State of Kerala & Deputy Director of Education v. Anish P. & The Manager, S.N.D.P. Higher Secondary School, Aluva

IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT:- THE HON'BLE THE CHIEF JUSTICE MRS. MANJULA CHELLUR & THE HONOURABLE MR.JUSTICE K.VINOD CHANDRAN WEDNESDAY, THE 23RD DAY OF JANUARY 2013/3RD MAGHA 1934 ## **W.A.No.2054 of 2012** ------------------------------------------- AGAINST THE JUDGMENT IN W.P.(C).21483/2010 DATED 29-05-2012 --------------------- **APPELLANTS/** RESPONDENTS 1 & 2:- ------------------------------------------------------ 1. THE STATE OF KERALA, REPRESENTED BY THE SECRETARY TO GOVERNMENT, GENERAL EDUCATION DEPARTMENT, GOVERNMENT SECRETARIAT, THIRUVANANTHAPURAM - 695 001. 2. THE DEPUTYDIRECTOR OF EDUCATION, ERNAKULAM, KOCHI - 682 011. BY SPECIAL GOVERNMENT PLEADER SMT.GIRIJA GOPAL. ## **RESPONDENTS/** PETITIONER & 3RD RESPONDENT:- --------------------------------------------------------------------------- 1. ANISH. P., U.P.S.A., S.N.D.P. HIGHER SECONDARY SCHOOL, ALUVA, ERNAKULAM DISTRICT - 683 101. 2. THE MANAGER S.N.D.P. HIGHER SECONDARY SCHOOL, ALUVA, ERNAKULAM DISTRICT - 683 101. R1 BY ADV. SRI.M.V.S.NAMBOOTHIRY. R2 BY ADV. SRI.A.N.RAJAN BABU. THIS WRIT APPEAL HAVING COME UP FOR ADMISSION ON 31.12.2012, THE COURT ON 23-01-2013, DELIVERED THE FOLLOWING:- Manjula Chellur, C.J. & K.Vinod Chandran, J. ------------------------------------------W.A.No.2054 of 2012 -------------------------------------------Dated this, the 23[rd] day of January, 2013 ## JUDGMENT ## K.Vinod Chandran, J.: Impugned in the Writ Appeal filed by the State, is the judgment of the learned Single Judge directing the appellant-State to convert the leave sanctioned to the 1[st] respondent/writ petitioner as one under Rule 91A of Part I of the Kerala State Rules (KSR). The 1[st] respondent was before the learned Single Judge challenging Exhibit P7 order passed by the Government, rejecting his application for modification of Exhibit P3 order, by which Leave Without Allowance was granted under Rule 88 of the KSR. 2. The 1[st] respondent/writ petitioner, while working as Upper Primary School Assistant (for short “UPSA”) in the 2[nd] respondent-school, applied for leave for pursuing higher studies, more specifically 'post-graduation in Computer Science'. The application, produced as Exhibit P1, though styled as one under Rule 91A Part I KSR, described the nature and period of leave applied for as “Leave Without Allowance for Two years from W.A.No.2054/2012 - 2 - 05.09.2007 to 03.09.2009”. The Government having considered the application, passed Exhibit P3 order granting “Leave Without Allowance” under Rule 88 Part I KSR and also specifically subject to the condition that the Leave Without Allowance will not count for increment, grade promotion, accumulation of Earned Leave or pension. The petitioner accepted Exhibit P3 order and proceeded on leave, completed the course and joined back for duty with approval from the authorities. The prayer for cancelling the unavailed Leave Without Allowance was also granted and the petitioner permitted to rejoin duty. Then, the petitioner raised the claim for modification of Exhibit P3 order to one under Rule 91A Part I KSR, which would entitle the consideration of the periods spent on leave to be treated as service for the purpose of increment, grade promotion and pension. 3. The learned Single Judge, relying on a decision of this Court reported in _**Mahesh v. State of Kerala,**_ **2011 (2) KLT 930,** found that the issue raised in the instant case is identical except for the fact that the school in the decision referred to supra was a Government School, while in the instant case it is an aided school. W.A.No.2054/2012 - 3 - 4. The State challenges the said judgment on the ground that the facts are clearly distinguishable. It is submitted that the petitioner in the instant case was working as an UPSA and the post-graduate degree in Computer Science cannot be said to be of any benefit to the State, since the said subject is not included in the curriculum for the upper primary students and the post-graduate course cannot be said to be coming within the sphere of the duties of the UPSA. 5. The learned counsel for the 1[st] respondent/writ petitioner, however, would urge on the basis of the decision in _**State of Kerala v. Dr.V.M.Kurshid,**_ **2000 (1) ILR Kerala 335** , and G.O. (General) No.2251/09/GED dated 8.6.2009 to contend that the petitioner is entitled to be granted Leave Without Allowance under Rule 91A Part I KSR and the judgment of the learned Single Judge is unassailable. 6. _**Dr.V.M.Kurshid's case**_ ( _supra_ ) was a case in which the employee had unauthorizedly absented from duty and on rejoining, disciplinary proceedings were initiated and punishment of barring of one increment was imposed. Subsequently, the Government passed an order regularizing the periods spent on W.A.No.2054/2012 - 4 - unauthorized absence, but treating the leave as “Leave Without Allowance” under Rule 88 Part I KSR. The learned Single Judge held that the denial of service benefits, including pension, on the regularization of the period spent as unauthorized absence, would amount to a second punishment. In appeal, the Division Bench found that Rule 88 has absolutely no application to the facts of the case. In the absence of any specific provision to deny the service benefits on regularizing the period of unauthorized absence, it was held that no such condition could have been imposed. The Division Bench had, in fact, clearly found that Rule 88 Part I KSR was not applicable on the facts and we are at a loss to understand as to how the said judgment would help the 1[st] respondent/petitioner. 7. The next contention of the 1[st] respondent/petitioner is with respect to the Government Order of 8.6.2009. It speaks of a request by the Director of Public Instruction dated 17.4.2009, to bring out text books on Information Technology in the Upper Primary classes. However, the Government was of the opinion that it need not be taught as a subject, but it could definitely be used as a tool for imparting the subjects coming within the curriculum. Hence, it was decided by the said Government Order to bring out W.A.No.2054/2012 - 5 - hand-books to bring awareness as to how Information Technology can be usefully used in the study of subjects which are included in the curriculum. This is not to say that the petitioner's post graduate qualification in Computer Science would enure to the benefit of the State. Nor can it be inferred that this Government Order would bring the course, in which the petitioner took post-graduation, within the sphere of duties of an UPSA. 8. The learned Single Judge, in fact, has found the instant case to be identical to that of _**Mahesh**_ ( _supra_ ). _**Mahesh**_ was a case in which an UPSA, teaching Science subjects in the Upper Primary School, had sought for leave to pursue post-graduate studies in Physics. It was in such circumstance that the acquisition of post-graduate degree in Physics was held to be definitely covered under Rule 91A, since the teacher was engaged in the work of teaching Science subjects. In fact, even in the said case the specific contention with respect to the petitioner therein being estopped from claiming leave under Rule 91A after having accepted the grant under Rule 88 though raised by the Government Pleader, was declined only for the reason that the same was not pleaded in the counter affidavit. W.A.No.2054/2012 - 6 - 9. In the instant case, the petitioner had applied for “Leave Without Allowance” and styled the application as one under Rule 91A. Leave Without Allowance is granted under Rule 88 of Part I KSR and that was what was granted on the application of the petitioner by Exhibit P3 with the specific rider that the period will not qualify for any incidence of service. The petitioner accepted it and proceeded for the course. After completing the course, having duration of about two years, the petitioner joined back for duty. The petitioner's unavailed leave was also cancelled. Having accepted the grant of “Leave Without Allowance” without any incidence of service, and having enjoyed the benefits thereunder, the petitioner cannot be permitted to turn around and contend for all incidence of service provided under a different provision, i.e., Rule 91A of Part I KSR. In fact, in a similar situation a Division Bench of this Court in _**Shivadasan v. State of Kerala,**_ **2012 (2) KLT 121,** has held that such a procedure cannot stand the test of law. _**Mahesh**_ ( _supra_ ), hence, is clearly distinguishable on facts. In the instant case, Computer Science is not a subject coming within the syllabi of Upper Primary schools and the post-graduate course pursued by the petitioner in that subject cannot be said to be coming within the W.A.No.2054/2012 - 7 - sphere of duties as enjoined under Rule 91A of Part I KSR. For the above reasons, we are of the opinion that the impugned judgment cannot be allowed to stand. The 1[st] respondent/writ petitioner cannot claim modification of Exhibit P3 order to one under Rule 91A of Part I KSR. The judgment impugned herein is set aside the Writ Appeal stands allowed. No costs. Sd/Manjula Chellur, Chief Justice vku/01/01. Sd/K.Vinod Chandran, Judge. ( true copy)