIONER & 4TH RESPONDENT:** - **1 FR.M.G.MATHEW SR. LECTURER IN FRENCH, DEPARTMENT OF FRENCH, MAR IVANIOUS COLLEGE, THIRUVANANTHAPURAM.-695 001.** - **2 PRINCIPAL, MAR IVANIOUS COLLEGE, THIRUVANANTHAPURAM-695 001.** ## **R1 BY ADV. SRI.J.HARIKUMAR** **THIS WRIT APPEAL HAVING BEEN FINALLY HEARD ON 28-02-2020, THE COURT ON 28-02-2020 DELIVERED THE FOLLOWING:** WA.No.766 OF 2012 2 ## **JUDGMENT** ## **K. Vinod Chandran, J.** **The State is aggrieved with the order passed by the learned Single Judge granting entire service benefits for the leave period, in which the writ petitioner had completed a higher Diploma in French, which course was undertaken in France. The learned Single Judge also relied on** _**Mahesh v. State of Kerala [2011 (2) KLT 930]**_ **, which has been approved by a Division Bench in** _**State of Kerala and Others v. M.D. Mahesh [2012 (3) KHC 575]**_ **.** **2. The petitioner in the writ petition was working as a Senior Lecturer in the Department of French in the Mar Ivanious College, Thiruvananthapuram; an aided institution. He retired as Principal from that College in the year 2011. The petitioner was granted leave as per Exts.P2 & P3 for two spells. The petitioner, on the basis of the leave granted, went abroad and completed the course. The petitioner joined back the Institution presumably in** WA.No.766 OF 2012 3 **the year 2000. The petitioner then made representations for converting the leave from Rule 88 of Part-I of the Kerala Service Rules, 1959 [for brevity, 'the KSR'] to Rule 91A. The same having been rejected the petitioner was before this Court with a writ petition in the year 2003, ie. three years after joining back from leave.** **3. The learned Counsel for the petitioner submits that in fact the recommendation of the Deputy Director of Collegiate Education as seen from Ext.P1 as also Ext.P6, pursuant to a representation, was for permitting the petitioner to avail of the service benefits for the period in which he had studied for a Diploma course in France, that too in the subject of which he was a faculty in the aided College. The learned Counsel for the petitioner submits that the Diploma would enhance the quality of the duties discharged as a faculty and inure to the benefit of the students and in the said circumstances the leave should have been sanctioned under Rule 91A of Part-I** WA.No.766 OF 2012 4 **KSR. It is also submitted that there were other instances of the Government having sanctioned leave under Rule 91A KSR, as evidenced from Ext.P5, wherein the person was granted leave under Rule 88, but later converted to Rule 91A.** **4. We first take note of** _**State of Kerala and Others v. M.D. Mahesh,**_ **wherein a UPSA, who was selected by the PSC, had sought for leave to do his Post Graduation in Physics. The learned Single Judge and the Division Bench were of the opinion that in those circumstances, the P.G. in Physics would definitely inure to the benefit of the students. Further the UPSA was only 36 years old and he was promoted to the higher post of Higher secondary School Teacher, by virtue of the qualification acquired. It was on that reasoning that the petitioner therein was permitted to be granted leave under Rule 91A treating the period as service for all purposes.** **5. In the present case we do not find any** WA.No.766 OF 2012 5 **identity, since the writ petitioner was already a Post Graduate and he had sought for leave for attending a course leading to Post Graduate Diploma in the subject in which he was a faculty in the College. We make the following extract from the cited decision:** _**“.... Even though study for Post-Graduate 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 the public service. So much so, what is required to be considered is the nature of service rendered by the applicant 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**_ WA.No.766 OF 2012 6 _**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 likely to render after completion of higher studies, the higher positions he is 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. All the tests are satisfied in the case of the respondent because he was aged only 36 years of age with 5 years of experience as teacher in the Upper Primary School and he was already B.Sc. B.Ed. in Physical Science when he went for Post-graduate studies on leave. Therefore, his long service and potential for promotion to the post of High School Assistant and later as Higher Secondary School teacher should have been in the contemplation of appellants while considering his application for leave under R.91A.**_ **6. We have underlined the portions in the above extract to emphasise the grounds on which leave could be granted under Rule 91A. In the present case, it is not clear as to whether the Diploma in French obtained at France is a higher qualification that the** WA.No.766 OF 2012 7 **Post Graduation than the writ petitioner already had. Definitely it does not enable him to a higher position and the petitioner had only 11 years service left when he returned after the course.** **7. We are of the opinion that it is for the Government to decide as to whether the qualification would inure to the benefit of the students. In the case above cited, the UPSA had the Graduate qualification of Physics and he had sought for Post Graduation in the same subject which enhanced his qualities as a faculty and also made him eligible for a higher post. Rule 91A also speaks of Post Graduate Courses, which qualification the petitioner herein, had in the subject in which he was a faculty.** **8. In any event, the Government had considered the application as also the recommendation of the Director of Collegiate Education and found that the leave can be granted only under Rule 88 KSR. Exts.P2 & P3 are passed in the years 1997 and 2000, for two different spells. In fact the order of 2000 is after** WA.No.766 OF 2012 8 **the leave period, the petitioner did not choose to challenge the orders at that point of time. The petitioner also had proceeded on leave on the basis of Ext.P2 order without challenging the same. Quite realising that the first spell of leave was sanctioned under Rule 88, the petitioner applied for the second spell and continued in the very same course, even without sanction. Having accepted the order of sanction of leave under Rule 88, the petitioner cannot turn around and seek a conversion to Rule 91A. We hence set aside the judgment of the learned Single Judge and allow the appeal, dismissing the writ petition. There is no order as to costs.** **Sd/-** **K. VINOD CHANDRAN, JUDGE.** **Sd/-** **P.V. KUNHIKRISHNAN, JUDGE.** **sp/28/02/2020** **//True Copy//** **P.A. To Judge**